The Appeals Chamber dismissed Boškoski’s Appeal on Jurisdiction on procedural grounds, giving the following reasoning:

3. The Appeals Chamber does not consider that Boškoski’s Appeal is admissible as there is no basis upon which he could have properly filed his jurisdictional challenge before the Trial Chamber. The Appeals Chamber recalls that Rule 72(A)(i) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”) requires that challenges to jurisdiction must be “brought not later than thirty days after disclosure by the Prosecutor to the defence of all material and statements referred to in Rule 66(A)(i)”. Since disclosure for this case was completed in 2005, this Rule did not apply in this instance. Similarly, Rule 50(C) of the rules, which accords the accused “a further period of thirty days in which to file preliminary motions pursuant to Rule 72 in respect of new charges” did not apply since the amended indictment did not add new charges. Accordingly, Boškoski cannot be considered as now having the right to file an appeal under Rule 72(B)(i) of the Rules. Furthermore, the Appeals Chamber questions the Trial chamber’s decision to recognize this motion under Rule 54 of the Rules, which effectually allowed for the circumvention of the clear provisions of Rule 72 and the time limits therein. Seeing, however, that the Impugned Decision was considered on the basis of Rule 54, only Rule 73 of the rules would have been applicable, necessitating certification.[1]

In his Partially Dissenting Opinion, Judge Pocar was of the view that it was within the Trial Chamber’s discretion to allow Boškoski’s motion under Rule 54. He continues:

In my opinion, as a challenge to jurisdiction under rule 72(B) gives rise to an appeal as of right, when such a challenge arises under any other rule from a Trial Chamber, it should also be treated as allowing a right of appeal. Any other interpretation would create the possibility of an accused standing trial on charges that are not properly brought before this Tribunal. As was stated by the Appeals Chamber in Prosecutor v. Tadić, in its decision on jurisdiction, “[s]uch a fundamental matter as the jurisdiction of the International Tribunal should not be kept for decision at the end of a potentially lengthy, emotional and expensive trial”.[2] While that statement was made in relation to whether the International Tribunal had any jurisdiction at all, it is equally applicable to whether the Tribunal’s jurisdiction pursuant to Article 7(3) extends to all types of criminal activity of subordinates.[3]  […] I do not consider that the accused’s challenge to the issue as constituting a defect in the form of the indictment should preclude his challenge of the same issue as on of jurisdiction.[4]

1. Scope of Article 3

13. The Appellants’ challenge to the Tribunal’s jurisdiction over Counts 5, 6 and 7 of the Indictment stems from the Appellants’ interpretation of the Tadić Jurisdiction Decision regarding the scope of jurisdiction under Article 3 of the Statute. In the Tadić Jurisdiction Decision, the Appeals Chamber held that Article 3 confers jurisdiction over any serious offence against international humanitarian law committed in non-international or international armed conflict not covered by Articles 2, 4, or 5.[1] The Appeals Chamber prescribed a four-prong test to ensure that offences charged under Article 3 lie within the International Tribunal’s jurisdiction.[2] On appeal the Appellants argue that the jurisdictional grant embodied in the enumerated provisions of Article 3 only refers to the conventional law from which that text is derived. The Appellants claim that as that conventional law underpinning Articles 3(b), (d) and (e), charged in Counts 5, 6 and 7 of the Indictment respectively, relates to international armed conflicts and situations in occupied territory, the Tribunal does not have jurisdiction over these offences in non-international armed conflicts.[3]

14. The Appellants’ position is an unnecessarily narrow reading of the Appeals Chamber’s jurisprudence with respect to the scope of the enumerated provisions in Article 3. In the Tadić Jurisdiction Decision, the Appeals Chamber stated, with respect to the list of enumerated violations, that “this list may be construed to include other infringements of international humanitarian law”,[4] demonstrating that the enumerated crimes of the list itself should be considered to encompass rules in addition to the conventional law from which their text originates.[5] Accordingly, properly understood, Article 3 confers jurisdiction over violations of rules that are expressed by the provisions of the Article, but which are not limited to the conditions of the rule’s origin in conventional instruments applicable to international armed conflicts only.[6]

See also para. 45.