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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

75. The Appeals Chamber notes that the Trial Chamber was unable to identify the direct perpetrators of the alleged murders or other crimes by name, but with respect to the crimes for which Tarčulovski was convicted the Trial Chamber did find that the direct perpetrators were members of the police who entered Ljuboten on the morning of 12 August 2001[1] and that Tarčulovski directed the actions of the police in the village that day.[2] These findings were sufficiently specific to identify the direct perpetrators as persons being directed by Tarčulovski for the purposes of establishing his criminal liability.[3] Tarčulovski’s arguments in this respect are rejected.

See also para. 89.

[1] Trial Judgement, paras 42, 58, 60-61, 66, 312-313, 316, 319, 325, 328, 380, 383, 385, 552, 555, 560 and 564.

[2] Trial Judgement, paras 555, 560, 564 and 574.

[3] See also for: Planning: Kordić and Čerkez Appeal Judgement, paras 26, 29 and 31; Nahimana et al. Appeal Judgement, para. 479. Instigating: Kordić and Čerkez Appeal Judgement, paras 27, 29 and 32; Karera Appeal Judgement, paras 317-318; Nahimana et al. Appeal Judgement, para. 480. See also, e.g., Gacumbitsi Appeal Judgement, 99 and 105-108, affirming the Trial Chamber’s finding that Gacumbitsi is responsible for instigating, referring to, in particular, Trial Judgement, paras 213, 215 and 328, where physical perpetrators are described as a “group of attackers on which the bourgmestre had influence”, and “young men who, being in the neighbourhood, heard the bourgmestre’s instigation”. Ordering: Galić Appeal Judgement, para. 176; Kordić and Čerkez Appeal Judgement, paras 28-30; Karera Appeal Judgement, para. 211; Nahimana et al. Appeal Judgement, para. 481; Gacumbitsi Appeal Judgement, para. 182; Semanza Appeal Judgement, para. 361. See also, e.g., Blaškić Appeal Judgement, paras 588 (fn. 1195) and 597, finding Blaškić responsible for ordering, and confirming the Trial Chamber’s findings, in particular paras 688, 693, 699 and 735, in which physical perpetrators are referred to as the “HVO” or “HVO soldiers” and the “Military Police”; Gacumbitsi Appeal Judgement, paras 184-187, finding Gacumbitsi responsible for ordering, and referring to, in particular, Trial Judgement, paras 98, 152, 154, 163, 168 and 171-173, where physical perpetrators are referred to as “conseillers”, the “communal police”, “gendarmes”, and the “Interahamwe”; Semanza Appeal Judgement, para. 363, finding Semanza responsible for ordering, and confirming the Trial Chamber’s findings, in particular in paras 178 and 196, where physical perpetrators are described as “soldiers”, “gendarmes”, and the “Interahamwe”. Cf. for superior responsibility: Orić Appeal Judgement, para. 35; Blagojević and Jokić Appeal Judgement, para. 287; Blaškić Appeal Judgement, para. 216, with reference to Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, paras 38 and 40. As regards joint criminal enterprise: Krajišnik Appeal Judgement, paras 156-157.

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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

125. The Appeals Chamber finds that it is not required to prove Tarčulovski’s presence at the crime scenes to hold him criminally responsible, provided the Trial Chamber was satisfied that the crimes were committed by police acting under Tarčulovski’s direction or according to his plan.[1]

[…].

132. The Appeals Chamber recalls that the accused’s presence at the crime scene is not a requisite element of planning, instigating and ordering,[2] although it can be one of the factors to be considered in determining the mens rea of the planner, instigator or orderer. […]

[1] The Trial Chamber found that Tarčulovski was not criminally responsible for the murder of Atulla Quaili because the perpetrators of the murder were not acting under his authority or direction, and not because he was away from the site where Atulla Quaili was killed (Trial Judgement, para. 575). Furthermore, the presence of an instigator, orderer or planner at the crime scene is not required for the proof of planning, instigating or ordering criminal conduct (Milošević Appeal Judgement, para. 290, regarding ordering. Cf. Aleksovski Trial Judgement, para. 62; Tadić Trial Judgement, paras 679 and 687). The Appeals Chamber also recalls that in the jurisprudence of the Tribunal and the ICTR, the accused’s presence was never mentioned as an element of planning, instigating and ordering (e.g., Planning: Kordić and Čerkez Appeal Judgement, paras 26, 29 and 31; Nahimana et al. Appeal Judgement, para. 479. Instigating: Kordić and Čerkez Appeal Judgement, paras 27, 29 and 32. Ordering: Galić Appeal Judgement, para. 176; Kordić and Čerkez Appeal Judgement, paras 28-30; Nahimana et al. Appeal Judgement, para. 481; Gacumbitsi Appeal Judgement, para. 182; Semanza Appeal Judgement, para. 361).

