FACTS

Dusko Tadic was born on 1 October 1955 in Kozarac. His father had been a hero in World War II
and his mother a detainee in the camp of Jasenovac which had been run by Croats. Dusko Tadic
joined the SDS (Serbian Democratic Party) in 1990.

On 30 April 1992, the town of Prijedor was taken by the SDS with the support of military and
police forces. This act served as a prelude to the party taking control over the whole district of
Prijedor, including the town of Prijedor and the town of Kozarac, about ten kilometres further
east.

The attack on Kozarac lasted two days and caused the death of more than 800 civilians – a
considerable part of the entire population of about 4’000 people. Once the town had been
captured, the Bosnian Serbs executed raids and expelled the entire non-Serbian population by
foot. In the course of the ethnic cleansing of Kozarac, numerous civilians were beaten, robbed
and killed by the military and paramilitary forces of the Bosnian Serbs. The terrified inhabitants
of the town were lead away to the camps of Omarska, Keraterm and Trnopolje, where their
suffering continued.

The establishment of these camps was part of the plan to create Greater Serbia following the
expulsion of all non-Serbian residents from the district of Prijedor. The most appalling
conditions prevailed in the Omarska camp, the most famous of the three.

As a leading member of the SDS in the predominantly Muslim town of Kozarac and as a
member of the paramilitary forces which supported the regular units of the 1st Krajina Corps in
their attack, Dusko Tadic was accused of having actively taken part in all the stages of the attack
against the town. (The most serious crime alleged to have been committed personally by Dusko
Tadic was the killing of two Muslim policemen in Kozarac.)

Dusko Tadic was also accused of having taken part in the ill-treatment committed in the camps,
particularly in the Omarska camp.

Before the conflict broke out, approximately 50’000 Muslims and 6’000 Croats lived in the
district of Prijedor. After the ethnic cleansing, these numbers were reduced to around 6’000
and 3’000 respectively, those remaining living under extremely difficult conditions.

Following the completion of the ethnic cleansing campaign, the accused was entrusted with
political responsibility in the town of Kozarac and was elected President of the local council of
the SDS on 15 August 1992.

In June 1993, Tadic was mobilised and sent to the war zone near Gradacac, from where he fled
the following day. He spent the next two months in hiding to avoid being drafted into military
service.
Tadic travelled to Nuremberg in August 1993. He later continued his journey to Munich, where
he lived until 12 February 1994, when he was arrested by the German police. On 24 April 1995,
he was transferred to the International Criminal Tribunal for the Former Yugoslavia (ICTY) in
The Hague.

LEGAL PROCEDURE

Tadic travelled to Nuremberg in August 1993. He later continued his journey to Munich, where
he lived until 12 February 1994, when he was arrested by the German police. On 24 April 1995,
he was transferred to the International Criminal Tribunal for the Former Yugoslavia (ICTY) in
The Hague.

At the request of the ICTY Prosecutor, Tadic was transferred to The Hague on 24 April 1995.

In its modified form, the indictment contained 34 crimes within the jurisdiction of the tribunal.
When he first appeared before the court on 26 April 1995, the defendant pleaded not guilty on
all counts. Three counts were withdrawn during the trial at first instance.

On 7 May 1997, the Trial Chamber II found the defendant guilty on 9 counts, partially guilty on
2 counts and not guilty on the remaining 20 counts.

Dusko Tadic was convicted of:

– violations of the laws or customs of war, pursuant to article 3 of the ICTY Statute (counts 10,
13, 16, 22 and 33 of the indictment) and
– crimes against humanity, pursuant to article 5 of the Statute, committed through _ _
“persecutions” (count 1) and “other inhumane acts” (counts 11, 14, 17, 23 and 34)

Regarding the grave breaches of the Geneva Conventions, however, the Trial Chamber mostly
acquitted Tadic. It was found that article 2 of the Statute was inapplicable because it could not
be established that the victims had had, at any time during the events described in the
indictment, the status of protected persons according to the Geneva Conventions.

The sentences on each count pronounced by the Trial Chamber II on 14 July 1997 ranged from 6
to 20 years.

Both parties appealed against the judgment, with the defence also appealing against the
sentencing decision.

