Updated: Jun 28
‘Borders should not be considered as a shield against the reach of the law and as a protection or those who trample underfoot the most elementary rights of humanity’[i]
Full Citation: Prosecutor v Duško Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-94-1-A, 2 October 1995); 105 ILR 419; 35 ILM (1996) 32.
In the first-ever case before the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’), the prosecution of Serbian war criminal, Duško Tadić (‘Ta-di-ch’) led to the pronouncement of milestones in public international law, international humanitarian law (‘IHL’) and international criminal law.
The accused was charged with violations of IHL during the Bosnian War in 1992. He challenged the jurisdiction of the ICTY on the basis that it was illegally constituted, had no primacy over national courts and had no jurisdiction as there was no international armed conflict (‘IAC’).
Court: International Criminal Tribunal for the former Yugoslavia (ICTY) (Appeals Chamber)
Date of Decision: 2 October 1995
Stage of Proceedings: Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction
Judge Cassese, Presiding Judge Li Judge Deschênes
Against: Judge Abi-Saab Judge Sidhwa
Outcome of Proceedings:
1. The decision of the Trial Chamber of 10 August 1995 revised
2. Jurisdiction of international tribunal affirmed
3. Appeal dismissed
The Bosnian War (1992-1995) was an international armed conflict that took place in Bosnia and Herzagovina, which included crimes of ethnic cleansing and systemic mass rape. The ICTY was established in 1993 by the United Nations Security Council (‘Security Council’) to investigate and prosecute genocide, war crimes and crimes against humanity that had occurred in former Yugoslavia.
Duško Tadić joined the Serbian Democratic Party (SDS) in 1990 and became the President of the Local Board of the SDS. On 30 April 1992, the SDS took control of the town and region of Prijedor and the town of Kozarac and established a prison camp at Omarska, located 20km from the town of Prijedor. During the takeover, approximately 800 civilians were killed and the rest expelled to prison camps. Between spring and summer of 1992, 6000 Bosnian Muslims (‘Bosniaks’) and Croats were held at the Omarska concentration camp. Over 100 people were killed in late July at the Omarska camp. Other crimes committed at the camps included torture, beatings and sexual assault.
Tadić was arrested in Munich on 12 February 1994 and transferred to the ICTY in the Hague. He was charged by German authorities with crimes against humanity, including aggravated assault and murder, as well as genocide. The Tribunal formally requested that Tadić be transferred to the Tribunal’s jurisdiction. This case was the first before the ICTY.
Tadić was charged with grave breaches of the Geneva Conventions of 1949,[ii] violations of the laws and customs of war, and crimes against humanity, pursuant to Arts 2, 3 and 5 of the Statute of the International Criminal Tribunal for the Former Yugoslavia (‘ICTY Statute’).[iii]
The Trial Chamber
Tadić challenged the jurisdiction of the Tribunal on three grounds:
(1) The Tribunal had not been lawfully established under the Charter of the United Nations (‘UN Charter’) as the powers under Ch VII did not extend to establishing a judicial organ and that, accordingly, the ICTY was not ‘established by law’.
(2) The Tribunal could not have primacy over the jurisdiction of national courts (of Bosnia-Herzegovina) to prosecute criminal matters as doing so would impinge upon the foundational principle of State sovereignty.
(3) The Tribunal did not have subject-matter jurisdiction to prosecute the defendant as he had committed crimes in the context of an internal armed conflict, not an international one.
The Trial Chamber concluded it did not have jurisdiction to rule on the validity of the Tribunal, Tadić had no standing to raise the issue of primacy over national courts as an individual and not a sovereign State and that the crimes covered by Arts 2, 3 and 5 of the ICTY Statute were applicable in both internal (non-international) and international conflicts.[iv]
Tadić’s motion for an interlocutory appeal on the issue of jurisdiction was granted by the Appeals Chamber.
Issues before the Tribunal
The questions before the Appeals Chamber were;
(1) Whether the ICTY was validity established by law under the UN Charter;
(2) Whether the primacy of the ICTY over competent domestic courts was legally justified under international law; and
(3) Whether the ICTY had jurisdiction over the crimes accused based on the classification of the armed conflict as international or non-international.
Decisions and Reasoning
‘jurisdiction' is a dignity which a man hath by a power to do justice in causes of complaint made before him.’[v]
The Appeals Chamber began by classifying the questions before the Tribunal as, essentially, questions of jurisdiction as they all related to the powers and functions of the Security Council under the UN Charter and the ICTY itself.
(1) Establishment of the ICTY
‘…there is a common understanding, manifested by the "subsequent practice" of the membership of the United Nations at large, that the "threat to the peace" of Article 39 may include, as one of its species, internal armed conflicts’[vi]
The Appeals Chamber of the Tribunal found that the ICTY was validly established by the Security Council due to its wide discretionary powers under Ch VII of the UN Charter as a subsidiary body.
In reaching this decision, the Appeals Chamber noted the broad discretion given to the Security Council by Art 39 to decide the appropriate measure to take in maintaining international peace and security without the ‘use of force’. The general nature of Art 39 can accommodate both institutional and Member State action, including measures that fall outside of the list of examples in Art 41, which was not intended to be an exhaustive list.
Further, as there is no international law-making organ, the division of powers between executive and judiciary does not apply to international law.
Accordingly, the Tribunal found that where an international criminal court is rooted in the rule of law and offers all guarantees embodied in the relevant international instruments, it may be said to be ‘established by law’.[vii]
(2) State Sovereignty & Primacy over National Courts
‘It would be a travesty of law and a betrayal of the universal need for justice, should the concept of State sovereignty be allowed to be raised successfully against human rights’[viii]
Regarding the primacy over national courts, the Tribunal rejected Tadić’s challenge on the basis that the crimes alleged were internationally significant and the absence of primacy could result in forum shopping and windfall to the perpetrator of crimes against humanity.
