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.

44. […] The Appeals Chamber therefore finds that document 6DA23 is not relevant for the purposes of Rule 115 of the Rules. Considering that the requirements of Rule 115 of the Rules are cumulative, the Appeals Chamber will not consider the other requirements of that Rule. […]

27. […] The Appeals Chamber notes that document 6DA19 contains sufficient indicia of credibility, such as a date, reference number, and the signature of Vlastimir Đorđević.[1] Accordingly, the Appeals Chamber finds document 6DA19 to be prima facie credible.[2] […]

33. […] Given that the document bears sufficient indicia of credibility, such as a date, reference number, and a handwritten confirmation of receipt, the Appeals Chamber finds it to be prima facie credible.[3] […]

40. The Appeals Chamber notes that although the original, untranslated version of document 6DA22 in Annex D of the Motion does not include the page containing the relevant stamps and signatures, the Appeals Chamber is apprised of the name of the court and the date on which the judgement was rendered. The Appeals Chamber further notes that the Prosecution does not contest its credibility. Accordingly, the Appeals Chamber finds document 6DA22 to be prima facie credible. […]

12. The Appeals Chamber recalls that the Registrar has the primary responsibility in the determination of matters relating to the remuneration of counsel.[1] Article 22 of the Directive on the Assignment of Defence Counsel (“Directive”) empowers the Registrar to establish a “lump sum” system of remuneration to assigned counsel, and, in the event of a disagreement over the sum, the Directive vests the Registrar with the discretion to decide the matter after consulting the relevant Chamber.[2] According to Article 30 of the Directive, the Registrar also decides any disagreement on questions relating to the calculation and payment of remuneration or to the reimbursement of expenses after consulting the President and, if necessary, the Advisory Panel.[3] The Directive does not specify an avenue for review of a decision by the Registrar concerning the lump sum payment.

14. However, there is nothing in the Statute of the Tribunal, Rules, or the Directive that provides for a direct appeal of a decision by the Registrar or the President concerning an administrative matter that related exclusively to the trial and has no bearing on appellate proceedings.[4] Rather, the Appeals Chamber’s consideration of such matters is limited to an appeal against a conviction or where the issue properly arises in an interlocutory appeal certified by a Trial Chamber.[5] Therefore, the Appeals Chamber considers that it has no jurisdiction over this matter.

On 19 February 2010, the President of the Tribunal (“President”) rendered a decision[1], in which he held that the remuneration granted by the Registry to Radovan Karadžić’s defence team for the period between the adjournment of the trial and the resumption thereof (“adjournment period”)[2] was insufficient. This raised the question how the February 2010 President Decision should affect the date of the resumption of the trial scheduled by the Trial Chamber. In determining this matter, the Appeals Chamber clarified the competence of the President vis-à-vis Trial Chambers, stating:

19. […]. The President is vested with the authority to supervise the activities of the Registrar, who is in charge of the administration and servicing of the Tribunal.[3] However, decisions relating to the general conduct of trial proceedings, including the scheduling of trials, are matters that fall within the discretion of Trial Chambers.[4] None of the provisions in the Statute of the Tribunal (“Statute”) or the Rules confers on the President the authority to interfere with a Trial Chamber’s determination with respect to the scheduling of a trial to which it is assigned. Indeed, while Trial Chambers are bound by the ratio decidendi of decisions of the Appeals Chamber,[5] the President has no competence to issue decisions that are binding on Trial Chambers.[6] This power is exclusively conferred upon the Appeals Chamber pursuant to Article 25 of the Statute.[7]

20. Thus, in accordance with his mandate, in the February 2010 President Decision, the President solely dealt with the issue of remuneration for Karadžić’s defence team. He refrained from stating how his determination of the issue might affect the scheduled date of the resumption of the trial. The latter was clearly within the competence of the Trial Chamber, not of the President.

21. The Appeals Chamber considers that the President’s evaluation of defence funding may be a factor for a Trial Chamber to consider when deciding upon the scheduling of a trial, in discharging its duty to ensure the fair and expeditious management of the trial proceedings. However, this does not mean that the President’s order to increase the remuneration for a defence team invariably warrants postponement of the trial. Thus, it was open for the Trial Chamber to conclude, in light of other relevant factors, that the President’s view on the defence funding during the adjournment period would not necessitate further delay in the proceedings in order to safeguard Karadžić’s rights to a fair trial.

22. […] Therefore, Karadžić’s assertion that the Trial Chamber overruled the February 2010 President Decision or removed the remedy granted therein although it was obliged to implement the President’s order, is based on the misconception of both the law and the Impugned Decision. The Trial Chamber did not overrule the President, but concluded that the level of defence assistance for Karadžić, which the President found too low, could be remedied by means other than postponement of the trial.[8] The Appeals Chamber finds no error in this approach.

92. […] the Appeals Chamber recalls the basic principles of the assessment of alibi evidence before considering the specific contentions raised under each ground. The Appeals Chamber recalls that an alibi does not constitute a defence in its proper sense.[1] By raising an alibi, an accused is simply denying that he was in a position to commit the crime with which he was charged.[2] An accused does not bear the burden of proving his alibi beyond reasonable doubt.[3] Rather, “[h]e must simply produce the evidence tending to show that he was not present at the time of the alleged crime.”[4] If the alibi is reasonably possibly true, it must be accepted.[5]

93. Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[6] The Prosecution may do so, for instance, by demonstrating that the alibi does not in fact reasonably account for the period when the accused is alleged to have committed the crime. Where the alibi evidence does prima facie account for the accused’s activities at the time of the commission of the crime, the Prosecution must “eliminate the reasonable possibility that the alibi is true,”[7] for example, by demonstrating that the alibi evidence is not credible.

97. In certain circumstances, failure to raise an alibi in a timely manner can impact a Trial Chamber’s findings,[8] as it may take such failure into account when weighing the credibility of the alibi.[9] Therefore, the Trial Chamber was entitled to take into account the Appellant’s late submission of the Notice of Alibi when assessing the credibility of the alibi.[10]