UNITED NATIONS - International Criminal Tribunal for the …

1 Case No. IT-94-1-T 7 May 1997 UNITED NATIONS International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 Case No. IT-94-1-T Date: 7 May 1997 Original: English IN THE TRIAL CHAMBER Before: Judge Gabrielle Kirk McDonald, Presiding Judge Ninian Stephen Judge Lal Chand Vohrah Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh Opinion and Judgment of: 7 May 1997 PROSECUTOR v. DU[KO TADI] a/k/a/ DULE _____ OPINION AND JUDGMENT _____ The Office of the Prosecutor: Mr. Grant Niemann Ms.

2 Brenda Hollis Mr. Alan Tieger Mr. William Fenrick Mr. Michael Keegan Counsel for the Accused: Mr. Micha l Wladimiroff Mr. Steven Kay Mr. Milan Vujin Mr. Alphons Orie Ms. Sylvia de Bertodano Mr. Nikola Kosti} Case No. IT-94-1-T 7 May 1997 i I. A. The International B. Procedural C. The II. BACKGROUND AND PRELIMINARY FACTUAL A. The Context of the 1. Historical and Geographic 2. The Disintegration of the Socialist Federal Republic of 3. Bosnia and 4. Greater 5. Formation of Serb Autonomous 6. Formation of Crisis 7. The Role of the (a) The JNA in disintegrating (b) The transformation of the (c) The division of the 8. Military B. Op{tina 1.

3 The Importance of Op{tina 2. Op{tina Prijedor before the 3. Background to the Take-over of Op{tina 4. Prelude to the Take-over of Op{tina 5. The Take-over of the Town of 6. Prijedor after the Take-over: the Formation of the Crisis 7. The Incident at Hambarine and the Start of the Attack on the Outlying 8. The Attack on the Kozarac 9. The Treatment of 10. C. The III. FACTUAL A. Paragraph 6 of the 1. The Events 2. The Role, if any, of the 3. The Case for the 4. Findings of B. Paragraph 10 of the 1. The Events 2. The Role, if any, of the 3. The Case for the 4. Findings of C. Paragraph 7 of the 1. The Events 2. The Role, if any, of the 3. The Case for the 4.}}}}

4 Findings of D. Paragraph 8 of the Case No. IT-94-1-T 7 May 1997 ii 1. The Events 2. The Role, if any, of the 3. The Case for the 4. Findings of E. Paragraph 9 of the 1. The Events 2. The Role, if any, of the 3. The Case for the 4. Findings of F. Paragraph 11 of the 1. The Events 2. The Role, if any, of the 3. The Case for the 4. Findings of G. Paragraph 12 of the 1. The Events 2. The Role, if any, of the 3. The Case for the 4. Findings of H. Paragraph 4 of the 1. Subparagraph of the (a) The events (b) The case for the (c) Findings of 2. Subparagraph of the (a) The events (i) a. The case for the b. Findings of (ii) a. The case for the b.

5 Findings of (iii) a. The case for the b. Findings of 3. Subparagraph of the (a) The role, if any, of the (b) The case for the (c) Findings of 4. Subparagraph of the (a) The case for the (b) Findings of 5. Subparagraph of the 6. Discriminatory Grounds for the Acts (a) The acts were taken within a general context of (b) The discriminatory basis for the accused s IV. THE ACCUSED S DEFENCE OF A. B. The Whereabouts of the Accused from 23 May to 15 June C. The Whereabouts of the Accused from 15 June to 31 December Case No. IT-94-1-T 7 May 1997 iii V. EVIDENTIARY A. Access to B. The Lack of Specificity of the C. D. Victims of the Conflict as E.

6 Pre-trial Media Coverage and the Infection of Testimonial F. Identification G. Testimony of Dragan Opaci}..189 H. VI. APPLICABLE A. General Requirements of Articles 2, 3 & 5 of the 1. Existence of an Armed (a) Protracted armed violence between governmental forces and organized armed (b) Use of force between 2. Nexus between the Acts of the Accused and the Armed B. Article 2 of the 1. The Customary Status of Article 2. Status of the Victims as "Protected Persons"..200 (a) (b) Were the victims in the hands of a party to the conflict?..200 (c) Were the victims in the hands of a party to the conflict of which they were not nationals?..204 (i) Applicable legal (ii) The creation of the VRS and the transfer of responsibility to the VRS by the JNA/VJ in May (iii) Relationship of the VRS to the Federal Republic of Yugoslavia (Serbia and Montenegro) after 19 May 3.

7 Legal C. Article 3 of the 1. Requirements of Article 3 of the 2. Conditions of Applicability of the Rules Contained in Common Article 3. Legal D. Article 5 of the 1. The Customary Status in International Humanitarian Law of the Prohibition Against Crimes Against 2. Conditions of (a) When committed in armed (i) The existence of an armed (ii) The nexus between the act or omission and the armed (b) Directed against any civilian (i) The meaning of civilian ..229 (ii) The meaning of population ..232 a. The widespread or systematic occurrence of the b. The necessity of discriminatory c. The policy (c) 3. Legal Case No. IT-94-1-T 7 May 1997 iv E. Individual Criminal Responsibility Under Article 7, Paragraph 1.

8 The Customary Status of Article 7, Paragraph 2. Parameters of Individual (a) Arguments of the (b) Participation as a basis of (i) (ii) Direct (iii) Required extent of 3. Legal VII. LEGAL A. Paragraph 1. Persecution as a Crime against (a) Definition of (b) The acts encompassed by the crime of (i) Acts enumerated elsewhere in the (ii) Acts not enumerated elsewhere in the (c) The acts must be taken on the basis of one of the listed discriminatory 2. Legal Findings as to Count B. Paragraph C. Paragraph D. Paragraph E. Paragraph F. Paragraph G. Paragraph H. Paragraph VIII. SEPARATE AND DISSENTING OPINION OF JUDGE MCDONALD REGARDING THE APPLICABILITY OF ARTICLE 2 OF THE STATUTE ANNEX A ANNEX B ANNEX C ANNEX D ANNEX E ANNEX F ANNEX G Case No.

9 IT-94-1-T 7 May 1997 1 I. INTRODUCTION A. The International Tribunal 1. This Opinion and Judgment is rendered by Trial Chamber II of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ( International Tribunal ) following the indictment and trial of Du{ko Tadi}, a citizen of the former Yugoslavia, of Serb ethnic descent, and a resident of the Republic of Bosnia and herzegovina at the time of the alleged crimes. It is the first determination of individual guilt or innocence in connection with serious violations of International humanitarian law by a truly International Tribunal , the International Tribunal being the first such Tribunal to be established by the UNITED NATIONS .

10 The International military tribunals at N rnberg and Tokyo, its predecessors, were multinational in nature, representing only part of the world community. 2. The International Tribunal was established by the Security Council of the UNITED NATIONS in 1993, pursuant to resolution 808 of 22 February 1993 and resolution 827 of 25 May 19931. The Security Council, having found that the widespread violations of International humanitarian law occurring within the territory of the former Yugoslavia, including the practice of ethnic cleansing , constituted a threat to International peace and security, exercised its powers under Chapter VII of the Charter of the UNITED NATIONS to establish the International Tribunal , determining that the creation of such a Tribunal would contribute to the restoration and maintenance of peace.