Tadic - Opinion and Judgment - Separate and dissenting Opinion of Judge McDonald regarding the Applicability of Article 2 of the Statute

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

DUSKO TADIC a/k/a/ "DULE"

_________________________________________________________________

SEPARATE AND DISSENTING OPINION OF JUDGE MCDONALD
REGARDING THE APPLICABILITY OF ARTICLE 2 OF THE STATUTE

_________________________________________________________________

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. Michaļl Wladimiroff
Mr. Steven Kay
Mr. Milan Vujin
Mr. Alphons Orie
Ms. Sylvia de Bertodano
Mr. Nikola Kostic

1. I completely agree with and share in the Opinion and Judgment with the exception of the determination that Article 2 of the Statute is inapplicable to the charges against the accused. I find that at all times relevant to the Indictment, the armed conflict in opstina Prijedor was international in character and that the victims of the accused were persons protected by the Geneva Convention Relative to the Protection of Civilian Persons in Time of War ("Geneva Convention IV"). Thus, I consider that the Trial Chamber should apply the grave breaches regime to the offences charged in the Indictment under Article 2 of the Statute.

2. The majority opinion correctly concludes that those alleged to have been victims of the accused in this case were in the hands of a party to the conflict or occupying power. However, for the reasons stated hereafter, I disagree with the majority's finding that the Prosecution has failed to prove that the victims were not nationals of the party or occupying power in whose hands they were. The majority characterizes the issue before the Trial Chamber as

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 that those forces could not be regarded as de facto organs or agents of the VJ and hence of the Federal Republic of Yugoslavia (Serbia and Montenegro).¹

3. In considering this question, the majority defines the test as requiring dependency on one side and "such a relationship of control on the other that, on the facts of the instant case, the acts of the VRS, including its occupation of opstina Prijedor, can be imputed to the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro)"². The majority finds the Judgment of the International Court of Justice ("I.C.J.") in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua, Nicaragua v United States (Merits)³ ("Nicaragua") to be instructive and states that it is applying "the essence of the test"⁴. The standard crafted by the majority, however, departs from Nicaragua, and it provides that "it is neither necessary nor sufficient merely to show that the VRS was dependent, even completely dependent, on the VJ and the Federal Republic of Yugoslavia (Serbia and Montenegro) for the necessities of war. It must be shown that the VJ and the Federal Republic of Yugoslavia (Serbia and Montenegro) exercised the potential for control"⁵, which the majority construes to be "effective control"⁶. Although the majority acknowledges that Nicaragua established a "particularly high threshold test"⁷, the standard the majority has created is even more demanding. The exercise of this effective control is required after 19 May 1992, according to the majority, to establish that the VRS was an agent or organ of the Federal Republic of Yugoslavia (Serbia and Montenegro).

4. I conclude in Section I of this Opinion that the evidence presented to the Trial Chamber supports a finding of effective control of the VRS by the Federal Republic of Yugoslavia (Serbia and Montenegro) in opstina Prijedor at all times relevant to the charges in the Indictment. However, as I discuss in Section II, the appropriate test of agency from Nicaragua is one of 'dependency and control' and a showing of effective control is not required.

I. THE FEDERAL REPUBLIC OF YUGOSLAVIA (SERBIA AND MONTENEGRO)
EFFECTIVELY CONTROLLED VRS

5. The JNA's direct involvement in the armed conflict at various locations in Bosnia and Herzegovina including opstina Prijedor on behalf of the Federal Republic of Yugoslavia (Serbia and Montenegro) prior to 19 May 1992 rendered the conflict international at least in that opstina. International humanitarian law applicable to conflicts of an international character continues to apply until a general conclusion of peace is reached⁸. The majority agrees that "from the beginning of 1992 until 19 May 1992, a state of international armed conflict existed in at least part of the territory of Bosnia and Herzegovina"⁹. After that date, the majority states that

[w]hile the forces of the VJ continued to be involved in the armed conflict . . . , the character of the relationship between the VJ and the Bosnian Serb forces from that date, and hence the nature of the conflict in the areas with which this case is concerned, is discussed in the consideration of Article 2 of the Statute.¹⁰

