69
Belgrade. 197 However, this finding was based upon the Trial Chamber having applied the
wrong test.
156.
As the Appeals Chamber has already pointed out, international law does not require
that the particular acts in question should be the subject of specific instructions or directives
by a foreign State to certain armed forces in order for these armed forces to be held to be
acting as de facto organs of that State. It follows that in the circumstances of the case it was
not necessary to show that those specific operations carried out by the Bosnian Serb forces
which were the object of the trial (the attacks on Kozarac and more generally within opština
Prijedor) had been specifically ordered or planned by the Yugoslav Army. It is sufficient to
show that this Army exercised overall control over the Bosnian Serb Forces. This showing
has been made by the Prosecution before the Trial Chamber. Such control manifested itself
not only in financial, logistical and other assistance and support, but also, and more
importantly, in terms of participation in the general direction, coordination and supervision
of the activities and operations of the VRS. This sort of control is sufficient for the
purposes of the legal criteria required by international law.
157.
An ex post facto confirmation of the fact that over the years (and in any event
between 1992 and 1995) the FRY wielded general control over the Republika Srpska in the
political and military spheres can be found in the process of negotiation and conclusion of
the Dayton-Paris Accord of 1995. Of course, the conclusion of the Dayton-Paris Accord in
1995 cannot constitute direct proof of the nature of the link that existed between the
Bosnian Serb and FRY armies after May 1992 and hence it is by no means decisive as to the
issue of control in this period. Nevertheless, the Dayton-Paris Accord may be seen as the
culmination of a long process. This process necessitated a dialogue with all political and
military forces wielding actual power on the ground (whether de facto or de iure) and a
continuous response to the shifting military and political fortunes of these forces. The
political process leading up to Dayton commenced soon after the outbreak of hostilities and
was ongoing during the key period under examination. To the extent that its contours were
shaped by, and thus reflect, the actual power structures which persisted in Bosnia and
197
The Trial Chamber noted that:
“the Federal Republic of Yugoslavia (Serbia and Montenegro), through the dependence of the VRS on
the supply of matériel by the VJ, had the capability to exercise great influence and perhaps even control
over the VRS […] ?Howeverg there is no evidence on which this Trial Chamber can conclude that the
Federal Republic of Yugoslavia (Serbia and Montenegro) and the VJ ever directed or, for that matter,
ever felt the need to attempt to direct, the actual military operations of the VRS […]” (ibid.).
Case No.: -94-1-A
15 July 1999