[2] See supra para. 125. See also for the mens rea of planning: Martić Appeal Judgement, fn. 553; Kordić and Čerkez Appeal Judgement, paras 29 and 31; Nahimana et al. Appeal Judgement, para. 479. Instigating: Martić Appeal Judgement, fn. 553; Kordić and Čerkez Appeal Judgement, paras 29 and 32; Nahimana et al. Appeal Judgement, para. 480. Ordering: Martić Appeal Judgement, paras 221-222; Blaškić Appeal Judgement, para. 42; Kordić and Čerkez Appeal Judgement, paras 29-30; Nahimana et al. Appeal Judgement, para. 481.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
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Tarčulovski contended that purely domestic acts carried out by a sovereign State in self-defence were outside the jurisdiction of the Tribunal. The Appeals Chamber dismissed his argument.

31. […] The fact that a State resorted to force in self-defence in an internal armed conflict against an armed group does not, in and of itself, prevent the qualification of crimes committed therein as serious violations of international humanitarian law.[1] As the Appeals Chamber has stated, “whether an attack was ordered as pre-emptive, defensive or offensive is from a legal point of view irrelevant […]. The issue at hand is whether the way the military action was carried out [during an armed conflict] was criminal or not.”[2]

32. […] In the present case, having been satisfied that there had been an armed conflict in the FYROM at the times relevant to the Indictment and that the alleged crimes had been sufficiently linked with the armed conflict, the Trial Chamber correctly concluded that all the charged crimes (murder, wanton destruction and cruel treatment) constitute serious violations of international humanitarian law,[3] irrespective of the question whether the FYROM was conducting a lawful operation in self-defence against “terrorists” on its territory.[4]

[1] Tarčulovski’s argument that the crimes committed in the present case do not implicate the “international concerns” as outlined in Tadić is not supported by the Tadić Jurisdiction Decision [Prosecutor v. Duško Tadić a.k.a. “Dule”, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995]. In this decision, the Appeals Chamber found in relation to inter alia crimes allegedly committed in an internal armed conflict, that “the offences alleged against [Tadić] do not affect the interests of one State alone but shock the conscience of mankind” (Tadić Jurisdiction Decision., para. 57).

[2] Martić Appeal Judgement, para. 268. See also Kordić and Čerkez Appeal Judgement, para. 812; Kordić and Čerkez Trial Judgement, para. 452. See also international instruments affirming the applicability of international humanitarian law regardless of the legality of the use of force concerned: Geneva Conventions, Common Article 1; Additional Protocol I, Preamble, para. 5 and Article 1; ICRC Commentary on Additional Protocols, paras 48 and 1927; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, para. 42. The Appeals Chamber notes that Article 51 of the UN Charter concerns an inherent right of self-defence in the case of armed attack by one State against another State (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, para. 139). Since it is not alleged in the present case that the concerned operation was against an action by another State, this provision is not relevant to this case.  

[3] Trial Judgement, paras 297-300.

[4] The Appeals Chamber further recalls that, provided that the alleged crimes are sufficiently linked with an armed conflict, the application of Article 3 of the Statute only depends on the four Tadić conditions. Thus, it is irrelevant if such violations have been committed in the context of a State’s operation in self-defence against an armed group operating in its territory (cf. Tadić Jurisdiction Decision, para. 94). In light of this finding, the Appeals Chamber dismisses Tarčulovski’s arguments that the Trial Chamber erred in law and fact “in determining that certain protocols that apply to the destruction of civilian property necessarily apply to situations where domestic terrorists are hiding among the civilian population, and in failing to consider whether the Government of Macedonia was justified in acting in self-defense in engaging in firings that had the effect of destroying houses” (Tarčulovski Amended Notice of Appeal, para. 86 (citing Trial Judgement, paras 352-358 and 380)). See also Tarčulovski Reply Brief, para. 42.

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ICTY Statute Article 3(b) Other instruments UN Charter: Article 51
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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
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33. Furthermore, the Appeals Chamber recalls that while the UN shall not “intervene in matters which are essentially within the domestic jurisdiction of any State [,] this principle shall not prejudice the application of enforcement measures under Chapter VII [of the UN Charter]”.[1] This Tribunal was established by the UN Security Council acting under Chapter VII for the purpose of prosecuting serious violations of international humanitarian law.[2] Thus, even if the FYROM conducted an “anti-terrorist” operation in Ljuboten on its own territory, it cannot, based on its sovereignty, claim that the Tribunal does not have jurisdiction over any serious violations of international humanitarian law committed during this operation, provided it was in the context of an armed conflict. Consequently, the Trial Chamber’s findings on NLA activities[3] did not affect the Trial Chamber’s determination on its jurisdiction over the present case.

