533. The Appeals Chamber observes that the Trial Chamber recognised the territorial sovereignty of the FRY and the lack of a de jure border between Montenegro and Kosovo.[1] In reaching its conclusion that a de facto border existed between Montenegro and Kosovo, the Trial Chamber considered: (i) the degree of autonomy enjoyed by Kosovo; (ii) Montenegro’s status as a republic within the FRY; and (iii) the existence of “an armed conflict between forces of the FRY and Serbia on one hand and the KLA on the other”.[2] The Trial Chamber also considered that the displacement of Kosovo Albanians from Kosovo to Montenegro would have the same effect of “serious hardship” as the displacement across a state border, and that the displacement of Kosovo Albanians out of Kosovo would have made it easier for FRY and Serbian authorities to control Kosovo.[3]

534. However, in finding that a de facto border existed between Montenegro and Kosovo, the Trial Chamber failed to articulate the basis in customary international law upon which it found that a de facto border could be established in these circumstances.[4] The Appeals Chamber considers this to constitute an error of law. Consequently, the Appeals Chamber will assess whether, in light of customary international law, the circumstances of this case support the finding that a de facto border existed within the territory of the FRY, between Kosovo and Montenegro. 

535. The Appeals Chamber in Stakić previously undertook a survey of customary international law pertaining to the crime of deportation. The various sources considered in Stakić, however, do not provide any examples of an instance in which a displacement of persons from an autonomous region within a federal state to another republic within the same federal state constituted deportation.[5] Additional studies of customary international law regarding the crime of deportation were also undertaken in Judge Schomburg’s Partly Dissenting Opinion in the Naletilić and Martinović Appeal Judgement and Judge Shahabuddeen’s Partly Dissenting Opinion in the Stakić Appeal Judgement.[6] The authorities cited in these opinions, however, also do not address the issue of forcible displacement of individuals within the confines of a sovereign state by the government of that state but, instead, involve the presence of an occupying power or a contested border between two states.[7] The Appeals Chamber observes that the presence of an occupying power or of a contested border between states is not at issue in the present case.[8] The Appeals Chamber has found no support in customary international law for the proposition that a de facto border can be found within the confines of a sovereign state even where a certain degree of autonomy is exercised by portions of that state. Accordingly, the Trial Chamber’s finding that a de facto border existed based on the degree of autonomy enjoyed by Kosovo’s or Montenegro’s status as a republic within the state of the FRY finds no support in customary international law.[9]

536. In addition, the other factors considered by the Trial Chamber do not support a finding on the existence of a de facto border in customary international law. The Appeals Chamber does not intend to diminish the importance of the “serious hardship”[10] placed upon Kosovo Albanians forcibly displaced from Kosovo to Montenegro, as considered by the Trial Chamber, nor does it deny the presence of an armed conflict or the conclusion by the Trial Chamber that the displacement of Kosovo Albanians from Kosovo would have made it easier for FRY and Serbian authorities to control Kosovo.[11] However, the Appeals Chamber finds no basis in customary international law, including in any of the materials considered by the Stakić Appeal Judgement or in the Partly Dissenting Opinions of Judge Schomburg and Judge Shahabuddeen, to infer the presence of a de facto border in these circumstances.[12]