Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11211

 1                           Thursday, 10 July 2008

 2                           [Judgement]

 3                           [Open session]

 4                           --- Upon commencing at 2.17 p.m.

 5             JUDGE PARKER:  Please call the case.

 6             THE REGISTRAR:  Good afternoon, Your Honours.  This is case

 7     number IT-04-82-T, The Prosecutor versus Ljube Boskoski and Johan

 8     Tarculovski.

 9             JUDGE PARKER:  The Chamber is sitting today to deliver judgement

10     in the trial of the two accused persons, Ljube Boskoski and Johan

11     Tarculovski.

12             For the purposes of this hearing, the Chamber will summarize

13     briefly its findings, emphasizing that this is a summary only, and that

14     the only authoritative account of the Chamber's findings and of its

15     reasons for those findings is to be found in the written judgement,

16     copies of which will be made available to the parties at the conclusion

17     of this sitting.

18             The two accused, Ljube Boskoski and Johan Tarculovski, are

19     charged with crimes allegedly committed between 12 and 15 August 2001

20     against ethnic Albanians from Ljuboten village near Skopje, in the former

21     Yugoslav Republic of Macedonia, which will be referred to as Macedonia.

22             It is alleged in the indictment that a police unit commanded by

23     Johan Tarculovski entered the village on the morning 12 August; that

24     members of this unit shot and killed six unarmed ethnic Albanian

25     residents of the village; that they severely mistreated 13 ethnic

Page 11212

 1     Albanian residents, ten of whom were subjected to further beatings at a

 2     police check-point at the entrance to village, and later at Mirkovci

 3     police station in Skopje, as a result of which one of those men died.

 4             It is alleged further that members of the police unit

 5     intentionally set on fire at least 14 houses in the village which caused

 6     serious damage to these houses or destroyed them, and damaged houses by

 7     the use of hand-grenades and rifle fire.

 8             Further, it is alleged that in the afternoon of 12 August, about

 9     90 ethnic Albanian men, fleeing from the village, were subjected to cruel

10     treatment by other police at a police check-point near the village, and

11     later at several police stations in Skopje, in Skopje Court II, and

12     Skopje Hospital.

13             The police are a component element of the Ministry of Interior of

14     the government of Macedonia.  At the time, Ljube Boskoski was the

15     minister of the interior.  He is charged under Article 7(3) of the

16     Statute of this Tribunal enacted by the United Nations on the basis that,

17     as the minister, he was the superior of the police who committed the

18     alleged crimes; but despite of having knowledge of or reason to know what

19     they had done, he failed to take reasonable and necessary measures to

20     investigate and to ensure that they were punished for their crimes.

21             It is his alleged failure, continued until May 2002, when the

22     Prosecutor of this Tribunal announced that she was assuming

23     responsibility for the investigation of the Ljuboten case.

24             It is on this basis of his alleged responsibility as their

25     superior that Ljube Boskoski is charged in the indictment with:

Page 11213

 1             First, the murder of seven ethnic Albanian men, a violation of

 2     the laws or customs of war as recognised by Article 3(1)A of the

 3     Geneva Convention of 1949.  These are the six men alleged to have been

 4     shot and killed in the village and the seventh man who died in hospital

 5     from the beatings received in the village and at Mirkovci police station.

 6             Secondly, wanton destruction of a village by setting fire to at

 7     least 14 houses, a violation of the laws or customs of war.

 8             And, thirdly, cruel treatment of ethnic Albanian residents of the

 9     village at the various locations indicated, a violation of the laws or

10     customs of war as recognised by Article 3(1)A of the Geneva Convention of

11     1949.

12             The other accused, Johan Tarculovski, is charged on a quite

13     different basis from Ljube Boskoski.  Johan Tarculovski was a relatively

14     junior police officer serving in the unit, providing security for the

15     president of Macedonia and his family.

16             It is alleged that he commanded the police who actually entered

17     Ljuboten village on 12 August 2001, that he led the police during the

18     attack, and was present when the crimes were committed.