In the discussion referred to, the majority concludes that only if effective command and control of the VRS forces continued after 19 May through the times relevant to the charges in the Indictment in opstina Prijedor would the victims be protected persons¹¹. While the majority makes no clear finding regarding the character of the conflict after 19 May 1992, this statement implicitly establishes a requirement of effective command and control of the VRS in opstina Prijedor by the Federal Republic of Yugoslavia (Serbia and Montenegro) or VJ for a finding that the conflict was international. This standard is not required by the Appeals Chamber Decision, which holds that the conflict in Bosnia and Herzegovina was rendered international by the involvement of the JNA and that a conflict can become internationalized by external support¹². A review of the background of the division of the JNA and the re-designation of the armed forces in Bosnia and Herzegovina in response to the 15 May 1992 Security Council resolution 752, demanding that the JNA cease all interference in Bosnia and Herzegovina, demonstrates that the victims of the offences charged in the Indictment are protected persons.

6. The purported withdrawal of the JNA from Bosnia and Herzegovina took place on 19 May 1992, on which date the VRS was created. However, the withdrawal was not immediately successful as several Serbian Serbs remained in the military organisation of Bosnia and Herzegovina until at least early June 1992. Those remaining included many officers, commissioned and non-commissioned, who were not of Bosnian extraction, and the Federal Republic of Yugoslavia (Serbia and Montenegro) continued to pay all salaries and pensions of the VRS.

7. The evidence proves that the creation of the VRS was a legal fiction. The only changes made after the 15 May 1992 Security Council resolution were the transfer of troops, the establishment of a Main Staff of the VRS, a change in the name of the military organisation and individual units, and a change in the insignia. There remained the same weapons, the same equipment, the same officers, the same commanders, largely the same troops, the same logistics centres, the same suppliers, the same infrastructure, the same source of payments, the same goals and mission, the same tactics, and the same operations. Importantly, the objective remained the same: to create an ethnically pure Serb State by uniting Serbs in Bosnia and Herzegovina and extending that State from the Federal Republic of Yugoslavia (Serbia and Montenegro) to the Croatian Krajina along the important logistics and supply line that went through opstina Prijedor, thereby necessitating the expulsion of the non-Serb population of the opstina.

8. Although there is little evidence that the VRS was formally under the command of Belgrade after 19 May 1992, the VRS clearly continued to operate as an integrated and instrumental part of the Serbian war effort. This finding is supported by evidence that every VRS unit had been a unit in the JNA, the command and staffs remaining virtually the same after the re-designation. The VRS Main Staff, the members of which had all been generals in the JNA and many of whom were appointed to their positions by the JNA General Staff, maintained direct communications with the VJ General Staff via a communications link from Belgrade. Colonel Selak, commander of the logistics platoon that provided logistical support to units in the Banja Luka area (both before and after 19 May 1992), stated: "Some officers had been given direct StelephoneC lines, Belgrade/Pale. There was a link there and it was used in everyday communication because there was a need for direct communication between the Chief of Staff of the Army of Republika Srpska with the Army of Yugoslavia." Moreover, the VRS continued to receive supplies from the same suppliers in the Federal Republic of Yugoslavia (Serbia and Montenegro) who had contracted with the JNA, although the requests after 19 May 1992 went through the Chief of Staff of the VRS who then sent them onto Belgrade. The ties between the military in Bosnia and Herzegovina and the SDS political party, which advocated a Greater Serbia, similarly remained unchanged after the re-designation.

