1 Thursday, 29 October 2009
2 [Open session]
3 [The accused Tarculovski entered court]
4 --- Upon commencing at 9.30 a.m.
5 JUDGE ROBINSON: Will the Registrar call the case, please.
6 THE REGISTRAR: Good morning, Your Honours. Case number
7 IT-04-82-A, the Prosecutor versus Ljube Boskoski and Johan Tarculovski.
8 JUDGE ROBINSON: Mr. Boskoski, I'm to ask you whether can you
9 hear me and follow the proceedings.
10 MR. BOSKOSKI: [No interpretation].
11 JUDGE ROBINSON: Thank you very much. And Mr. Tarculovski, can
12 you hear me and follow the proceedings through the translation.
13 THE ACCUSED TARCULOVSKI: [No interpretation].
14 JUDGE ROBINSON: Thank you very much.
15 May we have the appearances, beginning with the Prosecution.
16 MR. ROGERS: Good morning, Your Honours, Mr. President. Your
17 Honours, Paul Rogers appearing on behalf of the Prosecution today,
18 together with Ms. Laurel Baig, Mr. Francois Boudreault, and
19 Ms. Nadia Shihata. Your Honours, they will be dealing with the
20 Tarculovski part of the appeal. This afternoon I will be joined by
21 Ms. Elena Martin-Salgado and two of my colleagues will leave, so there
22 will be a change of personnel whilst I deal with the Boskoski part of the
23 appeal. So you know what will happen.
24 JUDGE ROBINSON: You have an abundance of resources, Mr. Rogers.
25 You're blessed.
1 And then for Mr. Boskoski.
2 MS. RESIDOVIC: [Interpretation] Good morning, Your Honours. For
3 Mr. Boskoski, Edina Residovic, Guenael Mettraux and our assistants will
4 be representing Mr. Boskoski this morning.
5 JUDGE ROBINSON: And for Mr. Tarculovski.
6 MR. A. DERSHOWITZ: [Microphone not activated].
7 THE INTERPRETER: Microphone, please.
8 JUDGE ROBINSON: Microphone.
9 THE INTERPRETER: Microphone, please.
10 MR. A. DERSHOWITZ: May it please the Court, Mr. President,
11 Mr. Alan Dershowitz for the appellant Mr. Tarculovski, and my brother
12 Nathan Dershowitz. We will dividing the argument. I will be doing the
13 first 30 minutes; he will be doing the second 45 minutes. And with the
14 permission of the Court, if there is any time that we do not use in our
15 opening argument, we would like to add that to our time for our rebuttal
17 JUDGE ROBINSON: Well, we'll consider that, Mr. Dershowitz.
18 Let me summarise the appeals. The appeals concern the events
19 during and subsequent to a police operation conducted on the
20 12th of August, 2001, in the village of Ljuboten
21 northern part of the former Yugoslav Republic of Macedonia.
22 Johan Tarculovski and the Prosecution appeal from a Judgement rendered on
23 the 10th of July, 2008, by Trial Chamber II. The Chamber found
24 Johan Tarculovski guilty of charges of ordering, planning, and
25 instigating murder as a violation of the laws or customs of war; wanton
1 destruction as a violation of the laws or customs of war, Count 2; and
2 cruel treatment as a violation of the laws or customs of war, Count 3.
3 The Trial Chamber sentenced Johan Tarculovski to a single
4 sentence of imprisonment of 12 years. Ljube Boskoski was found not
5 guilty of all charges and the Prosecution appeals his acquittal.
6 Johan Tarculovski initially filed his notice of appeal on the 8th of
7 August, 2008, setting out 15 grounds. On the 12th of January, he filed
8 his appeal brief, setting out seven grounds of appeal. With the leave of
9 the Appeals Chamber, on the 2nd of April, 2009, Tarculovski filed his
10 amended notice of appeal, corresponding to his appeal brief. The
11 Prosecution filed its response brief on the 9th of April, 2009
12 Tarculovski filed his reply brief on the 24th of April, 2009. The
13 Prosecution filed its notice of appeal on the 6th of August, 2008, and
14 its appeal brief on the 20th of October, 2008. Ljube Boskoski filed his
15 response brief on the 1st of December, 2008, and the Prosecution filed
16 its reply brief on the 16th of December.
17 I will now summarise the grounds of appeal.
18 Johan Tarculovski brings seven grounds of appeal and seeks an
19 acquittal on all counts. On the first ground of appeal he submits that
20 the Tribunal's exercise of jurisdiction over this matter is improper.
21 Since the Tribunal did not make a threshold determination as to whether
22 the government of the FYROM lawfully ordered the operation in
23 self-defence to root out terrorists from amongst the villagers.
24 Under his second ground of appeal, he submits that the events in
25 Ljuboten on the 12th of August, 2001, did not violate the laws or customs
1 of war since they were the result of a sovereign's legitimate and
2 proportionate response to an internal terrorist attack. He also
3 questions the applicability of the laws or customs of war in determining
4 individual criminal responsibility for a person assigned to carry out a
5 legitimate operation planned by a sovereign.
6 In his third ground of appeal, he submits that the Trial Chamber
7 erred in its application of Article 7(1) of the Statute with respect to
8 planning, instigating, or ordering. In Ground 4, he alleges that the
9 evidence was insufficient to find the murder, wanton destruction, and
10 cruel treatment as established beyond a reasonable doubt. In his fifth
11 ground, he argues that the Trial Chamber improperly rejected the
12 testimony of entire categories of witnesses, while it later selectively
13 relied upon the supposedly rejected testimony. His sixth ground of
14 appeal concerns his statements to a commission established by the
15 Ministry of Interior to investigate what had occurred in Ljuboten.
16 Tarculovski argues that these statements were improperly admitted or,
17 alternatively, improperly used. And in his last ground of appeal, he
18 requests the Appeals Chamber to reduce his sentence.
19 The Prosecution brings one ground of appeal, in relation to the
20 acquittal of Ljube Boskoski. It argues that the Trial Chamber erred in
21 law in finding that Boskoski had taken the necessary and reasonable
22 measures to punish, under Article 7(3) of the Statute, since the
23 Trial Chamber applied the wrong legal standard. Alternatively, it argues
24 that the Trial Chamber erred in fact since Boskoski failed to take
25 certain measures that were necessary and reasonable to punish his
1 offending subordinates. The Prosecution argues that it was possible,
2 necessary and reasonable for Boskoski to inquire into the facts of the
3 crimes, report the alleged criminal conduct of his subordinates to the
4 competent authorities, and initiate disciplinary proceedings against
5 these subordinates.
6 I bring to the attention of the parties that by a letter of the
7 20th of October, the Chamber invited the parties to address a specific
8 issue during this hearing. There is no need for me to restate that issue
9 at this time.
10 The hearing will proceed according to the Scheduling Order issued
11 on the 2nd of September, 2009
12 present his submissions this morning for 1 hour and 15 minutes. They
13 have indicated a division of that time. Following a 30-minute pause, the
14 Prosecution will present its response for one hour; following which
15 counsel for Johan Tarculovski will reply for 20 minutes. There will then
16 be a break for one hour. The hearing will continue in the afternoon with
17 the appeal of the Prosecution for 1 hour and 15 minutes, and a response
18 from counsel for Ljube Boskoski for one hour, and the Prosecution's reply
19 for 20 minutes.
20 The parties are reminded to present their submissions in a
21 precise and clear manner.
22 Madam Registrar, you will assist with the time keeping.
23 I now invite counsel for Mr. Tarculovski to present his
24 submissions, Mr. Alan Dershowitz.
25 MR. A. DERSHOWITZ: Mr. President, and may it please the
1 Tribunal, my name is Alan Dershowitz, and I'm here on behalf of
2 Johan Tarculovski. The issue in this appeal -- still not -- is this
4 JUDGE ROBINSON: It's on, yes.
5 MR. A. DERSHOWITZ: If I stand straight you won't hear? It's
6 okay now? Okay. Thank you.
7 The issue on this appeal is presented very squarely by the
8 parties. The Prosecution argues throughout its brief that "the question
9 of whether the Ljuboten operation was in self-defence against terrorists
10 is 'irrelevant.'" That's their position throughout the brief. We argue
11 that this question was central, if not dispositive, both on the issues of
12 jurisdiction and on the issues of culpability. There is, in our view, a
13 dispositive difference between an operation that has no legitimate
14 military purpose, such as genocide, ethnic cleansing, wanton destruction
15 of property, murder of civilians, and a legitimate military operation
16 that produced some civilian deaths in the process of defending against
17 terrorism. Acts of terrorism have become almost routine around the
18 world, terrorists occur -- acts occur within countries, across borders,
19 even across oceans and continents. States that are victimised by
20 terrorist activities often respond, claiming that they are targeting only
21 terrorists. States that harbour terrorists often claim that the targets
22 were civilians.
23 Whether a victim was a terrorist or a civilian is often a matter
24 of degree. This is an continuum of civilianality that has been
25 recognised in the literature. An individual may engage in a terrorist
1 act and then return to civilian status. A village may actively support
2 and hide terrorists, or the villagers may be victims themselves, forced
3 to harbour or become human shields for terrorists. Each situation
4 presents different concerns and the applicable rules that govern these
5 concerns are being hotly debated in the academy today.
6 The Prosecution conceded that the defendant in this case was
7 ordered to conduct a search of the village of Ljuboten
8 Xhavit Hasani, and that he acted on that order. The Trial Tribunal
9 itself found:
10 "There is some evidence which could suggest that a number of
11 Ljuboten residents were involved in the planting of the land-mine on
12 10 August, resulting in the death of eight Macedonian soldiers. And it
13 also found that for this reason the Chamber accepts that on the basis of
14 the information available to the police, there were legitimate reasons
15 for the police to enter the village of Ljuboten
16 a suspected terrorist or NLA presence."
17 There is far different legally from a situation where there was
18 no legitimate military reason for undertaking the operation. The laws
19 and customs of war are clear in the latter situation, but they are
20 utterly, utterly unclear when military action is taken against terrorists
21 who hide among civilians and who do not wear military uniforms.
22 The Prosecution argued in this case that the government of
24 did not matter whether the government honestly and reasonably believed
25 that the NLA was in Ljuboten, and aimed the operation at the NLA.
1 According to the Prosecution, any military action on that day was
2 inappropriate because the NLA's killing of ten soldiers on August 8th and
3 eight soldiers near Ljuboten on August 10th had created "an incendiary
5 Your Honours, think of the implications of that argument. If
6 adopted, it would never be appropriate for a sovereign to respond to
7 domestic terrorism because terrorist acts --
8 JUDGE ROBINSON: Mr. Dershowitz, I'm told that the French
9 interpreter is asking you to speak more slowly.
10 MR. A. DERSHOWITZ: I appreciate that. Thank you, Your Honour.
11 Thank you. I'm sorry for speaking quickly.
12 The Prosecution's argument is that any time there is an act of
13 terrorism, essentially it will always create a volatile situation. In
14 effect, the Prosecution is arguing that the greater the need for
15 intervention and self-defence, the less the right to do so. This
16 principle has never been accepted as fundamental international law.
17 Moreover, as the Tribunal is fully aware, Article 51 of the Charter of
18 the United Nations precludes second guessing, essentially, of sovereign
19 military decisions based on reasonable fear and reasonable acts of
20 self-defence. If a member state may even engage in pre-emptive actions
21 across borders, a fortiori, a member state may act in reaction and in
22 self-defence within its own territories. This Tribunal, the trial
23 Tribunal never resolved this issue in any meaningful way.
24 The Prosecution argument does not accept, does not represent
25 accepted international legal norms. Scholars, for example, such as
1 Professor Michael Schmitt, the dean and professor of international law at
2 the George Marshall European Center
3 visiting professor at the Naval College
4 concluded that this complex issue, the complex issue of what right a
5 sovereign has when terrorists are hiding among civilians, is a subject
6 "unaddressed in lex scripta," and there is no treaty norm addressing this
7 issue. It is not surprising therefore that neither the Prosecution, nor
8 the Trial Tribunal, have cited a single authority, any law or even any
9 consensus scholarship on this issue.
10 The Tribunal has jurisdiction to prosecute only "persons
11 violating the laws or customs of war." And we submit that there are no
12 laws or customs currently governing the conduct at issue in this case.
13 The military, in rooting out terrorists from among civilian shields,
14 presents a dilemma that is ongoing in the academic literature and in the
15 professional and juridical literature.
16 There are, of course, rules of proportionality. Even those rules
17 are extraordinarily complex when it comes to terrorist activities, as
18 evidenced by what is ongoing today in Iraq and Afghanistan
19 a range of other places around the world. There is not even consensus on
20 how the rule of proportionality operates. Indeed we cite in our brief
21 several scholars that point to three different rules of proportionality
22 that can operate this context. But the defendant here, importantly, was
23 not charged with violating rules of proportionality; that's not the way
24 the Prosecution presented the case. And the reason they didn't present
25 the case that way is, obviously when three people are killed in a
1 military attack or three non-terrorists in a military attack, responding
2 to the killing of 18 people previously, they would be hard-pressed to
3 make any claim of proportionality. He was instead charged with planning,
4 inciting, murder, destruction of property and cruel treatment of
5 non-combatants on the basis of what we submit is a circular and
6 impermissible inference in a terror shield situation. Namely, that --
7 here I'm quoting from the trial Tribunal as they put it:
8 "What was done -- what was done by a group of police in the
9 village in the presence of the leader of the group," and we dispute that
10 characterisation, "what was done provides a significant and reliable
11 guide to what was intended as the object of the operation."
12 And then using that circular improper inference, and I'll explain
13 in a minute why it is improper, they come to the following conclusion.
14 An object, not the object, an object - this is important now, apparently,
15 apparently, and I underline that word, apparently the predominant object
16 was to indiscriminately attack civilians.
17 In the first place, Your Honours, "apparently" is not beyond a
18 reasonable doubt. "Apparently" is an admission of speculation,
19 inference, and lack of absolute evidence in this case. And my brother
20 will document, point by point, the lack of evidence on this point.
21 But reasoning from result to intent, the old British notion of
22 man intends the natural consequences of his conduct, has been rejected.
23 The United States Supreme Court, for example, in a leading case called
24 Sandstrom v. Montana
25 unconstitutional to infer intent from result. It is always a
1 questionable inference. But it is particularly irrational and false in a
2 situation like this one. Where A, the Prosecution and the Tribunal
3 concede that the original purpose was to root out terrorists. Nobody has
4 presented any evidence to the contrary about the crucial meeting on the
5 eve of the operation; B, the Tribunal found that "there were legitimate
6 reasons to enter the village and that there may well have been terrorists
7 living among the civilians"; C, three of the deaths were of NLA
8 terrorists, and medical help was administered to some of the wounded; D,
9 the Tribunal "accepts that it may have been believed by army personnel
10 that there was" - and this is crucial - "ongoing fire directed at the
11 police during the operation." That is a finding of the Tribunal --
12 JUDGE ROBINSON: Mr. Dershowitz.
13 MR. A. DERSHOWITZ: Yes.
14 JUDGE ROBINSON: May I make you back to the word "apparently."
15 If the Tribunal had found not apparently but certainly and beyond
16 a reasonable doubt that the predominant object was to indiscriminately
17 attack civilians, would that make any difference your argument?
18 MR. A. DERSHOWITZ: Your Honour, it would very much depend on a
19 range of issues that I'm going to be talking about now; that is, the
20 nature of the operation, whether -- we wouldn't waive our jurisdictional
21 arguments but assuming that there was subject matter jurisdiction, the
22 Court has already found that there was geographical and temporal
23 jurisdiction, but assuming there was jurisdiction that covered the
24 subject matter, if there were proof, specific proof, I'm not talking
25 about finding now because a finding be questioned, obviously, in front of
1 the Tribunal. But if there were proof, if there a tape-recording, for
2 example, of the meeting, let's give you an example. The Wannsee
3 Conference that occurred in Germany
4 about what occurred. There was a meeting in Wannsee. They decided at
5 that meeting that they were going to simply systematically round up and
6 kill Jews. Or if there were of a videotape of a meeting, say, dealing
7 with Srebrenica and there were -- was evidence and clear proof that there
8 was no military, no military operation at all, that this was purely
9 designed as ethnic cleansing, yes, the case would be considerably
11 What we're arguing is, when you have at worse a mixed case, a
12 case where there is no evidence of anything other than a plan to root out
13 terrorists in the beginning -- and remember, too, the government in this
14 case understands how weak its position is and it actually presents a
15 fallback position to the Court, where it says that the Prosecution -- I'm
16 not quoting yet. The Prosecution concedes that the plan "may not have
17 been in place before the police entered the village but may have
18 developed after the first crimes were committed."
19 Think of that, Your Honours what that means. What they're
20 conceding is that there was no plan in the beginning. The plan in the
21 beginning may have been perfectly legitimate and perfectly military, and
22 then in the fog of war, after the first crimes were committed, suddenly,
23 a plan developed? And my defendant, without any evidence, is regarded as
24 having developed the plan and implemented the plan? It's a complete
25 change of theory and a major acknowledgment, we believe, of the weakness
1 of their case.
2 JUDGE ROBINSON: Judge Meron.
3 JUDGE MERON: Very interesting argument, Mr. Dershowitz.
4 MR. A. DERSHOWITZ: Thank you, Judge.
5 JUDGE MERON: It strikes me that your a fortiori invocation of
6 Article 51 to internal conflicts is -- might be a bit thin. Is -- are
7 you arguing that this was a law enforcement action or a war-like
9 MR. A. DERSHOWITZ: Well, we think it was more -- certainly it
10 was mixed in some ways. It was mixed. It involved police. Today, of
11 course, in the war against terrorism, police often have armoured
12 vehicles. They often have helicopters. The distinction between a police
13 action and a military action is often a matter of degree. We think this
14 is closer to a police action than a military action. But obviously it
15 had elements of both.
16 JUDGE MERON: If it was a police action, then the normal
17 restraints applicable to police operation in terms of targeting would be
18 perhaps more rigorous than those that would apply to a war-like
20 MR. A. DERSHOWITZ: Well, there is a great debate, as Your Honour
21 is aware, of whether or not terrorism is law enforcement issue or is a
22 military issue. There is no singular answer to that question. And our
23 basic point is, Your Honour, these complex issues ought not to be
24 revolved on the back of a 26-year-old inexperienced man who knew nothing
25 about international law. We are here debating this issue and he is in
1 jail, in prison, because he guessed wrong, as the Court said, between
2 right and wrong in the fog of war.