19             He is charged under Article 7(1) of the Statute with having

20     ordered, planned, instigated, and aided and abetted the crimes committed

21     in the village by the police, and also for participating in a joint

22     criminal enterprise with others to commit these same crimes.  The

23     indictment does not allege that he had any responsibility for the acts of

24     mistreatment which are alleged to have occurred outside Ljuboten.

25             For the Tribunal to have power to deal with crimes charged

Page 11214

 1     against the accused, it must be proved by the Prosecution that an armed

 2     conflict existed in Macedonia at the time of the charged offences.  The

 3     Prosecution alleged that an internal armed conflict existed from

 4     January until at least September 2001 between the security forces, that

 5     is, the army and the police, and the National Liberation Army, which will

 6     be referred to as the NLA.  This issue was highly contested during the

 7     trial.  It is a complex factual and legal issue.

 8             The Chamber has dealt with important aspects of the evidence and

 9     set out its reasoning in the judgement.  In the result, the Chamber is

10     satisfied that, by August 2001, there was an internal armed conflict

11     between the security forces and the National Liberation Army.

12             The Prosecution and Defence cases as to what occurred in Ljuboten

13     on 12 August 2001 are in considerable opposition.

14             The Defence submits that the events that occurred in Ljuboten

15     were part of a legitimate law enforcement operation, to search for

16     members of the NLA and to prevent future NLA attacks.

17             The Prosecution case is that the police operation in Ljuboten and

18     the destruction caused was not a legitimate law enforcement operation.

19     It was not justified by military necessity that Ljuboten was not a NLA

20     stronghold, and it was not used as a NLA logistics base.

21             The Chamber has heard a great deal of conflicting evidence on

22     this and other issues in the trial.  The Chamber notes that it found that

23     some evidence from residents of the village, especially concerning the

24     presence and activities of NLA members in the village, and from members

25     of the police and the army concerning the events, was not honest and

Page 11215

 1     reliable.

 2             The Chamber is satisfied that, in the morning of 12 August 2001,

 3     a party of at least 60 to 70, and possibly more than 100, well armed

 4     reserve police, including men from a private security agency called

 5     Kometa, entered the village of Ljuboten.  They took with them a

 6     considerable amount of incendiary material.  A police armoured personnel

 7     carrier supported them.  Johan Tarculovski led this group of police.

 8     Macedonian army units positions in the mountainous country around the

 9     village provided mortar and other fire support, especially as the unit

10     was poised and ready to enter the village.

11             Members of the army, however, are not charged in respect of these

12     events.

13             The first act of the group in the village was to blow open the

14     gate to the home of an ethnic Albanian family, fire very many shots from

15     a number of police at the house, and through the open front door shooting

16     fatally an unarmed man in casual civilian clothing as he tried to close

17     the door.  He died a little later in the house in the presence of members

18     of his family.  The evidence does not establish that the dead man had any

19     NLA affiliations, he obviously presented no threat to the police when he

20     was shot, and he was taking no active part in hostilities.  The police

21     did not seek to enter the house to search or to interview other persons

22     inside.  Instead, a car and construction material in the front yard were

23     then deliberately set on fire with the aid of incendiary material the

24     police had with them.  The police then moved on.

25             The next action of the police was to deliberately set fire to a

Page 11216

 1     nearby house of another ethnic Albanian, again with the aid of incendiary

 2     material the police had with them.  There was no entry of the house to

 3     search.  The evidence does not establish that the house had been used for

 4     hostilities against the police or the army that day, or that the owner

 5     was affiliated with the NLA.  The police continued moving along the main

 6     road of the village, setting fire to some further ten houses in similar

 7     circumstances.

 8             Near the centre of the village, the police found a group of 13

 9     male ethnic Albanians sheltering in the basements of two houses of the

10     family compound of Adem Ametovski.  Women were also in one of the

11     basements.  The men were unarmed, dressed in civilian clothes, and

12     offered no resistance to the arriving police.  Valuables, money, and

13     identification papers were taken from the men, and valuables and money

14     from the women.