9. In addition, the evidence establishes that the VRS, in continuing the JNA operation to take over opstina Prijedor, executed the military operation for the benefit of the Federal Republic of Yugoslavia (Serbia and Montenegro). Lieutenant-General Talic, whose actions the majority presumed were those of a "disciplined general officer" acting in accordance with orders of his superiors¹³, was responsible for carrying out the JNA plan before 19 May 1992. When the Federal Republic of Yugoslavia (Serbia and Montenegro) purported to withdraw, it is only reasonable to expect that this disciplined military officer would carry out his orders as they had been given to him by the very State which continued to pay his salary. Certainly there is no requirement for direct evidence that these specific orders were reiterated by Belgrade some three days after the "withdrawal", when the blockade of Kozarac began and other operations preliminary to the attack took place. That the attack on Kozarac was part of a pre-arranged military operation is confirmed by the testimony of witness Kemal Susic that the accused told him in mid-May, prior to the re-designation of the JNA, that "Kozarac will be shelled". Around this same time, Simo Miskovic, President of the SDS, said to him in reference to ongoing negotiations for peace: "Kemal, what you are doing [is] of no use, nothing can save Kozarac." Thus, in carrying out the attack on Kozarac and more generally in opstina Prijedor after the re-designation, the VRS was acting on behalf of the Federal Republic of Yugoslavia (Serbia and Montenegro).

10. All of this, including the evidence referred to by the majority, makes obvious that the re-designation was motivated only by the desire of the Federal Republic of Yugoslavia (Serbia and Montenegro) to avoid offending the international community by violating the Security Council resolution ordering the JNA to cease involvement in Bosnia and Herzegovina. The majority recognizes this, but reaches an opposite result:

It is of course possible, on or in spite of the evidence presented, to view the acts of the JNA and the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) on or about 19 May 1992 as nothing more than a cynical and intentional creation of the objective factors necessary to distance themselves from direct legal responsibility for the acts of the armed forces of the Republika Srpska, while doing everything to ensure that the material factors necessary to ensure the successful continuation of the armed conflict to achieve the same military and political goals were kept in place. Even if the legal effect of creating such objective factors, which caused no small amount of difficulty to the JNA and the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro), could be vitiated by reason of some fraudulent intention, which this Trial Chamber doubts, that is not the only nor the most reasonable conclusion open on the evidence presented.¹⁴

To the contrary, the actions of the Federal Republic of Yugoslavia (Serbia and Montenegro) were indeed calculated to make a showing of compliance while assuring that the military operations it began were successfully continued. Rather than being cynical, it would perhaps be naive not to recognize that the creation of the VRS, which coincided with the announced withdrawal by the JNA, was in fact nothing more than a ruse. Certainly the purported withdrawal was not voluntary. Formally established in January 1992, Republika Srpska had no army until the JNA division and re-designation, and had no need of one, for the Federal Republic of Yugoslavia (Serbia and Montenegro) was conducting the military operations necessary for the establishment of a Greater Serbia. Only after the Security Council demanded that the Federal Republic of Yugoslavia (Serbia and Montenegro) cease all interference in Bosnia and Herzegovina, was the VRS created. However, this was nothing more than a shift of military power and was well worth the 'difficulty', as the majority characterizes it. Indeed, these actions were taken as a necessary response to the Security Council's resolution.

11. The Security Council recognized the non-compliance of the Federal Republic of Yugoslavia (Serbia and Montenegro) in resolution 757 of 30 May 1992 when it stated that it "deplored" that the following demands of resolution 752 (1992) had not been complied with as of 30 May 1992:

that all forms of interference from outside Bosnia and Herzegovina cease immediately,

that Bosnia and Herzegovina's neighbors take swift action to end all interference and respect the territorial integrity of Bosnia and Herzegovina,

that action be taken as regards units of the Yugoslav People's Army (JNA) in Bosnia and Herzegovina, including the disbanding and disarming with weapons placed under effective international monitoring of any units that are neither withdrawn nor placed under the authority of the Government of Bosnia and Herzegovina . . . .

In this resolution, the Security Council also "condemn[ed] the failure of the authorities of the Federal Republic of Yugoslavia (Serbia and Montenegro), including the Yugoslav People's Army (JNA), to take effective measures to fulfil the requirements of resolution 752 (1992)". As this resolution reveals, despite the purported JNA withdrawal from Bosnia and Herzegovina on 19 May 1992, active elements of what had been the JNA and was now re-christened as the VJ operated in tandem with the VRS in Bosnia and Herzegovina. In particular, VJ air crew and aircraft remained in Bosnia and Herzegovina after the purported May withdrawal and worked with the VRS throughout 1992 and 1993. This and other evidence received at trial proves that there was no material change in the armed forces in opstina Prijedor, and the conflict remained international after 19 May 1992, with the Federal Republic of Yugoslavia (Serbia and Montenegro) exercising effective control of the operations of the VRS in opstina Prijedor.

