DUSKO TADIC CASE

Brief Fact Summary. For committing war crimes at a Serb-run concentration camp in Bosnia-Herzegovina, Tadic (D) was
prosecuted in court.

Synopsis of Rule of Law. Plea against the International Tribunal jurisdiction can be examined by the International Tribunal based on
the invalidity of its establishment by the Security Council.

Facts. For committing war crimes at a Serb-run concentration camp in Bosnia-Herzegovina, Tadic (D) was prosecuted in Court. The
jurisdiction of the tribunal was however challenged by Tadic (D) on the ground that it exceeded the authority of the U.N. Security
Council. This argument of Tadic (D) was dismissed by the trial court but Tadic (D) appealed.

Issue. Can plea against the International Tribunal jurisdiction be examined by the International Tribunal based on the invalidity of its
establishment by the Security Council?

Held. Yes. Plea against the International Tribunal jurisdiction can be examined by the International Tribunal based on the invalidity of
its establishment by the Security Council. The criteria for establishing an International Tribunal includes the establishment in
accordance with the proper international standards, the provision of guarantees of fairness, justice, and evenhandedness, in full
conformity with internationally recognized human rights instruments. Hence, a tribunal like the one created in this case must be
endowed with primacy over national courts.

Discussion. The authority of the Security Council to establish a tribunal for the determination of a criminal charge was
attacked by Tadic (D). So long as it is “established by law”, the tribunal is authorized to be established for the determination of these
charges. The Council requires that it be “set up by a competent organ in keeping with relevant legal procedures and that it observes the
requirements of procedural fairness”

Duško Tadić (born 1 October 1955, Socialist Republic of Bosnia and Herzegovina, Yugoslavia) is a Bosnian Serb politician, former
SDS leader in Kozarac and a former member of the paramilitary forces supporting the attack on the district of Prijedor.

He was convicted of crimes against humanity, grave breaches of the Geneva Conventions, and violations of the customs of war by the
International Criminal Tribunal for the Former Yugoslavia (ICTY) for his actions in the Prijedor region, including the Omarska,
Trnopolje and Keraterm detention camps. He was sentenced to 20 years of imprisonment.

Tadić was the first to be tried by an international criminal court of war since the Nuremberg Trials in 1947.

Trial

Tadić was arrested by German police in Munich in February 1994. He faced twelve counts of crimes against humanity, twelve counts
of grave breaches of the Geneva Conventions, and ten counts of violations of the customs of war, to all of which he pleaded not guilty.
His trial was to be held together with Goran Borovnica's, but Borovnica went missing in 1995 and was later declared dead.

On May 7, 1997, the Trial Chamber II found Tadić guilty on 9 counts and partially guilty on 2 counts. Tadić and the prosecution
appealed on a number of grounds. One of the arguments required the court to determine whether or not the court was legitimate in its
exercise of jurisdiction. Tadić argued that the court was illegitimately created through the United Nations Security Council. His
argument was based upon separation of powers. He essentially argued that the Security Council was an executive governmental
branch and thus did not have the power to create a judicial body.

To resolve this argument, the court was forced to determine whether it was legitimately formed through the United Nations Security
Council. The courts analysis began by determining if this was an issue of jurisdiction. It explained that this may not be a jurisdiction
issue when jurisdiction is given a narrow definition. It then noted that a narrow definition of jurisdiction is not warranted in the
international context. Thus it determined that Tadić's argument was one of jurisdiction.

Next, the court went on to determine whether it had the power to evaluate its own jurisdiction. In coming to a conclusion, the court
explained that a tribunal, in the international context, must assert its own jurisdiction within the bounds of the council that forms it.
Consequently, it determined that it doesn't have the power to determine the «validity of its establishment by the security council.

A significant issue at trial was the use of protective measures for several witnesses, such as anonymity (including keeping their names
from the defence), submission of evidence from a room separate from the courtroom, and the distortion of the voices and images. The
majority of the Trial Chamber allowed this motion on the basis that the Tribunal had a duty 'to protect witnesses who are genuinely
frightened'. However, Judge Stephen dissented, arguing that it was unreasonable to ask the defence to cross-examine a witness who
amounted to a 'disembodied and distorted voice transmitted by electronic means.'

