This case is important for more than one reason: It was the first case before the ICTY, but more importantly, the 1995 and 1999 decisions of the Appeals Chamber represent milestones in contemporary international criminal law.
The first key decision in the Tadic case – and in the jurisdiction of the ICTY in general – was the Appeals Chamber’s judgment of 2 October 1995.
In this decision, the judges of the Appeals Chamber handed down important decisions which confirmed on the one hand the legitimacy of the creation of the ICTY. Furthermore, they admitted that a subsidiary (judiciary) organ of the United Nations could review Security Council resolutions. With theses decisions as a basis,, they developed a set of convincing arguments in favour of the legitimacy of the ICTY.
On the other hand, the Appeals Chamber – after a close examination of customary international law – came to a conclusion of major importance for the ICTY and the development of international criminal law in general (§ 134): “All these factors confirm that customary international law imposes criminal responsibility for grave breaches of the common article 3 [of the 1949 Geneva Conventions], completed by other principles and general rules (…)”. The common article 3 of the 4 Geneva Conventions is applicable to armed internal conflicts and, therefore, the ICTY has criminal jurisdiction to punish violations of these rules. Whether the alleged crimes of Dusko Tadic were committed in the context of an internal or of an international armed conflict is thus not relevant: the Tribunal has jurisdiction over them in either case.
The second milestone is the decision delivered by the Appeals Chamber in 1999, which contains important considerations concerning the following issues: the method of qualifying international armed conflicts, the definition of « protected persons » according to the Geneva Conventions, the weakening of the link between armed conflicts and crimes against humanity as enumerated in the ICTY Statute, and the development of the theory of joint criminal enterprise. (see link opposite )
Among those important developments of international humanitarian law brought about by those decisions, one can quote the ones concerning:
– Definition of armed conflict and determination of the scope of application of humanitarian law:
“…an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.” (Tadic, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, §. 70)
– Definition of ‘laws and customs of war’:
“Article 3 is a general clause covering all violations of humanitarian law not falling under Article 2 or covered by Articles 4 or 5, more specifically: (i) violations of the Hague law on international conflicts; (ii) infringements of provisions of the Geneva Conventions other than those classified as ‘grave breaches’ by those Conventions; (iii) violations of common Article 3 and other customary rules on internal conflicts; (iv) violations of agreements binding upon the parties to the conflict, considered qua treaty law, i.e., agreements which have not turned into customary international law . . . .” (Tadic, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, §. 89)
– Common article 3 is part of customary law:
“[S]ome treaty rules have gradually become part of customary law. This holds true for common Article 3 of the 1949 Geneva Conventions. . . .” (Tadic, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, §. 98)
– Definition of international armed conflict:
“It is indisputable that an armed conflict is international if it takes place between two or more States. In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international (or, depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State.” (Tadic, Appeals Chamber, July 15, 1999, § 84)
– Definition of overall control:
“[C]ontrol by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.” “[I]f the controlling State is not the territorial State where the armed clashes occur or where at any rate the armed units perform their acts, more extensive and compelling evidence is required to show that the State is genuinely in control of the units or groups not merely by financing and equipping them, but also by generally directing or helping plan their actions.” (Tadic, Appeals Chamber, July 15, 1999, § 137, 138)
– Responsibility for joint criminal enterprise:
“[T]he Statute does not confine itself to providing for jurisdiction over those persons who plan, instigate, order, physically perpetrate a crime or otherwise aid and abet in its planning, preparation or execution. The Statute does not stop there. It does not exclude those modes of participating in the commission of crimes which occur where several persons having a common purpose embark on criminal activity that is then carried out either jointly or by some members of this plurality of persons. Whoever contributes to the commission of crimes by the group of persons or some members of the group, in execution of a common criminal purpose, may be held to be criminally liable, subject to certain conditions.” (Tadic, Appeals Chamber, July 15, 1999, §. 190)