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The Tadic verdict has defined and categorised that policy: it is called persecution on political, racial or religious grounds and it is categorised as a crime against humanity. Thus the Hague Tribunal, in its first determination of individual guilt or innocence, established a direct link with its closest historical precedent: persecution as a crime against humanity is, as Chief Prosecutor Louise Arbour recalled after the announcement of the verdict, “the heart of Nuremberg,” the essence of the Nuremberg Judgement, Principles and Charter.
The Trial Chamber concluded unanimously that Dusko Tadic was a willing executioner of the policy of persecution on religious, racial and political grounds. Persecution is discriminatory practice which results not only in inflicting physical or mental suffering or economic harm, but also deliberate and gratuitous violations of the dignity, right to equality and the basic or fundamental right of victims, whose only fault is that they belong to another religious or ethnic group, of that they hold different political beliefs. I
n the Tadic case, the “others” were the non-Serb population of Prijedor municipality, who, the verdict states, were subjected to “horrendous treatment . . . on the basis of religion and politics . . . . A policy to terrorise the non-Serb civilian population on discriminatory grounds is evident and that its implementation was widespread and systematic . . . is apparent. The events described in paragraph 4 of the indictment occurred within this context of discrimination.”
With regard to the accused, the Trial Chamber notes that he was one of the first members of the Serb Democratic Party (SDS) in Prijedor municipality, that he “had knowledge and supported the plan for a Greater Serbia,” and that “he himself admits this knowledge and support for the plan when he describes himself as an enthusiastic supporter of the creation of Republika Srpska”.
Regarding Tadic's individual criminal responsiblity, the Trial Chamber concludes: “The accused's role in, inter alia, the attack on Kozarac and the surrounding areas, as well as the seizure, collection, segregation and forced transfer of civilians to camps, calling-out of civilians, beatings and killings [of two Muslim policemen, by cutting their throats] clearly constituted an infringement of the victims' enjoyment of their fundamental rights and these acts were taken against non-Serbs on the basis of religious and political discrimination.
Further, these acts occurred during an armed conflict, were taken against civilians as part of a widespread or systematic attack on the civilian population in furtherance of a policy to commit these acts, and the accused had knowledge of the wider context n which his acts occurred.”
Additionally, the Trial Chamber has found that the accused “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 his discrimination was on religious and political grounds.”
Persecution is the first, and certainly the most important, of the indictment's 11 counts of which Tadic was found guilty. The remaining ten counts refer to his participation in serious beatings of detainees in the Omarska and Keraterm camps and the inhabitants of Jaskici and Sivci villages.
Those deeds were categorised as violations of the laws and customs of war, but also as crimes against humanity (because they were “committed during an armed conflict as part of a widespread and systematic attack on a civilian population,” and because “the accused intended for discriminatory reasons to inflict severe damage to the victims' physical and human dignity”).
The same deeds had been described in the indictment also as “grave breaches of the 1949 Geneva Conventions,” but the Trial Chamber, by a majority of two to one (Presiding Judge Gabrielle Kirk McDonald dissenting) found that accusation “inapplicable”, because the alleged victims were not protected persons under Article 4 of the Fourth Geneva Convention.
The majority (Judges Ninian Stephen and Lal Chand Vohrah) found that while “from the beginning of 1992 until 19 May 1992, a state of international armed conflict existed in at least part of the territory of Bosnia and Herzegovina . . . between the forces of the Republic of Bosnia and Herzegovina on the one hand and those of the Federal Republic of Yugoslavia (Serbia and Montenegro), being the JNA [Yugoslav People's Army] (later VJ [Army of Yugoslavia], working with sundry paramilitary and Bosnian Serb forces, on the other,” after May 19, 1992, this armed conflict was not of a character to justify the imposition of Article 2 of the Statute (grave breaches) because the victims were not protected persons.
That is, they were not in the hands of a party to the conflict or occupying power of which they were not nationals. The view of the majority was that “on the evidence presented [during the trial], after 19 May 1992 the armed forces of the Republika Srpska could not be considered as de facto organs or agents of the FRY.”
Presiding Judge McDonald, however, found to the contrary. In her separate and dissenting opinion, Judge McDonald concluded that at all times relevant to the indictment, the armed conflict in Prijedor municipality was international in character, that the victims were protected persons and that “grave breaches” were applicable.
According to her separate opinion, “the evidence supports a finding beyond reasonable doubt that the VRS [Army of Republika Srpska] acted as an agent of the FRY . . . . The dependency of the VRS on and exercise of control by the FRY . . . support this finding of agency under either the majority's standard of effective control or under the more general test of dependency and control.”
Except that it absolved Tadic of responsibility for “grave breaches” in the 11 counts for which he was found guilty of crimes against humanity and violation of the laws and customs of war, this majority decision has no effects. It does not constitute a definitive judgement on the character (international or internal) of the conflict that would hold for all future cases.
Prosecutor Arbour believes that the majority, in this case, had set very high standards of proof of “effective control” to establish the existence of “agency”. Referring to the “very strong dissenting opinion of the Presiding Judge”, she does not exclude the possibility of recourse to the Appeals Chamber. However, even if the verdict stands, Arbour is convinced that in future cases the prosecution will try hard to satisfy the high standards of proof of the international character of the conflict established by the Tadic verdict.
Finally, the accused has been found not guilty on 11 counts (completely innocent of nine and partially of two) charging him with 13 murders, five beatings, two inhumane acts and one case of abuse of prisoners. Although it was proved in court beyond any doubt that the incidents described in these counts did actually take place (including that most horrific in which one of the prisoners was forced to bite of another's testicles) the judges concluded that the prosecutor had failed either to present conclusive evidence linking the accused to the related acts, or to satisfy the judges beyond reasonable doubt that the victims named had been murdered.
The prosecutor believes that in this case too the judges had set overly high standards of proof of the cause of death—considering the conditions in which the crimes were committed—and that an appeal on these grounds could not be excluded.
For his part, Tadic's new defence counsel, the Belgrade lawyer Milan Vujin, has announced an appeal on the grounds of lack of consideration of the accused's defence of alibi, and on the grounds of the allegedly “political character” of the judgement.
His appeal, and any potential appeal from the prosecutor, will delay the sentencing heraing which Judge Mcdonald has tentatively set for July 1.
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