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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-à-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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