34. The Appeals Chamber further notes that the presidential statements and resolutions of the UN Security Council cited by Tarčulovski called for international involvement, stating that violence by Albanian extremists was affecting the peace and stability in the entire region.[4] […] The Security Council did not state that the situation in the FYROM was a purely domestic matter or distinguishable from other conflicts in the region. Nor did it state that it was outside the Tribunal’s jurisdiction.

35. Furthermore, while the Security Council mentioned the need to respect the sovereignty and territorial integrity of the FYROM and underlined the responsibility of its Government for the rule of law in its territory,[5] this does not show that the Security Council excluded the Tribunal’s jurisdiction for any serious violations of international humanitarian law committed during the internal armed conflict on the territory of the FYROM.

[1] Article 2(7) of the UN Charter. See also Tadić Jurisdiction Decision, para. 56.

[2] UN Security Council Resolution 827, 25 May 1993 (S/RES/827 (1993)).

[3] E.g., Trial Judgement, paras 30-31, 103, 133, 138-140, 153-154, 161, 163, 229, 232 and 279.

[4] Ex. 1D230 (UN Security Council Press Release, SC/7026, and UN Security Council Resolution 1345, 21 March 2001, S/RES/1345(2001)); Ex. 1D343 (Statement by the President of the UN Security Council, 12 March 2001, S/PRST/2001/7) and Ex. 1D346 (UN Security Council Resolution 1371, 26 September 2001, S/RES/1371(2001)).

[5] Ex. 1D230 (UN Security Council Press Release, SC/7026, and UN Security Council Resolution 1345, 21 March 2001, S/RES/1345(2001)); Ex. 1D343 (Statement by the President of the UN Security Council, 12 March 2001, S/PRST/2001/7) and Ex. 1D346 (UN Security Council Resolution 1371, 26 September 2001, S/RES/1371(2001)). In this context, the Appeals Chamber recalls that the Security Council required “all parties [to the conflict in the FYROM] to act with restraint and full respect for international humanitarian law and human rights” (Ex. 1D230 (pp. 11-12), UN Security Council Resolution 1345, 21 March 2001, S/RES/1345 (2001)).

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Other instruments UN Charter: Article 2(7); Chapter VII
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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

52. The Appeals Chamber recalls that pursuant to Article 1 of the Statute, the Tribunal is not limited in its jurisdiction to prosecute persons of a specific level of authority.[1] Indeed, a number of accused who had low-ranking positions in the military or the police or did not have any official position at all have been prosecuted and convicted by the Tribunal.[2] Hence, the subordinate role of an accused is legally irrelevant in determining his individual criminal responsibility. […]

[1] Article 1 of the Statute provides: […].”

[2] Cf. Erdemović Sentencing Judgement, paras 92-95; Tadić Sentencing Judgement, para. 60; Banović Sentencing Judgement, paras 45 and 91; Češić Sentencing Judgement, para. 37; Mrđa Sentencing Judgement, para. 53. See also Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993) and Annex thereto, U.N. Doc. S/25704, para. 54: “all persons who participate in the planning, preparation or execution of serious violations of international humanitarian law in the former Yugoslavia contribute to the commission of the violation and are, therefore, individually responsible” (emphasis added).

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ICTY Statute Article 1
Notion(s) Filing Case
Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

246. The Appeals Chamber further recalls that pursuant to Rule 108 of the Rules, a party seeking to appeal a judgement must set forth the grounds of appeal in a notice of appeal, indicating “the substance of the alleged errors and the relief sought.”[1] The notice of appeal does not need to detail the arguments that the parties intend to use in support of the grounds of appeal, as this has to be done in an appellant’s brief.[2] Instead, the notice of appeal must “focus the mind of the Respondent, right from the day the notice of appeal is filed, on the arguments which will be developed subsequently in the Appeal brief.”[3] In the present case, the Prosecution Notice of Appeal includes the Prosecution’s only ground of appeal. Furthermore, it indicates the relief sought and the substance of the alleged errors when it inter alia states that the Reports were insufficient to satisfy Boškoski’s obligation under Article 7(3) of the Statute.[4] The allegation that the Reports were unlikely to trigger an investigation into police criminal conduct is an argument that did not need to be included in the Prosecution Notice of Appeal and that was properly made in the Prosecution Appeal Brief.

