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| Contempt Appeal Judgement - 19.05.2010 |
ŠEŠELJ Vojislav (IT-03-67-R77.2-A) |
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17. […] In any event, the Appeals Chamber considers that the Trial Chamber did not exceed its jurisdiction in deciding upon the allegations of contempt in the present case. The Appeals Chamber recalls that the Tribunal possesses inherent jurisdiction to ensure that its exercise of judicial functions is safeguarded.[1] As the Trial Chamber explained and the Appeals Chamber has explicitly held, this inherent power extends to Rule 77 of the Rules governing contempt proceedings against conduct interfering with the Tribunal’s administration of justice.[2] […] [1] See e.g. Prosecutor v. Duško Tadić, Case No. IT-94-1-A-R77, Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000 (“Vujin Appeal Judgement”), paras 13-18; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgment on Appeal by Anto Nobilo Against Finding of Contempt, 30 May 2001 (“Nobilo Appeal Judgement”), paras 30, 36; Marijačić and Rebić Appeal Judgement, para. 23. [2] See Trial Judgement [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-R77.2, Judgement on Allegations of Contempt, 24 July 2009 (confidential; public version filed on the same day)], para. 7. See also Vujin Appeal Judgement, paras 13-18; Nobilo Appeal Judgement, paras 30, 36. |
ICTR Rule Rule 77 ICTY Rule Rule 77 | |
| Notion(s) | Filing | Case |
| Contempt Appeal Judgement - 19.05.2010 |
ŠEŠELJ Vojislav (IT-03-67-R77.2-A) |
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26. The Appeals Chamber underscores that the requisite mens rea for a violation of Rule 77(A)(ii) of the Rules is knowledge that the disclosure in question is in violation of an order of a Chamber.[1] Such knowledge may be proven by evidence other than the accused’s statement expressing a particular intent to disclose protected witness identities. […] [1] Jović Appeal Judgement, para. 27. |
ICTR Rule Rule 77 ICTY Rule Rule 77 | |
| Notion(s) | Filing | Case |
| Contempt Appeal Judgement - 19.05.2010 |
ŠEŠELJ Vojislav (IT-03-67-R77.2-A) |
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29. […] As the Appeals Chamber stated in Jović, “[t]he fact that some portions of [a w]itness’s written statement [has] been disclosed by another third party does not mean that this information [i]s no longer protected, that the court order ha[s] been de facto lifted or that its violation would not interfere with the Tribunal’s administration of justice”.[1] […] [1] Jović Appeal Judgement, para. 30. |
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| Contempt Appeal Judgement - 19.05.2010 |
ŠEŠELJ Vojislav (IT-03-67-R77.2-A) |
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32. The Appeals Chamber notes that it is the established practice of the Tribunal to publish redacted public versions of documents that “[contain] information which, if disclosed, might cause prejudice, concerns about safety, or serious embarrassment to a party or a witness”.[1] This practice extends to judgements.[2] Insofar as Šešelj contends that the established practice of the Tribunal violates the Statute, Rules or the ICCPR, he is incorrect. None of these states that the right to a public judgement is absolute. They recognize that it needs to be balanced against other interests.[3] In fact, publication of confidential witness or victim information would run counter to the explicit protection of witnesses and victims required by the Tribunal’s Statute and implemented in the Rules.[4] […] [1] Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Decision on the Defence Motion for Extension of Time, 26 April 2004, para. 6. See, e.g., Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-T, Order Issuing a Public Redacted Version of the Confidential “Decision on Motion for Provisional Release of Ivan Čermak” of 14 December 2009, 14 January 2010; Prosecutor v. Jadranko Prlić et al. Case No. IT-04-74-AR65.19, Order Issuing a Public Redacted Version of the “Decision on Prosecution’s Appeal of the Trial Chamber’s Decision to Provisionally Release Accused Praljak” Issued 17 December 2009, 11 February 2010. [2] Compare Contempt Proceedings Against Dragan Jokić, Case No. IT-05-88-R77.1-A, Judgement on Allegations of Contempt, 25 June 2009 (confidential version), with Contempt Proceedings Against Dragan Jokić, Case No. IT-05-88-R77.1-A, Judgement on Allegations of Contempt, 3 July 2009 (public redacted version). [3] See Article 23 of the Statute; Rules 78 and 98ter of the Rules; Article 14(1) of the ICCPR. Indeed, Article 14(1) of the ICCPR, providing for the right to a public judgement, enshrines certain exceptions. In interpreting this article, the Human Rights Committee stated that “the judgement must, with certain strictly defined exceptions, be made public”. See CCPR General Comments, No. 13, 13 April 1984, para. 6 (emphasis added). Manfred Nowak writes in his commentary on the ICCPR that "[i]f, for example, the public was excluded from [a] trial in the interest of the private lives of the parties, then there is a legitimate need in keeping certain parts of the judgment secret, which can be accomplished by making the judgment anonymous or by publishing an abbreviated version". See Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, 1993, p. 253. The Appeals Chamber opines that the same logic must be applied to cases of witness protection. Further support for this position can be drawn from the jurisprudence of the ECtHR. The ECtHR held in Campbell and Fell v. United Kingdom, that "in each case the form of publication given to the 'judgment' under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object pursued by Article 6 para. 1 (art. 6-1) [of the European Convention on Human Rights] in this context, namely to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial". ECtHR, Campbell and Fell v. The United Kingdom, Application No. 7819/77; 7878/77, Judgment, 28 June 1984, para. 91. [4] See Articles 15, 22 of the Statute [of the Tribunal]; Rule 75 of the Rules [of Procedure and Evidence of the Tribunal]. |