3 JUDGE MERON: But what parameters would you suggest to sort of
4 reassure against a complete laissez-faire for the -- for armies or police
5 forces in those cases? If your argument regarding self-defence against
6 terrorism to which, as you argue, very few rules are applicable, can this
7 not be abused?
8 MR. A. DERSHOWITZ: Yes.
9 JUDGE MERON: Is not the claim of terrorism made everywhere? I
10 mean, in Sudan
11 judges are confronted with a need to have some rational criteria.
12 MR. A. DERSHOWITZ: Absolutely, Your Honour. I agree completely.
13 And first of all, the finding -- this Tribunal already made a finding
14 that there was terrorism and that there was a legitimate interest in
15 going in and attacking and rooting out terrorism. So we're not presented
16 with the Sudan
17 Second, the rules of proportionality. Those are the rules that,
18 it seems to me, have to govern this kind of situation. And there is a
19 complicated issue in this case, Your Honour, which I'm sure you are aware
20 of. There is a rule that says when in doubt, you should assume that
21 somebody is a civilian rather than a non-combatant. But then the rules
22 of beyond a reasonable require Tribunals to take the opposite assumption;
23 that is, although the person on the ground should always err on the side
24 of assuming somebody is a civilian, the Court must always err on the side
25 of assuming that the defendant was not aware that the person was a
2 So, as Your Honour may or may not know, and here I have to get a
3 little personal, I have written a book on this subject called
4 "Preemption," in which I call for a new jurisprudence to deal and
5 regulate these issues. And I'm not alone in calling for a new
6 jurisprudence. Virtually the entire academy recognises that the rules
7 are unclear. I'm very sympathetic to the position of an international
8 court that is anxious to apply rules of law, but they can't apply them
9 retroactively. And it's not function of this court to create new rules
10 and -- or the Tribunal, trial Tribunal, and apply them to a defendant in
11 the fog of war. It would be perfectly reasonable for this Tribunal to
12 lay out what it believes the problems are and the complexities and to
13 acknowledge that the defendant in this case could not possibly have been
14 aware are of what his duties were in -- when he is ordered by the
15 president, the Court acknowledges, the Tribunal acknowledges this was not
16 his idea. This was not his plan. He didn't carry it out in person. He
17 didn't kill anybody. He is in this kind of intermediate position, not
18 planner, not the killer, but the person it is claimed who was in charge,
19 who led the operation; we dispute that. But nonetheless, even if that
20 were true, what his obligations are beyond proportionality, even
21 proportionality you would think that is an upper level decision, that is,
22 the people deciding whether to go into this town or not would be
23 responsible for the issue of proportionality. These are complex issues
24 and I think for us to prevail in this appeal, with due respect,
25 Your Honour, all we have to do is persuade the Court that the law is
1 unclear. And that international humanitarian law and the law of war
2 provide no clear guide-lines, no clear criteria for when it is
3 appropriate to take actions that inevitably will result in the death of
4 some civilians.
5 Here look at the result. Three terrorists are killed. Three
6 alleged non-terrorists, all male, all allegedly wearing black, were also
7 killed. Under rules of proportionality that would not be seen to be
8 impermissible. Thank you, Your Honour.
9 JUDGE ROBINSON: Judge Liu, please.
10 JUDGE LIU: Thank you, Mr. President. I would like to seek some
11 clarifications concerning of the Ground 1 of your appeal.
12 MR. A. DERSHOWITZ: Right.
13 JUDGE LIU: According to the jurisprudence of this Tribunal,
14 whether attack was ordered as pre-emptive, defensive or even offensive is
15 irrelevant in the point of -- in -- from the legal point of view and the
16 question is whether the accused has committed some unlawful crimes during
17 those military operations.
18 Is it that your position that so long as the military action is
19 lawful, just, or legitimate, this Tribunal will have no jurisdictions
20 over whatever happened during that actions?
21 MR. A. DERSHOWITZ: No, that's not our position, Your Honour. We
22 concede, of course, that this Tribunal would have jurisdiction. Say, for
23 example, that the Srebrenica events started out as legitimate attempts to
24 stop terrorism, and then suddenly the decision was made to murder 7.000
25 individuals. The people who were responsible for making that decision,
1 the people who implemented that decision would be responsible. What
2 we're saying though is that in a case like this, where you have a
3 relatively small number of people killed, proportional number of people
4 killed, a relatively small amount of property destruction compared to the
5 size of the village and what was going on previously, that it is
6 certainly relevant, it is certainly relevant that the operation was
7 legitimate. It is one of the major factors that have to be taken into
8 consideration that the laws are different for genocidal operations, that
9 started out as genocidal, that had no military function, and for
10 operations that started out as legitimate and something may have happened
11 in the process. Particularly for the person in the middle. Particularly
12 for the person who didn't order the operation and the person who didn't
13 carry out the operation but for the person who is held in this kind of
14 middle category of responsibility.
15 So the quote that Your Honour pointed to is a quote, of course,
16 that talks about the relevance of preemption, the relevance of a range of
17 other factors. We think that that quote is dictum and it also doesn't
18 apply particularly in the context of this case. It would be
19 revolutionary, Your Honour, revolutionary to the law of war to say that
20 it makes no difference at all, that it is irrelevant whether an operation
21 was lawful or whether an operation was unlawful. It certainly goes to
22 the mens rea of the defendant. If a 26-year-old defendant is told to
23 engage in a proper operation which then gets out of hand, obviously it's
24 a different situation than if a 27-year-old person is told, Go and kill
1 Now, in this case, Your Honour, it's obvious, if you look at the
2 results, the results of a relatively small number of people killed,
3 people sent to the hospital for their injuries, that's not what you do
4 when you're engaged in a massive genocide. A range of other factors that
5 certainly though -- that this was, at worst, a military-police action in
6 which some policemen - we haven't been able to identify the policemen -
7 may have engaged in crime, and the issue is the absence of evidence in
8 this context that our defendant incited, ordered or in any other way was
9 directly responsible.
10 So, no, it would not end the discussion were this to be found to
11 be a lawful military operation, but it does end the possibility of
12 prosecution if the Tribunal found it without relevance at all, as the
13 Prosecution argues. And remember the Prosecution also argues that it was
14 impermissible to have a military operation on that day in that town.
15 That was the essence or an essence of what they argued and we think that
16 is it clearly not acceptable -- not an acceptable position under
17 international law.
18 Now --
19 JUDGE MERON: Mr. Dershowitz, you know that since the Tadic case
20 in 1995, this Tribunal consistently held that there are rules which are
21 applicable, rules of international law which are applicable also to
22 internal conflict.
23 MR. A. DERSHOWITZ: Mm-hm.
24 JUDGE MERON: And I would suggest that instead of focussing so
25 much on justification ver nom [phoen], from which we normally steer away,
1 you would try to explain to the Court why technically the rules of war
2 were or were not observed.
3 MR. A. DERSHOWITZ: Thank you, Your Honour.
4 JUDGE MERON: Because this is our interest, rather than -- we
5 usually are not persuaded by the arguments that the some operation was --
6 a military was or was not justified. For many years now, international
7 humanitarian law insisted that whether a military operation is or is not
8 justified, the rules of war applicable in military conflict must be
10 MR. A. DERSHOWITZ: We agree, Your Honour. We certainly agree.
11 We understand the distinction between the rules that permit an attack and
12 the rules that govern once an attack occurs. Even if the Tribunal were
13 to accept all of the arguments made by the Prosecution and all of the
14 facts found by the Tribunal - and this is responding to your question,
15 Judge Meron - the logic would lead exactly in the other direction.
16 Let's assume that -- that you could look at intention and -- and
17 discern intention from the result in a case, and this is why we think the
18 rules of law were -- war were not violated. Here you have a situation -
19 and my brother will go into this in even greater detail - where you are a
20 planning meeting. We start out with a planning meeting. In the planning
21 meeting all the evidence is that the plan was perfectly legitimate. Then
22 the event is postponed for a day. Why? Because they have to do
23 reconnaissance. You don't do reconnaissance for genocide. You do
24 reconnaissance because you want to find out which houses and which people
25 are terrorists and where the terrorists are hiding. Then you look at the
1 result. The result, three dead out of thousands. All of the three
2 suspected of being NLA terrorists. Maybe wrongly. Maybe wrongly. That
3 is possible. Then you find medical assistance given to some of the
4 wounded. If the purpose was to randomly kill civilians, many, many more
5 would have had died. Many more women and children would have died. I
6 know of no situation in the international jurisprudence where we found a
7 war crime based on the incredible paucity of the numbers that were killed
8 here, and that -- putting aside the fact that there is great dispute
9 about whether this whole event, the Macedonian conflict with the NLA, is
10 even an armed conflict with intensity, et cetera, et cetera. The Court,
11 by the way, the Tribunal had grave doubts about that. It came to
12 conclusions that suggest real, real concerns about whether or not there
13 were these doubts. The Chamber takes into account that despite the clear
14 escalation there remain relatively few casualties, on both sides, to
15 civilians. The highest estimate put to the number of these killed during
16 2001 as a result of armed clashes is 168, and then it goes through the
17 small number. Material damage to property and housing, relatively small
19 We know that the issue of event here itself -- what we're
20 arguing, Your Honour, is, this is a case without evidence. This is a
21 case without direct evidence of any war crime. What we have direct
22 evidence is only results. Reasoning back from the results, we believe
23 that you cannot come to the conclusion that war crimes occurred here.
24 Now, without diminishing the death of three possibly innocent
25 civilian men, the partial destruction of houses and the mistreatment of
1 some other men. This is not the kind of war crime nor was this the kind
2 of sustained intense armed conflict that is appropriately the subject of
3 this court's jurisdiction.
4 If you look, Your Honour, at the numbers here, they are certainly
5 smaller than the numbers in Northern Ireland. And the panel conceded,
6 and I think the Prosecution conceded, that the Northern Ireland conflict
7 was not -- would not have been within the jurisdiction of international
8 law. Nobody claimed that it was the kind of armed conflict that is
9 governed by international law. This is closer to that, and the event in
10 question is one of the smallest events. And so the idea of exercising
11 jurisdiction in a relatively small case, in a relatively small conflict,
12 has incredibly dangerous consequences for international law and for the
13 jurisdiction of this Tribunal.
14 The message that this case sends, and it is an absolutely false
15 message, would be that this young, inexperienced man was the single worst
16 offender in the Macedonian conflict. He is the only man who is in prison
17 as the result of the Macedonian conflict, and his actions were somehow
18 akin to others who are the appropriate subject of international law.
19 Also, Your Honour, the ultimate object of this Tribunal, and this
20 entire Tribunal is to promote peace. And we can represent to this Court
21 that recently the representatives of the Albanian side, the
22 representatives of the victim side, would not be opposed to an end of the
23 situation. The imprisonment -- the continued imprisonment of this
24 singular defendant has been seen by many as a barrier to the end of
25 peace. And so we submit, Your Honour - and my time has run out - that
1 there are grave questions about the jurisdiction of this Court over this
2 relatively small incident that did not constitute a war crime, that the
3 factors that we've indicated, the factors of the legitimacy of the
4 operation, the relative small number of casualties, the young,
5 inexperienced nature of the defendant, all both go to the jurisdiction of
6 the Court as to whether this is the kind of war crime that was
7 appropriately the subject of this Court. And also to the individual
8 culpability of the defendant, to which I now turn to my brother who will
9 be addressing that issue.
10 Thank you very much, Your Honours.
11 JUDGE ROBINSON: You're also arguing that what took place did not
12 reach the level of intensity required for an armed conflict.
13 MR. A. DERSHOWITZ: Two arguments Your Honour, one, that the
14 general issue of the conflict, short-lived conflict, relatively small
15 number of casualties, completely internal, with United Nations statements
16 on all sides, did not reach the intensity, did not reach the level of
17 armed conflict.
18 Second, that the incidents that are the subject of this case were
19 not sufficient to bring this incident to the level of a war crime,
20 particularly if it grew out of a completely legitimate operation and
21 because the defendant played this intermediate role. So both, we
22 challenge the jurisdiction of the Court on the general issue of the
23 Macedonian conflict, an issue which was left open by the Appellate
24 Tribunal, and we most specifically change the jurisdiction of the Court
25 over this, what we allege is not a war crime at all. If it was a crime,
1 it should have been punished in Macedonia
2 prepared to do it when the Court took jurisdiction essentially away from
3 it. This is much more like the kind of local crime that should be
4 investigated locally than the kind of war crime that this Court, this
5 Tribunal is used to hearing, Karadzic and other cases of that kind.
6 Thank you very much, Your Honours.
7 JUDGE ROBINSON: Thank you.
8 MR. N. DERSHOWITZ: Thank you, Your Honour. Nathan Dershowitz.
9 And I would like to address specifically and I intend to address
10 the core issues I think that Judge Robinson and Judge Meron were asking
11 about. And specifically with respect to Judge Robinson's question as to
12 whether had they found absolutely what the purpose of the operation was
13 as opposed to apparently, would we be here. And the answer is: Without
14 a doubt.
15 And the reason for that, as I will elaborate upon, is the
16 impropriety of that conclusion under the facts here. This Court does
17 both, a review of the law and a review of factual conclusions which have
18 no basis in fact, which have a material effect upon the ultimate
19 disposition. So I will address that question specifically.
20 With respect to Judge Meron's questions, I would like to focus
21 upon the assumption that this Court has jurisdiction, which we do not
22 concede, and upon its specific prior determinations to demonstrate that
23 in this situation looking solely at Mr. Johan Tarculovski, there is no
24 basis for this conviction.
25 To state the obvious, the charge here was a violation of
1 Article 7(1), in terms of the responsibility, and as this Court is well
2 aware, it says:
3 "A person who planned, instigated, ordered, committed -- planned,
4 instigated, ordered, committed or otherwise aided and abetted in the
5 planning, preparation or execution of a crime referred to in
6 Article 2 ..."
7 The "or" in there suggests that it should be one of the specific
8 modes of liability. And Mr. Tarculovski was convicted of violating
9 Count 1, murder, a violation of the laws or customs of war, under
10 Article 3 of the Statute, for ordering, planned and instigated. And I
11 emphasise the fact that it says "or" or "and" because as this decision is
12 rendered, one cannot tell if the determination has been made that he was
13 guilty of planning, as a crime, separate from instigating, separate from
14 ordering; or whether it's a conglomeration of three, and taking bits and
15 pieces from each, there is a conviction. To the extent to which there's
16 a lack of clarity, we suggest that violates the rules of this Court, in
17 terms of Article 23 and Rule 98 ter, because you need a reasoned
19 Assuming for the moment that the conjunctive means that he was
20 convicted of each of the three, I'd like to go through that and show you
21 that a careful - and I emphasise careful - review of the Judgement
22 demonstrates the gross improprieties of the conviction under these
24 In Count 1 - now let me focus on Count 1 and the murder count -
25 on the planning mode of liability, there is a requirement under the case
1 law, as the Trial Chamber noted and it's supported by a number of cases,
2 that the actus reus
3 design both. Both, the preparatory and execution phase. Two, of the
4 criminal conduct constituting the crime, and then goes on in terms of
5 defining the mens rea. And it's in the mens rea that it talks about the
6 accused must have acted with the intent that the crime be committed or
7 with an awareness of the substantial likelihood that a crime will be
8 committed in the execution of the -- of the action.
9 So what you have is, in terms of actus reus, you have two
10 specific elements that are required to be demonstrated, and the cases
11 cited by the Judgement all state that the planning implies that one or
12 several persons contemplated the commission of a crime at both, both the
13 preparatory and the execution phase.
14 In this situation, a review of the evidence relating to the
15 preparatory phase shows the gaping deficiency, gaping deficiency in the
16 evidence. The Chamber found that the operation was planned, on
17 10 August 2001
18 soldiers that day. To the extent that the Prosecutor is now taking a new
19 position, that is irrelevant. There was a very specific finding. It
20 goes on for page -- for paragraph after paragraph, noting that this was a
21 specific response to the killing of eight people earlier that day and the
22 injuring of six others in the blowing up of the tank. And throughout the
23 Judgement, the Prosecutor's submission there is a -- just pervasive
24 confusion between the operation and the planning of a crime in violation
25 of Article 3.
1 The plan of an operation does not automatically equate with the
2 planning of a crime charged. And what is very interesting here is the
3 operation was planned on 10 August and implemented on 12 August, and
4 there is no doubt, and I will tell you why there is no doubt, that is to
5 weed out and capture Xhavit Hasani and others who were involved in the
6 terrorist activities. Not only was that the Defence, that was
7 specifically the Prosecutor's position. The Prosecutor, in its opening
8 argument, said that Boskoski believed that Hasani was responsible for
9 killing eight soldiers, that Hasani was hiding in Ljuboten, and that
10 Boskoski ordered Tarculovski to conduct a search of Ljuboten for Hasani,
11 the leader of the NLA. That's the Prosecutor's position. So that you
12 have the Prosecutor, on page 353 of the record, taking the position that
13 Tarculovski was ordered to go into Ljuboten to capture the terrorists
14 because his superiors believed that the terrorists were hiding in that
16 So you have both sides agreeing that the object of the plan was
17 to capture the terrorists. This is a serious question here as to why
18 that is not a preexisting assumption that is made by the Tribunal with
19 respect to the planning phase.
20 There was no direct evidence, no direct evidence that the plan or
21 design discussed on 10 August was the indiscriminate attack on ethnic
22 Albanians. Every single piece of direct evidence, every witness, every
23 document, and I dare say every inference from before the facts as to what
24 occurred at the preparatory stage, all, all, lead to the conclusion that
25 the preparatory stage - I'm now not discussing the execution stage, I'm
1 discussing the preparatory stage - which must be shown beyond a
2 reasonable doubt in order for there to be a conviction for planning. You
3 have the testimony of the witnesses. You have the documents that were
4 introduced. You have the history of the events. You have the delay in
5 the execution of the events. Every single piece of evidence, the whole
6 history that the Tribunal -- the Chamber went through, in terms of what
7 led up to the events, all deal with the NLA. All deal with the NLA what
8 was doing in the conflict with Macedonian government. Therefore showing
9 that it was all related to the capturing of the NLA people who were
10 believed by the ministers and possibly the president were hiding in that
12 What happened here, Your Honours, is that the Prosecution, unable
13 to legitimately show that the plan at the preparatory stage, a
14 prerequisite for conviction of planning, was unlawful or was even a
15 violation of any principles of international law, argued without any
16 evidentiary basis that the real objective was the indiscriminatory attack
17 on ethnic Albanian. What you have, Your Honour, is this simply a sleight
18 of hand. You have no -- no evidence that at the preparatory stage this
19 was the objective.