12. The majority's reference to the limited direct evidence regarding the daily control of VRS commander General Ratko Mladic by the VJ Main Staff in Belgrade¹⁵ does not affect this determination. It is enough that General Mladic, who had been a commander in the JNA, continued to carry out his orders which were issued by the Federal Republic of Yugoslavia (Serbia and Montenegro) before 19 May 1992, considering the evidence that establishes that there was direct communication between his office and Belgrade.

13. Nor can I agree with the majority's conclusion that the Federal Republic of Yugoslavia (Serbia and Montenegro) and the VRS were allies, and thus, there was no effective control¹⁶. They can be considered allied to the extent that they were united in allegiance to the Federal Republic of Yugoslavia (Serbia and Montenegro), but this supports, rather than vitiates, the status of the VRS as an agent.

14. Moreover, the Federal Republic of Yugoslavia (Serbia and Montenegro) essentially depleted its own army to establish the VRS to carry out effectively the war effort in Bosnia and Herzegovina without significant overt involvement of the Federal Republic of Yugoslavia (Serbia and Montenegro). This adjustment enabled the Federal Republic of Yugoslavia (Serbia and Montenegro) to achieve its military objective and at the same time feign compliance with the Security Council resolution. Yet the Security Council was not misled and it imposed a series of economic sanctions against the Federal Republic of Yugoslavia (Serbia and Montenegro) for non-compliance which remained in place at all times relevant to the Indictment.

15. The continuity between the JNA and the VRS particularly as it relates to the military operations in the opstina Prijedor area, the presence of significant numbers of non-Bosnian former JNA officers in the VRS, the continued payment of salaries and pensions by Belgrade, the close proximity in time between the attack on Prijedor town and the attacks on Kozarac, Jaskici and Sivci and the establishment of camps, and the relationship between the VRS and the VJ forces, taken together, establish that the change was in name only. Thus, if effective control is the degree of proof required to establish agency under Nicaragua, I conclude that this standard has been met. Therefore, the victims of the accused were in the hands of a party to which they were not nationals and Article 2 of the Statute is applicable to the offences in the Indictment.

II. EFFECTIVE CONTROL: AN IMPROPER STANDARD FOR
AGENCY DETERMINATION IN THIS CASE

16. Despite this conclusion, I find that the majority's requirement of effective control for making a determination of agency is founded on a misreading of the findings in Nicaragua and a misapplication of those findings to the facts of the case before the Trial Chamber. I would conclude that the effective control standard was never intended to describe the degree of proof necessary for a determination of agency founded on dependency and control as articulated in paragraph 109 of Nicaragua. However, if Nicaragua did set the standard of proof required for agency as that of effective control, that finding should be limited to the specific facts of that case and is not applicable to the issues presented to the Trial Chamber.

17. In considering whether the victims of the accused were protected persons at the times relevant to the Indictment, the majority states that, upon re-designation of the JNA in Bosnia and Herzegovina as the VRS, the key question was whether

the requisite degree of command and control by the VJ, and hence the Federal Republic of Yugoslavia (Serbia and Montenegro), over the VRS is established for the purposes of imputing the acts of those forces operating in opstina Prijedor or the VRS as a whole to the Federal Republic of Yugoslavia (Serbia and Montenegro), [such that] those persons can still be said to be in the hands of a party to the conflict of which they are not nationals within the meaning of Article 4 of Geneva Convention IV . . . .¹⁷

The majority indicates that this determination may be made on the following basis:

as a rule of customary international law, the acts of persons, groups, or organisations may be imputed to a State where they act as de facto organs or agents of that State. One may speak of imputability as "the result of the intellectual operation necessary to bridge the gap between the delinquency of the organ or official, and the attribution of breach and liability to the State". [Citation omitted.]¹⁸

The majority then turns to the Nicaragua case for guidance in determining whether the Bosnian Serb forces, in the hands of whom the victims of the accused were, acted as agents of a party other than the Republic of Bosnia and Herzegovina on or after 19 May 1992.