On 15 July 1999, the Appeals Chamber found that the victims of the crimes according to the
indictment were protected persons based on the applicable provision of the Geneva
Convention (IV). The Chamber further established that – contrary to the findings of the Trial
Chamber II – it had been proven beyond reasonable doubt that the defendant was guilty of the
crimes listed under counts 29, 30 and 31 of the indictment. The Appeals Chamber therefore
found the defendant guilty on counts 8, 9, 12, 15, 21, 29, 30, 31 and 32.

The Appeals Chamber deferred sentencing on these additional counts and both parties agreed
in favour of a referral to a Trial Chamber to deliver a sentencing decision regarding the
additional convictions.

On 11 November 1999, this Trial Chambers pronounced sentences ranging from 6 to 25 years
for each of the additional convictions.

Tadic appealed also against this decision.

On 26 January 2000, the Appeals Chamber partially reversed the judgment of 11 November
1999 with regard to counts 29, 30 and 31 of the indictment and sentenced Tadic to 20 years of
imprisonment for each of the counts mentioned above.

Tadic’s request for revision was refused on 30 January 2002 and so the trial before the ICTY was
thus definitely closed.

Dusko Tadic was transferred to Germany to serve his sentence. According to the Appeals
Chamber’s decision of 26 January 2000 he could not under any circumstances be released
before 27 July 2007 (mandatory minimum sentence of 10 years).

On 18 July 2008, with more than two thirds of his sentence completed, the ICTY ordered Dusko
Tadic’s immediate early release.

On 16 December 2009 Dusko Tadic was arrested in Bosnia and Herzegovina in connection to
the war crimes committed in Cajnice. The Prosecution alleged that from mid-April to the end of
May 1992 Dusko Tadic, Milun Kornjaca and Milorad Zivkovic participated “in a broad and
systematic attack against the population in Cajnice” which resulted in the “detention of
Bosniaks, murder, forcible resettlement, torture and other inhumane acts”.

The Prosecution of Bosnia and Herzegovina charges Tadic with the persecution of Bosniaks in
Cajnice area and the murder of 11 civilians in Mostina on 19 May 1992. A State Prosecution
witness on 13 June 2011 says that a friend told him in May 1992 that indictee Dusko Tadic,
known as Rus, participated in the murder of Bosniaks in a hunters’ cabin in Mostina, Cajnice
municipality.

SPOTLIGHT

This case is important for more than one reason: It was the first case before the ICTY, but more
importantly, the 1995 and 1999 decisions of the Appeals Chamber represent milestones in
contemporary international criminal law.
The first key decision in the Tadic case – and in the jurisdiction of the ICTY in general – was the
Appeals Chamber’s judgment of 2 October 1995.

In this decision, the judges of the Appeals Chamber handed down important decisions which
confirmed on the one hand the legitimacy of the creation of the ICTY. Furthermore, they
admitted that a subsidiary (judiciary) organ of the United Nations could review Security Council
resolutions. With these decisions as a basis, they developed a set of convincing arguments in
favour of the legitimacy of the ICTY.

On the other hand, the Appeals Chamber – after a close examination of customary international
law – came to a conclusion of major importance for the ICTY and the development of
international criminal law in general (§ 134): “All these factors confirm that customary
international law imposes criminal responsibility for grave breaches of the common article 3 [of
the 1949 Geneva Conventions], completed by other principles and general rules (…)”. The
common article 3 of the 4 Geneva Conventions is applicable to armed internal conflicts and,
therefore, the ICTY has criminal jurisdiction to punish violations of these rules. Whether the
alleged crimes of Dusko Tadic were committed in the context of an internal or of an
international armed conflict is thus not relevant: the Tribunal has jurisdiction over them in
either case.

The second milestone is the decision delivered by the Appeals Chamber in 1999, which contains
important considerations concerning the following issues: the method of qualifying
international armed conflicts, the definition of « protected persons » according to the Geneva
Conventions, the weakening of the link between armed conflicts and crimes against humanity
as enumerated in the ICTY Statute, and the development of the theory of joint criminal
enterprise.