20 As we'd argued earlier, recognising the legitimacy of the goal,
21 there were positions that the Prosecutor could have taken. They could
22 have argued, for example, that there was a lack of concern for civilians.
23 They could have argued that the action was disproportionate -- had a
24 disproportionate impact on civilians. They could have argued that it was
25 foreseeable that civilians would be killed. If they made any of those
1 arguments, the Trial Chamber would have to have made findings as to what
2 the law was on those subjects, and as my brother explained, there is no
3 real law but assuming there was, the Chamber would then have to
4 articulate what the law was, and then make findings once it articulated
5 the law. That is a difficult process here.
6 So instead, in answer to Judge Robinson's question, they simply
7 made it up. If you read through the conclusions of the Court, and I will
8 get to the specific conclusions, there is zero basis, zero basis with
9 respect to the necessary finding of the preparatory stage for arriving at
10 the conclusion that the Chamber arrived at, because it was necessary to
11 circumvent the issues that we think have to be addressed by this Court.
12 Zero basis for concluding at the preparatory stage what the objective
14 What I'd like to do is jump ahead and then come back, and that is
15 in addition to there not being any, any evidence with respect to the
16 preparatory stage, what the Chamber did, which I believe is totally
17 illegitimate, is to take a look at the execution phase, eliminate the
18 preparatory stage, since you need both, eliminate the preparatory, only
19 look at the execution, then say, On the basis of the execution phase, we
20 now find the preparatory stage. That eliminates an element of the crime.
21 It is improper. You must prove every element of the crime. You cannot
22 eliminate an element of a crime because it is too difficult to prove, and
23 under this Court's jurisprudence, you must prove both, preparatory and
25 But what I'd like to do is to go through the circumstantial
1 evidence from what ultimately occurred and show how they improperly then
2 used that to bootstrap an operation into the preparatory phase. Assuming
3 you can do that properly, which I reject, let's see what they did.
4 And the critical paragraph is paragraph 571 of the Judgement.
5 It's most essential paragraph and it says -- let me read the whole thing
6 because it's important:
7 "As mentioned earlier, there is some evidence which suggests that
8 the object of the operation, the lawful enforcement to locate and arrest
9 or in some ways deal with NLA members also described as terrorists in the
10 village" --
11 THE INTERPRETER: Thank you for slowing down when reading.
12 MR. N. DERSHOWITZ: -- "in some in some respects, but only in
13 some respects, the conduct of the police in relation to the detained
14 people who were not shot can be seen as consistent with that purpose. In
15 most respects, however" --
16 JUDGE ROBINSON: Mr. Dershowitz, the interpreter is asking you to
17 speak more slowly.
18 MR. N. DERSHOWITZ: Slow down?
19 JUDGE ROBINSON: Yes.
20 MR. N. DERSHOWITZ: I warned the interpreter before, and I
22 The quote goes on to say that:
23 "Other factors which demonstrate that the operation was so -- was
24 not solely or substantially one of law enforcement or directed against
25 the NLA includes the following ..."
1 Then they list three factors. And I think it is important to go
2 through each of those factors just to demonstrate that even on the basis
3 of the circumstantial evidence, the conclusion as to the preparatory
4 stage simply is not legitimate in terms of other findings made by the
5 Tribunal. I'm not now talking about wrenching statements out of context.
6 I'm now not talking about the other improprieties of saying we don't
7 accept the military -- I mean, how do you not accept that all of the
8 military under these circumstances, all of the other police under the
9 circumstances, and expect Mr. Tarculovski to present a Defence? I mean,
10 it cannot be done. The only people who have knowledge are the military
11 and the police. If you say as a matter of category we exclude them, you
12 have eliminated the due process rights to defend one self. You can do
13 that by excluding all of that testimony.
14 But let me just read the three sections. It says:
15 "The composition of the police unit which conducted the
16 operation, this was not composed of regular police experienced in
17 criminal or terrorist investigation but reservists from a security agency
18 and apparently other volunteers."
19 The suggestion that from the composition of the force you can
20 sort of infer guilt by -- of Johan Tarculovski is specifically
21 inconsistent with numerous other paragraphs in the Judgement.
22 Specifically, the Chamber finds elsewhere that it could not determine the
23 composition of the police. It could not identify who the policemen were.
24 It also says: "We cannot be satisfied that the Lions, Tigers and
25 another group specifically under the control of the minister, of Minister
1 Boskoski, was also in the town, but that doesn't eliminate that factor in
2 consideration of reasonable doubt."
3 But much more important, in paragraphs 492 through 496 of the
4 Judgement, the Chamber discusses in details how and when reservists are
5 called up, who was responsible for calling them up, how they function,
6 how they're assigned their responsibilities, and the authority that they
7 have. These findings destroy any inference from that cryptic paragraph.
8 For example, the Judgement observes, in normal circumstances, all police
9 duties are carried out by the regular police, but reserve forces were
10 called in conditions of war or emergency situation.
11 So the reservists were called up legitimately.
12 It then says that the reservists are called up by Minister of
13 Interior pursuant to an order of the president and the Security Council.
14 It then describes in detail the responsibility of the reservists, and it
15 continues in saying how they are acting in the full capacity as members
16 of police or the military under those circumstances. They're ex-military
17 people who were assigned to the police. They're assigned to the
18 military. They're assigned for civilian defence.
19 But the Chamber then concludes, in this respect, members of the
20 police reserve who entered the village of Ljuboten
21 those who were performing duties at police stations at the time, had all
22 been armed, uniformed, and equipped by the polices. While it is
23 suggested that a few of them had criminal records, this is not
24 established by the evidence.
25 And then it goes on saying it was not established.
1 They then go on to have a discussion, in paragraph 497, of this
2 private security force, and they say that there was a contract entered
3 into between the minister of interior and this private security force,
4 Kometa. It goes on to describe, in 497, how these people were considered
5 active reservists. And it goes on, the equipment also -- the evidence
6 also reveals that persons sent to Kometa were equipped earlier. The
7 Chamber finds:
8 "These events indicate that the men sent from Kometa were on the
9 MOI list of police reserves who, on reporting to the ministry for reserve
10 duty, either as a volunteer or having been personally summoned, have been
11 accepted for active service as a member of the police reserve."
12 So having found that Kometa and having found that there was no
13 criminal record on behalf of these people, having found that they're
14 called up by the minister of interior, that there had to be an order from
15 the president, how do you reach the conclusion that Johan Tarculovski
16 somehow implicitly was involved in this preparatory stage on the basis of
17 that? I suggest it simply cannot be done. I'd love to hear the
18 Prosecutor explain to this Tribunal, in light of the other findings by
19 the Chamber, as to why that supports the notion that, that at the
20 preparatory stage, Johan Tarculovski intended to, and designed a plan for
21 the random indiscriminately attacking members of the ethnic Albanian
22 community. It can't happen. You can't get there from here, in light of
23 the findings that had been made.
24 Seconds it says:
25 "The operation was led by Tarculovski, who had no experience in
1 criminal or terrorist activities, and those normal positions and duties
2 would not rank him as leader of the group."
3 Now bear in mind there is a finding that he was ordered to carry
4 out this operation. That is not a condemnation of the person ordered to
5 carry it out. It is a condemnation of the people who ordered him to
6 carry it out. In no way does that show culpability on the part of the
7 lower level person who is told to go in and to try to find the terrorists
8 to suggest that he lacked experience. Who is chargeable with that? Is
9 the person ordered to go in chargeable because he lacks experience? Or
10 is the person who orders him to do it chargeable with the fact that he
11 lacks experience?
12 Finally, what the Tribunal does, the Chamber does, is it then
13 goes through the events that occurred in the actual village in order to
14 show that this demonstrated what had previously been planned. And I'm
15 emphasising planning. The same problem exists in every one of the other
16 counts here, and if I had time, I would go through every one in
17 meticulous detail to show the absolute lack of evidence here.
18 Let me just point out. The Prosecutor keeps saying, We don't
19 respect the findings in the Judgement. I just want to emphasise we
20 understand the findings in the Judgement. We are challenging the
21 findings in the Judgement because they are not based on any evidence.
22 There are no citations to the record for critical conclusions. Let me
23 give you just a couple of examples.
24 They say, We find that the military went through as one unit. No
25 citation in the record for that finding. No basis for that finding.
1 They then say, We find that Johan Tarculovski led. That is said
2 four or five times in the Judgement. Never is there a citation. If you
3 look, not one time when it comes to that conclusion is there a citation
4 for that conclusion from the record. The Prosecutor will then cite to
5 the Judgement, not to the record, in order to support the conclusion
6 because the evidence doesn't exist for purposes of the conclusion that's
7 arrived at. So if you just simply want to pronounce conclusions, what do
8 you need a trial for?
9 The purpose of the trial is to produce the evidence. The purpose
10 of a Judgement is to rely upon the evidence produced, the documents. Sur
11 you can make certain and we challenge some of the inferences that were
12 drawn. I'm now not talking about the inferences. I'm talking about
13 findings. Whether there's any, any evidence to support the critical
14 findings with respect, in this situation, to the planning phase.
15 With respect to what actually occurred, the last paragraph of
16 that -- last part of that paragraph is extremely interesting. It says
17 that they -- they rely upon the fact that the police did not proceed
18 along all roads in the village and entered -- and didn't enter and search
19 all houses or all houses occupied by ethnic Albanians. Instead, the
20 operation was essentially confined to houses that could be readily
21 reached from the main road.
22 Now, let's look at that for one moment. What have you is the
23 houses that they entered. They entered one house which had ten to 15 men
24 in one part, women in the other part. What inference is to be drawn from
25 going into one house? That this is a random attack? Or is it that it
1 was a specifically laser focussed operation to try to find a person who
2 they believed was in that house at the time?
3 It then goes to a second house. They don't go in. Five people
4 run away. Three are killed. There is no indication or the Court could
5 not find one way or the other with respect to those, but it is not
6 unreasonable to find for purposes of finding guilt beyond a reasonable
7 doubt that they were members of the NLA.
8 So that doesn't show a random indiscriminate attack upon
9 civilians. It shows a focussed attack.
10 JUDGE ROBINSON: Yes, Judge Meron, please.
11 JUDGE MERON: I think that the President asked a key question,
12 which was partly answered by Mr. Alan Dershowitz but it is quite
13 important and I would like some further argument on your part on that.
14 The President asked whether the conflict that we are discussing
15 has reached the threshold that would enable us to qualify it, to
16 characterise it as an internal armed conflict.
17 In Tadic case, which I mentioned earlier, in paragraph 70, there
18 is a very interesting discussion of the intensity requirements which
19 would apply in order for a conflict to qualify as either internal or
20 international conflict.
21 And then, in another paragraph, I believe, 78, the Appeals
22 Chamber in the Tadic case, the subject matter jurisdiction of the
23 international Tribunal should extend to both internal and international
25 I understood that the argument of Mr. Dershowitz was this did not
1 reach the intensity required for an internal armed conflict, but further
2 argument on that from you would be useful.
3 And I would like also the Prosecutor in due course to explain to
4 us why the threshold was reached.
5 MR. N. DERSHOWITZ: Judge Meron, let me --
6 MR. BOUDREAULT: Your Honours, if I may interrupt for a moment.
7 The appellant never raised the issue whether there was an internal
8 conflict or not. In his appeal brief and his reply, he simply accepted
9 that there was an internal armed conflict. This new position taken today
10 is an impermissible attempt to expand the appeal and should be ignored.
11 Thank you.
12 MR. N. DERSHOWITZ: Your Honour, I --
13 [Trial Chamber confers]
14 JUDGE ROBINSON: The procedural point you make is correct, but if
15 the Appeals Chamber considers that it is important, we can hear it. And
16 if we have to make allowances in terms of time, because of lack of
17 preparation then we'll do so.
18 Mr. Alan Dershowitz, in relation to that particular point, you
19 mentioned that the Prosecutor had conceded that the events in
20 Northern Ireland would not, in their view, have reached the level of
21 intensity required for an armed conflict.
22 Where is that to be found, that concession?
23 MR. A. DERSHOWITZ: I think, Your Honour, may I have a moment
24 while my brother continues --
25 JUDGE ROBINSON: Yes.
1 MR. A. DERSHOWITZ: -- and I'll find it.
2 JUDGE ROBINSON: Yes.
3 MR. N. DERSHOWITZ: Judge Meron, let me answer the question --
4 I'm sorry.
5 JUDGE MERON: Also to continue the President's point, if this is
6 a jurisdictional matter pertaining to our competence, then whether this
7 was raised or not in the briefs would not be definitive.
8 MR. N. DERSHOWITZ: That was one of my two answers.
9 JUDGE ROBINSON: I'm sorry, Judge Guney has a question.
10 JUDGE GUNEY: Thank you, Mr. President.
11 [Interpretation] Mr. Dershowitz, you insisted on the fact that
12 the police operation was a regular operation.
13 MR. N. DERSHOWITZ: I have to change channels.
14 JUDGE GUNEY: Okay, I repeat.
15 [Interpretation] You insisted on saying -- you insisted on --
16 MR. N. DERSHOWITZ: What channel is -- if I could inquire what
17 channel --
18 THE INTERPRETER: Can you hear the English booth? 4.
19 JUDGE ROBINSON: Number 4.
20 MR. N. DERSHOWITZ: Four, thank you. I apologise.
21 MR. A. DERSHOWITZ: Your Honour while my brother is looking, may
22 I respond a give you the citation.
23 JUDGE ROBINSON: No, please allow Judge Guney to ask his
25 MR. A. DERSHOWITZ: Oh, I'm sorry.
1 JUDGE GUNEY: [Interpretation] You insisted on the fact that the
2 police operation was a regular police operation. Elsewhere, you also
3 said that this was an operation which called for reserve forces. This is
4 somewhat contradictory. If this was a police operation, a regular police
5 operation, normally speaking you should not have called for reservists.
6 So I would seek your opinion on this point.
7 Thank you for clarifying this point for me.
8 MR. N. DERSHOWITZ: Your Honour, I never indicated it was a
9 regular police operation. What I did indicate is that it was an
10 operation conducted in the normal course under the specific provisions of
11 the Statute which the Court found which included reservists. In other
12 words, when there was a conflict, whether a large conflict, a small
13 conflict, but a conflict, there was the right to call up reservists and
14 make the reservists function as part of the military, police, the civil
15 defence. And the Court found that they had been called up. So they were
16 integrated into the operation.
17 For example, the people in the tank who were killed, the day --
18 on the 10th of August, police -- I mean, military, most of those were
19 reservists. In other words, when you had a conflict -- a situation, you
20 had the right to call up reservists and integrate them into and make them
21 part of and function as the regular police and as the military.
22 And the Court made that finding.
23 So I'm not saying normal, regular police. What I'm saying is,
24 under the police, power, responsibility, who they can call up, they
25 called up the -- they called up people and they used regular police,
1 regular police were used. How many, who, and what, the Court says, We
2 don't know. We cannot figure out. The Hermelin, for example, was
3 regular police. Many of the people were regular police.
4 But, again, Your Honour, the point I am emphasising is that you
5 need to make a finding. It is a necessary, under your jurisprudence, a
6 necessary finding in order to support, for example, planning, that there
7 was a preparation to commit the crime. Not that the crime occurred. A
8 separate responsibility. The inference that is suggested that since this
9 was reserve therefore it was a plan, one is inconsistent with the finding
10 as to when reserves are used, in general; two, who called up the reserve;
11 and three, who is available to be used by, assuming it was Tarculovski
12 who actually led it, who was he able to choose from?
13 There's no suggestion he called up reserves. There's no
14 suggestion he called -- there's a suggestion flat out inconsistent with
15 the Judgement, other parts of the Judgement. Flat out inconsistent that
16 he selected these people from Kometa. But the Judgement says in other
17 places, in dealing with the Boskoski section, how Kometa had a contract,
18 how they were called up, who called them up. That was all the minister.
19 Not a low level person walking around saying, I want you, and you and
20 you. That's not what the facts are under these circumstances.
21 Judge Meron, in response to your question, you're making an
22 assumption, or at least in the question there is an assumption that I
23 believe is invalid. The assumption is that if there is an armed conflict
24 somewhere, everything that takes place is necessarily governed only by
25 the armed conflict rules and regulations. That's the first assumption.
1 And I question that assumption, because, for example, if this was a --
2 let's -- military operation, but they found people in a town and they
3 went into the town for some other reason, I wonder whether that's
4 governed by your prior determinations.
5 But, second, and more significantly, the question then becomes
6 assuming -- and I am for purposes of my argument assuming that this is
7 covered by your jurisprudence, the question -- which we don't agree with,
8 but the question then becomes if they -- if there are NLA in the town and
9 he is charged with preparing, among other things, to engage in that
10 activity, what rules then apply under those circumstances?
11 Yes, assuming there is jurisprudence -- there's jurisdiction, the
12 question then becomes: What happens when you want to go into a town,
13 legitimately? Can you? The Prosecutor seems to suggest no. Because
14 they give -- they create not only a terrorist veto; in other words, the
15 more the terrorists engage in activity. What is terror? By definition
16 is to create a feeling of terror on the part of the civilian population.
17 To then say the terrorists succeeded in creating apprehension among the
18 civilian population - therefore, you cannot go in and challenge the
19 terrorists - is, to me, that terrorists have won.
20 What I'd like to do is just spend a few moments just dealing with
21 what is the other core deficiency within the record. And that is the --
22 the conclusion is one he planned, and I think I've demonstrated that the
23 essential element of planning simply was never shown beyond a reasonable
25 But if you go to the other conclusions that exist in this case
1 which are the conclusions which supposedly support the Judgement, you
2 have the conclusions that he also instigated and ordered the -- not the
3 operation, not the operation, the crimes. The Article 3 violations that
4 he ordered, for example, the murders. That's what is required in order
5 to make a determination that he ordered the crimes.
6 You have an extremely, extremely large leap to determine not
7 based on any evidence that he actually was with the police as they go
8 through the town. I suggest that if you read the critical evidence,
9 which is M-037's testimony, nobody can read that testimony -- which is
10 the only testimony credited for showing that he was in the town. You
11 cannot reach the conclusion, certainly not beyond a reasonable doubt,
12 that he actually was with the group of people that went through the town.
13 But assuming through those leaps of logic you can get there,
14 ordering is a different crime. He had to have ordered the murders. He
15 had to have ordered the murders. He did not commit the murders himself.