18. In Nicaragua, the International Court of Justice framed the issue as being

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 Untied States Government, or as acting on behalf of that Government.¹⁹

Recognizing that the ultimate question in the case before the Trial Chamber is whether the acts of the VRS can be equated, for legal purposes, with the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) by reason of its status as a de facto organ or agent of that Government, the majority finds that Nicaragua mandates dependency on the one side and control of the Federal Republic of Yugoslavia (Serbia and Montenegro) over the VRS on the other for a showing of agency. In support of this conclusion, the majority also cites paragraph 115 of Nicaragua, which states that in order for the participation of the United States in "funding, organizing, training, supplying and equipping" the contras "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". The majority concludes that the appropriate test is whether, even if there was great dependency, it was also shown that "the VJ and the Federal Republic of Yugoslavia (Serbia and Montenegro) exercised the potential for control inherent in that relationship of dependency or that the VRS had otherwise placed itself under the control of the Federal Republic of Yugoslavia (Serbia and Montenegro)"²⁰.

19. The majority acknowledges some of the very different factual circumstances here from those in Nicaragua, including first, that the VRS was an occupying force rather than an raiding army. The second point noted by the majority-that the VRS was birthed from the ranks of the JNA-deserves significant attention. Whereas in Nicaragua,

the Court considered whether the contra forces had, over time, fallen into such a sufficient state of dependency and control vis-ą-vis the Untied 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),

had "sufficiently distanced itself from the VRS"²¹. However, it appears that the majority ultimately finds these differences to be of no consequence in determining the appropriate test for a finding of agency, and applies the effective control standard employed in Nicaragua. By failing to consider the context in which the Nicaragua test of agency was determined, the majority erroneously imports the requirement of effective control to an agency determination.

20. The majority also imports a test of effective control to determine when particular victims can be considered protected persons. I disagree with this approach. While it is correct that the law of belligerent occupation comes into effect only upon the establishment of effective control of territory, this is not decisive of whether and when a person is protected by Geneva Convention IV. Article 4 of this Convention defines protected persons in terms which include those who are living in occupied territory, but does not so restrict them²². It is well established that the Convention as a whole comes into effect upon the commencement of hostilities and, therefore, a civilian could be a protected person if he or she lives in an area which has been invaded by foreign forces, even where those forces have not yet established effective control. Thus, it would be a grave breach of the Convention for such forces, for example, to detain that civilian and summarily execute him. Illustrative in this regard is the commentary to Article 6 of Geneva Convention IV, which states:

The relations between the civilian population of a territory and troops advancing into that territory, whether fighting or not, are governed by the present Convention. There is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation. . . The convention is quite definite on this point: all persons who find themselves in the hands of a Party to the conflict or an Occupying Power of which they are not nationals are protected persons. No loophole is left.²³

21. As previously discussed, the majority seemingly would also require that a foreign power have effective control of an area for the conflict to be rendered international. By importing the standard of effective control which was designed to determine State imputability in Nicaragua to determine both whether a victim is a protected person and for the purpose of characterising the nature of an armed conflict, the majority has expanded the reach of the holding of Nicaragua in a way that is incompatible with international humanitarian law.

A. Nicaragua Establishes Two Distinct Tests for Attributability

22. As a careful review of the I.C.J.'s decision in Nicaragua reveals, the requirement of effective control was not mentioned until after the I.C.J. determined that there was no agency relationship, indicating that the showing of effective control is a separate and distinct basis for determining State responsibility for the conduct of others.

23. Prior to declaring in paragraph 109 of Nicaragua the test relied upon here by the majority, the I.C.J. noted, in relevant part, that

the Court is not satisfied that all the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics wholly devised by the United States . . . .

