Academic journal article Australian International Law Journal

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

Academic journal article Australian International Law Journal

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

Article excerpt

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.

I. 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. …

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