Among those important developments of international humanitarian law brought about by

those decisions, one can quote the ones concerning:

– Definition of armed conflict and determination of the scope of application of humanitarian

law:
“…an armed conflict exists whenever there is a resort to armed force between States or
protracted armed violence between governmental authorities and organized armed groups or
between such groups within a State. International humanitarian law applies from the initiation
of such armed conflicts and extends beyond the cessation of hostilities until a general
conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is
achieved. Until that moment, international humanitarian law continues to apply in the whole
territory of the warring States or, in the case of internal conflicts, the whole territory under the
control of a party, whether or not actual combat takes place there.” (Tadic, Appeals Chamber,
Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, §.
70)
– Definition of ‘laws and customs of war’:
“Article 3 is a general clause covering all violations of humanitarian law not falling under Article
2 or covered by Articles 4 or 5, more specifically: (i) violations of the Hague law on international
conflicts; (ii) infringements of provisions of the Geneva Conventions other than those classified
as ‘grave breaches’ by those Conventions; (iii) violations of common Article 3 and other
customary rules on internal conflicts; (iv) violations of agreements binding upon the parties to
the conflict, considered qua treaty law, i.e., agreements which have not turned into customary
international law . . . .” (Tadic, Appeals Chamber, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, October 2, 1995, §. 89)

– Common article 3 is part of customary law:

“[S]ome treaty rules have gradually become part of customary law. This holds true for common
Article 3 of the 1949 Geneva Conventions. . . .” (Tadic, Appeals Chamber, Decision on the
Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, §. 98)

– Definition of international armed conflict:

“It is indisputable that an armed conflict is international if it takes place between two or more
States. In addition, in case of an internal armed conflict breaking out on the territory of a State,
it may become international (or, depending upon the circumstances, be international in
character alongside an internal armed conflict) if (i) another State intervenes in that conflict
through its troops, or alternatively if (ii) some of the participants in the internal armed conflict
act on behalf of that other State.” (Tadic, Appeals Chamber, July 15, 1999, § 84)

– Definition of overall control:

“[C]ontrol by a State over subordinate armed forces or militias or paramilitary units may be of
an overall character (and must comprise more than the mere provision of financial assistance or
military equipment or training). This requirement, however, does not go so far as to include the
issuing of specific orders by the State, or its direction of each individual operation. Under
international law it is by no means necessary that the controlling authorities should plan all the
operations of the units dependent on them, choose their targets, or give specific instructions
concerning the conduct of military operations and any alleged violations of international
humanitarian law. The control required by international law may be deemed to exist when a
State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising,
coordinating or planning the military actions of the military group, in addition to financing,
training and equipping or providing operational support to that group. Acts performed by the
group or members thereof may be regarded as acts of de facto State organs regardless of any
specific instruction by the controlling State concerning the commission of each of those acts.”
“[I]f the controlling State is not the territorial State where the armed clashes occur or where at
any rate the armed units perform their acts, more extensive and compelling evidence is
required to show that the State is genuinely in control of the units or groups not merely by
financing and equipping them, but also by generally directing or helping plan their actions.”
(Tadic, Appeals Chamber, July 15, 1999, § 137, 138)
– Responsibility for joint criminal enterprise:
“[T]he Statute does not confine itself to providing for jurisdiction over those persons who plan,
instigate, order, physically perpetrate a crime or otherwise aid and abet in its planning,
preparation or execution. The Statute does not stop there. It does not exclude those modes of
participating in the commission of crimes which occur where several persons having a common
purpose embark on criminal activity that is then carried out either jointly or by some members
of this plurality of persons. Whoever contributes to the commission of crimes by the group of
persons or some members of the group, in execution of a common criminal purpose, may be
held to be criminally liable, subject to certain conditions.” (Tadic, Appeals Chamber, July 15,
1999, §. 190)

CONTEXT

INTERNATIONAL CRIMINAL TRIBUNAL FOR FORMER YUGOSLAVIA

The conflict in former Yugoslavia from 1991 to 1999, shocked international public opinion
because of the abuses revealed by the press, which were committed by all parties to the
conflict (massacres, forced displacements of population, concentration camps …). The conflict is
considered to consist of several separate conflicts, which were ethnic in nature – the war in
Slovenia (1991), the war in Croatia (1991-1995), the war in Bosnia and Herzegovina (1992-1995)
and the war Kosovo (1998-1999), which also involved the NATO bombing of Yugoslavia in 1999.

The conflicts accompanied the break-up of Yugoslavia, when the constituent republics declared
their independence. The wars mostly ended after peace accords were signed, and new
republics were given full international recognition of their statehood.

