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It was a civil war - not an aggression


The Ruling of the International Criminal Tribunal for the Former Yugoslavia. 


On May 7, 1997 the International Criminal Tribunal for the Former Yugoslavia passed the judgement against the Bosnian Serb Mr. Dusko Tadic.

The Trial Chamber of the Tribunal has made extraordinary efforts to find Mr. Tadic guilty of as many indicted "crimes" as possible. These efforts included, inter alia, use of the Nuremberg Trial as a reference point for certain situations (articles), reliance on "anonymous" and so-called "protected" witnesses one of which has admitted of being trained by the Bosnian Muslim government on how to lie, manipulation of general "findings" against the lack of evidence for specific charges, etc. The objective was to find Mr. Tadic guilty of as many indictments as possible. However, two judges out of three in the Trial Chamber could not go all the way in satisfying their paymaster's political dictum.

Judges Ninian Stephen of Australia and Lal Chand Vohrah of Malaysia have ruled that as of May 19 1992, when the Yugoslav Army (JNA) "officially withdrew from Bosnia and turned over all its equipment, officers and facilities to the Army of the Republica Srpska." the war in Bosnia was a civil war and not an international war. In coming to that judgment they used, as a precedent, the judgment of the International Court of Justice in the case of Nicaragua against the United States. While recognizing that the United States had organized, financed, trained, armed, advised, etc., the Contras the Court has ruled that it was a civil war because, basically, the United States could not be held responsible for all the acts of the Contras.

Bellow are the excerpts from the OPINION AND JUDGEMENT of the International Criminal Tribunal for the Former Yugoslavia in the case No. IT-94-1-T, the Prosecutor v. Dusko Tadic, dealing only with the above mentioned ruling on the civil war or international war issue. The full text of the Judgment as well as the Dissenting Opinion of Judge McDonald Regarding the Applicability of Article 2 of the Statute, can be found at: http://www.un.org/icty/970507jt.htm#_Toc387417230. 


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-94-1T 
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. 
DUSKO TADIC a/k/a/ "DULE"
 


OPINION AND JUDGMENT 
The Office of the Prosecutor: 
Mr. Grant Niemann, Ms. Brenda Hollis, Mr. Alan Tieger, Mr. William Fenrick, Mr. Michael Keegan 
Counsel for the Accused: 
Mr. Michael Wladimiroff, Mr. Steven Kay, Mr. Milan Vujin, Mr. Alphons Orie, Ms. Sylvia de Bertodano, Mr. Nikola Kostic 
VI. Applicable Law

A. General Requirements of Articles 2, 3 & 5 of the Statute

...Article 2 of the Statute directs the Trial Chamber to the grave breaches regime of the Geneva Convention which applies only to armed conflicts of an international character and to offenses committed against persons or property regarded as "protected", in particular civilians in the hands of a party to a conflict of which they are not nationals...

1. Existence of an Armed Conflict
a) Protracted armed violence between governmental forces and organized armed groups

...The parties to the conflict in the area of opstina [county] Prijedor and the main parties to the conflict in Bosnia and Herzegovina as a whole were the Government of the Republic of Bosnia and Herzegovina and the Bosnian Serb forces, the latter controlling territory under the banner of the Republika Srpska and, at least before 19 May 1992, supported by or under the command of the JNA [Yugoslav Federal Army]. The Government of the Republic of Bosnia and Herzegovina was also in conflict with various Bosnian Croat forces supported by the Government of Croatia. The Republic of Bosnia and Herzegovina was admitted as a State member of the United Nations, following decision adopted by the Security Council and the General Assembly, on 22 May 1992, two days before the shelling and take-over of Kozarac. It was the de jure State against which the Bosnian Serb forces were in revolt.