[1] Mrkšić and [ljivančanin Decision of 26 August 2008, para. 8. See also Practice Direction on Formal Requirements for Appeals from Judgement (IT/201), 7 March 2002, para. 1(c) (i), (ii) and (v).

[2] Mrkšić and [ljivančanin Decision of 26 August 2008, para. 8.

[3] Prosecutor v. Ignace Bagilishema, ICTR-95-1A-A, Decision on Motion to Have the Prosecution’s Notice of Appeal Declared Inadmissible, 26 October 2001, p. 3.

[4] Prosecution Notice of Appeal, paras 6-9.

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ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

244. The Appeals Chamber recalls that a party is required to raise formally any issue of contention before the Trial Chamber either during trial or pre-trial;[1] failure to do so may result in the complainant having waived his right to raise the issue on appeal.

[1] Krajišnik Appeal Judgement, para. 654; Blaškić Appeal Judgement, para. 222; Čelebići Appeal Judgement, para. 640.

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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

160. The Appeals Chamber recalls that the actus reus of ordering requires that a person in a position of authority instruct another person to commit an offence.[1] There is no requirement that the order be given in any particular form, and the existence of the order may be proven through circumstantial evidence.[2] Furthermore, it is sufficient to demonstrate that the order substantially contributed to the physical perpetrator’s criminal conduct.[3]

[1] Galić Appeal Judgement, para. 176; Kordić and Čerkez Appeal Judgement, para. 28; Nahimana et al. Appeal Judgement, para. 481; Semanza Appeal Judgement, para. 361. See also Trial Judgement, para. 400.

[2] Trial Judgement, para. 400 (citing, in particular, Kamuhanda Appeal Judgement, para. 76; Galić Appeal Judgement, paras 170-171; Limaj et al. Trial Judgement, para. 515; Blaškić Trial Judgement, para. 281).

[3] Nahimana et al. Appeal Judgement, para. 492; Strugar Trial Judgement, para. 332. See also Aleksovski Trial Judgement, para. 61; Tadić Trial Judgement, paras 673-674.  

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
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164. The Appeals Chamber recalls that the actus reus of ordering requires no formal superior-subordinate relationship between the orderer and a physical perpetrator.[1] It is sufficient that there is proof of a position of authority on the part of the accused that would compel another person to commit a crime.[2] […]

[1] Galić Appeal Judgement, para. 176; Kordić and Čerkez Appeal Judgement, para. 28; Semanza Appeal Judgement, para. 361.

[2] Semanza Appeal Judgement, para. 361.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
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272. The Appeals Chamber recalls that when the Prosecution appeals against an acquittal it must show that, when account is taken of the errors of fact committed by the Trial Chamber, all reasonable doubt of the accused’s guilt has been eliminated. 

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99. The Trial Chamber found that there was no direct evidence of the circumstances in which Muharem Ramadani was killed.[1] Its conviction was based on circumstantial evidence. In light of the circumstances established on the evidence, the Trial Chamber found that the only reasonable conclusion was that the police, directed by Tarčulovski, killed Muharem Ramadani.[2] […]. Tarčulovski fails to demonstrate any error in the findings of the Trial Chamber.[3] […]

[1] Trial Judgement, para. 324.

[2] See Hadžihasanović and Kubura Appeal Judgement, para. 286; Galić Appeal Judgement, para. 218; Stakić Appeal Judgement, para. 219; Kupreškić et al. Appeal Judgement, para. 303; Čelebići Appeal Judgement, para. 458.

[3] Trial Judgement, para. 325.

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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

The Trial Chamber acquitted Boškoski of superior responsibility for the counts charged against him, finding that it was not shown that he had failed to take the necessary and reasonable measures to punish his subordinates for crimes committed in Ljuboten on 12 August 2001.[1] With respect to the alleged error of law, the Appeals Chamber held:

230. […]. The Appeals Chamber is satisfied that the […] findings [in paras 406, 415 and 417 of the Trial Judgement] correctly articulate the legal standard for failure to punish responsibility under Article 7(3) of the Statute. The Trial Chamber correctly held that the relevant question for liability for failure to punish is whether the superior took the necessary and reasonable measures to punish under the circumstances and that the duty to punish may be discharged, under some circumstances, by filing a report to the competent authorities.