ICTR Rule
Rule 78; Rule 88(A) ICTY Rule Rule 78; Rule 98ter(A) |
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| Notion(s) | Filing | Case |
| Contempt Appeal Judgement - 19.05.2010 |
ŠEŠELJ Vojislav (IT-03-67-R77.2-A) |
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Šešelj contended that his sentence was disproportionate in comparison to previous sentences imposed in other contempt cases. He further submitted that the Trial Chamber erred in ordering him to withdraw from the web-site his book in which he disclosed confidential information before the Appeals Chamber delivered its judgement on his appeal. He asserted that both alleged errors individually justified setting the Trial Judgement aside.[1] 35. The Appeals Chamber notes that while the imposition of a sentence is necessarily dependent on a finding of guilt, the conviction itself stands entirely unaffected by the sentence eventually imposed. It finds no basis or precedent in the jurisprudence of the Tribunal for setting aside a conviction on the basis of sentence, or on the basis of an order accompanying a sentence. Šešelj provides no reasoned explanation for why it should do so. Accordingly, these two grounds of appeal against conviction are summarily dismissed.[2] [1] Šešelj Appeal Judgement, para. 33, referring to Notice of Appeal and Appellant’s Brief Against the Judgment [sic] on Allegations of Contempt Pursuant to the Decision on the Prosecution’s Motion for Order Striking Appellant’s Notice of Appeal and Appeal Brief and Closing the Case Issued by the Appeals Chamber on 16 December 2009, filed in B/C/S on 12 January 2010 (confidential), paras 16, 17. [2] The Appeals Chamber notes that it has already upheld the Trial Chamber’s order to remove the Book from the website, and dismissed Šešelj’s contention that the non-custodial order should be set aside. See Decision on Urgent Motions to Remove or Redact Documents Pertaining to Protected Witnesses, 16 December 2009 (confidential) […], pp. 3-5. |
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| Contempt Appeal Judgement - 19.05.2010 |
ŠEŠELJ Vojislav (IT-03-67-R77.2-A) |
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9. […] The settled standard of review for appeals against judgements also applies to appeals against convictions for contempt.[1] [1] Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007 (“Jović Appeal Judgement”), para. 11; Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R77.2-A, Judgement, 27 September 2006 (“Marijačić and Rebić Appeal Judgement”), para. 15; Léonidas Nshogoza v. The Prosecutor, Case No. ICTR-2007-91-A, Judgement, 15 March 2010, para. 12;. See also, inter alia, Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Judgement, 12 November 2009 (“Milošević Appeal Judgement”), para. 12; Prosecutor v. Mile Mrkšić and Veselin [ljivančanin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 (“Mrkšić and [ljivančanin Appeal Judgement”), para. 10; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Judgement, 17 March 2009 (“Krajišnik Appeal Judgement”), para. 11; Prosecutor v. Milan Martić, Case No. IT-95-11-A, Judgement, 8 October 2008 (“Martić Appeal Judgement”), para. 8. |
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| Appeal Judgement - 19.05.2010 |
BOŠKOSKI & TARČULOVSKI (IT-04-82-A) |
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167. The Appeals Chamber recalls that the Trial Chamber found that Tarčulovski had been ordered to lead the police in the operation in Ljuboten without making a positive finding as to who gave the order.[1] This is, however, irrelevant: the fact that Tarčulovski was ordered to lead the operation does not exonerate him from criminal responsibility if in the execution of the order he in turn instructed other persons to commit a crime.[2] Moreover, the fact that someone else ordered Tarčulovski to lead the operation does not mean that he did not order the operation to be carried out. […] [1] Trial Judgement, paras 114 and 541. [2] Cf. Article 7(4) of the Statute. |
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| Appeal Judgement - 19.05.2010 |
BOŠKOSKI & TARČULOVSKI (IT-04-82-A) |
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Tarčulovski claimed that the Trial Chamber had erred in law and in fact by admitting into evidence three statements (“Statements”) made by Tarčulovski to the Commission for Inquiry of the Former Yugoslav Republic of Macedonia (“FYROM”). The Appeals Chamber held[1] that there was “no incongruity in the Trial Chamber admitting evidence deemed to be ‘an apparently reliable record of the Accused’s understanding of these events’[2] and proceeding to reject virtually all of what the statement said’”. It concluded that the Trial Chamber “was entitled to admit the Statements as accurately representing Tarčulovski’s evidence before the Commission for Inquiry”.