The Prosecutor v.

Duško Tadić
International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals
Court
Chamber, The Netherlands
Case number IT-94-1-A
Decision title Judgment in Appeal
Decision date 15 July 1999
 The Prosecutor
Parties
 Duško Tadić

Categories Crimes against humanity, War crimes

additional conviction, crimes against humanity, discriminatory intent, Effective
Keywords control, Geneva Convention, Grave breaches, overall control, personal
motives, Prijedor
Links  Judgment in Appeal: the Prosecutor v. Duško Tadić

Other countries involved  Bosnia and Herzegovina

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Summary
After the takeover of Prijedor (Bosnia and Herzegovina) and the attack launched against the town of
Kozarac (Bosnia and Herzegovina) in 1992, the non-Serb civilians were detained in several prison
facilities, where they were beaten, sexually assaulted, tortured, killed and otherwise mistreated. Duško
Tadić was the President of the Local Board of the Serb Democratic Party in Kozarac (Bosnia and
Herzegovina). Trial Chamber II found Duško Tadić guilty of crimes against humanity and war crimes and,
in a separate sentencing judgment, sentenced him to 20 years of imprisonment.

The Appeals Chamber denied Duško Tadić’s appeal on all grounds. It did allow, however, the
Prosecution’s appeal, reversing the judgment of Trial Chamber II and entering convictions for war crimes
and crimes against humanity.

The Appeals Chamber also held that an act carried out for the purely personal motives of the perpetrator
can constitute a crime against humanity. Furthermore, Trial Chamber II erred in finding that all crimes
against humanity require discriminatory intent. 

The issue of sentencing was referred to a Trial Chamber.

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Procedural history
The amended indictment was filed on 14 December 1995. The trial commenced on 7 May 1996, and Trial
Chamber II rendered its Opinion and Judgment on 7 May 1997, finding Tadić guilty of violations of the
laws or customs of war and crimes against humanity.
Thereafter, Trial Chamber II rendered its Sentencing Judgment on 14 July 1997, sentencing Tadić to 20
years of imprisonment.
The parties appealed against the Opinion and Judgment of 7 May 1997, and Tadić further filed an appeal
against the Sentencing Judgment of 14 July 1997.

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Related developments
On 11 November 1999, Trial Chamber II bis rendered its sentencing judgment on the additional counts,
imposing a sentence of 25 years of imprisonment.
On 25 November 1999, Tadić filed a notice of appeal against the Sentencing Judgment of 11 November
1999. Pursuant to his request, the Appeals Chamber ordered that the appeal be joined with the Appeal
against the Sentencing Judgment of 14 July 1997.

The Appeals Chamber rendered its judgment on 26 January 2000; it upheld the convictions for war
crimes and crimes against humanity, but found that the trial Chamber had erred in the sentencing. Hence,
the prison sentence was reduced to twenty years.
On 31 October 2000, Duško Tadić was transferred to Germany to serve his sentence (see ICTY, 'Duško
Tadić Transferred to Germany to Serve Prison Sentence', ICTY Press Release, 31 October 2000).
On 18 June 2001, Duško Tadić filed a request for a review of his complete case, in light of the decision on
contempt of the Tribunal. The Appeals Chamber dismissed the request on 30 July 2002. On 17 July 2008,
Duško Tadić was granted early release.

During the Tadić procedure, contempt hearings were initiated against Milan Vujin, lead counsel for the
Defence of Duško Tadić. On 31 January 2000, the Appeals Chamber found Vujin in contempt of the
Tribunal and fined him. A subsequent appeal was dismissed by the Appeals Chamber on 27 February
2001 (see ICTY, 'Milan Vujin, former Counsel for Dusko Tadic, Found in Contempt of the Tribunal, and
Fined 15,000 Dutch Guilders', ICTY Press Release,  31 January 2000).
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Legally relevant facts