. . .

Despite the large quantity of documentary evidence and testimony which it has examined, the Court has not been able to satisfy itself that the respondent State "created" the contra force in Nicaragua. . . . Nor does the evidence warrant a finding that the United States gave "direct and critical combat support", at least if that form of words is taken to mean that this support was tantamount to direct intervention by the United States combat forces, or that all contra operations reflected strategy and tactics wholly devised by the United States.²⁴

The court then states, in paragraph 109:

What the Court has to determine at this point is 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 paragraph 110, the I.C.J. concludes that there was not complete dependence by the contras, after the initial years, on United States aid and that there was insufficient evidence to reach a finding "on the extent to which the United States made use of the potential for control inherent in that dependence". It found that it could not equate the contra force with the United States for legal purposes, implicitly concluding that the contras were not agents of the United States. Importantly, the court found that this determination did not end the question of the responsibility of the United States²⁵.

24. The I.C.J. thereafter notes that the United States could also be liable for its assistance to the contras, seemingly where there is no finding of agency, with "[t]he question of the degree of control of the contras by the United States Government [being] relevant to the claim of Nicaragua attributing responsibility to the United States for activities of the contras whereby the United States has, it is alleged, violated an obligation of international law not to kill, wound or kidnap citizens of Nicaragua"²⁶. The court there finds that the forms of participation by the United States including even the general control of the contra force would not mean, without further evidence, that the United States "directed or enforced the perpetration" of the unlawful acts, and concludes that for the United States to be legally responsible, "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"²⁷.

25. The separate opinion of Judge Ago, also cited by the majority, explains lucidly the concept that a State can be found legally responsible even where there is no finding of agency. He states:

[T]he negative answer returned by the Court to the Applicant's suggestion that the misdeeds committed by some members of the contra forces should be considered as acts imputable to the United States of America is likewise in conformity with the provisions of the International Law Commission's draft. It would indeed be inconsistent with the principles governing the question to regard members of the contra forces as persons or groups acting in the name and on behalf of the United States of America. Only in cases where certain members of those forces happened to have been specifically charged by United States authorities to commit a particular act, or to carry out a particular task of some kind on behalf of the United States, would it be possible so to regard them. Only in such instances does international law recognize, as a rare exception to the rule, that the conduct of persons or groups which are neither agents nor organs of a State, nor members of its apparatus even in the broadest acceptation of that term, may be held to be acts of that State. 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.²⁸

Therefore it appears that there are two bases on which the acts of the VRS could be attributed to the Federal Republic of Yugoslavia (Serbia and Montenegro): where the VRS acted as an agent of the Federal Republic of Yugoslavia (Serbia and Montenegro), which could be established by a finding of dependency on the one side and control on the other; or where the VRS was specifically charged by the Federal Republic of Yugoslavia (Serbia and Montenegro) to carry out a particular act on behalf of the Federal Republic of Yugoslavia (Serbia and Montenegro) thereby making the act itself attributable to the Federal Republic of Yugoslavia (Serbia and Montenegro). In Nicaragua, the court required a showing of effective control for this latter determination.

B. Effective Control as a Standard of Proof for Agency Determination

26. However, if the standard of proof required in Nicaragua for a determination of agency was that of effective control, I conclude that this finding should be limited to the facts of Nicaragua and that, on our facts, such degree of proof is not required. Because this conflict was rendered international by the involvement of the Federal Republic of Yugoslavia (Serbia and Montenegro), unlike in Nicaragua where the conflict was found to be internal as between the contras and the Nicaraguan government, that which would constitute equating the VRS for legal purposes with the VJ or the Federal Republic of Yugoslavia (Serbia and Montenegro) should be analysed differently.