16 He had to have ordered them. And what you have here is no evidence that
17 he ordered any of these murders.
18 As I said, you don't even have evidence that he was at the Jusufi
19 house, but assuming he was there, and somebody saw somebody closing a
20 door and shot, what -- how do you get from somebody being shot to his
21 ordering that person to be shot? There's a leap. There is no evidence,
22 certainly no evidence beyond a reasonable doubt as to that.
23 Go to the second incident, where the man is attempting to
24 futilely escape. You have an indication of one person said, Let him go
25 and we'll shoot him. No evidence that that was Tarculovski. In fact,
1 you do have evidence that some people tried to stop the abuse that was
2 taking place.
3 But under the evidence in the case, Tarculovski wasn't there at
4 the time. Under the only person credited with the time-line, and let me
5 tell you the time-line is -- is -- if you look at it carefully you will
6 see that the indictment has a time-line at 8.00 for the first killing, I
7 think 11.00 or 11.30 for the second, and 12.00 for the other, but in
8 order to be able say that it was only Tarculovski and only his group, the
9 Judgement leaves out that time-line for purposes of finding the guilt and
10 simply says later, later, later, leaving the impression that the first
11 one took place at 8.00, where the evidence all is that Tarculovski wasn't
12 even in the town at that time. The second one, they say, Later, which is
13 a problem because when is later? Two and a half, three and a half hours
14 later? Then have you to have evidence to show he was still there. And
15 the next one is later, you need evidence of that. But they simply
16 eliminate that by sort of condensing it and using vague language.
17 But going to the second one, if he is not there, and if he is
18 there, did he order them to shoot? This sounds like a -- an intentional
19 murder, a totally inappropriate murder. Why is that laid on his
20 shoulders because somebody -- because an improper determination is made
21 in a use of a word that he led. If you are talking about actually being
22 present and the person who was there and gave the order, then have you
23 ordering. With respect to instigating, you have to have something
24 specific, that indicates instigating. The third murder that he is
25 convicted of, the Chamber says, We don't know when it occurred, how it
1 occurred, who it occurred by. The only evidence referred to is that the
2 son and one other person said that in prison, later, they had heard that
3 he was shot by the police.
4 That is the sole evidence I have been able to find to support the
5 claim that even the police did it. But to suggest that Johan Tarculovski
6 is responsible for having ordered that person shot when he don't even
7 know if he was there and you certainly have no evidence of an order is, I
8 suggest, under the requirements grossly inappropriate. You need to find
9 guilt beyond a reasonable doubt. You have to have evidence. And I
10 understand, with all due respect to this Chamber, that certain broad
11 issues are the types of issues that are much more interesting. But going
12 through a factual evaluation is, as I have found going through it,
13 tedious. But if you simply have pronouncements without any support and
14 inconsistencies and no basis for the determination, as Judge Meron once
15 said in an article that he wrote, due process has to be consistent with
16 the process of the jurisdiction of the Tribunals.
17 What is the most basic element of due process? Is that someone
18 is not convicted in the absence of evidence. That there is a presumption
19 of innocence, which applies in these situations, that guilt be
20 established beyond a reasonable doubt. Simply announcing, announcing, He
21 led the group, we believe he was there at all times, is not guilt beyond
22 a reasonable doubt. If you want to write a report about what happened,
23 and you try to put the pieces together to make a logical story, do that.
24 But that's not a Judgement consistent with the requirements of this
25 Tribunal and it has to be based on evidence beyond a reasonable doubt.
1 And what I'm suggesting to this Tribunal is superficially a
2 certain statement is made and, it could be made 30 times in the
3 Judgement, if there is nothing to support it, if the inference is not
4 allowed, if there isn't evidence, if there's no evidence beyond a
5 reasonable doubt, that's a fundamental violation of due process.
6 I'd like to just end on -- on the last point that we make in
7 our -- in our presentation and it has to do with the sentence that was
9 And under one of the provisions in the Macedonian code - I
10 believe it is Article 40 - under extraordinary circumstances it is
11 appropriate -- in extraordinary mitigating circumstances it is
12 appropriate to impose a lesser sentence than the one that is quoted in
13 the Judgement as reflecting the Macedonian law.
14 That allows under these circumstances for reduction of a sentence
15 down to five years, or a minimum sentence of five years.
16 The Chamber simply ignored that -- that provision. Made
17 reference to mitigating circumstances but ignored that provision. And if
18 there has ever been a situation where you can examine it in terms of
19 extraordinary mitigating circumstances, where you have someone who the
20 Chamber held was honourable, there was nothing that reflects any
21 impropriety on his part, you see a long range of activities that -- of
22 his never engaging in anything. He's trustworthy. He's reliable. And
23 everybody else, everybody else has been given amnesty, and the granting
24 of the amnesty was in order to encourage the part -- conflicting forces
25 to get together, to be united, to be part of a joint government as they
1 are at the present time, all of that suggests that under these
2 circumstances, any sentence which doesn't recognise that and a
3 12-year sentence under the circumstances was excessive and well beyond
4 any propriety.
5 Being the only one in jail at the present time and all of
6 amnesties suggest that we should have his sentence reduced significantly.
7 If there are no more questions, I will reserve my time for -- if
8 there is any time, for later and answer questions later.
9 JUDGE ROBINSON: Yes, Mr. Alan Dershowitz, you're going provide
10 some information.
11 MR. A. DERSHOWITZ: Your Honours, the issue of Northern Ireland
12 was presented by testimony, and -- briefing in the Defence of
13 Mr. Boskoski. And on pages, I'm informed, 1654, 1655, and we'll provide
14 further references as well, the main Prosecution witness apparently
15 conceded that the Northern Ireland issue was not recognised as an armed
16 conflict. And this appears on page 81 of the Judgement in this case,
17 referring to the fact that the troubles in Northern Ireland, which it is
18 argued was never recognised as an armed conflict in state practice. And
19 apparently there is a case, which we will be receiving from the Boskoski
20 Defence, which recognise that as well, and my understanding is that the
21 Prosecution has not disputed its own expert witness in that matter.
22 And so certainly we assert that the Northern Ireland conflict was
23 not an armed conflict in state practice. The Trial Court seemed to
24 assume that as well, and we think the analogy is a good one because, a
25 fortiori, the conflict here was far less in duration, far fewer
1 casualties, far less in intensity than the Northern Ireland.
2 JUDGE ROBINSON: Thank you very much. I'm not saying it is
3 dispositive of anything. I just wanted it for information.
4 We're going to take a break now for half an hour.
5 MR. ROGERS: Your Honours, before you rise can I clarify one
6 matter in relation to Your Honour's question relating to the intensity of
7 the internal armed conflict.
8 Do I understand that Your Honours wish the Prosecution to address
9 this in detail as to whether the level of the armed conflict did have the
10 appropriate degree of intensity?
11 If that is what Your Honours would wish us to do, this has not
12 been developed in any of the briefs, and is clearly a very significant
13 matter, if that is the matter that is troubling Your Honours.
14 The -- the Judgement devotes about a third of the entire
15 Judgement to this question. We have had no prior notice as to whether
16 this is an issue that would be a matter that needed to be dealt with in
17 detail. Mr. Dershowitz today raises the question of Northern Ireland
18 don't know whether that is a matter we can even look into in the
19 20-minute break available. And as we understand it this is not a matter
20 that has been appealed fully by the Defence at all.
21 Now, I quite understand it may be a matter Your Honours wish to
22 address, but from the Prosecution's perspective, this is not something
23 that has been developed anywhere in the briefs so far and is an important
24 issue if Your Honours are going to pursue it.
25 Can I ask at this stage for an additional period time in the
1 short break so that we can discuss our position. It may be we can deal
2 with it shortly; I don't know. If not, I may have to ask Your Honours to
3 adjourn part of the proceedings so that these issues can be dealt with
4 more -- in more detail on another occasion, or that that we can file
5 written briefs that deal specifically with these matters.
6 MR. N. DERSHOWITZ: Your Honour, may I address this narrow point
7 that's just been made.
8 JUDGE ROBINSON: Yes.
9 MR. N. DERSHOWITZ: And that is, if you recall the procedural
10 history of this case, we were required to file a notice -- an amended
11 notice of appeal because the claim was if it is not in the notice of
12 appeal, and it has to be in the notice of appeal, I have to tell you, I
13 didn't agree with that, but that was the position that was taken by the
15 If you look at pages -- paragraphs 16, 17, 18, 19, I'm just
16 looking through the notice of appeal. They all deal with the question of
17 the impropriety of the determination as the intensity of the Judgement,
18 and it's is implicitly raised, and as Judge Meron noted, the Judgement
19 says if it goes to the question of the jurisdiction of this Court, this
20 Court has to the right to address it. So we raised it. We raised it
21 there. We raised it implicitly -- explicitly in the arguments, but we
22 did note it in detail in the amended notice of appeal we were required to
23 file after we had filed our -- our pleadings at their behest and their
24 insistence, and the Court's agreement.
25 [Trial Chamber confers]
1 JUDGE ROBINSON: Mr. Rogers, for the moment, we'll stick to the
2 schedule. We'll take the half-hour break and we will make a
3 determination as to whether you will need more time later.
4 And, if necessary, we'll give it to you.
5 MR. ROGERS: Yes. Can I just clarify, Your Honours, do you wish
6 us to at least to attempt to address that when we respond?
7 JUDGE ROBINSON: Yes, yes. And if we make the determination that
8 you need more time and you make the request, then we'll give it to you.
9 MR. ROGERS: I'm grateful.
10 JUDGE ROBINSON: We're adjourned, half an hour.
11 --- Recess taken at 11.04 a.m.
12 --- On resuming at 11.38 a.m.
13 JUDGE ROBINSON: This is Mr. Boudreault.
14 MR. BOUDREAULT: Mr. Boudreault.
15 JUDGE ROBINSON: Mr. Boudreault.
16 MR. BOUDREAULT: Mr. Boudreault.
17 JUDGE ROBINSON: Mr. Boudreault, I'm sorry, yeah.
18 We'll hear your response now.
19 MR. BOUDREAULT: Good morning, Your Honours. I will be
20 addressing Grounds 1 and 2 of the appeal. My colleague Laurel Baig will
21 be addressing Grounds 3 to 5. Nadia Shihata will then address Grounds
22 6 and 7.
23 Before I begin, please let me introduce a person that has been
24 inadvertently omitted, and that is our Case Manager, Colin Nawrot.
25 JUDGE ROBINSON: Obviously the most important person.
1 MR. BOUDREAULT: Yes.
2 At the outset, I will deal with the issue of the existence of an
3 internal armed conflict.
4 As mentioned earlier, this issue was not briefed in the
5 appellants brief. Further, at paragraph 85 of his appellant's brief, the
6 appellant even accepted that there was an armed conflict. This was noted
7 in paragraph 27 of the Prosecution's response, and there was no reply on
8 this point.
9 Turning to the question itself. Our answer is that the
10 Trial Chamber very carefully assessed the law and the evidence before
11 concluding the conflict between the NLA and the Macedonian forces
12 constituted an internal armed conflict. And this is at Trial Judgement
13 paragraph 175 to 292.
14 The Chamber first identified the relevant test as outlined in
15 Tadic decision. This is at Trial Judgement paragraph 175. It identified
16 the two relevant criteria; first, the intensity of the conflict, and
17 second, the organisations -- organisation of the parties to the armed
18 conflict. At paragraph 177 to 206, the Chamber outlined the law and the
19 relevant factors going to these two criteria. From paragraph 208 to 249,
20 the Chamber discusses the evidence as to the intensity of the conflict
21 between the NLA and the Macedonian forces to conclude in the end that the
22 conflict had reached the intensity of an armed conflict.
23 The Chamber analysed all the events in Macedonia from
24 January 2001 to October 2001. And that's at paragraph 212 to 228 of the
25 Trial Judgement.
1 The Chamber found that there was territory controlled by the NLA,
2 dozens of villages. That's at Trial Judgement 242.
3 It noted that there was large mobilisation carried out by the
5 large number of Macedonian soldiers and police were sent to the northern
6 parts of Macedonia
7 several orders of the president to carry out these mobilisation in the
9 Third, a great deal of modern weaponry was used by the Macedonian
10 force. These included fixed-wing aircrafts that bombed and rocketed NLA
11 positions, helicopters, heavy artillery, tanks, rocket-propelled
12 grenades, machine-guns, and mines.
13 Fourth, there were casualties on all sides, and even though it is
14 difficult to -- to find the precise number of NLA casualties, the
15 important point is that there were casualties on both sides.
16 Fifth, the conflict led to the internal displacement of thousands
17 of ethnic Albanians and ethnic Macedonians. Many thousands also fled the
19 Sixth --
20 JUDGE ROBINSON: Paragraph 248, we're told there was extensive
21 displacement of persons from their homes and villages, at least 64.000 of
22 whom became refugees, and 70.000 of whom were internally displaced.
23 MR. BOUDREAULT: Indeed. Indeed, Your Honour.
24 The sixth element relating to the intensity of the conflict
25 relates to its protracted nature. The conflict started in January 2001
1 and continued on until -- until the autumn of 2001.
2 The last element noted by the Trial Chamber that I would like to
3 mention is the extent of the damage resulting from the conflict, and this
4 is discussed at Trial Judgement paragraph 241, 241.
5 For further references, I would invite you to turn to our final
6 trial brief in this case at paragraph 396 to 429, on the issue of the
7 intensity of the armed conflict. There we list all the evidence going to
8 that question, evidence which was accepted by the Trial Chamber to find
9 that the intensity of the conflict had reached that of an armed conflict.
10 Now, all these conclusions of the Trial Chamber were based on the
11 correct law and they have not been shown to be unreasonable. These are
12 our basic submissions in this regard. However, if Your Honours would
13 require more information on this, we would be happy to provide them in
14 additional written submissions.
15 I will now turn to Ground 1 of the appeal.
16 Ground 1 should be rejected for the reasons given in our response
17 brief. In addition, I would point to your decision of 12 October 2009,
18 in the Karadzic case, at paragraph 36 and 39, where Your Honours explain
19 that the scope of the Tribunal's jurisdiction is entirely contingent upon
20 the Statute and that than this jurisdiction can only be limited by a
21 Security Council resolution.
22 Here, the Statute is clear. There is no exception to the
23 Tribunal's jurisdiction for individuals purporting to act in self-defence
24 against terrorists. Further, there is no Security Council resolution
25 expressly or even implicitly limiting the Tribunal's jurisdiction in
1 respect of the events in the Republic of Macedonia
2 The Tribunal thus had jurisdiction to try the appellant, and
3 Ground 1 of his appeal should be rejected.
4 Turning to Ground 2(A), the applicable law.
5 Your Honours, there are no uncertainties as to the laws and
6 customs of war that applied here. The Trial Chamber found that the
7 conflict between the Macedonian forces and the NLA constituted an
8 internal armed conflict, a finding, as I just mentioned, that the
9 appellant did not even challenge.
10 The existence of an internal armed conflict triggered the
11 application of a number of IHL rules which had to be respected by all
12 parties to the conflict.
13 These rules included Common Article 3, and the prohibition on
14 wanton destruction or devastation not justified by military necessity.
15 Whether the Macedonian forces were acting in self-defence against
16 terrorists has no relevance to the applicable jus in bello. It's a basic
17 principle that once there is an armed conflict, the rule of IHL apply
18 equally to all parties to the conflict. This connection, I would refer
19 to our response brief paragraph 30 and 32.
20 And note that this principle was reiterated by the Security
21 Council in its resolution of 21 March 2001, dealing specifically with the
22 Macedonian situation. That is Exhibit 1D230 at paragraph 7 of the
23 resolution, where the Security Council states:
24 "Further underlines the requirement for all parties to act with
25 restraint and full respect for international humanitarian law and human
2 The appellant argues that the applicable law is "hotly debated"
3 with respect to state response to terrorism. However, the only
4 uncertainties he refers to relate to jus ad bellum issues, whether states
5 can lawfully use force to respond to terrorists operating from other
6 states. That is what is discussed in the article of Beck and Arend to
7 which the appellant refers. There are no uncertainties as to the jus in
9 applicable humanitarian law. This is also recognised by Beck and Arend
10 which state that self-defence actions against terrorism are not exempt
11 from the humanitarian rules applicable to armed conflict.
12 I would also refer you to the decision of the United States
13 Supreme Court in Hamdan v. Rumsfeld, decision of 2006, where the majority
14 states at page 66 to 68 that:
15 "Common Article 3 of the Geneva Conventions applies even to an
16 armed conflict with terrorists such as al Qaeda."
17 I would also refer you to the report of the United Nations
18 fact-finding mission on the Gaza
19 Goldstone Report, at paragraph 270.
20 So there are no uncertainties that the provisions of
21 Common Article 3 apply to all parties in any armed conflict. That was
22 long -- that was the situation long before August 2001. The provisions
23 of Common Article 3 were found to reflect the most elementary
24 considerations of humanity and to apply to all parties in armed conflict
25 without any exceptions or limitations. In addition to the authorities
1 mentioned in our response brief, Your Honours recalled this most recently
2 in the Mrksic appeal Judgement at paragraph 70, and in your decision of
3 9 July 2009
4 The appellant also argues that the provision of Common Article 3
5 should not apply in the present situation because the NLA hid among
6 civilians and made it difficult for the Macedonian forces to distinguish
7 who was actively involved in the hostilities. What the appellant is
8 asking is asking the Appeals Chamber to change the law, and create an
9 exception to a fundamental rule of IHL.
10 There are many problems with this. First, it is for states to
11 change the law, either through treaties or through changing practice and
12 opinio juris.
13 Second, while it may not always be easy to distinguish fighters
14 and civilians, this is not a new problem. It is common to many wars, to
15 all guerrilla wars, to many internal and international armed conflicts.
16 It does not mean that the parties should be exempted from attempting to
17 make distinctions or from the application of Common Article 3. To hold
18 otherwise would render IHL meaningless. States could evade their IHL
19 obligations simply by using the terrorist label for all groups with whom
20 they are engaged in armed conflict.
21 JUDGE ROBINSON: For the benefit of the public, I think it is
22 preferable to say international humanitarian law.
23 MR. BOUDREAULT: Sure. Thank you, President.
24 So, states could evade their international humanitarian law
25 obligations simply by using the terrorist label for all groups with whom
1 they are engaged in armed conflict. Civilians taking no active part in
2 the hostilities and persons hors de combat would lose all protection.