The territory controlled by the Bosnian Serb forces was known initially as the "Serbian republic of Bosnia and Herzegovina" and renamed Republika Srpska on 10 January 1992. This entity did not come into being until the Assembly of the Serbian People of Bosnia and Herzegovina proclaimed the independence of that Republic on 9 January 1992. In its revolt against the de jure Government of the Republic of Bosnia and Herzegovina in Sarajevo, it possessed, at least from 19 May 1992, an organized military force, namely the VRS [Army of the Republika Srpska], comprising forces formerly part of the JNA and transferred to the Republika Srpska by the Federal Republic of Yugoslavia (Serbia and Montenegro). These forces were officially under the command of the Bosnian Serb administration located in Pale, headed by the Bosnian Serb President Radovan Karadzic. The Bosnian Serb forces occupied and operated from a determinate, if not definite, territory, comprising a significant part of Bosnia and Herzegovina, bounded by the borders of the Republic of Bosnia and Herzegovina on the one hand, and by the front-lines of the conflict between the Bosnian Serb forces and the forces of the Government of the Republic of Bosnia and Herzegovina and the forces of the Bosnian Croats, on the other....

In considering the conflict relating to the events in opstina Prijedor, the Trial Chamber is not, however, bound to confine its attention to the immediate area of that opstina or to the time of the alleged offences but may consider the ongoing conflict between the Government of the Republic of Bosnia and Herzegovina and the Bosnian Serb forces in its entirety. [...] The ongoing conflict before, during and after the time of the attack on Kozarac on 24 May 1992 were taking place and continued to take place throughout the territory of Bosnia and Herzegovina between the Government of the Republic of Bosnia and Herzegovina, on the one hand, and, on the other hand, the Bosnian Serb forces, elements of VJ [Yugoslav Army] operating from time to time in the territory of Bosnia and Herzegovina, and various paramilitary groups, all of which had occupied or were proceeding to occupy a significant portion of the territory of the State...

Given the nature of the armed conflict as an ethnic war....

B. Article 2 of the Statute

2. Status of the Victims as "Protected Persons"

(b) Were the victims in the hands of a party to the conflict?

As previously discussed, the Republika Srpska was a party to the conflict in the Republic of Bosnia and Herzegovina opposed to the Republic's secession from the Socialist Federal Republic of Yugoslavia...

(c) The division of the JNA [Yugoslav Federal Army]

...On 15 May 1992 the Security Council, in resolution 752 of 1992, demanded that all interference from outside Bosnia and Herzegovina by units of the JNA cease immediately and that those units either be withdrawn, be subject to the authority of the Government of the Republic of Bosnia and Herzegovina, or be disbanded and disarmed... By 19 May 1992 the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) had lost or given up effective control over opstina Prijedor and most other parts of the Republic of Bosnia and Herzegovina.

...by the signing, on 22 May 1992, just two days before the attack on Kozarac, of an agreement by the representatives of Alija Izetbegovic (President of the Republic of Bosnia and Herzegovina and the SDA), Radovan Karadzic (President of the SDS) and Miljenko Brkic (President of the Croatian Democratic Community) to abide by the substantive rules of armed conflict not of an international character prescribed by Common Article 3 of the Geneva Convention... 


(c) Were the victims in the hands of a party to the conflict of which they were not nationals?

(i) Applicable legal test

The armed forces of the Republika Srpska, and the Republika Srpska as a whole, were, at least from 19 May 1992 onwards, legal entities distinct from the VJ and the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro)...

The particular problem of applying general principles of international law relating to State responsibility for de facto organs or agents to the specific circumstance of rebel forces fighting a seemingly internal conflict against the recognized government of a State, but dependent on the support of a foreign Power in the continuation of that conflict, was considered by the International Court of Justice ("Court") in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua, (Nicar. v U.S.) (Meritis), ("Nicaragua case").

According to the Court: The conflict between the contras' forces and those of the Government of Nicaragua is an armed conflict which is "not of an international character"...

The Court asked whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government. 

In concluding that the United States had not exercised sufficient control "in all fields as to justify treating the contras as acting on its behalf", the Court set a particularly high threshold test for determining the requisite degree of control on the part of the United States...

United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purposes of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependence on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contra without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed...