231.  With respect to these legal findings, the Prosecution submits that the Trial Chamber erred in relying on the Aleksovski and Brđanin Trial Judgements in finding that:

civilian superiors, who may lack the disciplinary or sanctioning powers of military commanders, may discharge their obligation to punish by reporting to the competent authorities whenever a crime has been committed if these reports are likely to trigger an investigation or initiate disciplinary or criminal proceedings.[2]

The Prosecution argues that in this passage the Trial Chamber erroneously overlooked that the relevant findings in the Aleksovski and Brđanin Trial Judgements were made in the context of determining the requirement of effective control, and not in relation to the element of necessary and reasonable measures. The Appeals Chamber recalls, however, that these two elements are interrelated, as the degree of effective control over subordinates can be evidence for the necessary and reasonable measures within the competence of a superior.[3] Consequently, the Trial Chamber was correct in finding that a civilian superior may, under some circumstances, discharge his obligation to punish an offending subordinate by reporting to the competent authorities when a crime has been committed, provided that this report is likely to trigger an investigation or initiate disciplinary or criminal proceedings.[4]

232. After having articulated the correct legal standard for responsibility for failure to punish under Article 7(3) of the Statute, the Trial Chamber found that Boškoski did not incur criminal liability for the crimes that occurred.[5] The Appeals Chamber is satisfied that the relevant findings show that the Trial Chamber applied the correct legal standard in this respect. In particular, the Trial Chamber did not, as alleged by the Prosecution, interpret the requirement of necessary and reasonable measures to punish the criminal acts of subordinates, as meaning that the superior need only provide a report to the competent authorities that is likely to trigger an investigation into the alleged criminal conduct.[6] Instead, the Trial Chamber held that the reports by the MoI to the competent authorities constituted a type of measure that satisfied the legal standard which was correctly identified as the “necessary and reasonable measures”.

234. The Appeals Chamber recalls that under the correct legal standard, a report to the appropriate authorities may be sufficient to discharge the obligation to punish offending subordinates: whether it is indeed sufficient depends on the circumstances of each case.[7] If, for instance, the superior knows that the appropriate authorities are not functioning or if he knows that a report was likely to trigger an investigation that was sham, such a report would not be sufficient to fulfil the obligation to punish offending subordinates.

For the Appeal Chamber’s assessment of the Trial Chamber’s factual findings in this regard, see paragraphs 229-236, 237-241, 259-272.

[1] Trial Judgement, paras 536 and 606.

[2] Trial Judgement, para. 418 (citing Aleksovski Trial Judgement, para. 78; Brđanin Trial Judgement, para. 281).

[3] Blaškić Appeal Judgement, para. 72.

[4] See also Blaškić Appeal Judgement, para. 72.

[5] Trial Judgement, para. 536.

[6] Prosecution Appeal Brief, para. 15.

[7] Cf. Blaškić Appeal Judgement, para. 72.

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ICTR Statute Article 6(3) ICTY Statute Article 7(3)
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154. […] more than one person can be criminally responsible for planning a statutory crime.[1] Hence, even if [the President of the FYROM or a higher official at the MoI] had been involved in the planning, this would not render unreasonable the Trial Chamber’s finding that Tarčulovski was criminally responsible for planning. […].

[1] Kordić and Čerkez Appeal Judgement, paras 26, 29 and 31. The Appeals Chamber further notes that the legal elements of planning did not require Tarčulovski to be the originator of the plan. 

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212. […] the Appeals Chamber recalls that the Trial Chamber was not bound by FYROM sentencing practices in general or Article 40 of the 1996 FYROM Criminal Code in particular..[1] […]

[1] See Dragan Nikolić Judgement on Sentencing Appeal, para. 84; Tadić Judgement on Sentencing Appeal, para. 21.

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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
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220. The Appeals Chamber finds the fact that the FYROM granted amnesty to others involved in the FYROM-NLA conflict to be irrelevant in the present case, as the Tribunal is not bound by any act of the FYROM granting amnesty to those involved in the FYROM-NLA conflict under Article 24 of the Statute or Rule 101 of the Rules.[1] The Appeals Chamber also notes that the relevant legislature of the FYROM contains a provision that those who committed criminal acts falling within the jurisdiction of the Tribunal are excluded from the grant of amnesty.[2] Hence, Tarčulovski does not show any alleged error of the Trial Chamber in failing to consider whether such amnesty could have had an impact on his sentence.

[1] The Appeals Chamber notes that while the Trial Chamber must consider the sentencing practices in the former Yugoslavia, it is not bound to strict adherence to these practices, which only provide guidance. See Krajišnik Appeal Judgement, para. 749; Hadžihasanović and Kubura Appeal Judgement, para. 335; Galić Appeal Judgement, paras 400-405. See also Prosecution Response Brief, para. 180.

[2] See Ex. P83, Law on Amnesty, Article 1. See also Trial Judgement, paras 238, 243 and 247.