The Tribunal’s finding was founded in the Security Council’s mandate to deal with trans-boundary matters which, though domestic in nature, may affect international peace and security. As borders should not protect those who violate human rights from the law, an international tribunal must be given primacy over national courts to facilitate the administration of justice.
Although the transfer from domestic to international jurisdiction necessarily involves some surrender of State sovereignty, that is precisely what was achieved by adoption of the UN Charter and does not have effects on the rights of the accused.
(3) Subject-Matter Jurisdiction & Classification of Armed Conflicts
‘What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife’[ix]
The Tribunal found that not only were the crimes committed in the context of an armed conflict, but that the conflicts in former Yugoslavia were both internal and international and that the intended jurisdiction of the ICTY was encompassing of both kinds.
Armed Conflict Classification
The Tribunal began by stating that for there to be a violation of international humanitarian law, there must be an ‘armed conflict’, the definition of which varies depending on whether the hostilities are international or internal. However, the scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities.[x]
Protracted armed violence in the former Yugoslavia had existed between armed forces of different States and organised insurgent groups over the course of a number of years. Accordingly, the Tribunal found that an armed conflict existed as the ‘intensity requirements applicable to both international and internal armed conflicts’ had been met.[xi]
The Tribunal pronounced its hallmark definition of armed conflict and determination of the scope of application of humanitarian law:[xii]
“…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 until the control of a party, whether or not actual combat takes place.”
Having found the existence of an armed conflict, the Tribunal then turned to whether the ICTY Statute referred only to armed conflicts of an international character.
The Tribunal noted that at varying times and locations, the situations in the former Yugoslavia could be considered ‘as either internal or international armed conflicts, or as a mixed internal-international conflict’.[xiii] This variable classification was known to the drafters of the ICTY Statute, yet no pronouncement on whether the Tribunal was to prosecute international or internal armed conflicts was made. Considering the lack of reference to the nature of the conflict, applying the rules of IHL to both characterisations was found to be consistent with the object and purpose of the ICTY Statute.
Accordingly, the Tribunal held that whether a serious violation occurred in international or internal armed conflict, it fell within the jurisdiction of an international court or tribunal so long as the four requirements for Art 3 of the Geneva Conventions to apply are met:
(1) infringement of an IHL rule;
(2) the rule is customary, or conditions are met if found in treaty;
(3) the violation is ‘serious’; and
(4) the infringement must entail individual criminal responsibility of the person breaching said rule.
The Tribunal further concluded that certain rules and principles governing the conduct of international armed conflicts now apply to internal armed conflicts as a matter of customary international law. General principles applicable to armed conflict, per GA Res 2675,[xiv] intended to declare principles of customary international law of armed conflicts on the protection of civilians and to promote the adoption of treaties on the matter.[xv]
Further, the Tribunal found that Common Article 3 is a part of customary law, stating that ‘…some treaty rules have gradually become part of customary law. This holds true for common Article 3 of the 1949 Geneva Conventions…’.[xvi] Such custom establishes clearly that crimes against humanity do not require a connection to international armed conflict.[xvii] The Tribunal then defined the ‘laws and customs of war’ as:[xviii]
‘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) violation 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…’.
Accordingly, customary international law imposes criminal liability for serious violations of Common Article 3.[xix] However, such application is limited to the minimal number of general rules that are accepted as being customary in nature.
After the Case
The trial against Duško Tadić began in 1996 and lasted for 79 days. Tadić was found to have been directly involved in the crimes that took place at the Omarska and Keraterm camps and was found guilty of crimes against humanity.[xx] He was sentenced to 31 years imprisonment,[xxi] which was reduced to 20 years on first appeal.[xxii] Tadić appealed the ruling in 2000 and was found guilty of several more charges.[xxiii] He was granted early release in 2008.[xxiv]
Written by Amy Langley
International Law Officer
[i] Prosecutor v Duško Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-94-1-A, 2 October 1995)  (‘Tadić 1995’). [ii] Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950); [iii] SC Res 827, UN Doc S/RES/827 (25 May 1993), as amended by SC Res 1877, UN Doc S/RES/1877 (7 July 2009) (‘ICTY Statute’). [iv] Prosecutor v Duško Tadić (Decision on the Defence Motion on Jurisdiction) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-94-1-T, 10 August 1995). [v] Tadić 1995 (n 1) , quoting Stroud's Judicial Dictionary, 1379 (5th ed, 1986). [vi] Ibid . [vii] Ibid . [viii] Ibid . [ix] Ibid . [x] Ibid . [xi] Ibid . [xii] Ibid. [xiii] Ibid . [xiv] Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res 2675, UN Doc A/RES/2625 (24 October 1970). [xv] Tadić 1995 (n 1) -. [xvi] Ibid . [xvii] Ibid . [xviii] Ibid . [xix] Ibid . [xx] Prosecutor v Duško Tadić (Sentencing Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case No IT-94-1-T, 14 July 1997). [xxi] Prosecutor v Duško Tadić (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-94-1-A, 15 July 1999). [xxii] Prosecutor v Duško Tadić (Sentencing Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-94-1-Tbis-R117, 11 November 1999). [xxiii] Prosecutor v Duško Tadić (Judgment in Sentencing Appeals) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-94-1-Abis, 26 January 2000). [xxiv] Trial International, ‘Dusko Tadic’, Trial Watch (Web Page, 07 June 2016) <https://trialinternational.org/latest-post/dusko-tadic/>.