Secondly, prior to the withdrawal of forces of the Federal Republic of Yugoslavia (Serbia and Montenegro) [from Bosnia] on or before 19 May 1992, Bosnian Serb troops served in the ranks of the JNA [Yugoslav Federal Army], and were transferred into the newly-formed VRS [Army of the Republika Srpska] after that date. Thus, unlike the Nicaragua case in which the Court considered whether the contra forces had, over time, fallen into such a sufficient state of dependency and control vis--vis the United States that the acts of one could be imputed to another, the question for this Trial Chamber is whether, after 19 May 1992, the Federal Republic of Yugoslavia (Serbia and Montenegro), by its withdrawal from the territory of the Republic of Bosnia and Herzegovina and notwithstanding its continuing support for the VRS, had sufficiently distanced itself from the VRS so that those forces could not be regarded as de facto organs or agents of the VJ [Yugoslav Army] and hence of the Federal Republic of Yugoslavia (Serbia and Montenegro)...

...It remains the task of the Prosecution to prove that the nature of the relationship between the VRS and the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro), and between the VRS and the VJ in particular, was of such a character... 


(ii) The creation of the VRS and the transfer of responsibility to the VRS by the JNA/VJ in May 1992

The details of the creation of the VRS in May 1992 have already been dealt with in Section II. A. 7 of this Opinion and Judgment but its principal features may be restated. As a response to Security Council resolution 752, from 15 May 1992 JNA [Yugoslav Federal Army] soldiers born in Bosnia and Herzegovina who were serving in JNA units in Serbia or Montenegro were ordered to report to, and place themselves at the disposal of, JNA units in Bosnia and Herzegovina, while those born elsewhere were to report to JNA units in Serbia or Montenegro... 


(iii) Relationship of the VRS to the Federal republic of Yugoslavia (Serbia and Montenegro) after 19 May 1992

What then of the second relationship, namely that between the SDS (and hence the Republika Srpska) and the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro)? Unlike the situation confronted by the Court in the Nicaragua case, where the United States had largely selected and installed the political leaders of the contras, in the Republika Srpska political leaders were popularly elected by the Bosnian Serb people of the Republic of Bosnia and Herzegovina. Indeed, as previously noted, the independence of the Republika Srpska itself was declared at a vote of the Assembly of the Serbian People of Bosnia and Herzegovina on 9 January 1992. The Assembly and its leaders played a role in the overall conduct of the war both in the Republic of Bosnia and Herzegovina and beyond, in addition to the supply of paramilitary forces to supplement the fighting strength of the new VRS units, which forces took part in the military operations in opstina Prijedor.

The Judgment, accordingly, takes a correct view when, referring in particular to the atrocities, acts of violence or terrorism and other inhuman actions that Nicaragua alleges to have been committed by the contras against the persons and property of civilian populations, it holds that the perpetrators of these misdeeds may not be considered as having been specifically charged by United States authorities to commit them unless, in certain concrete cases, unchallengeable proof to the contrary has been supplied.

First, in relation to the attack on Kozarac and the running of the detention camps specifically, no evidence of the involvement of non-Bosnian Serb officers has been presented.

Without evidence of orders having been received from Belgrade which circumvented or overrode the authority of the Corps Commander, those acts cannot be said to have been carried out "on behalf of" the Federal Republic of Yugoslavia (Serbia and Montenegro).

As to the financing of the VRS as a whole, such evidence, without more, as with the direct relationship established in the Nicaragua case between financing of contra activities against the Government of Nicaragua by the United States and the nature and intensity of those activities, establishes nothing more than the potential for control inherent in the relationship of dependency which such financing produced.

The SDS political leadership of the Republika Srpska and their senior military commanders no doubt considered the success of the overall Serbian war effort as a prerequisite to their stated political aim of joining with Serbia and Montenegro as part of a Greater Serbia, unifying as it would the territories in which Serbs lived in the former Yugoslavia. This was also the desire of the majority of the Bosnian Serb people, who feared, rightly or wrongly, their fate in the hands of a State controlled or dominated by other ethnic groups.

In that sense, there was little need for the VJ and the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) to attempt to exercise any real degree of control over, as distinct from coordination with, the VRS. So long as the Republika Srpska and the VRS remained committed to the shared strategic objectives of the war, and the Main Staffs of the two armies could coordinate their activities at the highest levels, it was sufficient for the Federal Republic of Yugoslavia (Serbia and Montenegro) and the VJ to provide the VRS with logistical supplies and, where necessary, to supplement the Bosnian elements of the VRS officer corps with non-Bosnian VJ or former JNA officers, to ensure that this process was continued. In particular, the relationship between the Main Staff of the VRS and the Main Staff of the VJ cannot, on the evidence presented before this Trial Chamber, be said to involve anything more than a general level of coordination consonant with their relationship as allied forces in the Serbian war effort. 

