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.