Another notable incident during the trial was the breach by the defence of the anonymity order with relation to Witness L, who
revealed on cross-examination that he had lied about the death of his father and had been trained to give evidence at the Tribunal by
the Bosnian government.

Upon Tadić's appeal of the ruling, he was found guilty of several more charges. In 2000, the ICTY found Tadic' lawyer, Milan Vujin,
guilty of contempt of court. According to Tadić, Vujin was more interested in defending the interests of Serbia than of defending the
interest of his client. This ruling had no outcome on the sentencing of Tadić. After serving his sentence until September 2000 in the
Hague, he was transferred to a prison in Munich, Germany. He was granted early release from prison on 17 July 2008 and is living in
Serbia.
In the Buck vs. Bell decision of May 2, 1927, the United States Supreme Court upheld a Virginia statute that provided for
the eugenic sterilization for people considered genetically unfit. The Court's decision, delivered by Oliver Wendell
Holmes, Jr., included the infamous phrase "Three generations of imbeciles are enough." Upholding Virginia's sterilization
statute provided the green light for similar laws in 30 states, under which an estimated 65,000 Americans were sterilized
without their own consent or that of a family member.

Although Indiana passed the first eugenic sterilization statute in 1907, this and other early laws were legally flawed and
did not meet the challenge of state court tests. To remedy this situation, Harry Laughlin of the Eugenics Record Office
(ERO) at Cold Spring Harbor designed a model eugenic law that was reviewed by legal experts. The Virginia statute of
1924 was closely based on this model.

The plaintiff of the case, Carrie Buck, and her mother Emma, had been committed to the Virginia Colony for Epileptics
and Feeble Minded in Lynchburg, Virginia. Carrie and Emma were both judged to be "feebleminded" and promiscuous,
primarily because they had both had borne children out of wedlock. Carrie's child, Vivian, was judged to be
"feebleminded" at seven months of age. Hence, three generations of "imbeciles" became the "perfect" family for
Virginia officials to use as a test case in favor of the eugenic sterilization law enacted in 1924.

On the eve of the Virginia legal contest, the ERO dispatched its field worker, Dr. Arthur Estabrook, to provide expert
testimony. After some cursory examination, Estabrook testified that the seven month old Vivian "showed
backwardness." The Superintendent of the Virginia Colony, Dr. Albert Priddy, testified that members of the Buck family
"belong to the shiftless, ignorant, and worthless class of anti-social whites of the South." Upon reviewing the case, the
Supreme Court concurred "that Carrie Buck is the probable potential parent of socially inadequate offspring, likewise
afflicted, that she may be sexually sterilized without detriment to her general health and that her welfare and that of
society will be promoted by her sterilization"

Buck vs. Bell was flawed in many ways. "Feeblemindeness" is no longer used in medical terminology; it was clearly a
catch-all term that had virtually no clinical meaning. It is impossible to judge whether or not Carrie was "feebleminded"
by the standards of her time, but she was not patently promiscuous. According to Carrie, Vivian's conception was the
result of Carrie's rape by the nephew of her foster parents. She, probably like many unwed mothers of that time, was
institutionalized to prevent further shame to the family. Just as clearly, Vivian was no imbecile. Vivian's first grade report
card from the Venable School in Charlottesville showed that this daughter of a supposed social degenerate got straight
"As" in deportment (conduct) and even made the honor role in April, 1931. She died a year later of complications
following a bout of the measles.

Although in 1942 the Supreme Court struck down a law allowing the involuntary sterilization of criminals, it never
reversed the general concept of eugenic sterilization. In 2001, the Virginia General Assembly acknowledged that the
sterilization law was based on faulty science and expressed its "profound regret over the Commonwealth's role in the
eugenics movement in this country and over the damage done in the name of eugenics." On May 2, 2002 a marker was
erected to honor Carrie Buck in her hometown of Charlottesville.