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ICTY Statute Article 24
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44. At the outset, the Appeals Chamber recalls the fundamental distinction in international law between the rules governing a State’s right to resort to armed force (jus ad bellum) and the rules applicable in armed conflict (jus in bello). The Appeals Chamber has previously held that the application of the latter rules is not affected by the legitimacy of the use of force by a party to the armed conflict.[1]

45. The Trial Chamber found that the predominant objective of the operation in Ljuboten on 12 August 2001 was to indiscriminately attack ethnic Albanians and their property in retaliation for the actions of the NLA.[2] The Appeals Chamber further notes that an operation whose objective was a legitimate and defensive action against “terrorists” would not render Common Article 3 inapplicable. The issue is whether the conduct of the individual was in violation of international humanitarian law. Accordingly, the Trial Chamber did not err in applying Common Article 3 in the present case.

46. With respect to Tarčulovski’s submissions on the allegedly proportionate use of force during the operation, the Appeals Chamber recalls that the targeting of civilians is absolutely prohibited in customary international law, and that civilian casualties are only legitimate if their deaths are incidental to the conduct of military operations.[3] The Trial Chamber’s finding that the predominant objective of the operation was to indiscriminately attack ethnic Albanians establishes that the Trial Chamber was satisfied that the casualties were not incidental to the conduct of the operation in Ljuboten. Tarčulovski’s submissions are therefore rejected.

51. The Appeals Chamber finds that even if a lawful governmental order had existed to conduct the operation in Ljuboten, Tarčulovski would still incur criminal responsibility for statutory crimes committed in the course of this operation.[4] The fact that a State is acting in lawful self-defence (jus ad bellum) is irrelevant for a determination as to whether a representative of this State has committed a serious violation of international humanitarian law during the exercise of the State’s right to self-defence which constituted part of an armed conflict (jus in bello). Consequently, the Trial Chamber did not err in attributing criminal liability to Tarčulovski without making a finding on whether an order was lawfully given by the President of the FYROM to carry out a self-defence operation against domestic “terrorists”.[5] Tarčulovski’s submissions in this respect are rejected.

[1] Kordić and Čerkez Appeal Judgement, para. 812; Martić Appeal Judgement, para. 268. Kordić and Čerkez Trial Judgement, para. 452: “The Trial Chamber, however, would emphasise that military operations in self-defence do not provide a justification for serious violations of international humanitarian law.” ICRC Commentary on Additional Protocols, para. 1927: “[T]he right to self-defence does not include the use of measures which would be contrary to international humanitarian law, even in a case where aggression has been established and recognized as such by the Security Council.”

[2] Trial Judgement, paras 571-573.

[3] Galić Appeal Judgement, para. 190.

[4] Cf. Article 7(4) of the Statute.

[5] Cf. Trial Judgement, paras 541 and 594.

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ICTY Statute Article 3 Other instruments Geneva Convention: common Article 3.
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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
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66. The Appeals Chamber recalls its holding that:

The principle of individual guilt requires that an accused can only be convicted for a crime if his mens rea comprises the actus reus of the crime. To convict him without proving that he knew of the facts that were necessary to make his conduct a crime is to deny him his entitlement to the presumption of innocence. The specific required mental state will vary, of course, depending on the crime and the mode of liability. But the core principle is the same: for a conduct to entail criminal liability, it must be possible for an individual to determine ex ante, based on the facts available to him, that the conduct is criminal. At a minimum, then, to convict an accused of a crime, he must have had knowledge of the facts that made his or her conduct criminal.[1]

It is well-established in the Tribunal’s jurisprudence that the elements of a Common Article 3 crime encompass the requirement that the victim did not take an active part in the hostilities at the time when the crime was committed.[2] Therefore, the Appeals Chamber is satisfied that the principle of individual guilt requires that the perpetrator of a Common Article 3 crime knew or should have been aware that the victim was taking no active part in the hostilities when the crime was committed.[3]

67. In the present case, the Trial Chamber did not make explicit findings on the mens rea of the direct perpetrators in relation to the status of the victims of the Common Article 3 crimes of murder and cruel treatment.[4] However, when read as a whole,[5] the Trial Judgement shows that the Trial Chamber examined whether the direct perpetrators knew or should have been aware of the status of the victims in relation to each crime, as demonstrated by its findings on the factual circumstances in which the crimes were committed.[6] […]

67. […] In these circumstances, where the direct perpetrators’ knowledge of the status of the victims was part of the Trial Chamber’s factual findings, the Appeals Chamber need not consider whether such findings are necessary for a conviction for planning, instigating and ordering. Tarčulovski’s argument in this regard is dismissed. Under the third and fourth grounds of appeal, the Appeals Chamber will consider further whether the totality of the Trial Chamber’s factual findings in relation to the status of the victims are reasonable.[1]