15             Outside in the front yard of one of these houses, the men were

16     forced to lie down on the ground and pull up their clothing to go cover

17     their eyes and heads.  The men were then very severely and repeatedly

18     beaten and kicked by the police.  Some were hit with rifle-butts as they

19     lay on the ground.  They were threatened with knives, and one man had a

20     cross carved on his back by a policeman with a knife.  One of the men was

21     shot in the arm or hand as he lay on the ground.  One of the men in this

22     group was then shot dead while others were lying on the ground.  He was

23     shot many times.

24             Most of the remaining men were then forced to walk under armed

25     escort to a police check-point at a house at the entrance to the village,

Page 11217

 1     Brace's house.  However, two elderly men were forced to stay behind at

 2     Adem Ametovski's house.  One of them was then shot many times by police

 3     and died by the house.  The remaining ten men were further violently

 4     mistreated by the escorting police by Brace's house at the entrance to

 5     the village, so much that some of them were rendered unconscious.

 6             The men were then detained at Mirkovci police station where they

 7     were subjected to further severe beatings.  One of them died on the

 8     following day as a result of the beatings.  He had been taken to

 9     hospital.  He had been gravely mistreated by members of the police unit

10     in Ljuboten, and later by different police at Mirkovci police station.

11             The evidence does not establish, however, that the police led by

12     Johan Tarculovski who mistreated this man in Ljuboten village beat him

13     with the intent to murder him.  The police who gravely mistreated this

14     man at Mirkovci police station were not among the police led by Johan

15     Tarculovski.

16             The evidence does not show that any of the men who had been

17     sheltering in Adem Ametovski's family compound had any NLA affiliations.

18     While they were shot and mistreated, they were in police custody.  They

19     were unarmed, very heavily outnumbered, and obviously presented no threat

20     to the armed police.  They were not taking any active part in

21     hostilities.

22             The police in the village continued and reached a group of houses

23     belonging to an ethnic Albanian family on the outskirts at the far end of

24     the village.  While the evidence concerning activities at these houses is

25     in many respects unsatisfactory, it is open on the evidence that there

Page 11218

 1     could have been firing at the police and at the army from one or more of

 2     these houses.  As the police approached these house, five men ran from

 3     the back of one of these houses, uphill across a field from the house

 4     towards trees.  As they were running, they came under heavy fire from the

 5     police and also fire from army positions located on a slope above the

 6     village.  Two of the men managed to escape.  The dead bodies of the other

 7     three men were found in the field.  All three had been hit by very many

 8     bullets.

 9             It is the evidence of the police that three fire-arms and

10     ammunition were found by the police near the bodies of these three dead

11     men.  However, this evidence about these weapons is suspect, because the

12     same three weapons were later claimed by police to have been the weapons

13     of some of the 13 men mentioned earlier who were sheltering the cellars

14     of Adem Ametovski's compound.  They were used in evidence in court

15     proceeds against those men.

16             The bodies of these three dead men in the field and the bodies of

17     the two men would had been shot many times by police earlier outside the

18     house of Adem Ametovski were left where they had fallen.  No police

19     investigation of the scenes or of the bodies was undertaken.  They were

20     buried by villagers two days later.

21             Eventually, some eight months later, the bodies of these men were

22     exhumed in the presence of representatives of this Tribunal, and

23     autopsies were conducted.  However, the bodies had undergone significant

24     changes in that time.

25             In respect of the three men shot in the field, it was established

Page 11219

 1     that many bullets had entered the bodies from more than one direction,

 2     but it was not possible to determine which bullet or bullets had actually

 3     caused the deaths.  It is not possible to determine, therefore, whether

 4     these three men died from police or army fire.  The charges are limited

 5     to firing by the police.  It has not been established, therefore, that

 6     the police caused the deaths of these three men.

