Prosecutor v. Boskoski: (ICTY, Trial Chamber, Case No. IT-04-82-T, 10 July 2008).

AuthorPoisel, Timothy J.
PositionTerrorist activities

Introduction

On 10 July 2008, Trial Chamber II (1) of the International Criminal Tribunal for the former Yugoslavia ('ICTY') delivered the judgment in the case of Prosecutor v Ljube Boskoski and Johan Tarculovski. (2) The case concerned an alleged attack on the unarmed ethnic Albanian village of Ljuboten, the subsequent murder and cruel treatment of its residents, and the wanton destruction of property by the army and police ('Security Forces') of the former Yugoslav Republic of Macedonia ('FYROM'). The Indictment alleged that these crimes occurred during an armed conflict between the FYROM Security Forces and the ethnic Albanian National Liberation Army ('NLA'). (3) This is a significant case because it provides a detailed application of the Tadic (4) threshold test to ascertain whether a state of 'internal armed conflict' exists. Also, the Trial Chamber's findings on the principle of superior responsibility demonstrates the difficulties associated with holding a civilian and, more specifically, a politician, criminally responsible for the acts of their subordinates. The decision sends a strong message that the principle of superior responsibility imposes different obligations on military commanders and civilian superiors. In the case of civilian superiors, the Trial Chamber held that it would suffice for them to report crimes to competent authorities to escape international criminal responsibility.

  1. The Indictment

The events that formed the basis of the Indictment were alleged to have occurred from 12 August 2001 in Ljuboten, a village in the northern part of FYROM, its surroundings, and thereafter in Skopje. On the morning of 12 August 2001, Ljuboten came under an intense combined attack from police, under the command of Johan Tarculovski, and from the FYROM army. Possibly as many as 100 police attacked Ljuboten, with the support of a police armoured personnel carrier and mortar and other fire support from the FYROM army. It was alleged that, during this attack, six Albanian civilian residents were shot by police and another civilian was killed by shelling from the army. (5) During this attack, the police destroyed or damaged at least 14 houses in the village by setting them alight and through the use of hand grenades and small arms. (6)

Following the attack on Ljuboten, at least 90 male residents from the village were arrested while fleeing with their families. They were transported and detained at various police stations and the court and hospital in Skopje. From 12-15 August 2001, it was alleged that these detainees were subjected to cruel treatment with repeated beatings, humiliation, harassment and psychological abuse. (7)

The Indictment charged Ljube Boskoski and Johan Tarculovski ('the Accused') with three counts of violations of the laws and customs of war, namely for murder, cruel treatment and wanton destruction. These violations of the laws and customs of war are punishable under article 3 of the Statute of the International Tribunal for the Former Yugoslavia ('ICTY Statute') (8)

Johan Tarculovski was charged with individual criminal responsibility under article 7(1) of the ICTY Statute for having planned, instigated, ordered, committed or otherwise aided and abetted the crimes committed at Ljuboten. (9) The use of the term 'committed' in the Indictment did not infer that Tarculovski physically committed any of the alleged crimes, but rather that he participated in a joint criminal enterprise ('JCE') to commit these crimes. The Prosecution submitted that Tarculovski participated in a JCE on 10-12 August 2001 for the purpose of engaging in an unlawful attack on civilian objects that was not justified by military necessity. (10) It was alleged that Tarculovski participated in the JCE with knowledge of its illegal objective and was aware of the possible consequences of the execution of the JCE. (11) It is important to note that Tarculovski was not charged for the alleged crimes of cruel treatment against civilians outside of Ljuboten.

At the time of the alleged crimes, the police units under the command of Tarculovski formed part of the Ministry of Interior of FYROM. Between May 2001 and November 2002, Ljube Boskoski was the Minister of Interior of FYROM. On this basis, Boskoski was charged with individual criminal responsibility pursuant to article 7(3) of the ICTY Statute. The Prosecution submitted that Boskoski exercised de jure and de facto command and control over the police who participated in the alleged crimes. (12) As a superior of the police, Boskoski was responsible for the actions of his subordinates and, despite knowing or having reason to know that these crimes had been committed by his subordinates, he failed to take necessary and reasonable measures to investigate the allegations and to punish the perpetrators.

Under article 5 of the ICTY Statute, the Tribunal will only have the jurisdiction to punish perpetrators of war crimes where the prosecution can establish that an armed conflict, either international or internal in character, existed at the time material to the charged offences. In addition, under article 3 of the ICTY Statute, the Tribunal must be satisfied that there is a sufficient link between the alleged acts of an accused and the armed conflict. (13)

The Indictment claimed that an internal armed conflict existed in FYROM from at least January until September 2001 between the FYROM Security Forces and the NLA. (14) The test set out by the Trial Chamber in Tadic provides that an internal armed conflict will exist where a minimum level of intensity is reached in the hostilities and the parties to the conflict are considered sufficiently organised, in distinction from lesser forms of violence such as 'terrorist activities'. (15) The existence of an internal armed conflict in FYROM in August 2001 was a highly contested issue in the trial.

  1. Submissions of the Accused

    Prior to the trial, the Accused unsuccessfully challenged the jurisdiction of the Tribunal on the basis that no armed conflict existed in FYROM in 2001. (16) These motions were dismissed on the basis that the question of whether there was an armed conflict at the time of the alleged crimes was a factual determination for consideration by the Trial Chamber. (17)

    At the trial, the Accused argued that the conflict in FYROM did not meet the requisite thresholds necessary under the Tadic test. With respect to the intensity of the conflict, it. was argued that the circumstances in FYROM were comparable with the 2001 situation in Northern Ireland and the fighting between the Turkish army and the Kurdistan's Workers Party, neither of which were recognised as armed conflicts. (18) On this basis, it was argued that the hostilities were merely acts of a terrorist nature and, therefore, outside the scope of application of international humanitarian law ('IHL'). This proposition was supported by a number of statements from international organisations that had condemned the terrorist attacks perpetrated by the NLA. (19) It was suggested by the Accused that the NLA attacks would have been considered legitimate military activities if these international organisations had characterised the violence in FYROM as an...

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