3 These dangers are all too well illustrated by the present case.
4 Contrary to the appellant's assertion, the fact that
5 Common Article 3 applies to all parties in all armed conflicts does not
6 eviscerate a state's right to use force against so-called terrorists.
7 States can, of course, attack fighting members of armed groups once they
8 are located, and such actions may result in some civilian victims. The
9 civilian victims will be lawful as long as they are collateral and
10 proportionate damage to an otherwise lawful attack. And by
11 proportionate, we mean, of course, the ratio between the military
12 advantage gained and the casualty to the civilian population, and not the
13 proportionate notion that is applicable in jus ad bellum in relation to
14 Article 51, the right to self-defence. This is a completely different
16 So civilians will be lawful when -- civilian casualties will be
17 lawful when they're collateral and proportionate damage to an otherwise
18 lawful attack. They will also be lawful when they were taking an active
19 part in the hostilities at the time. So it is clear that the law
20 recognises that not all civilians are unlawful. Not all civilian victims
21 are unlawful, sorry.
22 In the case at hand, the civilian casualties were not taking an
23 active part in the hostilities and were not simply collateral and
24 proportional damage, as will be discussed further by my colleague, Laurel
1 For all these reasons, Ground 2(A) should be dismissed.
2 With respect to Ground 2(B), I would simply refer Your Honours to
3 our response brief at paragraph 35, where we explain that Article 7(4) of
4 the Statute very clearly states that acting pursuant to a order does not
5 relieve someone of criminal liability, but may be considered in
7 Your Honours, unless there are any questions, this would conclude
8 our submissions on -- in response to Grounds 1 and 2 of the appeal.
9 JUDGE ROBINSON: Thank you, Mr. Boudreault.
10 Yes, Ms. Baig.
11 MS. BAIG: Good morning, Your Honours. Good morning,
12 Your Honours. My name is Laurel Baig, and I will respond to Grounds 3 to
13 5 of Tarculovski's appeal.
14 These grounds focus on the Trial Chamber's evaluation of the
15 evidence, factual findings, and legal conclusions. Tarculovski's
16 conviction for planning, ordering and instigating the crimes of murder
17 cruel treatment and wanton destruction were based on the totality of the
18 evidence and on the correct law.
19 The appellant fails to meet the standard of review on appeal. He
20 fails to show that the Trial Chamber's careful factual findings are in
21 any way unreasonable. He fails to demonstrate any legal error.
22 For these reasons, Grounds 3 to 5 of the appeal should be
24 Your Honours, I plan to take you quickly through the events of
25 the 12th of August. My goal is to put the appellant's arguments back
1 into the context from which he has tried to isolate them. After this
2 overview, I will then move to respond to three of his arguments in more
3 detail, concerning the protected status of the victims, the illegal
4 objective of the operation, and its planning.
5 The Trial Chamber found that on the 12th of August, 2001,
6 Johan Tarculovski led a group of 60 to 70 uniformed members of the
7 Macedonian police reserve in an attack against the ethnically Albanian
8 village of Ljuboten. They murdered three unarmed civilians, brutally
9 assaulted 13 men, and destroyed 12 homes. The Prosecution proved that
10 Tarculovski planned, ordered and instigated the attack, the primary
11 purpose of which was to retaliate against the civilian population of
12 Ljuboten for the arm -- for the villagers perceived support for the
13 Albanian National Liberation Army, the NLA.
14 At paragraph 572 of the Judgement, the Trial Chamber links this
15 retaliatory attack against civilians in the village to the land-mine
16 explosion which occurred two days before, killing eight Macedonian
17 soldiers. Two of the dead were from Tarculovski's home town of Ljubanci
18 which is the ethnically Macedonian town adjoining Ljuboten. Tarculovski
19 was close to one of the men who died. This incident occurred
20 approximately ten kilometres away, and it was believed that those
21 responsible fled to Ljuboten village after the incident.
22 In order to assist Your Honours, I'd like to refer to two
23 exhibits. The first one I've given to the usher in hard copy, because it
24 is under seal, and I'm not going to show it on the screen. It's a
25 printout from the e-court record. And I would be grateful if the
1 registry officer could pass it out.
2 MR. N. DERSHOWITZ: Your Honour, can I be told what it is so that
3 I can look at it.
4 MS. BAIG: Yes, it's coming from the Registry.
5 JUDGE ROBINSON: You'll tell us what it is.
6 MS. BAIG: Mr. Usher, could you bring it also to my colleagues on
7 the Defence.
8 My purpose in showing this picture is quite simple, Your Honours.
9 It is to orient you in the village of Ljuboten
10 see that the village is a populated one. The Trial Chamber estimated
11 about 3.000 inhabitants, and to get your sense of direction, you can
12 notice the mosque on the top left-hand corner of the image.
13 I'm also going to refer to Exhibit P411, and I'm going to show
14 that one on the screen because it is a public exhibit.
15 Is it showing now?
16 This exhibit -- Your Honours, this picture is a partial map of
17 Ljuboten. It was generated by the International Management Group, which
18 is a European non-governmental agency. The reason that I'm using it is
19 that this map usefully illustrates the Judgement because the houses where
20 the crimes occurred are marked on the map by number, which corresponds to
21 Prosecution Exhibit P410, and the map therefore allows you to follow the
22 events through the village as the police group progresses through it.
23 I should point out before I begin to use it that this is a
24 partial map. So it -- it does not include all of the houses, for
25 example, that you can see in the photo that I have distributed. It only
1 indicates the houses that were damaged. The map contains other
2 information such as the level of damage, and includes houses that were
3 damaged on other days not relevant to this Judgement. But as I take you
4 through this presentation, I'm going highlight the relevant information
5 for you, so that you can follow along and see where exactly the houses
6 were, where the crimes occurred.
7 Your Honours, in the morning of the 12th of August, following
8 some initial mortar shelling by the army, Tarculovski led the police into
9 the village at approximately 8.00 a.m. The Hermelin armoured personnel
10 carrier entered the village soon after and was there to support the
11 attack. It is the Trial Chamber's finding that Tarculovski personally
12 led the police operation and was with the group of police as they moved
13 through the village. That can be found at Judgement paragraph 564.
14 This finding was based on the totality of the evidence, including
15 M-37 who was referred to by my learned friend, but also on other evidence
16 of Tarculovski's leadership, including his own admission to the
17 commission, which can be found in Prosecution Exhibit P397.01 and.02. In
18 that admission, he says that he selected the men, armed them, and was
19 with the group as they went through the village. I'll touch on other
20 relevant findings to this issue as I go through.
21 Your Honours, I'm now going to annotate the map that's before you
22 to show you the route of the police through the village as set out in the
24 Tarculovski's police first stopped at the home of Elmaz Jusufi,
25 and you can see that as the blue circle on the map. It's house number
1 137 and co-related to P410. That's where the name comes from.
2 On that morning, the Jusufi family heard a loud explosion.
3 Rami Jusufi ran to the front door where he was shot and killed by the
4 police. The Chamber found that he was a civilian who was taking no
5 active part in the hostilities. Tarculovski's police made no effort to
6 find this out. They shot him. They did not enter the house. Instead,
7 they set the Jusufi's car and other property on fire. The police then
8 burnt five other houses in the vicinity. I have marked these again with
9 Xs on your map.
10 Tarculovski's police proceeded down that same street, towards the
11 east of the village, along with the Hermelin APC which contained gasoline
12 or other incendiary materials used to start the fires to burn the homes.
13 When they reached the neighbourhood near the mosque, which I have now
14 marked, they burned four more houses. You can the mosque again in the
15 upper left corner of the photo, and that can give you a bit of
16 orientation and connection between the map and the photo. You need to
17 turn the photo upside down to match up the lines.
18 Tarculovski's police then moved to Adem Ametovski's house, house
19 number 205, and it's now marked with a blue circle on your screen. The
20 police fired at a basement window and ten men who were hiding there came
21 out waving a white flag of surrender. The police found three others
22 hiding in the neighbour's house. They took their money, their valuables
23 and their identity cards. Ametovski's house was the only compound that
24 was searched in the whole village, but no weapons or any other military
25 equipment were found by the police.
1 Tarculovski and his police detained the 13 men in the front yard
2 of Ametovski's house. They repeatedly and brutally beat the detainees
3 with their weapons, punching them and kicking them. One policeman carved
4 a cross in the back of one of the men. Another shot Aziz Bajrami in his
5 hand. His son, Sulejman, was hit or kicked in the head. The police
6 allowed him to move a few metres away before they shot him to death.
7 Ten of the men detained at Adem Ametovski's house were then
8 marched barefoot through the village towards the police check-point at
9 Brace's house, which is just off the top of the map. Again, at Brace's
10 house they suffered further cruel treatment, including beatings so severe
11 that some of the men lost consciousness. Two elderly men were left
12 behind in police custody at Adem Ametovski's house. One of them,
13 Muharem Ramadani, was shot and killed by the police.
14 The Trial Chamber found again that there was no evidence that any
15 of these men had any affiliation with the NLA. None were wearing
16 uniforms or insignia. No weapons were found in their possession.
17 Moreover, all of them, at the time that they were beaten or killed, were
18 in the custody of the police and were, therefore, taking no active part
19 in the hostilities.
20 Finally, Your Honours, a bit farther along the road,
21 Tarculovski's police destroyed three more homes. Three men were killed
22 in the field near these houses, but the Trial Chamber could not exclude
23 the possibility that the fire may have come from the army. Moreover, the
24 Trial Chamber entertained a reasonable doubt as whether these men may
25 have been taking an active part in the hostilities. It acquitted
1 accordingly, but it did not make any finding that they were terrorists,
2 as suggested by my learned friends this morning.
3 Tarculovski and his police then returned to Brace's house, where
4 they rejoined the ten prisoners.
5 The final tally for this retaliatory attack against the civilians
6 of Ljuboten: 3 murdered, 13 cruelly treated and 12 homes wantonly
7 destroyed. This was not a legitimate police operation. This was an
8 attack on a civilian village.
9 I'd like to respond to three of the appellant's main arguments.
10 I am going to turn off the map now, but should it became important later
11 on in our discussion, I can turn it back on.
12 First I'd like to speak about the protected status of the victims
13 in this case. The Trial Chamber carefully considered the evidence and
14 the arguments of the parties about the civilian status of these victims.
15 It assessed each victim and the evidence surrounding it and reached
16 reasonable conclusions. Where it had any doubt that one of the victims
17 might have been taking an active part in the hostilities, for example,
18 when they heard evidence that they might have been firing at the police,
19 the Chamber acquitted. And I would refer to you paragraph 348 of the
21 Where there was no doubt that the victims of murder or cruel
22 treatment were civilians taking no active part in the hostilities, the
23 Trial Chamber properly convicted. And here, Your Honours, I would like
24 to highlight the fact that all but one of the victims for which
25 Tarculovski was convicted were in the custody of the police at the time
1 that they were assaulted or killed. These crimes did not happen as part
2 of a legitimate operation. What is the legitimate purpose of beating, of
3 killing people who are already in your custody? In this circumstance,
4 even if these people were fighting members of the NLA, they would still
5 have been hors de combat and would thus have been protected by
6 Common Article 3. The fact of detention makes the protected status of
7 the detained persons obvious to everyone, including the perpetrators of
8 the crimes.
9 The only victim who was not in detention was Rami Jusufi, and he
10 was the first blue circle. He was killed in the doorway of his family
11 home, while he was unarmed, wearing jeans and a white T-shirt. The
12 Chamber found that the evidence did not support a finding that he was
13 anything other than an unarmed civilian. In finding that the police
14 shooters had the required mens rea for the killing, at paragraph 312 of
15 the Judgement, the Trial Chamber noted that they shot from close range,
16 that he was dressed in civilian clothing, that he was unarmed, and that
17 he posed no resistance to the police.
18 Your Honours, you heard the suggestion this morning that there
19 some sort of continuum of civilian-ness. This is not so. The status of
20 the victim is a fundamental concept in international humanitarian law.
21 The principle of distinction rests on a clear division between military
22 personnel and objects on one hand, and civilians and civilian objects on
23 the other.
24 This line is not blurry. It is clear. Common Article 3 protects
25 person taking no active part in hostilities. In a non-international
1 armed conflict, such as this one, this would exclude members of the state
2 armed forces and fighters belonging to an organised armed group that's in
3 armed conflict with the state, unless they have laid down their arms or
4 been placed hors de combat.
5 In contrast, Your Honours, a person does not lose his civilian
6 status and Common Article 3 protection when he merely supports an armed
7 group. As this Chamber explained in the Strugar Appeals Judgement at
8 paragraph 177, there are many ways that a civilian can indirectly
9 participate in the hostilities, for example, by expressing sympathy,
10 participating in supporting activities, providing food and other
11 supplies, et cetera.
12 In connection this discussion I'd also like to draw your
13 attention to the recent ICRC interpretive guidance on the concept of
14 direct participation in hostilities. This study provides a detailed
15 explanation of the concept and is based on extensive expert consultation.
16 According to the ICRC's interpretive guidance, in non-international armed
17 conflict, a person only becomes a member of an organised group under IHL
18 when they perform a continuous combat function. This makes them
19 functionally equivalent to the armed forces of the state.
20 Other supporters of armed groups remain civilians and retain
21 their protection. The Chamber notes in the Trial Judgement that there
22 were some 1.000 members of the NLA who merely provided non-military
23 support. Although affiliated with the NLA in some way, these individuals
24 would still be civilians under IHL and they would retain their protection
25 against direct attack.
1 In any event, Your Honours, in this case, there was simply no
2 credible evidence that Rami Jusufi was a member of the NLA. The
3 appellant has failed to show any error in the Trial Chamber's assessment
4 of his status or in the status of any of the other victims who were in
6 I'd like to move now to the object of the attack. The appellant
7 argues that this was a legitimate attack, an operation aimed at rooting
8 out NLA terrorists in the village. The Trial Chamber carefully
9 considered and rejected these arguments which were squarely before it at
10 trial. It found that the predominant object of the attack was to
11 retaliate against civilians of Albanian ethnicity in the village for the
12 actions of the NLA because the villagers were thought to have harboured
13 or supported them. This retaliation was to serve as a warning to other
14 villagers as to the consequences of support for the NLA.
15 The Trial Chamber acknowledged, at paragraph 140, that there were
16 potentially legitimate reasons for the police to enter the village of
17 Ljuboten because of a suspected NLA presence there. But this
18 acknowledgment of a potentially legitimate law enforcement goal does not
19 justify the type of criminal and retaliatory attack that I've just
20 described, that the Chamber found out was carried out and planned out by
21 Tarculovski and his police under that -- the police under his charge that
23 This was not a legitimate attack that went wrong. It was not the
24 acts of a few rogue individual police officers. This was intended to be
25 retaliation against the civilians. It was meant to send a warning. It
1 was aimed at persons of Albanian ethnicity, without any reference to any
2 actual connection with the NLA.
3 In reaching its conclusion that this was an illegitimate purpose,
4 at paragraph 572 of the Judgement, the Trial Chamber listed a series of
5 relevant factors that my learned friend discussed this morning. In
6 particular, the Trial Chamber looked at what happened that day, looked at
7 the criminal actions of the police, including killing Albanian men who
8 posed no threat, inflicting violence on detainees, setting fire to and
9 firing at houses, stealing valuables from the detained men and women.
10 This is not legitimate law enforcement, Your Honours.
11 In the Chamber's view, these events directly contradict the
12 purpose of the operation stated by Tarculovski of searching identified
13 houses for terrorists. That's Trial Judgement 558, where the
14 Trial Chamber explicitly rejects this proposition.
15 I would also refer Your Honours to the finding that what was done
16 by the police was done in the presence of their leader, Tarculovski.
17 In the Trial Chamber's finding, at paragraph 565, this is a significant
18 and reliable guide as to what was intended as the object of the
19 operation. This is common sense.
20 In that -- in that same paragraph, paragraph 572, the Chamber
21 also looked at the composition of the force and the route of the attack,
22 which I've just shown you on the map. The Chamber noted that the police
23 were not there searching all houses or even all houses of ethnic
24 Albanians. They only searched one house. They barely strayed from the
25 main road. They were not searching for anyone.
1 On the totality of the evidence, the Trial Chamber was correct to
2 conclude that the object of the attack was retaliation against the
3 Albanian civilians. It was entitled to conclude, as it did at paragraph
4 576, that the crimes were intended by Tarculovski, or, alternatively,
5 that he was aware of the substantial likelihood that these crimes would
6 occur in the execution of his operation.
7 He has failed to show any error in this reasoning.
8 Finally, I'd like to touch on planning.
9 Contrary to what the appellant has argued, the Trial Chamber was
10 correct to find that Tarculovski planned the attack. To clarify for a
11 moment the elements of this mode of responsibility, the law of this
12 Tribunal requires planning conduct with either direct intent to commit
13 the crimes, or with an awareness of a substantial likelihood that the
14 acts or omissions planned will result in crimes. It is not legally
15 required, as the appellant suggests, that the plan be both the
16 preparatory and execution phases. There's no line of distinction where
17 you consider only preparation and then only execution. This language can
18 be found in some trial judgements. It appears to be a remnant coming
19 from the Akayesu trial decision, but the Appeals Chamber has never taken
20 this approach. And I would refer you, for example, to Kordic Appeals
21 Judgement, paragraph 26, which sets out the actus reus of planning.
22 Finally, as we have explained in detail in our brief, it is not
23 required --
24 JUDGE ROBINSON: [Microphone not activated].
25 MS. BAIG: Sorry, Your Honour?
1 JUDGE ROBINSON: [Microphone not activated] -- you refer to --
2 MS. BAIG: To Kordic?
3 JUDGE ROBINSON: [Microphone not activated].
4 MS. BAIG: Your Honour, I think I have it here.
5 Your Honour, Kordic says:
6 "The actus reus
7 design the criminal conduct constituting one or more statutory crimes
8 that are later perpetrated. It is sufficient to demonstrate that the
9 planning was a factor substantially contributing to such conduct."
10 And that is on the actus reus
11 I'm just about to speak about. The mens rea for these modes of
12 responsibility is established if the perpetrator acted with direct intent
13 at paragraph 29, or indirect intent --
14 THE INTERPRETER: Thank you for slowing down when reading.
15 MS. BAIG: -- at paragraph 30. So as we've --
16 JUDGE ROBINSON: And your point is that that makes no distinction
17 between the preparatory and execution phases.
18 MS. BAIG: Your Honour, that is correct. However, in this case,
19 as I'm going to detail in a moment, the facts of this case show that
20 there was ample planning for this crime or for these crimes, and that
21 this happened, as the Trial Chamber found, with either the direct intent
22 or the indirect intent, that is, the awareness of the substantial
23 likelihood that the crimes would occur.