 7             Further, while the evidence is not fully convincing, it is

 8     possible that these three men that were shot in the field had been firing

 9     at the police or army and were running with their weapons to other

10     shelter.  On this view, it has not been established that they were not

11     engaged in armed hostilities.

12             For these two reasons, it has not been proved that the three men

13     shot in the field were murdered by the police.

14             As people were trying to flee from the village in the afternoon

15     of 12 August, at a police station on the road to Skopje, which was manned

16     by different police and not those who had entered Ljuboten, men were

17     separated from women and subjected to cruel treatment.  From there, they

18     were taken to police stations in Skopje, where many of them were further

19     severely mistreated.  In turn, several of the Ljuboten residents detained

20     at police stations in Skopje were taken to Skopje City Hospital.  Others

21     were brought to Skopje Court II.

22             There is evidence that, at each of three's two locations, the men

23     may have been further mistreated.  It has not been established, however,

24     that the persons who carried out the assaults at the court and the

25     hospital were under the authority of the minister of the interior.

Page 11220

 1             As has been indicated, the only basis on which Ljube Boskoski

 2     could be convicted of the offences charged in the indictment is as a

 3     superior pursuant to the provisions of Article 7(3) of the Statute.  That

 4     is what is usually described as command responsibility.

 5             A primary contention of the Boskoski Defence is that Ljube

 6     Boskoski was neither de jure nor de facto a superior of the police that

 7     entered Ljuboten on 12 August 2001, nor over Johan Tarculovski, nor over

 8     the other police at the police check-point, police stations, the court,

 9     or in the hospital, where it is alleged the offences occurred.

10             Further, it is submitted, that Ljube Boskoski had no power to

11     punish any of these persons within the meaning of Article 7(3).  A great

12     deal of evidence was advanced in an effort to support these contentions.

13             Despite this, for reasons detailed in the written judgement, the

14     Chamber is satisfied that Ljube Boskoski, as minister of the interior at

15     the time, had the power to control and direct the police and any other

16     operative employees of the Ministry of Interior, including members of the

17     reserve police.  This power also extended to ensure that those police

18     responsible for investigating possible crime, including those who were

19     required to act at the direction of the judiciary and to assist the

20     Prosecutor, that is, the criminal police in the Ministry of Interior,

21     performed their functions efficiently and lawfully.  Of course, this

22     power to control and direct extended to the accused Johan Tarculovski,

23     who was then an employee of the Ministry of Interior.

24             Contrary to some media reports and the understanding of some

25     people at the time, Ljube Boskoski was not at Ljuboten and directing the

Page 11221

 1     police operation throughout 12 August.  As news of the operation spread,

 2     he was asked by the president to go there.  He reached Ljuboten as the

 3     operation was drawing to a close and was able to see something of events

 4     in the village from Brace's house at the entrance to the village.  He was

 5     there for over an hour.

 6             The evidence discloses that he was told that there had been a

 7     successful operation against terrorists and that some of them had been

 8     arrested.  He was not told that any had been shot.  He saw, at a little

 9     distance, the ten men who remained of those detained at Adem Ametovski's

10     house in the village.  They had been escorted to Brace's house from the

11     village.  They were again lying face down with their heads covered, and

12     it is not apparent that he would have had any reason to think that they

13     had been severely mistreated.  Smoke could be seen rising from parts of

14     the village, but that could be consistent with armed hostilities against

15     terrorists.

16             In short, what he could see and what he was told by police gave

17     him no reason to believe that there may have been murder, cruel

18     treatment, or wanton destruction.

19             By two days later, however, he had received police reports that

20     terrorists had been killed.  In addition, by virtue of information from

21     diplomatic figures, human rights and other organisations, and the media,

22     Ljube Boskoski quickly knew of serious allegations about the conduct of

23     police in Ljuboten and elsewhere on 12 August and the following day.  As

24     this information available to him grew, it was sufficient to put him on

25     notice of the likelihood that crimes may have been committed by the

Page 11222

 1     police.  As their superior, Ljube Boskoski was obliged to investigate

 2     this or report it to the competent authorities in Macedonia who were

 3     responsible for investigating possible criminal conduct, so that the

 4     matter could be fully investigated and offenders punished if this was

 5     justified.

