Prosecutor v.

Tadic (October 2, 1995)

Atty. mentioned that what we should focus on this when reading the case:
1. Why certain organizations are given limited legal personality and the condition needed before
we grant them that personality
a. Short answer: They are given legal personality (The groups of individuals), rights and
obligations under international law, so the international community can challenge violations
of international concern so important that they go against the foundations of international
society and affront the conscience of civilized nations (like crimes against humanity)
b. The Conditions That Must Be Fulfilled for A Violation of International Humanitarian Law to
be subject to prosecution before the International Tribunal under Article 3:

1. (i) the violation must constitute an infringement of a rule of international

humanitarian law;
2. (ii) the rule must be customary in nature or, if it belongs to treaty law, the
required conditions must be met;
3. (iii) the violation must be "serious", that is to say, it must constitute a breach of
a rule protecting important values, and the breach must involve grave
consequences for the victim. Thus, for instance, the fact of a combatant simply
appropriating a loaf of bread in an occupied village would not amount to a
"serious violation of international humanitarian law" although it may be
regarded as falling foul of the basic principle laid down in Article 46, paragraph
1, of the Hague Regulations (and the corresponding rule of customary
international law) whereby "private property must be respected" by any army
occupying an enemy territory;
4. (iv) the violation of the rule must entail, under customary or conventional law,
the individual criminal responsibility of the person breaching the rule.
 
 Facts
o After the takeover of Prijedor (a city in Bosnia and Herzegovina) and the attack launched
against the town of Kozarac (Municipality near Prijedor) in 1992, the non-Serb civilians were
detained in several prison facilities, where they were beaten, sexually assaulted, tortured,
killed and otherwise mistreated
 Dusko Tadic was the President of the Local Board of the Serb Democratic Party
in Kozarac
o The Appellant, Dusko Tadic was arrested in Germany on 12 February 1994
o On 24 April 1995 Tadic was transferred to the custody of the International Crime
Tribunal for the Former Yugoslavia where he has remained in detention until the present
time
o Tadic was indicted on 34 counts of crimes within the jurisdiction of the International
Tribunal and he pleaded not guilty to all counts
 These were for the war crimes he committed at a Serb-run concentration camp
in Bosnia-Herzegovina
o Trial Chamber II found Tadic guilty of crimes against humanity
 Trial Chamber II found that Tadic “had committed all of these acts against non-
Serbs with the intent of furthering the establishment of a Greater Serbia and that he
 shared the concept that non-Serbs should forcibly be removed from the territory,
thereby exhibiting a discriminatory basis for his actions and that this discrimination
was on religious and political grounds”, finding “beyond reasonable doubt that the
accused is guilty of the crime of persecution
 Tadic was further found guilty of cruel treatment (as a violation of the laws or
customs of war) since “those beatings and other acts which each of those Muslim
victims suffered … constitute violence to their persons and that the perpetrators
intended to inflict such suffering”. These acts also “constitute inhumane acts and are
crimes against humanity”
o Tadic filed several appeals questioning the jurisdiction of the ICTY to hold the case, one
of which was that the primacy of the international tribunal over competent domestic courts
violated state sovereignty
 This was because article 9 of the statute of ICTY held that the international
tribunal had Concurrent jurisdiction to prosecute persons serious violations of
international humanitarian law committed in the territory of the former Yugoslavia
 And that it literally says that it has primacy over national courts in article 9 and
that it could formally "request" national courts to defer to the competence of the
International Tribunal
 
 Issue and Ruling
o WON the ICTY has legal standing (Not even an issue but was an intro to the issue below)
 YES, ICTY has legal standing
 Although the general rule is that individuals have no standing to challenge
violations or be held against international law and that only a sovereign State may
raise a plea or be subject to it, this concept has recently suffered progressive erosion,
particularly in the field of human rights.
 Group of people can thus be subject to international law
 
o WON the ICTY had jurisdiction over the case despite allegations of the tribunal violating
state sovereignty
 YES, ICTY has jurisdiction over the case
 In the present case, the Republic of Bosnia and Herzegovina did NOT contest the
jurisdiction of the International Tribunal but instead approved, and collaborated with,
the International Tribunal
 And even if that were not the case, the ICTY would still have jurisdiction because it was
created as a reflection of the public revulsion in the 1990's against these offences
which are shocking to the conscience of mankind, it was thought up as a remedy. To
establish an international judicial body by an organ of an organization representing
the community of nations that would be empowered and mandated to deal with
trans-boundary matters or matters which, though domestic in nature, may affect
"international peace and security (To allow the UN, more specifically the security
council, to make judicial organs like the ICTY to handle cases so unethical and
immoral that violations echo beyond the boundaries of states by allowing these
groups of individuals to be subject to international obligations in the first place)
 When an international tribunal such as the present one is created, it must be endowed
with primacy over national courts. Otherwise, there would be a perennial danger of
international crimes being characterized as "ordinary crimes", or proceedings might
be "designed to shield the accused", or cases not being diligently prosecuted
  it should be noted that the crimes which the International Tribunal has been called upon
to try are not crimes of a purely domestic nature. They are really crimes which are
universal in nature, well recognized in international law as serious breaches of
international humanitarian law, and transcending the interest of any one State. The
Trial Chamber agrees that in such circumstances, the sovereign rights of States cannot
and should not take precedence over the right of the international community to act
appropriately