24 As we explained in our brief, it's not required that the plan be
25 to commit the crime. Otherwise, indirect intent for planning would be
2 Your Honour, to answer your question on the facts, this
3 coordinated attack did not and could not have happened by accident. The
4 Trial Chamber's conclusion that the attack was planned is well grounded
5 in the evidence, and in the Trial Chamber's findings.
6 The findings support Tarculovski's conviction for planning and
7 can be usefully grouped under three headings. First, pattern; second,
8 preparation; and third, cooperation with the army.
9 As I have already mentioned, the Chamber placed emphasis on the
10 pattern of crimes that took place, the repetition of the offences of
11 murder, cruel treatment and wanton destruction. And the Chamber found,
12 at paragraph 573, that this displaced all possibility that the conduct
13 occurred by mistake, confusion or accidentally.
14 Tarculovski was present when the crimes occurred. There is no
15 evidence suggesting that he disapproved of the crimes, tried to stop them
16 when they commenced or initiated any sanctions after the -- against the
17 police afterwards. On the contrary, when he appeared before the
18 commission, he did not mention any criminality and refused to reveal the
19 identities of the police.
20 Regarding the preparations, the Trial Chamber found that he was
21 responsible for the preparations for the attack. And that's at
22 paragraphs 555 and 560. On his own admission, Tarculovski confirmed that
23 he personally selected the police reserve volunteers. He was in charge
24 of the timing of the operation. Postponing from the 11th to the 12th.
25 He was involved in procuring the bullet-proof vests, the radio units, the
1 Hermelin that carry -- the Hermelin armoured personnel carrier that
2 carried the gasoline through the village. He secured transportation for
3 the police, and on the day before the attack, he led he reconnaissance
5 Finally, he played a key role in coordinating with the army.
6 He held the planning meeting that you've already have heard of, on
7 10th of August, to discuss the operation with other senior army and
8 police officials. He arranged for the president to speak with the local
9 army commander to support the operation. He exchanged telephone calls
10 with army officials in relation to the preparation of the attack. And
11 the success of this cooperation is proved by the -- by the fact that the
12 attack again with opening mortar and other fire from the army positions
13 around the village. The events of the attacks, the repetition of the
14 crimes, the careful preparations, and the close cooperation with the
15 army, all provide is support for the Trial Chamber's reasonable
17 The Chamber was entitled to conclude that Tarculovski planned the
18 crimes, and that he also ordered and instigated them with either the
19 direct intent or the awareness of the substantial likelihood that these
20 crimes would occur.
21 The appellant has failed to show any error in the Trial Chamber's
23 Your Honours, the Trial Chamber's findings in this Judgement were
24 reasonable and were based on the correct law. Grounds 3 to 5 of the
25 appellant's appeal should be dismissed.
1 Unless you have any questions, I would like to hand the podium
2 over to my colleague, Nadia Shihata, to touch briefly on Grounds 6 and 7.
3 JUDGE ROBINSON: Thank you very much.
4 MS. SHIHATA: Good afternoon, Your Honours. My name is
5 Nadia Shihata, and I will present the Prosecution's response to
6 Grounds 6 and 7.
7 With respect to Ground 6, the Chamber was entitled to admit and
8 use statements made by Mr. Tarculovski to a Macedonian commission
9 investigating the events in Ljuboten.
10 As this Chamber is well aware, decisions on the admissibility of
11 evidence fall within the discretion of the Trial Chamber.
12 Here, the Trial Chamber carefully exercised this discretion.
13 It set forth its reasoning in a 25-page decision, correctly identifying
14 and applying the relevant rules and jurisprudence. It found that the
15 statements were relevant, voluntarily made, and bore sufficient indicia
16 of reliability to be admitted.
17 The Defence doesn't dispute any of these findings. Instead, its
18 argument rests entirely on an unsubstantiated policy recommendation that
19 this Chamber adopt a novel exclusionary rule for out of court statements
20 made during national war crimes investigations.
21 This argument is made for the first time on appeal and should
22 therefore be dismissed as waived. But even on its merits, the argument
23 fails. The Defence puts forth nothing to support its assertion that
24 admitting such statements will undermine the Tribunal's Statute or
25 interfere with national investigations. This assertions are speculative,
1 and this very case shows they should not be taken at face value.
2 Here, despite an ongoing ICTY investigation, Mr. Tarculovski
3 appeared before the commission twice and gave his version of what
4 happened. Moreover, ensuring that a Trial Chamber can admit and assess
5 all prima facie relevant and reliable evidence enhances the search for
6 truth and therefore the Tribunal's mission. It does not undermine it.
7 The Defence's appeal in this regard should therefore be dismissed.
8 With respect to the Defence's complaints about the Trial
9 Chamber's use of the statements, we simply note that the Defence's
10 reasoning confuses the prima facie reliability determination that occurs
11 at the admission stage with the finally valuation of evidence.
12 In other respects, I simply refer Your Honours to the arguments
13 we made in our response brief.
14 I will now turn briefly to Ground 7.
15 The Trial Chamber was not required to consider as a mitigating
16 factor Macedonia
17 Macedonia NLA conflict. First, the Defence never mentioned amnesty as a
18 mitigating factor in its sentencing arguments at trial. We note that the
19 Appeals Chamber has stated that "an appeal is not the appropriate forum
20 in which mitigating circumstances, evidence of which was readily
21 available at trial, should be presented for the first time."
22 And that's from the Bralo Judgement on sentencing appeal,
23 paragraph 18, and the sources cited therein at footnote 67.
24 We believe that principle should be followed here.
25 THE INTERPRETER: Thank you for slowing down.
1 MS. SHIHATA: In addition, the argument assumes, wrongly, that
2 those who committed war crimes, like Mr. Tarculovski, were granted
3 amnesty under Macedonian law. If Your Honours examine the actual
4 language of the Law on amnesty, which was admitted as Exhibit P83, you
5 will see this was not the case. The law specifically excludes those who
6 committed criminal acts under the ICTY's jurisdiction, and further
7 provides that those already convicted of "criminal acts against humanity
8 and international law," are not entitled to amnesty or a reduction in
10 And I direct Your Honours to Articles 1 and 3 of the law on these
12 No one who committed war crimes, like Mr. Tarculovski, or other
13 violations of international humanitarian law was ever granted amnesty.
14 As a result, the Trial Chamber did not abuse its discretion in failing to
15 consider an amnesty never granted to those similarly situated to
16 Mr. Tarculovski. Finally on this mitigation point, we note that a
17 similar amnesty argument was made and rejected in Prosecutor v. Brima,
18 Kamara, and Kamu before the Special Court for Sierra Leone. The
19 Trial Chamber there rejected this argument at paragraphs 137 to 138 of
20 its sentencing Judgement, and this was affirmed on appeal.
21 The Defence also argues in Ground 7 that the Trial Chamber failed
22 to consider Article 40 of the Macedonian Criminal Code which resulted in
23 an incorrect determination of Macedonia
24 prison sentences. The Trial Chamber committed no discernible error in
25 this regard.
1 First, the Chamber was not bound by Macedonian sentencing
2 practices. It simply had to take them into account. Second, the
3 Trial Chamber didn't consider Article 40 because it was not applicable.
4 Article 40 allows for mitigation of punishment in circumstances where the
5 Court concludes that "especially extenuating circumstances exist."
6 The mitigating factors found by the Chamber here amount to: 1,
7 Mr. Tarculovski's being regarded as a capable and successful officer; 2,
8 his voluntary surrender to the Tribunal; and 3, his proper conduct in
9 detention and during trial. None of these circumstances is exceptional.
10 As a result, there was no reason for the Trial Chamber to refer
11 to Article 40 of the Criminal Code.
12 Ground 7 of Mr. Tarculovski's appeal should therefore be
14 And unless Your Honours have any questions, this concludes my
16 JUDGE ROBINSON: Thank you very much.
17 We'll now have the reply from Mr. Tarculovski's counsel.
18 Yes, Mr. Alan Dershowitz.
19 MR. A. DERSHOWITZ: Thank you, Mr. President.
20 The Prosecution has it exactly backwards when it says that there
21 is no conflict over jus in bellum, but rather the conflict is over jus ad
22 bellum. That's exactly wrong. The conflict over how one deals with
23 terrorism is never about jus ad bellum. That law has now become
24 absolutely clear, Charter Article 51 of the United Nations ^. Of
25 course, you can combat terrorism and take actions. The question is what
1 actions can you take. All of the controversy, all of controversy is
2 about jus in bellum. What are the appropriate rules of engagement when
3 you're fighting terrorism? Can you fire at terrorists who hide behind
4 human shields? Can you destroy houses that were used by terrorists?
5 What are the rules of proportionality? How does one distinguish
7 The argument that there is it no conflict today, that there are
8 sharp rules that distinguish civilians from combatants, that goes back to
9 the 1900s. Certainly no later than 1940s. Today all of the controversy
10 is who is a civilian and who is a combatant. People who by day wear
11 suicide vests or help people put on suicide vests, and by night they
12 mingle in the population. People who by day plant bombs underneath troop
13 movements, and by night mingle in the population. People who were black
14 a T-shirt without a insignia, people who wear a T-shirt with insignia,
15 people who serve as voluntarily human shields, those are exactly the
16 debates that are going on in academia today. And the very idea that
17 Mr. Tarculovski is supposed to revolve these debates, when all the great
18 academics in the world can't, I was particularly informed by the fact
19 that the opponent cites the Goldstone Report as if it was not
20 controversial. Has there ever been a report more controversial? Now Mr.
21 Goldstone himself recently --
22 JUDGE ROBINSON: You're being asked to slow down.
23 MR. A. DERSHOWITZ: Oh, I'm sorry.
24 Judge Goldstone, who you are all familiar with, of course,
25 recently said that one of his criticisms is that Israel should have used
1 commandos. It should have sent commandos into the urban areas, rather
2 than dropping bombs. That's a perfectly plausible argument but that's
3 exactly what was done in this case.
4 So the great dispute is what the rules of engagement, what are
5 the international humanitarian laws when one is dealing with terrorism?
6 These laws were written prior to the advent of the new phenomenon of
7 terrorists who hide behind civilians, who then target civilians, and who
8 then use the civilian deaths as justification for what they are doing to
9 encourage other people to join into their enterprise. That is precisely
10 the conflict, and that conflict has not been resolved. And the mens rea
11 requirement and the requirement of even knowledge of law certainly must
12 take into account the fact that when you have somebody in this
13 intermediate position, he is not supposed to know how to answer those
14 questions. How could he know?
15 The issue that we've raised about jurisdiction, let me be very
16 clear particularly to the question raided by Judge Meron earlier on. We
17 have raised both a macro and a micro challenge to jurisdiction. The
18 macro challenge, which we raise in our brief on paragraph 29, Tarculovski
19 now renews his jurisdictional challenge and notes the fact and that it
20 goes on and on to talk about even if there were to be an armed conflict,
21 and even if the armed conflict were sufficiently intent. The next
22 question is whether or not this particular encounter, if it was within an
23 armed conflict, gives rise to international humanitarian law.
24 Plainly, you can have an armed conflict. It can be intense, and
25 then in the middle of an armed conflict, a bunch of policemen go into a
1 town and rob wallets from people and steal people. That would not give
2 rise to the jurisdiction of this Court. It is not enough to conclude
3 that there is an intense armed conflict, and that was the thrust of much
4 of our brief, but without conceding the intensity of the armed conflict
5 and the macro issue involved in this case.
6 At the very least our argument boils down to this. When you have
7 a case where there is sufficient doubt about the macro, that should be
8 taken into account in deciding the micro. That is, if it is doubtful
9 that there is an intense armed conflict and within that doubtful
10 concept -- context there is an event like this one, in which less than a
11 handful of people who are civilians are killed, there is damage to be
12 sure, but not extensive damage of the kind that is usually associated
13 with the kinds of genocide this court is unfortunately all too familiar
14 with, the question is whether international humanitarian law applies
15 there. And then if it does, what is the international humanitarian law
16 when you're fighting against terrorists, and whether or not the defendant
17 can know these issues.
18 For example, one of the issues raised is, let's assume you have a
19 legitimate battle but you know crimes are going to be committed. The
20 position taken by the Prosecution is you can't sent troops in if you know
21 crimes are being committed, even if you don't intend to do that. That's
22 very controversial. Let's assume, for example, that there are terrorist
23 attacks against civilians in Skopje
24 to respond to is by sending in police and soldiers, knowing that some of
25 the policemen will probably rob. Historically in warfare and police
1 actions policemen rob, soldiers rape. There's looting. There's burning.
2 Does it mean if you know there is going to be some of that, that you
3 can't engage in the battle? No. Rules of proportionality still prevail,
4 and it is not surprising that the Prosecution didn't charge violation of
5 rules of proportionality.
6 Now, there's a lot of context to this as well. For example, in
7 determining jurisdiction this was not the only incident during the
8 Macedonian conflict. There were many terrorist attacks by NLA that
9 killed more civilians than were killed here. But they were not subject
10 to the Court's jurisdiction. The idea of selectively picking one
11 encounter in what was, we submit, not an intense armed struggle but a
12 series of encounters over a short period of time, to pick just one and
13 say that one is subject to international humanitarian law, when others
14 that produced far more casualties and far more civilian casualties,
15 children, women, remember here only men and only men who we believe were
16 reasonably, if wrongly, suspected.
17 Take for example - my brother will deal more with this - the
18 first case of the shooting. You're involved in a situation. The Court
19 finds that there's firing, ongoing firing. You come to the door of a
20 house that you think is harbouring terrorists and a man comes to the
21 door. You don't know who he is and a policeman shoots him. That happens
22 every day in the city of New York
23 world. Nobody can infer from the shooting of one man at door, when he's
24 trying to close the door or open the door, that that was part of a
25 coordinated plan to kill this individual. Almost premeditated and
1 coordinated. It simply doesn't follow. It may have been a crime --
2 JUDGE ROBINSON: Mr. Dershowitz, can I take you back to a
3 proposition that you set forth earlier.
4 You say, assuming that there is an armed conflict --
5 MR. A. DERSHOWITZ: Right.
6 JUDGE ROBINSON: -- at a general level, it meets all the
7 requirements of intensity, et cetera, but in the middle of it, a group of
8 policemen go into a town and rob some wallets. That is on a very small
10 MR. A. DERSHOWITZ: Of course.
11 JUDGE ROBINSON: And your arguments, as I understand it, is that
12 that small scale act would not qualify as an armed conflict, even if it
13 is related -- even if it can be shown to be an integral part of the wider
14 armed conflict. Are you saying that --
15 MR. A. DERSHOWITZ: No.
16 JUDGE ROBINSON: -- small scale act would not qualify?
17 MR. A. DERSHOWITZ: It wouldn't qualify but not for the reason,
18 Mr. President, that you state. Not because it is not part of an armed
19 conflict, because it is not in violation of international humanitarian
20 law. That is, there are two issues that have be decided. One, the issue
21 has to be decided is the conflict in general qualify under the
22 Tadic principles, and I don't have to repeat for the Court the Tadic
23 principles. They're all set out on page 38 of the brief, violation must
24 constitute an infringement of the rule of international humanitarian law.
25 The rule must be customary in nature, et cetera.
1 THE INTERPRETER: Slow down, please, when reading.
2 MR. A. DERSHOWITZ: Oh, I'm sorry.
3 In other words, what we're arguing is that these other
4 requirements are independent, for jurisdictional purposes, of the armed
5 conflict. Our position is there was no intense armed conflict. If you
6 think there was, Your Honour, you still have to decide whether a
7 particular incident involved violation of international humanitarian law.
8 It doesn't follow automatically, just because an incident was part of an
9 armed conflict, that the conduct occurred violated international
10 humanitarian law. If, for example, the rules of engagement were proper,
11 the purpose was proper, but some policemen, in the course of a mixed -- a
12 mixed issue of police and armed activity, violated the law, that doesn't
13 bestow jurisdiction on this Court.
14 And to take your question and put it to Judge Meron's earlier
15 question, yes, if it was a police action, that may impose more
16 obligations to avoid hurting civilians, but that cuts against it being
17 part of an international armed conflict. That is, it points one way for
18 jurisdictional purposes. And what it really says is that if there is a
19 domestic trial of a policeman in a police action, in the domestic trial
20 it may be harder for him to defend himself than it would be for a soldier
21 to defend himself in a military context.
22 In other words, there are greater restrictions on the police, but
23 those restrictions are domestic restrictions. The international
24 restrictions apply to the police and they apply to soldiers. But if the
25 action was done in self-defence and was proportional, et cetera, it
1 doesn't constitute a violation of international humanitarian law just
2 because it happened to be -- it happened to take place while there was an
3 intense armed conflict going on.
4 I hope that answers your question.
5 JUDGE ROBINSON: Yes. But the evidence shows that you
6 indiscriminately targeted civilians in that small scale act, that would
7 be in breach of international humanitarian law.
8 MR. A. DERSHOWITZ: Well, it would have to show that there was a
9 deliberate wilful plan to target the civilians. If what happened was
10 this, if there was a plan, as we believe there was in this case and as we
11 believe the evidence shows, to go after terrorist and the plan is
12 consistent with going after terrorists, in the course of the plan
13 policemen then do what policemen and what soldiers often do in the fog of
14 war. The idea that that turns what was a proper exercise of authority
15 into an international humanitarian concern is our challenge, and we don't
17 JUDGE ROBINSON: [Microphone not activated].
18 MR. A. DERSHOWITZ: No, I know --
19 JUDGE ROBINSON: [Microphone not activated].
20 MR. A. DERSHOWITZ: No, we think it is both. And there's a very
21 interesting issue about evidence in doctrine because Your Honours sent
22 the case back to make fact findings as to whether or not there was
23 sufficient intense armed conflict, and the Court applied the wrong
24 standard of proof.
25 We don't think this Court has ever decided the issue. We're
1 aware of it. As to what the standard of proof is on jurisdictional
2 elements of the crime, the Court here did not apply beyond a reasonable
3 doubt standard. It showed reasonable doubt. It virtually admitted there
4 was reasonable doubt, and if I had time, I would go -- I would go into
5 the details of the Court's Judgement as to doubt, but it simply said, We
6 are satisfied, we find. We don't believe that satisfies the
7 jurisdictional requirements of proof beyond a reasonable doubt. We don't
8 believe that the Court was appropriately advised of what the proper
9 standard was.