27. In coming to its ultimate conclusion, the majority opinion fails to give appropriate weight to the unique circumstances the Trial Chamber is faced with given its position as an international criminal tribunal determining individual-as opposed to State-responsibility. This problem permeates the entire analysis, beginning with the manner in which the issue is initially framed as one of 'imputability', which the majority clearly notes relates to 'delinquency' and the 'attribution of breach and liability' to a State²⁹. A determination of imputability was appropriate in Nicaragua, where the moving party sought to determine fault and liability of a State for the acts of the contras as against the United States, but is not suitable here, where the issue of responsibility is solely for the purpose of identifying the occupying power. This is recognized even by the majority, which notes that Nicaragua "was concerned ultimately with the responsibility of a State for the breach, inter alia, of rules of international humanitarian law, while the instant case is concerned ultimately with the responsibility of an individual for the breach of such rules"³⁰.

28. The primary issue in Nicaragua was whether the acts of the contras could be imputed so as to impose legal responsibility for monetary damages on the United States. Although the court ultimately determined that the conflict there was not in all respects international³¹, the essence of its Judgment is inapplicable to the facts of this case, where the relevant issue is whether the Federal Republic of Yugoslavia (Serbia and Montenegro) "had sufficiently distanced itself from the VRS" and legal responsibility for monetary damages against a State is not in issue.

29. Further, in Nicaragua, the contras were not United States nationals and there was no attempt or desire to annex Nicaragua to the United States. Moreover, the contras did not have the goal of cleansing all non-United States citizens or non-contras from the country. In contrast, Bosnian Serbs loyal to Republika Srpska, who comprised the VRS, acted in furtherance of the goal of the Federal Republic of Yugoslavia (Serbia and Montenegro) to annex parts of Bosnia and Herzegovina to the Federal Republic of Yugoslavia (Serbia and Montenegro). Also notable, although not dispositive, is that in Nicaragua the actual nationality of the contras was not in dispute. Here, the Bosnian Serbs active in the conflict attempted to withdraw themselves from status as nationals of Bosnia and Herzegovina and aligned themselves with the Federal Republic of Yugoslavia (Serbia and Montenegro), which, in turn, provided to all citizens of the former Yugoslavia consular protection until the question of nationality was ultimately settled.

30. The I.C.J. found further in Nicaragua that, although the size of the contra force increased dramatically once the United States began to assist it, the United States did not create the armed opposition; that the contras were never a part of the regular armed forces of the United States; and that the contras had an existing structure separate from the United States military. Here, as previously noted, it is undisputed that the VRS was created by the Federal Republic of Yugoslavia (Serbia and Montenegro) and that its components were part of the military organisation of the Federal Republic of Yugoslavia (Serbia and Montenegro) prior to its re-designation.

31. Similarly, in Nicaragua it was found that "[i]n light of the evidence and material available to it, the Court is not satisfied that all the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics wholly devised by the United States"³². To the contrary, the attack on Kozarac and its surrounds was undoubtedly based on the strategy and tactics devised by the JNA since the attack began, with the cutting of telephone lines and the institution of a blockade, only three days after the purported withdrawal of the JNA troops from Bosnia and Herzegovina, and the shelling began a mere two days thereafter on 24 May. Moreover, the similarity between the attacks in this area and others throughout Bosnia and Herzegovina launched by the JNA supports the conclusion that the tactics and strategy employed were indeed devised by the JNA. This is confirmed by the fact that the same commanders and virtually all of the same officers remained in place after 19 May 1992 despite the alleged change in the military structure. It is irrational to believe that all of the operations were planned only after 18 May 1992, given the substantial evidence showing that this operation was wholly planned and arranged by the JNA, noting especially the testimony that SDS leaders knew of the attack well before the re-designation, even though it was carried out by forces designated as the VRS after 19 May 1992.

32. Given these considerations, it becomes obvious that, as the majority recognizes,

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.³³

Taking this into account, I question why there should be a requirement that effective control was in fact exercised when the Federal Republic of Yugoslavia (Serbia and Montenegro) was assured that, having transferred officers and enlisted men and provided the matériel, thereby depleting its forces, its plan would be executed. State responsibility for the acts of individuals hinges on such control and it must therefore be established, but here that is not an issue. The occupation of opstina Prijedor could be accomplished only after the JNA, on behalf of the Federal Republic of Yugoslavia (Serbia and Montenegro), set it in motion and gave the VRS the wherewithal to accomplish it. Under such circumstances there was no need for effective control, however, because the very establishment and continued existence of the VRS is evidence of such control. The inapplicability of the Nicaragua standard of effective control is patent; it was neither designed for these factual circumstances nor is it an appropriate consideration.