On 30 April 1992, the Serb Democratic Party (SDS) took over control in the town of Prijedor (Bosnia and
Herzegovina). On 24 May 1992, the nearby town of Kozarac (Bosnia and Herzegovina) was attacked,
resulting in the killing of some 800 civilians, and the removal of non-Serbs from the town. During the
attack on Kozarac, non-Serb civilians were beaten, robbed and murdered by the Serb forces. After the
takeover of Prijedor and the surrounding areas, the Serb forces detained non-Serb civilians in three major
prison camps: the Omarska, Keraterm, and Trnopolje camps (all near Prijedor, Bosnia and Herzegovina).
Those who were detained were subjected to beatings, sexual assaults, torture, executions, and
psychological abuse. Furthermore, the detainees were held in unhygienic conditions in overcrowded
rooms (para. 53 et seq. of the judgment rendered by Trial Chamber II on 7 May 1997). 
Duško Tadić was the President of the Local Board of the Serb Democratic Party in Kozarac (Bosnia and
Herzegovina).

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Core legal questions

 Did Trial Chamber II err in its findings with respect to the convictions of Duško Tadić?
 Can the Appeals Chamber uphold any of the grounds of the Appellants? 
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Specific legal rules and provisions

 Articles 2, 5, 20, 21, 25 of the ICTY Statute;
 Rule 115 of the ICTY Rules of Procedure and Evidence.
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Court's holding and analysis

The Appeals Chamber denied Tadić’s appeal on all grounds.

In its first ground of appeal, the Prosecution argued that Trial Chamber II “erred by relying exclusively
upon the “effective control” test derived from the Case concerning Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States) in order to determine the applicability of the grave
breach provisions of the relevant Geneva Convention” (para. 73). The Appeals Chamber found that “[t]he
“effective control” test propounded by the International Court of Justice as an exclusive and all-embracing
test is at variance with international judicial and State practice: such practice has envisaged State
responsibility in circumstances where a lower degree of control than that demanded by the Nicaragua test
was exercised” (para. 124) introducing a different test of overall control with respect to military or
paramilitary groups. Exercising overall control means “not only [the] equipping and financing [of] the
group, but also [the] coordinating or helping in the general planning of its military activity.” (para. 131) The
Appeals Chamber concluded that “the armed forces of the Republika Srpska were to be regarded as
acting under the overall control of and on behalf of the [Federal Republic of Yugoslavia].  Hence, even
after 19 May 1992 the armed conflict in Bosnia and Herzegovina between the Bosnian Serbs and the
central authorities of Bosnia and Herzegovina must be classified as an international armed conflict” (para.
162). The Appeals Chamber reversed Tadić’s acquittal and found him guilty of grave breaches of the
Geneva Conventions. (para. 171)
The Appeals Chamber also held that “[t]he Trial Chamber erred in holding that it could not, on the
evidence before it, be satisfied beyond reasonable doubt that the Appellant had any part in the killing of
the five men” (para. 233), finding Tadić guilty of additional war crimes and crimes against humanity
(paras. 235-237). 

The Appeals Chamber further found that “the requirement that an act must not have been carried out for
the purely personal motives of the perpetrator does not form part of the prerequisites necessary for
conduct to fall within the definition of a crime against humanity under Article 5 of the Tribunal’s Statute”
(para. 272). 

The Appeals Chamber also held that “the Trial Chamber erred in finding that all crimes against humanity
require a discriminatory intent.” (para. 305)

The issue of sentencing was referred to a Trial Chamber (p. 144).

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Further analysis
 A. Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in
Bosnia’, European Journal of International Law, 2007, Vol. 18(4), pp. 649-668;
 M. Sassòli & L.M. Olson, ‘The Judgment of the ICTY Appeals Chamber on the Merits in the Tadic
Case’, International Review of the Red Cross, 30 September 2000, No. 839.
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Instruments cited
 UN Security Council, 25 May 1993 (UNSC Res. 808), Statute of the International Criminal Tribunal for
the Former Yugoslavia (ICTY Statute);
 UN ICTY, 11 February 1994 (last amended on 20 October 2011), Rules of Procedure and Evidence.
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Related cases
 ICTY, Trial Chamber IIbis, The Prosecutor v. Duško Tadić, Case No. IT-94-1-Tbis-R117, Sentencing
Judgment, 11 November 1999;
 ICTY, Appeals Chamber, The Prosecutor v. Duško Tadić,  Case No. IT-94-1-A and IT-94-1-Abis,
Judgment in Sentencing Appeals, 26 January 2000.