10 I know, I'm running out of my time, and my brother is pulling at
11 my robe, so I will let him continue. Unless there are any other
13 JUDGE ROBINSON: You are the best person to encroach on your
14 brother's time.
15 MR. A. DERSHOWITZ: And he is the best qualified to complain if I
16 do, so, thank you.
17 MR. N. DERSHOWITZ: My complaining has never worked.
18 Your Honours, Article 25 provides that an Appeals Chamber shall
19 hear appeals from persons convicted by the Trial Chamber or from the
20 Prosecutors on the following grounds: One is an error of law; the second
21 is a error of fact which has occasioned a miscarriage of justice.
22 98 per cent, maybe 100 per cent, of the presentation that you heard with
23 respect to issues 2, 3 -- 3, 4, and 5, were recitations of conclusions
24 arrived at by the Trial Chamber. And we maintain that if you are going
25 to exercise your power to determine whether there were errors of fact,
1 you have to see whether any of those conclusions that were arrived at had
2 an evidentiary base. Just to repeat what the Trial Court found precludes
3 you from doing your job.
4 And let me give you a number of very specific examples.
5 The Prosecutor mentioned essentially two pieces of evidence that
6 it says supports the notion that Tarculovski was actually leading and
7 present at all of the situations. They make reference to M-037. If you
8 review the testimony of M-037, and if we can go into closed session, I
9 will go over it with Your Honours in detail and show you it is
10 inconceivable for that to be used as a predicate for the conclusion that
11 he was present at each of the sites, and that he was there to commit the
12 crimes on each of the sites.
13 It is such a stretch. Yes, the Trial Chamber found it. Yes, the
14 Trial Chamber went out of its way to say, We rely upon M-037. But if you
15 read those pages that are referred to, it does not support the
16 conclusion. And I am suggesting to this Chamber that it has an
17 obligation to exercise Section B to review that. Just because they say
18 it, doesn't mean it's so. Just because the Chamber says it, doesn't mean
19 it's so. The evidence is not there.
20 Second, they say that the statement that was made by Tarculovski
21 supports it. His presence in the town, in the village, does not support
22 the conclusion that he was present at the Jusufi shooting, that he was
23 present at the Ametovski house when the shooting took place, that he was
24 present when they don't even know where he was, where anybody was when
25 the third person was shot.
1 So, yes, it is in there. Yes, it says so. Yes, it is wrong, as
2 a matter of law.
3 With respect to the actus reus
4 adversary is suggesting that the Trial Chamber erred in describing the
5 requirements for actus reus
6 never noted any problem. And with the language, they're citing a number
7 of court decisions says -- is that you'd need at both the preparatory and
8 execution phase. So the trial proceeded on that basis. To now say the
9 Trial Court was wrong and the findings were wrong and a law was wrong in
10 that situation, I suggest that it's inappropriate to be raised at the
11 present time.
12 There was a requirement as articulated by the Trial Court relying
13 upon Trial Court determinations, all of which said that you need both
14 preparatory stage and the execution stage. If you now find as a matter
15 of law that that is the requirement, and I'm reading from paragraph --
16 they refer -- it's paragraph -- sorry, I don't have the cite. But the
17 citation is to footnotes in paragraph 572, and it describes what the
18 actus reus
19 the Trial Court's determination was correct without an objection having
20 been raised as to what the Trial Court said.
21 With regard to the mens rea, it is only in the context of
22 mens rea, is substantial likelihood enter the picture. And there you can
23 say he either committed it or there's a substantial likelihood that the
24 crime was committed.
25 Let me deal with that last claim for a second. There are three
1 references in that whole Judgement to the substantial likelihood that a
2 crime can be committed. Two of them are in definitional sections of the
3 mens rea, and the last one is a tag-on sentence at the end of the
4 Judgement which says:
5 "Alternatively, we can conclude that there was a substantial
6 likelihood that he knew."
7 Nonetheless, there is not an analysis of that, no description of
8 it, and to the extent there is a suggestion that he was not experienced,
9 how do you draw the inference that he had an awareness that the
10 substantial likelihood that the crime would be committed in the execution
11 of the plan? His lack of knowledge, his lack of experience all suggest
12 to the contrary, and if there is any reliance upon that mens rea
13 provision, I suggest there was an obligation of the Trial Chamber to
14 analyse it. It's an obligation to have a reasoned decision. You can't
15 simply say, pronounce, that he had, in its final sentence, a substantial
16 awareness without doing any analysis.
17 But I must come back to the major thrust of what I am suggesting,
18 and that is if you summarise, as the Prosecutor did, all of the
19 conclusions made by the Trial Court and never examined the substance,
20 why, what evidence, what basis, then I believe that there is a serious
22 Let just touch on one final point.
23 The Prosecutor emphasised that the Trial Court, just as an
24 example, said that Jusufi was shot at close range. There's a citation to
25 the autopsy. There is nothing in the autopsy, nothing in the autopsy
1 that says that Jusufi was shot at close range. So Jusufi could have been
2 shot from the hill overlooking, by the military. But they argue, and the
3 Trial Court finds, close range was important because the police were
4 close. But if there is no support for the notion, close range was just
5 made up, then it is an error of fact which is a material error of fact.
6 They have told you it is a material factor for which there is no basis in
7 the records.
8 So I suggest, yes, it says close range. Yes, the Prosecutor says
9 close range. Yes, shots were fired. But whether the shot that killed
10 Jusufi was at close range, zero evidence to support that notion.
11 Thank you.
12 JUDGE ROBINSON: Thank you very much.
13 We'll take the break now, one hour.
14 We'll resume at 2.00.
15 --- Luncheon recess taken at 12.56 p.m.
16 --- On resuming at 2.00 p.m.
17 [Trial Chamber confers]
18 JUDGE ROBINSON: So Mr. Rogers, and in relation to Boskoski.
19 MR. ROGERS: Yes, Your Honour. Thank you.
20 Your Honours, I address the Prosecution appeal against the
21 acquittal of Ljube Boskoski on all counts. And I shall address three
22 main areas in my submission to you this afternoon.
23 The first is the notion and principle behind the doctrine of
24 command responsibility and the current legal position under this
25 doctrine, as far as it can be ascertained.
1 Secondly, the issue of reporting and its sufficiency or otherwise
2 as a measure capable of discharging the legal duty imposed under
3 Article 7(3), and in that context I will attempt to answer Your Honours'
5 And finally, I shall then address the application of the
6 principle to the facts as found.
7 But, Your Honours, let me first summarise the Prosecution appeal
8 by way of introduction in this way.
9 Paragraph 16 of the Hadzihasanovic interlocutory appeal decision
10 on command responsible the Appeals Chamber held:
11 "Command responsibility is the most effective method by which
12 international criminal law can enforce responsible command."
13 Instilling the principles of responsible command in a superior is
14 one method to ensure that their subordinates respect the legal principles
15 governing armed conflict.
16 The ICRC's empirical research, "The Roots of Behaviour in War,"
17 looked at the most effective means of preventing international
18 humanitarian law violations. After surveying some 15.000 civilians and
19 combatants in 15 war zones and reviewing the available literature, the
20 ICRC concluded at page 16 that:
21 "The main thing is not to persuade combatants that they must
22 behave in a different way, or to win them over personally, but to
23 influence the people who have ascendency over them ..."
24 In the context of an armed conflict, where the rules of
25 international humanitarian law apply, those in authority over
1 subordinates are required to exercise that authority responsibly.
2 Responsible command requires superiors to act responsibly, and it is our
3 submission that Ljube Boskoski did not.
4 The Chamber found that he possessed alarming information about
5 crimes, including unlawful killing, Judgement 527. And certainly by
6 latest 5th September 2001, he knew of the serious allegations against the
7 police in Ljuboten on the 12th of August, and in the days following.
8 Trial Judgement 451. This covered the police station crimes, as well as
9 the destruction, cruel treatment, and murder allegations arising from the
10 attack on the village itself.
11 And, Your Honours, it is important to remember that there are two
12 groups of crimes. There is the Ljuboten itself crimes, if you like, and
13 then the police station crimes.
14 Boskoski took no, in our submission, genuine positive action to
15 have the crimes of his subordinates punished.
16 None of the reports he received made any mention of crimes by
17 police, either in Ljuboten, or in relation to any of the victims of cruel
18 treatment, at Buzalak check-point, Butel police station, Prolece police
19 station, Bit Pazar police station, or Karpos police station.
20 No crimes by police were ever reported to the competent
22 His public statements about the Ljuboten incidents indicate he
23 that he had no intention, we say, of ensuring police crime -- police
24 crime was investigated. In his book, Exhibit P402, where he writes of
25 these events, relating -- referring to the OSCE investigation into
1 Ljuboten, he accused the OSCE, who visited on the 14th of August, of
2 trial trying to "misinform the public that allegedly the Macedonian
3 security forces in the clashes did not kill five terrorists but citizens
4 of Ljuboten."
5 He dismissed out of hand such allegations, that is, allegations
6 of the murder of citizens by security forces as "the most striking
7 slander about the security forces."
8 The allegations that he had received from the OSCE were
9 reinforced by a Human Rights Watch investigation and report. Responding
10 to the allegations of the crimes in relation to that report, and those
11 are crimes alleged by police, of course, in the media he said:
12 "I will press charges for the Court of Human Rights in
14 said, "not only the dignity of the Macedonian Ministry of Interior but
15 also my personal dignity." Trial Judgement 450, Exhibit P359.
16 Your Honours, in the references that he made in the interviews
17 that he gave, not any time did he say anything like, in the exhibits that
18 are before the Court, I am taking these responsibilities very seriously;
19 we are investigating the allegations of crimes against the police, and we
20 will ensure that all is done to identify that. Your Honours may feel
21 that is something might -- he might be expected to have said at the time.
22 Your Honour, the error in this case is that the Trial Chamber
23 erred when it failed to convict him for his failure to punish the
24 criminal conduct of his subordinates arising from the attack on Ljuboten
25 of the 12th of August.
1 It took too narrow a view of what Ljube Boskoski could and should
2 have done to address this criminal offending by his subordinates. It
3 took this view because it applied a wrong legal test concerning what is
4 expected of a commander under Article 7(3) of the Statute to punish the
5 crimes of his subordinates. It focussed solely on the sufficiency of any
6 reporting in the sense as to whether it was likely to trigger an
7 investigation into the crimes, rather than what steps were within the
8 material possibility of Ljube Boskoski's power to take to punish his
9 subordinates. In short, it ignored the totality of what he could have
10 done and looked only at the reporting measure.
11 In considering the reports as a sufficient measure, it ignored as
12 a fact the other measures open to him, and that the reports themselves
13 were not sufficient to address the criminal conduct, all of the criminal
14 conduct, of his subordinates in a way that would meet the requirement to
15 take the necessary and reasonable measures.
16 These are aspects of the same factual error; namely, that the
17 reports, as were made, were insufficient to satisfy his obligation under
18 Article 7(3) to punish.
19 To amplify a little more the principle underlying superior
20 responsibility, the principle of responsible command lies at the heart of
21 Article 7(3). It is a concept that expresses the manner in which a
22 superior in a position of authority is expected to exercise the powers
23 inherent in that position.
24 In an armed conflict, that authority must be exercised with full
25 respect for applicable international humanitarian law norms. The
1 superior, for example, has a duty to ensure civilians are not targeted
2 unlawful, that prisoners are accorded proper treatment, et cetera.
3 When those subordinated to the superior act outside of those
4 norms, and in order to ensure conformity with them by those subordinates
5 and others, he has an additional duty to ensure they are punished.
6 That, of course, is reflected in the frame of the Statute under
7 Article 7(3).
8 As the Appeals Chamber expressed in the Hadzihasanovic
9 interlocutory appeals decision at paragraph 22:
10 "The elements of command responsibility are derived from the
11 elements of responsible command."
12 And that: "The concept of responsible command looks to the
13 duties comprised in the idea of command."
14 In developing the legal parameters of command responsibility, the
15 Appeals Chamber has sought not to unfairly impose an absolute burden on
16 the superior for the criminal conduct of his subordinates. It has first
17 required proof that he is in a position of authority over them, that they
18 are actually subordinates. And, to that end, it has addressed and
19 developed the concept of effective control.
20 In this case, the Trial Chamber addressed this at Trial Judgement
21 513, 514, 515, and 516.
22 It has then required the superior to have knowledge or reason to
23 know, inquiry notice of the criminal conduct.
24 In this case, the Trial Chamber addressed this at Trial Judgement
25 paragraph 527 and 536. And it is elaborated a little more in our appeal
1 brief at paragraph 60 to 61.
2 Finally, and importantly, it has required that the superior must
3 take the well-known phrase "necessary and reasonable measures" to prevent
4 the crimes or punish the perpetrator thereof. Comes from the Halilovic
5 Appeals Judgement, paragraph 59.
6 Going on to explain what it meant, at Judgement paragraph 63 in
7 the same case, the Appeals Chamber defined the necessary and reasonable
8 measures, as far as it was able, in this ways:
9 "Necessary measures are the measures appropriate for the superior
10 to discharge his obligation (showing that he genuinely tried to prevent
11 or punish) and reasonable measures are those reasonably falling within
12 the material powers of the superior."
13 It may be suggested this to some extent it is a little circular.
14 But what is clear is that it is a broad test. It is not narrow. And it
15 is not restrictive. But it is clear that the steps taken must be
16 genuine. They must be real, they must be true.
17 The obligation to prevent criminal conduct or to punish is, we
18 submit, an active, not a passive duty. It requires affirmative action by
19 a superior to take steps to control those subordinated to him. Quote
20 comes from the US
21 very familiar with these provisions. Referred to in the Halilovic
22 Appeals Judgement at paragraph 63, footnote 167.
23 In the Strugar Trial Judgement, at paragraph 376, the
24 Trial Chamber noted this:
25 "Military Tribunals established after World War II have
1 interpreted the superior's duty to punish as implying an obligation for
2 the superiors to conduct an effective investigation" - I refer to
3 Yamashita, footnote 1099 - "and to take active steps to secure that the
4 perpetrators will be brought to justice." High Command, footnote 1100.
5 "Relevant in this respect," they said, "could also be whether the
6 superior has called for a report on the incident and the thoroughness of
7 the investigation." And they refer to Tojo, footnote 1101, where the IMT
8 convicted Tojo for not taking adequate steps to "punish the offenders and
9 prevent the commission of similar offences in the future ... he did not
10 call for a report into the incident ... made perfunctory inquiries about
11 the march but took no action. No one was punished."
12 It is an affirmative duty, Your Honours, because unruly
13 subordinates are a dangerous entity. As the Appeals Chamber recognised
14 in Hadzihasanovic Appeals Judgement at paragraph 30, a superior's failure
15 to punish a crime:
16 "Is likely to be understood by his subordinates at least as
17 acceptance if not encouragement, of such conduct with the effect of
18 increasing the risk of new crimes being committed."
19 This is why he must act.
20 Even the Trial Chamber accepted that Boskoski must take active
21 steps to ensure that the offenders are punished. Trial Judgement 519.
22 This is why he must take all the necessary and reasonable
23 measures within his material possibility to punish.
24 The duty cannot be abrogated.
25 This affirmative duty requires a superior to do all in his power,
1 we submit, to ensure subordinates are punished. This is supported by the
2 Trial Chamber's approach to the assessment of guilt in the Aleksovski
3 case, Trial Judgement 117, where they considered Aleksovski's
4 responsibility in this way:
5 "Despite the authority he had, the accused took no measures to
6 prevent the crimes committed. Nor did the accused use everything in his
7 power to attempt to punish the guards responsible for them."
8 This approach was not disapproved by the Appeals Chamber when it
9 considered the accused's appeal against his conviction under
10 Article 7(3), and when it dismissed his appeal against conviction for
11 failing to punish the guards at the prison for their criminal conduct.
12 Interestingly, on the facts of the Aleksovski case, the
13 Trial Chamber found:
14 "None of the reports transmitted to the military police commander
15 or to the president of the Travnik military tribunal dealt with the
16 assaults committed by guards or HVO soldiers within Kaonik prison."
17 It's this case upon which the respondent and the Chamber relied
18 to suggest that "civilian superiors, who may lack the disciplinary or
19 sanctioning powers of military commanders, may discharge their obligation
20 to punish by reporting to the competent authorities whenever a crime has
21 been committed, if these reports are likely to trigger an investigation
22 or initiate disciplinary or criminal proceedings."
23 That's Trial Judgement 418 and 519.
24 But the Aleksovski Trial Judgement, Your Honours, at paragraph
25 78, in which that principle is said to be derived, was not addressing the
1 question of necessary and reasonable measures, but whether the accused
2 had de facto or de jure authority over the guards, and the ability to
3 report in a manner likely to trigger an investigation is relevant to that
4 consideration. Where the accused is a civilian superior, it is his
5 position in the hierarchy which would influence their likely punishment
6 and thus help to establish the relationship of effective control.
7 In fact, the reports in the Aleksovski case did not mention the
8 crimes of Aleksovski's subordinates. In that case, it was found they
9 were the military police guards. And he was convicted.
10 The Trial Chamber was not considering the question of measures in
11 Trial Judgement paragraph 78 in Aleksovski.
12 Your Honours, the notion of doing all within your power is
13 developed in the Hadzihasanovic Trial Judgement at paragraph 1061, we
14 say. Hadzihasanovic was acquitted, because once the matter was referred
15 there to the investigating judge, he was "unable to carry out his own
16 criminal investigations or to influence how the cases with dealt with by
17 Judge Mirsad Strika or the competent prosecutor."
18 He couldn't do any more. In this case, the police retained the
19 ability to continue to investigate at the pre-criminal stage, at
20 Article 142 of the Code, Exhibit P88, Code of Criminal Procedure in
22 power. And, Your Honours, I also direct to you footnote 1982 in the
23 Trial Judgement, where this notion of what they could do was further
24 developed. They could have submitted additional reports relating to the
25 crimes of subordinates. There was more Boskoski could have done, unlike
1 in the Hadzihasanovic case.
2 To be sure, and to ensure the risk of further crimes is reduced,
3 the measures taken must be immediate and they must be visible. This
4 requires affirmative action.
5 In the Hadzihasanovic Appeals Judgement, at paragraph 152, the
6 Appeals Chamber said this:
7 "Indeed, while immediate and visible measures, such as
8 disciplinary detention were necessary, the disciplinary sanction of a
9 period of detention not exceeding 60 days" was insufficient, on the facts
10 of that case.