68. With respect to Tarčulovski’s mens rea, the Appeals Chamber recalls that he was convicted of planning, instigating and ordering crimes including those under Common Article 3. Hence, Tarčulovski was required to have the direct intent or the awareness of the substantial likelihood that the crimes would be committed in the execution of his plan, instigation and order.[2] Indeed the Trial Chamber found that Tarčulovski was responsible for planning, instigating and ordering the “deliberate but indiscriminate attack against the residents of Ljuboten of Albanian ethnicity”.[3] Given the indiscriminate nature of the attack, the Appeals Chamber is satisfied that the Trial Chamber reasonably concluded that Tarčulovski possessed the requisite mens rea for these modes of liability.[4] His argument in this regard is dismissed.

[1] See infra paras 86, 95, 102 and 119.

[2] See Kordić and Čerkez Appeal Judgement, paras 29-32, and infra paras 132 and 174.

[3] Trial Judgement, para. 573. See also ibid., para. 574; infra paras 135, 153-154, 157 and 161.

[4] Trial Judgement, para. 576. See also the Appeals Chamber’s findings relevant to this matter in infra paras 132, 135, 150 and 174. Cf. Milošević Appeal Judgement, para. 273.

[1] Naletilić and Martinović Appeal Judgement, para. 114; see also ibid., para. 118. 

[2] Strugar Appeal Judgement, para. 172; Čelebići Appeal Judgement, paras 420 and 423-424.

[3] See Naletilić and Martinović Appeal Judgement, paras 118-121, analysing, in light of the principle of individual guilt, the mens rea requirement in relation to the international or internal nature of an armed conflict and arriving at the same conclusion. Concerning the mens rea of the crime of attacks against civilians, the Appeals Chamber held that it must be proven that the perpetrator was aware or should have been aware of the civilian status of the persons attacked (Strugar Appeal Judgement, para. 271, citing Galić Trial Judgement, para. 55). See Haradinaj et al. Trial Judgement, para. 62; Milutinović et al. Trial Judgement, para. 134; Delić Trial Judgement, para. 44; Martić Trial Judgement, para. 47; Krajišnik Trial Judgement, para. 847; Halilović Trial Judgement, para. 36. Cf. Elements of Crimes, Article 8(2)(c)(i)-1 and 8(2)(c)(i)-3 of the ICC Statute.

[4] Trial Judgement [Prosecutor v. Ljube Boškoski and Johan Tačulovski, Case No. IT-04-82-T, Judgement, 10 July 2008], paras 301-303. The Appeals Chamber notes that the Trial Chamber made explicit findings on all the other aspects of the mens rea of the direct perpetrators in relation to crimes of murder, wanton destruction and cruel treatment (Trial Judgement, paras 312, 320, 328, 330-332, 380, 385 and 387-388). In the Tarčulovski Reply Brief, Tarčulovski appears to contest these findings, in particular due to the lack of specific identification of the direct perpetrators (Tarčulovski Reply Brief, paras 53 (murder), 75 (wanton destruction) and 78 (cruel treatment); see also Tarčulovski Appeal Brief, para. 166). The Appeals Chamber finds that the Trial Chamber reasonably made these findings in light of the evidence taken as a whole. As regards the identification of the direct perpetrators, see infra paras 73-75 and 89.

[5] See Orić Appeal Judgement, para. 38; Naletilić and Martinović Appeal Judgement, para. 435; Stakić Appeal Judgement, para. 344.

[6] See, e.g., Trial Judgement, paras 303, 310-312, 314-320, 323-328, 344-345, 383, 385 and 387-388. 

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ICTY Statute Article 3;
Article 3(b)
Other instruments Geneva Convention: common Article 3.
Notion(s) Filing Case
Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

59. The Appeals Chamber has repeatedly held that a Trial Chamber can reasonably accept certain parts of a witness’s testimony and reject others.[1]

[1] Krajišnik Appeal Judgement, para. 354; Blagojević and Jokić Appeal Judgement, para. 82; Kupreškić et al. Appeal Judgement, para. 333. See also Seromba Appeal Judgement, para. 110; Ntagerura et al. Appeal Judgement, para. 214; Kamuhanda Appeal Judgement, para. 248.

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Decision on Disclosure - 18.05.2010 KAREMERA et al.
(ICTR-98-44-AR73.18)

 12. Pursuant to Rule 66(B) of the Rules, the Prosecutor shall permit the Defence, upon request, to inspect documents and other records in his custody or control if these records (i) are material to the preparation of the Defence case; (ii) are intended for use by the Prosecution as evidence at trial; or (iii) were obtained from or belonged to the accused. If the Defence is not satisfied with the Prosecution’s response to a request pursuant to Rule 66(B), it may request the Trial Chamber to order the inspection. 