In order to restore peace and security in the region, the Security Council acting under Chapter
VII of UN Charter, created on 25 May 1993, by Resolution 827, the International Criminal
Tribunal for the Former Yugoslavia (ICTY). It was determined that pursuant to numerous reports
of, among other, mass killings, systematic detention, rapes, practice of “ethnic cleansing”,
transfers, etc., these acts constituted a threat to international peace and security, necessitating
a reaction by Security Council. As the Tribunal was created during the ongoing conflict, the
Security Council expressed its hopes that ICTY would contribute to halting violations in the
region. Its headquarters are in The Hague, Netherlands.

The Tribunal has jurisdiction to prosecute persons responsible for serious violations of
international humanitarian law – grave breaches of Geneva Conventions, violations of laws and
customs of war, genocide and crimes against humanity – allegedly committed in the territory of
the former Yugoslavia after 1 January 1991, (no end date was specified). Since its creation, the
ICTY has indicted more than 160 people, including heads of states and government members.

The Tribunal’s mandate was originally meant to expire on 31 December 2009, but the Security
Council voted unanimously to extend the mandate of the Court with several judges, including
permanent judges, so that the ongoing trials can be completed. According to the “ICTY
Completion Strategy Report” from 18 May 2011, all trials were supposed to be completed by
the end of 2012, and all the appeals by the end of 2015. The exceptions were cases of Radovan
Karadzic, Ratko Mladic and Goran Hadzic.

The Security Council adopted resolution 1966 on 22 December 2010, establishing International
Residual Mechanism for Criminal Tribunals. The ICTY residual mechanism began functioning on
1 July 2013.

The Tribunal was called to finish its work by the end of 2014, in order to prepare closure and
transfer of cases to the Residual Mechanism. The Mechanism is a small and temporary body,
which plays important role in ensuring that the completion strategy of ICTY does not result in
impunity of fugitives and in injustice. It is conducting all outstanding first instance trials,
including those of Karadzic, Mladic and Hadzic. It is also to complete all appeals proceedings
that were filed before 1 July 2013.

The ICTY is not the only court with jurisdiction to try alleged perpetrators of serious violations
of international humanitarian law committed in the former Yugoslavia. The Tribunal has
concurrent jurisdiction with national courts. However, it takes precedence over them and may
require the referral from the national court at any stage of the proceedings (Article 9 of the
ICTY Statute). The Statute does not elaborate how the primacy is to be exercised, but it was
asserted by the judges of the ICTY in the Rules of Procedure and Evidence. The primacy can be
asserted in three cases: when an international crime is intentionally or unwittingly prosecuted
before national court as an “ordinary criminal offence”, when a national court is unreliable, or
when the case is closely related, or may be relevant to other cases being tried by the ICTY.

NATIONAL JURISDICTIONS

National courts also have jurisdiction to prosecute alleged perpetrators of serious violations of
international humanitarian law.

In the former Yugoslavia, the trials of those accused of war crimes have been opened by the
courts of Bosnia and Herzegovina. The Section for War Crimes was set up in the Criminal and
Appellate Divisions of the Court of Bosnia and Herzegovina. The Special Chamber for War
Crimes has jurisdiction to prosecute the most serious alleged war crimes committed in Bosnia,
and was created to relieve the ICTY, so that it can focus on criminals of high rank. Its
establishment was also considered necessary for effective war crimes prosecution in Bosnia.
The opening of the Special Chamber was on 9 March 2005.

Additionally, pursuant to UN Security Council Resolution 1244 from 10 June 1999, UN

administration was created in Kosovo. Consequently, in 2000 “Regulation 64” Panels in Courts
of Kosovo were created, which are mixed chambers at the local courts. They have two
international judges and one national. These panels work in collaboration with the ICTY. They
have jurisdiction over those responsible for genocide, war crimes and crimes against humanity.
They focus on prosecuting lower ranking offenders.
In Serbia, the Office of the War Crimes Prosecutor was established on 1 July 2003. It was
created to detect and prosecute perpetrators of criminal offenses against humanity and
international law, and offences recognised by the ICTY Statute, regardless of the nationality,
citizenship, race or religion of the perpetrator and the victim, as long as the acts were
committed on the territory of former Yugoslavia after 1 January 1991. Its seat is in Belgrade,
Serbia.

Other relevant national jurisdictions are under the principle of universal jurisdiction, which
allows states with a specific legal basis, to try perpetrators of serious crimes regardless of their
nationality or that of the victims and regardless of where the crime was committed.