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. […]

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.

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.

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]

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. 

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.

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] […]

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.

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]

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.