 6             For the purposes of Article 7(3) of the Statute, his obligation

 7     as a superior to punish offending subordinates would be satisfied if a

 8     report was made to the appropriate authorities which was likely to

 9     trigger an investigation into the alleged criminal conduct.

10             In fact, two reports were made in the course of their ordinary

11     duties by police of the Ministry of Interior to the appropriate

12     authorities; that is, the investigating judicial authority and to the

13     public prosecutor.  On the evening of 12 August 2001, a report was made

14     of the dead men in Ljuboten and a further report was made following the

15     death in hospital of the man mistreated in Ljuboten and then at Mirkovci

16     police station.

17             Ljube Boskoski was informed that the judicial authorities had

18     been notified and that steps to investigate had already been attempted.

19     While these reports by his officers were not full or accurate and did not

20     detail all possible criminal conduct, they were such that they were

21     likely to trigger an investigation.  Indeed, by virtue of the existing

22     laws, they should have caused a judicial investigation, supported by the

23     public prosecutor, into each of the deaths in the course of which the

24     investigative judge and the public prosecutor ought also to have become

25     officially aware of the closely related allegations of misconduct by

Page 11223

 1     police involving cruel treatment and wanton destruction so as to be able

 2     to determine whether criminal charges were justified.

 3             In fact, there was not an investigation by the responsible

 4     authorities.  No criminal proceedings were instituted against any police.

 5     There are a number of reasons for this.  Failures by the police at police

 6     station Cair to perform their responsibilities adequately on

 7     12 August 2001 and on the days following and an apparent want of due

 8     attention to their responsibilities by the responsible authorities are

 9     primary factors.

10             Ljube Boskoski had no authority or powers in respect of the

11     responsible authorities; that is, the investigative judge and the public

12     prosecutor, who were not within the Ministry of Interior.  It is not

13     shown that the failure of police to perform their duties is attributed to

14     his orders or was known to Ljube Boskoski during the period charged in

15     the indictment or that it should have been anticipated by him.  It is not

16     established, therefore, that further reporting or other action by Ljube

17     Boskoski to satisfy his obligation under Article 7(3) of the Statute was

18     required.

19             While the circumstances disclosed by the evidence reveal a

20     serious failure of the functioning of the police and the responsibility

21     Macedonian authorities at the time, it has not been established that

22     Ljube Boskoski failed to take the necessary and reasonable measures for

23     the punishment of the police which were required by him by Article 7(3)

24     of the Statute.

25             As already indicated, the indictment charges the accused Johan

Page 11224

 1     Tarculovski with individual criminal liability under Article 7(1) of the

 2     statute for ordering, planning, instigating, or aiding and abetting the

 3     crimes referred to in Article 3 of the Statute and described in the

 4     indictment and with committing them by participation in a joint criminal

 5     enterprise.

 6             Contrary to the case advanced for Johan Tarculovski, the evidence

 7     satisfies the Chamber that he played a prominent role in the events of

 8     12 August 2001 in Ljuboten.  On 10 and 11 August, he was in charge of

 9     logistical preparations for the operation.  Support was provided by the

10     police and the army.  He coordinated this and mortar and other support

11     provided by the army.

12             On 12 August, Johan Tarculovski personally led the police

13     operation and was with the police as they moved through the village.

14     Although not formally appointed, Johan Tarculovski exercised effective

15     leadership and control of the police in the village that day.  The

16     actions of the police in the village were at his direction.

17             The Chamber is satisfied, therefore, that the accused Johan

18     Tarculovski is criminally responsible for ordering, planning, and

19     instigating the offences committed by the police in the village.  In view

20     of his direct role in ordering the commission of these offences, it is

21     not the case that he merely aided and abetted their commission.

22             The evidence does not establish that Johan Tarculovski

23     participated in a joint criminal enterprise as alleged in the indictment.