33. The commentary to Article 29 of Geneva Convention IV gives better guidance for the issues the Trial Chamber is considering. It states:

The decision to limit the responsibility of the State to its agents was the subject of criticism at the Diplomatic Conference. Various delegations pointed out that an Occupying Power might have certain of its decisions carried out by the local authorities, or it might set up a puppet government, in order to throw responsibility for crimes, of which it was the instigator, upon authorities which were regarded as being independent of it. In order to remove this difficulty, it is necessary to disregard all formal criteria. It does not matter whether the person guilty of treatment contrary to the Convention is an agent of the Occupying Power or in the service of the occupied State; what is important is to know where the decision leading to the unlawful act was made, where the intention was formed and the order given.³⁴

In this case, we have exactly the situation with which certain delegates were concerned, for, in fact, the Federal Republic of Yugoslavia (Serbia and Montenegro) established what is essentially a puppet regime in the VRS, which was charged with the responsibility for executing the military operations of the Federal Republic of Yugoslavia (Serbia and Montenegro) in Bosnia and Herzegovina. The Trial Chamber should not import the Nicaragua requirement of effective control but should instead, as this Commentary states, disregard the formal criteria of the military structure. The key issue here is whether the VRS was indeed dependent on and controlled by the Federal Republic of Yugoslavia (Serbia and Montenegro). As noted above, the evidence is more than sufficient to make such a determination.

34. In summary, the evidence supports a finding beyond reasonable doubt that the VRS acted as an agent of the Federal Republic of Yugoslavia (Serbia and Montenegro) in regard to the attack and occupation of opstina Prijedor during the times relevant to the charges in the Indictment and the victims are thus protected persons. The dependency of the VRS on and the exercise of control by the Federal Republic of Yugoslavia (Serbia and Montenegro) support this finding of agency under either the majority's standard of effective control or under the more general test of dependency and control. However, a close reading of Nicaragua leads me to conclude that the effective control standard supports a distinct and separate basis for the attribution of the conduct of non-agents to a State, and that it is not a necessary element for a finding of an agency relationship. For these reasons, I respectfully submit this Separate and Dissenting Opinion.

Done in English and French, the English text being authoritative.

_________________________________
Gabrielle Kirk McDonald
Presiding Judge

Dated this seventh day of May 1997
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Opinion and Judgment para. 587.
2. Id. para. 588.
3. ICJ Reports, 1986 p. 14.
4. Opinion and Judgment para. 588.
5. Id.
6. Id. para. 595.
7. Id. para. 585.
8. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Tadic, case no. IT-94-1, A.C., 2 Oct. 1995 ("Appeals Chamber Decision") paras. 72, 70.
9. Opinion and Judgment para. 569.
10. Id.
11. See id. paras. 586, 595.
12. Appeals Chamber Decision para. 70, supra.
13. Opinion and Judgment para. 597.
14. Id. para. 606.
15. See id. para. 598.
16. See id. para. 604.
17. Id. para. 586.
18. Id. 584.
19. Nicaragua para. 109, supra.
20. Opinion and Judgment para. 588.
21. Id. para. 587.
22. Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1942) Vol. 75.
23. Jean Pictet (gen. ed.), Commentary, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Convention IV (ICRC, Geneva 1958) ("Commentary to Geneva Convention IV") p. 60.
24. Nicaragua paras. 106, 108, supra.
25. Id. para. 110.
26. Id. para. 113.
27. Id. para. 115.
28. Id., Sep. Op. Judge Ago para. 16 (emphasis added), supra.
29. See Opinion and Judgment para. 584.
30. Id. para. 585.
31. See Nicaragua para. 219, supra.
32. Id. para. 106.
33. Opinion and Judgment para. 604.
34. Commentary to Geneva Convention IV p. 212, supra.