1999

ITFY

Prosecutor v. Dusko Tadic Appeals Chamber

- Tadic, a Bosnian-Serb convicted of ethnic cleansing against Bosnian-Muslims. He was a soldier of Bosnia, acting in Bosnia, but the army was controlled by Yugoslavia (Serbia-Montenegro) even after 19 may 1992, when they withdrew - The Statute of ITFY gives competence to the tribunal for ‘grave breaches’ under the 4 Geneva Conventions 1949 against ‘persons protected’ - Prosecutor appealed the acquittal of counts. The judgement said that victims were not ‘protected persons’, that the Bosnian Serbs were not acting as organs of another State Art 2 of Statute requires: 1. Nature of conflict (international), three cases a) two or more States b) internal conflict other State intervenes c) internal conflict, a participant act on behalf of other State Before 19-05-92 Yugoslavia’s Army was acting in Bosnia, after that date Bosnia Army was alone in Bosnia Resolution Nicaragua Case, two conditions for a foreign State to be responsible for operations of contras: i. ‘effective control’ of paramilitary group + financed by that State + coordinated by that State ii. exercised with respect specific operation where breaches were committed

In the Case the UCLAS were not US officials (private persons) but acted under instructions of US government for mining of ports, so US responsible Contras, were not officials, (private persons) were financed but they acted by themselves, so US not responsible The Chamber distinguished Nicaragua because i. GIL, art 8DASR acts of private individuals acting on behalf of a State are attributable to such State. Two cases + isolated individuals, it is necessary overall control, specific instructions + hierarchical structured group. In this case the State is responsible even from ultra vires acts, provided overall control (demonstrable link). This is so because state responsibility is based on concept of accountability (explain actions to public) which disregards legal formalities ii. ‘effective control’ is at variance with GIL Yeager Case, revolutionary Komitehs, Iran Loizidou v. Turkey (117) the requirement of international law for the attribution to States of acts performed by private individuals is that the State exercises control over the individuals. The degree of control may, however, vary according to the factual circumstances of each case. The Appeals Chamber fails to see why in each and every circumstances international law should require a a high threshold for the test of control Status of victim (protected): those in hands of a Party to the conflict which they are not nationals, since they do not have normal diplomatic protection. Based on purpose of the conventions the approach must be more substantial than formal in modern ethnic conflicts