24     The reserve police with him in the village were acting under his orders,

25     not as fellow participants in a joint criminal enterprise.

Page 11225

 1             Further, as detailed in the written Judgement, the Chamber is

 2     satisfied that Johan Tarculovski was himself acting under orders in

 3     carrying out the police operation in Ljuboten.  The evidence does not

 4     enable the person or persons responsible for the orders to Johan

 5     Tarculovski to be identified.  The circumstances confirm it was a person

 6     or persons superior to him.

 7             It is to be noted that the police operation on 12 August occurred

 8     on the day before the signing of the Ohrid Framework Agreement which

 9     brought to an end the fighting between the Macedonian security forces and

10     the NLA.

11             The pattern of conduct in the village by the police discloses, in

12     the finding of the Chamber, a deliberate and indiscriminate attack on

13     residents of Ljuboten of Albanian ethnicity, involving acts of murder and

14     cruel treatment as well as the indiscriminate and wanton destruction of

15     houses and other property of ethnic Albanian residents of Ljuboten.

16             It was not a law enforcement operation to locate and arrest NLA

17     members.  The predominant objective of this police operation was to

18     retaliate against persons of Albanian ethnicity in the village for

19     actions of the NLA, which the village was thought to have harboured or

20     supported, in killing ethnic Macedonian soldiers, most especially in

21     respect of a land-mine attack at a location close to Ljuboten on

22     10 August 2001.  Eight soldiers were killed in this attack and others

23     were wounded.  The operation was not only a means of retaliation, it also

24     would serve as a warning of the consequences of support in the village

25     for the NLA.

Page 11226

 1             Ljube Boskoski, would you please stand.

 2             The Chamber founds you not guilty on all counts in the

 3     indictment.  The Chamber orders that you be released from the United

 4     Nations Detention Unit, subject to the completion of the necessary

 5     modalities.

 6             You may be seated.

 7             Johan Tarculovski, will you please stand.

 8             The Chamber founds you guilty pursuant to Article 7(1) of the

 9     statute of the following offences:

10             Count 1, murder, a violation of the laws or customs of war, under

11     Article 3 of the Statute, for having ordered, planned and instigated the

12     murder of Rami Jusufi, Sulejman Bajrami, and Muharem Ramadani;

13             Count 2, wanton destruction, a violation of the laws or customs

14     of war, under Article 3 of the Statute, for having ordered, planned, and

15     instigated the wanton destruction of the houses or other property of the

16     12 ethnic Albanian residents identified in the written judgement;

17             Count 3, cruel treatment, a violation of the laws or customs of

18     war, under Article 3 of the statute, for having ordered, planned, and

19     instigated the cruel treatment at Adem Ametovski's house of the 13 ethnic

20     Albanian residents identified in the written judgement, and the cruel

21     treatment at Brace's house of the ten ethnic Albanian residents

22     identified in the written judgement.

23             With respect to sentence, the Chamber has set out in the written

24     judgement the many matters that have been taken into account in

25     determining the appropriate sentence.  In particular, the Chamber has

Page 11227

 1     taken into account the sentencing structure in the former Yugoslav

 2     Republic of Macedonia in 2001 and sentences imposed in this Tribunal for

 3     offences in some ways similar to those of which you have been convicted.

 4             The Chamber would emphasize that you were a relatively junior

 5     officer of the police acting under orders when you planned, instigated,

 6     and ordered the commission of these offences.  This does not excuse your

 7     conduct, but it affects the degree of the seriousness of your conduct.

 8             You are sentenced to a single sentence of 12 years imprisonment.

 9     Full credit will be given for the time you have spent in custody.  You

10     will remain in the custody of the Tribunal pending the finalization of

11     arrangements for your transfer to the state where you will serve your

12     sentence.

13             You may sit down.

14             This concludes this trial.

15             The Chamber will now adjourn.

16                            --- Whereupon the hearing adjourned at 3.04 p.m.