Use of force by a State in self-defence

Notion(s) Filing Case
Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI

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.

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ICTY Statute Article 3(b) Other instruments UN Charter: Article 51