Prosecutor Vs Tadic
Prosecutor Vs Tadic
Facts: 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).
Dusko Tadic (defendant) was the first individual to be tried by the International Criminal
Tribunal for the Former Yugoslavia (ICTY) (plaintiff). He was tried for war crimes and
was accused of committing atrocities at the Serb-run Omarska concentration camp in
Bosnia-Herzegovina in 1992. In his defense, Tadic raised the argument that the ICTY
did not have jurisdiction over his case because it was not established until 1993 by a
decision of the United Nations Security Council. The Security Council established the
ICTY without the participation or consent of any of the states comprising the former
Yugoslavia. In making this defense, Tadic relied on the argument that the ICTY was not
“established by law,” citing the International Covenant on Civil and Political Rights which
provided that “in the determination of any criminal charge against him, or of his rights
and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by
a competent, independent and impartial tribunal established by law.” Tadic argued that
this right to a tribunal “established by law” is a “general principle of law recognized by
civilized nations,” and is codified in the International Covenant on Civil and Political
Rights, the European Convention on Human Rights, and the American Convention on
Human Rights.
Trial Chamber II held that the elements required for the establishment of grave
breaches of the Geneva Conventions have not been met. Particularly, the Muslim
victims were not in the hands of the party to the conflict of which they were not
nationals, since the armed forces of the Republika Srpska were not an organ or agent of
the Federal Republic of Yugoslavia. Therefore, the victims could not be seen as
“protected persons” within the meaning of the Geneva Conventions; as such, Trial
Chamber II acquitted Tadić of all charges of grave breaches of the Geneva
Conventions.
Trial Chamber II found Tadić guilty of crimes against humanity (persecutions and
inhumane acts) and of violations of the laws or customs of war (cruel treatment). For
committing war crimes at a Serb-run concentration camp in Bosnia-Herzegovina, Tadic
(D) was prosecuted in Court. The jurisdiction of the tribunal was however challenged by
Tadic (D) on the ground that it exceeded the authority of the U.N. Security Council. This
argument of Tadic (D) was dismissed by the trial court but Tadic (D) appealed.
Issue:. Whether or not a plea against the International Tribunal jurisdiction be examined
by the International Tribunal based on the invalidity of its establishment by the Security
Council?
Held.: Yes. Plea against the International Tribunal jurisdiction can be examined by the
International Tribunal based on the invalidity of its establishment by the Security
Council. The criteria for establishing an International Tribunal includes the
establishment in accordance with the proper international standards, the provision of
guarantees of fairness, justice, and even-handedness, in full conformity with
internationally recognized human rights instruments. Hence, a tribunal like the one
created in this case must be endowed with primacy over national courts.