[3] It further held: 190. The proposition advanced by Tarčulovski, namely, that the Tribunal should create a privilege to exclude statements made during the course of a national investigation of suspected war crimes, would unduly compromise the Tribunal’s discretion to admit evidence under Rule 89 of the Rules. Such an exemption could potentially preclude the Tribunal from considering vital pieces of evidence and consequently undermine the Tribunal’s ability to fulfil its mandate to prosecute persons accused of serious violations of international humanitarian law in the territory of the former Yugoslavia since 1991.[4] 191. The Appeals Chamber further considers that the creation of the aforementioned privilege could create an impromptu immunity, allowing those responsible for the commission of war crimes to comply with national investigations and thereafter rely on the exemption to exclude incriminatory evidence from subsequent criminal proceedings. 194. Further, the Appeals Chamber notes that Tarčulovski has failed to identify a “general principle of law” to support his argument. The fact that the Statements were inadmissible before FYROM courts is insufficient to support the claim that such a general principle of law exists. In this context, the Appeals Chamber observes that out-of-court statements made by an accused are admissible in a number of common law[5] and civil law[6] jurisdictions. [1] Appeal Judgement, para. 187. [2] Decision of 10 December 2007 [Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-T, Decision on Prosecution’s Motion for admission into Evidence of Documents MFI P251, P379 and P435, 10 December 2007 (confidential)], para. 41. [3] Appeal Judgement, para. 188. [4] Article 1 of the Statute. [5] Sections 81 and 82 of the Evidence Act of 1995 (Australia); Section 76 of the Police and Criminal Evidence Act of 1984, Sections 114 and 118 of the Criminal Justice Act 2003 (United Kingdom); R. v. C. (B.), (1993) 62 O.A.C. 13, para. 12 (Canada); Section 3(1) of the Law of Evidence Amendment Act No. 45 of 1988 and Section 219A of the Criminal Procedure Act 51 of 1977 (South Africa). [6] Article 427 of the Code de procédure pénale (France); Article 322 of Keiji sosho ho (Code of Criminal Procedure), (Japan). |
ICTR Rule Rule 89(B) ICTY Rule Rule 89(B) | |
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| Appeal Judgement - 19.05.2010 |
BOŠKOSKI & TARČULOVSKI (IT-04-82-A) |
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193. The Appeals Chamber recalls that Rule 89(A) of the Rules specifically provides that the Tribunal is not bound by national rules of evidence.[1] Furthermore, the Tribunal’s jurisprudence confirms that evidence inadmissible under domestic law is not necessarily inadmissible in proceedings before the Tribunal.[2] [1] The Appeals Chamber notes with approval the Prosecution Response Brief, para. 166 (fn. 545). [2] See Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, para. 19; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Decision on the Defence “Objection to Intercept Evidence”, 3 October 2003, paras 53-54; Orić Order of 21 October 2004, para. 8. |
ICTR Rule Rule 89(A) ICTY Rule Rule 89(A) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 19.05.2010 |
BOŠKOSKI & TARČULOVSKI (IT-04-82-A) |
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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) |
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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. |
ICTR Statute Article 6(1) ICTY Statute Article 7(1) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 19.05.2010 |
BOŠKOSKI & TARČULOVSKI (IT-04-82-A) |
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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. |
ICTY Statute Article 3(b) Other instruments UN Charter: Article 51 | |
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| Appeal Judgement - 19.05.2010 |
BOŠKOSKI & TARČULOVSKI (IT-04-82-A) |
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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)). |
Other instruments UN Charter: Article 2(7); Chapter VII | |
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| Appeal Judgement - 19.05.2010 |
BOŠKOSKI & TARČULOVSKI (IT-04-82-A) |
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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). |
ICTY Statute Article 1 | |
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| Appeal Judgement - 19.05.2010 |
BOŠKOSKI & TARČULOVSKI (IT-04-82-A) |
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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. |
ICTR Rule Rule 108 ICTY Rule Rule 108 | |
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BOŠKOSKI & TARČULOVSKI (IT-04-82-A) |
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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) |
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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. |
ICTR Statute Article 6(1) ICTY Statute Article 7(1) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 19.05.2010 |
BOŠKOSKI & TARČULOVSKI (IT-04-82-A) |
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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. |
ICTR Statute Article 6(1) ICTY Statute Article 7(1) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 19.05.2010 |
BOŠKOSKI & TARČULOVSKI (IT-04-82-A) |
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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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| Notion(s) | Filing | Case |
| Appeal Judgement - 19.05.2010 |
BOŠKOSKI & TARČULOVSKI (IT-04-82-A) |
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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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