## Facts

- The accused, Duško Tadić, a Bosnian Serb political official in Kozarac (Prijedor municipality), was alleged to have participated in abuses against non-Serb civilians detained in camps including Omarska, Keraterm, and Trnopolje in 1992.
- He was arrested in Germany (1994), transferred to The Hague (1995), and tried before the International Criminal Tribunal for the former Yugoslavia (ICTY).
- He was charged under the ICTY Statute with grave breaches of the Geneva Conventions (Art. 2), violations of the laws or customs of war (Art. 3), and crimes against humanity (Art. 5).
- The Trial Chamber convicted him on a subset of counts for war crimes and crimes against humanity, acquitted him on the grave-breaches counts based on its view that the conflict was non-international, and imposed a 20-year sentence.
- Both the Defence and the Prosecution appealed; the Prosecution sought additional convictions, and the Defence challenged convictions and aspects of the proceedings.

## Issues

1. Whether alleged trial defects, including claimed inequality of arms, required reversal for lack of a fair trial.
2. Whether the legal classification of the conflict affected the availability and scope of liability for war crimes and related charges.
3. Whether discriminatory intent is an element of all crimes against humanity or only of persecution.
4. Whether acts committed with personal motives can constitute crimes against humanity when committed within a widespread or systematic attack against a civilian population.
5. Whether, and under what conditions, participation in a joint criminal enterprise is a basis for individual criminal responsibility.
6. Whether the Appeals Chamber could enter additional convictions on appeal consistent with notice, the indictment, and proof beyond reasonable doubt.

## Decision

- The Appeals Chamber dismissed the Defence appeal challenging the convictions and rejected claims that any procedural imperfections caused material prejudice.
- The Appeals Chamber allowed the Prosecution’s cross-appeal in part, reversed certain acquittals, and entered additional convictions for war crimes and crimes against humanity.
- The Appeals Chamber held that discriminatory intent is not an element of all crimes against humanity and is required only for persecution.
- The Appeals Chamber held that personal motives do not negate crimes against humanity if the acts occur within a widespread or systematic attack against a civilian population.
- The Appeals Chamber reaffirmed that serious violations of customary international humanitarian law in internal armed conflicts can constitute war crimes and treated Article 3 as a residual basis capturing such violations.
- The Appeals Chamber remitted sentencing consequences of additional convictions for further proceedings; later sentencing appeals resulted in an effective 20-year term.

## Legal Principles

- A fair trial standard requires fairness rather than perfection; “equality of arms” is violated only when one party is placed at a substantial disadvantage causing material prejudice.
- Crimes against humanity require that prohibited acts be committed as part of a widespread or systematic attack against a civilian population; the attack need not be linked to an international armed conflict.
- “Widespread” concerns large-scale nature; “systematic” concerns organized character and the improbability of random occurrence.
- Discriminatory intent is an element of persecution, not of all crimes against humanity.
- Personal motivation does not preclude crimes against humanity when the contextual attack element is met and the conduct targets victims as members of the attacked civilian population.
- Joint criminal enterprise is a recognized mode of liability where an accused participates in a common plan or purpose; responsibility can extend to other crimes that were foreseeable consequences of carrying out the enterprise and whose risk the participant accepted.
- An appellate chamber may enter additional convictions supported by the trial findings and the evidentiary record if consistent with the indictment’s factual basis, adequate notice, and proof beyond reasonable doubt.

## Conclusion

The ICTY Appeals Chamber affirmed Tadić’s core convictions, entered additional convictions on the Prosecution’s cross-appeal, and set major doctrinal rules on crimes against humanity (contextual elements, limited role of discriminatory intent, and irrelevance of personal motives when the attack context is satisfied) while also articulating joint criminal enterprise as a basis for individual criminal responsibility.


Prosecutor v. Tadić (Duško), Case No. IT-94-1-A (Int’l Crim. Trib. for the Former Yugoslavia July 15, 1999)