There is no evidence on which this Trial Chamber can conclude that the Federal Republic of Yugoslavia (Serbia and Montenegro) and the VJ ever directed or, for that matter, ever felt the need to attempt to direct, the actual military operations of the VRS, or to influence those operations beyond that which would have flowed naturally from the coordination of military objectives and activities by the VRS and VJ at the highest levels.

There is, in short, no evidence on which this Trial Chamber may confidently conclude that the armed forces of the Republika Srpska, and the Republika Srpska as a whole, were anything more than mere allies, albeit highly dependent allies, of the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) in its plan to achieve a Greater Serbia from out of the remains of the former Yugoslavia... 


3. Legal Findings

... The Trial Chamber is, by majority with the Presiding Judge dissenting, of the view that, on the evidence presented to it, after 19 May 1992 the armed forces of the Republika Srpska could not be considered as de facto organs or agents of the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro), either in opstina Prijedor or more generally. For that reason, each of the victims of the acts ascribed to the accused in Section III of this Opinion and Judgment enjoy the protection of the prohibitions contained in Common Article 3, applicable as it is to all armed conflicts, rather than the protection of the more specific grave breaches regime applicable to civilians in the hands of a party to an armed conflict of which they are not nationals, which falls under Article 2 of the Statute. Such a conclusion is, of course, without prejudice to the position of those citizens of the Republic of Bosnia and Herzegovina who found themselves in the hands of forces of the JNA before 19 May 1992 or in the hands of forces of the VJ after that date, whether in the territory of the Republic of Bosnia and Herzegovina or elsewhere, or to those citizens of the Republic of Bosnia and Herzegovina in the hands of units of the VRS which, from time to time, may have fallen under the command and control of the VJ and of the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro).

... The consequence of this finding, as far as this trial is concerned, is that, since Article 2 of the Statute is applicable only to acts committed against "protected persons" within the meaning of the Geneva Conventions, and since it cannot be said that any of the victims, all of whom were civilians, were at any relevant time in the hands of a party to the conflict of which they were not nationals, the accused must be found not guilty of the counts which rely upon that Article, namely Counts 5, 8, 9, 12, 15, 18, 21, 24, 27, 29 and 32. 


VII. LEGAL FINDINGS

...The Trial Chamber has held, by a majority, that the Prosecution has failed to prove beyond reasonable doubt that the victims of the acts alleged in the Indictment were protected persons under the provisions of the Geneva Conventions. Accordingly, as found by the Appeals Chamber, Article 2 of the Statute proscribing grave breaches of those Conventions is inapplicable...

VIII. JUDGMENT

...FOR THE FOREGOING REASONS, having considered all of the evidence and the arguments, THE TRIAL CHAMBER finds as follows:

(1) By a majority, Judge McDonald dissenting,

...Decides that the charges brought under Article 2 of the Statute of the International Tribunal were, in the present case, inapplicable at the time in opstina Prijedor because it has not been proved that the victims were protected persons, which is an element of those offences charged, and therefore finds the accused, Dusko Tadic, not guilty on counts 5, 8, 9, 12, 15, 18, 21, 24 and the alternative charge under count 27, counts 29 and 32.

(2) Unanimously finds on the remaining charges as follows:

Not Guilty on the counts: 6, 7, 19, 20, 25, 26, 28, 30, 31.

(END OF QUOTE) 


REACTIONS TO THE JUDGMENT IN THE WEST:

Downplaying the significance of the finding
Once again, the classical method of simply avoiding to even mention the the key verdict of the trial was used. Most American newspapers avoided to mention that the main verdit was: IT WAS A CIVIL WAR - STUPID! There were a few exceptions to the rule, but even there the authors had audacity to compare the Hague Tribunal with the one organized for the Nazi criminals in Nuremberg, 1945.

Skillful liars use the art of spinning the truth
The New York Times has such liars on payroll in abundance 



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Last revised: June 2, 1997