13. However, the Defence bears the burden of proving an alleged breach of the Prosecution’s obligations pursuant to a request under Rule 66(B) of the Rules. It must therefore (i) demonstrate that the material sought is in the custody or control of the Prosecution; (ii) establish prima facie the materiality of the document sought to the preparation of the defence case; and (iii) specifically identify the requested material.[1]

[1] Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R68, Decision on Motion for Disclosure, 4 March 2010 (“Kamuhanda Disclosure Decision”), para. 14; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.11, Decision on the Prosecution’s Interlocutory Appeal Concerning Disclosure Obligations, 23 January 2008 (“First Karemera Decision”), para 12. See also The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, 25 September 2006 (“Bagosora Decision”), paras. 10, 11.

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ICTR Rule Rule 66(B) ICTY Rule Rule 66(B)
Notion(s) Filing Case
Decision on Disclosure - 18.05.2010 KAREMERA et al.
(ICTR-98-44-AR73.18)

12. Pursuant to Rule 66(B) of the Rules, the Prosecutor shall permit the Defence, upon request, to inspect documents and other records in his custody or control if these records (i) are material to the preparation of the Defence case; (ii) are intended for use by the Prosecution as evidence at trial; or (iii) were obtained from or belonged to the accused. If the Defence is not satisfied with the Prosecution’s response to a request pursuant to Rule 66(B), it may request the Trial Chamber to order the inspection. 

24. The Appeals Chamber notes that Rule 67(D) of the Rules provides that

[i]f either party discovers additional evidence or information or materials which should have been produced earlier pursuant to the Rules, that party shall promptly notify the other party and the Trial Chamber of the existence of the additional evidence or information or materials.

The Appeals Chamber considers that Rule 67(D) of the Rules also applies to materials subject to an inspection request pursuant to Rule 66(B) of the Rules.[10] Once the Defence files an inspection request pursuant to Rule 66(B) of the Rules, the Prosecution is under an obligation to permit inspection of the requested materials, provided that the requisite standards for such a request are met. This puts the requested records into the category of material “which should have been produced earlier” within the meaning of Rule 67(D) of the Rules. Accordingly, where such materials come into the Prosecution’s possession subsequent to an inspection request from the Defence, the Prosecution is under a continuous obligation to promptly notify the Defence of their existence.

25. However, the Appeals Chamber reiterates that a continuous obligation to notify a party of inspection material pursuant to Rule 67(D) of the Rules can only arise where the underlying request reaches a degree of specificity that allows a direct and unambiguous identification of the sought material as squarely falling into the ambit of that request. This requires, as a minimum, the specificity described below.

[1] Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R68, Decision on Motion for Disclosure, 4 March 2010 (“Kamuhanda Disclosure Decision”), para. 14; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.11, Decision on the Prosecution’s Interlocutory Appeal Concerning Disclosure Obligations, 23 January 2008 (“First Karemera Decision”), para 12. See also The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, 25 September 2006 (“Bagosora Decision”), paras. 10, 11.

[2] First Karemera Decision, para. 12; Bagosora Decision, paras. 10, 11. See also supra, para. 15.

[3] Bagosora Decision, para. 10.

[4] See ibid.

[5] Ibid.

[6] Ibid.

[7] First Karemera Decision, paras. 14, 16.

[8] Appeal [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.18, Joseph Nzirorera’s Appeal from Decision on 27th Rule 66 Violation, 15 February 2010], Annex “B”, p. 2, para. 64(D).

[9] The Prosecution has not contested Nzirorera’s contention that he is “alleged to be responsible for all crimes of the ‘Interahamwe’ within Rwanda” (Appeal, para. 36). See also The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Amended Indictment, 3 April 2008 (“Indictment”), paras. 22-80.

[10] The Appeals Chamber notes that Rule 67(D) of the Rules explicitly refers to material that “should have been produced earlier” (emphasis added), thus encompassing both an inspection of records pursuant to Rule 66(B) as well as the disclosure regime pursuant to Rules 66(A), 68, and 70 of the Rules. The Appeals Chamber further notes that in contrast, Rule 67(D) of the Rules of Procedure and Evidence of the ICTY uses the term “disclosed”, which would, on its face, exclude the applicability of Rule 67(D) to Rule 66(B) of the Rules of Procedure and Evidence of the ICTY.

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ICTR Rule Rule 66(B);
Rule 67(D)
ICTY Rule Rule 66(B);
Rule 67(D)