11 The point being that even the Hadzihasanovic Appeals Chamber
12 recognised that visible and immediate measures were needed, even if, on
13 the facts, the measure taken wouldn't have been enough to suffice. More
14 was needed on top of what had already been done.
15 Turning to the question of reporting. Much in this case, of
16 course, has focussed on this issue of reporting. We reiterate that this
17 is but one measure that may suffice, but it must be considered along with
18 the other measures open to the superior that were within his material
19 possibility. This is a broad, not a narrow, test. Reporting will not
20 automatically satisfy the duty to punish.
21 As the Appeals Chamber in Hadzihasanovic, at 154, said:
22 "A superior need not dispense punishment personally and may
23 discharge his duty to punish by reporting the matter to the competent
25 May discharge. Possibly.
1 This, in turn, cites the Blaskic Trial Judgement approved in the
2 Appeals Judgement in Blaskic which says:
3 "The measure of submitting reports is again an example applicable
4 'under some circumstances.'"
5 "What constitutes such measures is not a matter of substantive
6 law but of evidence."
7 And that, Your Honours, goes a little way to answer Your Honours'
9 In Blaskic Appeals Judgement 417, the Appeals Chamber endorses
10 this approach. When approving the Celebici Trial Chamber they said:
11 "We conclude that a superior should be held respond for failing
12 to take such measures as are within his material possibility."
13 And in Halilovic Appeals Judgement 182, the Appeals Chamber again
15 "As the Trial Chamber correctly outlined, the duty to punish
16 includes at least an obligation to investigate possible crimes or have
17 the matter investigated to establish the facts, and if the superior has
18 no power to sanction, to report them to the competent authorities."
19 In other words, what it is possible for him to have done, he
20 should have done. This, of course, presupposes an investigation prior to
21 a report, and then a report which will lead to sanction when he has no
22 power to sanction. The responsibility for sanction is not moved on, but,
23 rather, on the facts of a given case, an investigation followed by a
24 report may be enough to discharge.
25 Despite referring to these very cases at paragraph 17 of his
1 respondent's brief and despite their clear language, the respondent
2 boldly asserts that:
3 "The Appeals Chamber has made it clear that reporting to the
4 competent authorities would satisfy the superior's duty to punish
5 whenever the accused does not have the power himself to sanction crimes
6 of subordinates."
7 The implication of this bold statement is that only a report is
8 required, and this acts as a form of guillotine to responsibility. This
9 is a theme which is developed in the brief by suggesting that reporting
10 removes the superior's responsibility for punishment onto others. That's
11 found in his brief at paragraph 27. And, further, that the ICTY
12 jurisprudence supports this proposition. He cites the Halilovic at 182,
13 Appeals Judgement.
14 Unfortunately, we say, for the respondent, none of the appeals
15 cases he cites to support that proposition at all.
16 What is the matter that must be reported?
17 Well, it's obvious. The matter that must be reported are the
18 suspected crimes of the subordinates, and it is these that must be
19 punished. Anything less than this will not suffice to discharge the
20 command responsibility arising from the position of responsibility as a
22 In the Oric Appeals Judgement at paragraph 59, the
23 Appeals Chamber stressed that:
24 "Knowledge of a crime and knowledge of a person's criminal
25 conduct are, in law and in fact, distinct matters."
1 The relevance is this: Mere knowledge of a crime will not engage
2 a duty to punish because it is not connected to the subordinate for whom
3 the superior is responsible. Hence, it is knowledge of a subordinate's
4 criminal conduct, or reason to know, that engages the potential
5 responsibility, and thus, it is, that this is what must be punished. Or
6 in the context of reporting, if that is the measure, it is that which
7 must be reported.
8 In this case, the Trial Chamber found as follows, Trial
9 Judgement 536:
10 "There was sufficient information available to him that the
11 police may have committed crimes. As their superior, Ljube Boskoski was
12 obliged to report this to the competent authorities."
13 Yet, Your Honours, the reports in this case did not allege that
14 crimes had been committed, we say, nor that they had been committed by
15 Ljube Boskoski's subordinates. And in particular, they never mentioned
16 the police station crimes, for which he was also charged, whatever they
17 may have said about deaths in the village.
18 The respondent misapplies the separate Strugar opinions in his
19 brief at paragraph 29, we say, to suggest that whenever an independent
20 authority is looking into an incident, the duty to punish is displaced.
21 In fact, and some of Your Honours will recall, I'm sure, the
22 opinions, they relate to the principle of singleness of command within
23 the JNA. A superior, who also has his own 7(3) responsibility, within
24 the same chain of command as the accused, thus not an independent
25 authority, takes over or institutes an investigation into the conduct of
1 subordinates who are the subordinates of both the accused and the
2 superior instituting the investigation. Because the accused is himself
3 the subordinate of the superior taking over, and the offending
4 subordinates are both of their subordinates, the notion of one single
5 command displaces the accused. His function is taken over by another
6 within the same command.
7 In this case, there is no higher command, as in Strugar, only a
8 parallel organisation, which does itself does not have any 7(3)
9 responsibility, and to which the report is made.
10 Only if a sufficiently detailed and proper report is made that
11 addresses the offending of subordinates might it be sufficient to
12 discharge the criminal responsibility under Article 7(3), and then, only
13 after considering what other measures were possible for him to take to
14 show that he genuinely tried to do all he could to punish.
15 In this case, the Ministry of Interior were able to continue to
16 investigate under Article 142 of the Code of Criminal Procedure. That
17 is, they could carry out inquiries. So there is a trap in the term
18 "investigate." I don't use "investigate" in the sense of the
19 investigating judge's investigation; I use it in the sense of carrying
20 out an inquiry into whether a crime has been committed. The general
21 broad sense as we all understand what an investigation is, not in the
22 technical sense that may be used under the Code of Criminal Procedure.
23 And you can continue -- they can continue to investigate despite
24 reports to the judicial authorities, and the respondent accepts that's
25 the case in his brief, at paragraph 115. Although he says they were not
1 obliged to do such things but they were able to garner such information.
2 It sounds like an investigation to me.
3 In this case, Your Honours, the crimes of Boskoski's subordinates
4 were never investigated. He argues that under Macedonian law it was
5 practice to report an incident. And that's in his brief at 216. And to
6 suggest that there's a report into a broad general incident where several
7 crimes are believed to have been committed. Notification is given once
8 and once only in relation to the entire incident, and refers to a number
9 of citations in his footnote at 365. But, Your Honours, in our
10 submission, a proper analysis of those citations show they do not support
11 that proposition.
12 The statement relied upon comes from a report of the witness
13 Taseva, which is Exhibit 1D310, paragraph 85. But that report in turn
14 cites the evidence of Witness Ruskovska at transcript 1541 to 2, and
15 Witness Toskovski at transcript 4373 to 4. And it is clear from reading
16 this evidence that the witnesses were referring to the fact that an
17 investigating judge may expand the nature of an investigation, used in
18 the technical sense of the investigation. That is at a stage later to
19 reporting, and is not the same as a once and for all general
20 notification. Indeed, Witness Ruskovska refers to the judge being able
21 to ask the prosecutor to expand the investigation, in her words, into one
22 more crime or perpetrator. Transcript 1542.
23 In addition, the witness Taseva, upon whom they rely, refers to
24 Articles 557 to 8 of the code for this notion of a general incident
25 report, but those Articles of the code arise at the investigation stage
1 and are the powers by which the investigating judge can expand the
3 In any event, Article 158 of the Macedonian Criminal Code is
5 "The investigation is only in reference of that crime or against
6 that accused to whom the decision on conducting investigation refers."
7 Exhibit P88.
8 Your Honours, turning to the question of delegation, as a general
9 principle, Your Honours, we say that -- there is -- Boskoski says that
10 there was no power to report crimes because he was not competent to do
11 so. And that's in his brief at 164 to 167. First of all, the
12 Trial Chamber did not find that he knew crimes had been reported, but,
13 rather, that he knew a report had been made notifying the judiciary of
14 deaths. Trial Judgement 529. It went on to find that, if followed up
15 correctly, this would, in its opinion, have likely led to the discovery
16 of the crimes. That's also at 529.
17 The question of his competency to act, that is to report absent
18 an express power to do so, was roundly rejected by the Trial Chamber as a
19 misunderstanding of the relevant legislation. That's 507 and 510 of the
20 Trial Judgement. And in particular the Trial Chamber noted that the
21 minister had the duty to ensure the work of his ministry is performed
22 lawfully and efficiently, and that this requires the minister be able to
23 order and determine the work to be performed, and to enforce compliance.
24 At Trial Judgement 513 and 516, they found that he had de jure
25 and de facto authority to ensure the criminal police of the MOI performed
1 their functions efficiently and lawfully, and that he had and could
2 effectively exercise the required command responsibility.
3 Boskoski seeks to argue that he can delegate this responsibility
4 and then assume competent execution absent material to notify him
5 otherwise. He says that this is matter of international law, in his
6 brief at 170 to 176, and refers to the High Command case. But in our
7 submission the contextual analysis of this Judgement shows that the issue
8 being decided was different.
9 The issue for von Leeb was whether he had knowledge of unlawful
10 activity, as the court was concerned not to convict him merely because
11 subordinates had committed crimes. The issue was not whether, knowing of
12 crimes himself, he was entitled to rely upon subordinate to discharge a
13 function to report crimes. Where he did know of unlawful orders and the
14 commission of crimes, the Tribunal considered what it was he did to deal
15 with it, and where they considered his actions were insufficient they
16 convicted him, for example in relation to the implementation of the
17 Barbarossa jurisdiction order.
18 Your Honours asked the question:
19 "As a question of law, is it possible for a superior to satisfy
20 his duty under Article 7(3) of the Statute if he effectively takes no
21 necessary or reasonable measures to punish his subordinates because he is
22 informed" --
23 [Trial Chamber confers]
24 MR. ROGERS: May I continue?
25 JUDGE ROBINSON: Yes, please continue.
1 MR. ROGERS: Okay.
2 All right. I'll just go back to the question. I'm sure
3 Your Honours are familiar with it.
4 "As a question of law, is it possible for a superior to satisfy
5 his duty under Article 7(3) if he effectively takes no necessary or
6 reasonable measures to punish his subordinates because he is informed
7 that his subordinates have taken certain steps which may result in their
9 Our answer, no.
10 To the extent of the superior's material possibility, the accused
11 must ensure that the perpetrators will be punished. The measures he
12 needs to take are those reasonably falling within his material powers.
13 That is, what he is reasonably able to do to punish. What the necessary
14 and reasonable measures are will depend on the facts, where he relies on
15 subordinates to take some or all of them. At the very at least, the
16 superior must follow up to determine what steps have been taken and
17 whether they there are any other steps reasonably falling within his
18 powers, that is, are reasonably available to them, to take to ensure that
19 the criminal conduct is punished as far as he can.
20 This necessarily implies some affirmative action on his part, and
21 will be positive conduct capable of amounting to necessary and reasonable
22 measures. On the facts there may be other measures he also needs to
24 Your Honours, I'm conscious the answer I have given is somewhat
25 circular. That may be because the jurisprudence available has a certain
1 degree of circularity within it, in any event, but I hope that it goes
2 somewhere to assist.
3 An illustration, Your Honours, of our approach and why we say
4 that is the correct answer is found in the Aleksovski Trial Judgement. I
5 will take you back to the quote I gave to you earlier. Where applying
6 what it understood to be the relevant law, the Trial Chamber stated that
7 the accused did not:
8 "Use everything in his power to attempt to punish the guards
10 Perhaps that more appropriately summarises what I'm trying to
11 say. The finding was not criticised on appeal as an incorrect assessment
12 of what it was he was required to do.
13 Indeed, the Appeals Chamber noted in Aleksovski without any
14 criticism that the appellant had agreed with the Trial Chamber that he an
15 obligation to "take all the necessary and reasonable measures to prevent
16 or punish the perpetrators."
17 The Appeals Chamber's approach in Blaskic is consistent with
18 this, when it approved the Celebici test, that the superior should be
20 "For failing to take such measures as are within his material
22 That approach is consistent with the duty under Article 86 of
23 Additional Protocol I, with the notion of responsible command and with
24 the genuine attempt being made to punish.
25 Turning to this case, Boskoski had the power to control and
1 direct the police - Trial Judgement 513 - which included ensuring the
2 police responsible for investigating what had occurred performed their
3 functions sufficiently and lawfully. He was a man whose strength of
4 personality and energy led him to enjoy success in influencing and
5 guiding the personnel of his ministry and in securing - and that's the
6 way the Trial Chamber put it - their deferment to his proposals. He
7 gained a sense of loyalty and cooperation throughout all levels of the
8 ministry. Trial Judgement 516. He knew of the allegations that crimes
9 had been committed. And this quickly came to his attention. Trial
10 Judgement 527 and 536.
11 On the 12th of August, he was present on the outskirts of
12 Ljuboten for well over an hour. He saw the burning houses and heard the
13 firing. He saw persons detained at Brace's house. Trial Judgement 523.
14 He was interviewed incidentally for television at Brace's house
15 the same day. Trial Judgement 525. Point being, Your Honours, that he
16 was clearly involved in what was going on. There's no finding that he
17 saw any of the crimes. The Trial Chamber veered away from that. But the
18 point is he was there. He was active. He was involved. He had a
19 position of authority within the ministry. He was influential in what
20 was going on.
21 He possessed alarming information about crimes, including
22 unlawful killing. Trial Judgement 527. And as I have already recorded
23 earlier, by the 5th of September, latest, he knew of the serious
24 allegations relating to both the 12th of August and the police stations.
25 Trial Judgement 451.
1 Responding to those allegations in the media, he said he would
2 press charges against the Court of Human Rights in Strasbourg because the
3 claims undermined his dignity and that of the ministry.
4 He received four reports between the 14th and the 17th of August,
5 2001, 1D361, 364, 373, and 374. Recorded in the Judgement at 447. These
6 related specifically to the Ljuboten events and specifically addressed
7 the actions and investigations being undertaken. None of them mentioned
8 any crimes of subordinates.
9 In his book, writing about the matters that he records he says
10 this. This is Exhibit P402, referring to these incidents:
11 "In the communique of the Ministry of Internal Affairs we had to
12 emphasise that representatives of the OSCE who managed to enter the
13 village tried to misinform the public that allegedly the Macedonian
14 security forces in the clashes did not kill five terrorists but citizens
15 of Ljuboten."
16 He goes on to state that the Ministry of Interior condemned the
17 spreads of misinformation by the OSCE and the most striking slander about
18 the security forces of the Republic of Macedonia
19 His interviews given at the time confirm his hostility to the
20 allegations of criminal activity by the police. For example,
21 Exhibit P362, a transcript of a television interview he gave on the
22 14th of August, he said:
23 "The residents of the village of Ljuboten
24 terrorists. All that remains now is to establish whether they were from
25 Ljuboten itself or whether terrorists were also imported. And this was
1 most probably done with the aim of concealing the traces of the crime
2 they committed. In order to discover the truth, the Prosecutor will need
3 authorisation to perform exhumation in accordance with legal procedure if
4 we want the truth to be confirmed."
5 But in our submission, the truth that he was seeking to confirm
6 was not whether the police had committed any crimes, but whether the
7 terrorists had come from outside of Ljuboten.
8 As the Trial Chamber found, Judgement 535, there was more he
9 could have done to inform himself and ensure the police performed their
10 duties so that the public prosecutor and the investigative judge were in
11 a better position to determine what really had occurred and whether
12 criminal charges against any of the police were justified.
13 But they found that the evidence suggested he was not motivated
14 in that way.
15 It's fact that they could continue to investigate is consistent
16 with the pre-criminal phase of the investigation and Article 142 of the
17 Code. That enables the ministry to undertake the necessary measures to
18 find the perpetrators of crime, collect evidence and reports for use in
19 the "successful conduct of criminal proceedings."
20 Even the respondent agrees that they could do this.
21 Indeed, at the same time as police crimes should have been
22 investigated, the police were able to and did investigate the alleged
23 crimes of the terrorists, so-called. They filed detailed criminal
24 reports against them, specifying perpetrators and specific crimes; P31.
25 They undertook paraffin glove tests of the alleged terrorists,
1 submitted additional reports of their findings. And indeed, the
2 additional report on Atulla Qaili, upon which the Trial Chamber relied to
3 show that his death had been reported, was a report made in connection
4 with an investigation against him and not in relation to an investigation
5 concerning police crimes.
6 As minister in charge of the ministry, having the knowledge of a
7 range of alleged crimes, having received a range of reports, none of
8 which indicated crimes of any subordinates had been reported, he cannot
9 have discharged his duty to punish. In particular in relation to the
10 police station crimes, no reports about these were ever made. They
11 cannot reasonably have been considered as part of the events in Ljuboten.
12 They are separate and distinct crimes.
13 The report relating to Atulla Qaili, for example, only reported
14 his death and not the cause. It made no mention of his mistreatment at
15 the police station, or before. No mention was ever made of criminal
16 conduct of police in relation to the other victims at the police stations
17 or the Buzalak check-point. There was seven victims at Buzalak, one at
18 Butel, seven in Prolece, five in Bit Pazar, and two in Karpos. I accept
19 that there may have been a degree of overlap with some of these because
20 they were moved from one to the other and beaten in each. But
21 nevertheless, a separate crime occurs in each location, none of which are
22 reported to the investigating judge or the public prosecutor.
23 He had the power to assist in this investigation and direct the
24 police to cooperate. Article 142 permitted further investigative
25 activities despite judicial involvement. He had disciplinary measures
1 which were open to him. He could have sought information as to how the
2 investigation into these crimes were ongoing, in order to ensure, as far
3 as he could, that they were punished. No normal police investigations
4 were ever carried out.
5 Indeed, the Trial Chamber found, at 547 in its Judgement, that
6 the police inactivity evidenced:
7 "A serious and scandalous attempt to protect the men involved and
8 represents a grave failure to carry out their responsibilities at the
9 level of OVR Cair." One which would appear to have been countenanced by
10 more senior police.
11 Your Honours, I accept that the Chamber found that -- that the
12 accused had no -- they found had no reason to know that things were not
13 being done properly. But this is what was actually going on and what
14 they found about what was actually going on at the time.
15 Your Honours, the interview he gave on the 14th of August, 2001
16 P362, and the other statements he made at the time, reveal his
17 understanding of the purpose of any investigation, which was to establish
18 the truth about whether terrorists were local or imported. Indeed as
19 cited in the Judgement, deputy public prosecutor Dragoljub Cakic stated
21 "Our objective was not to clarify what happened at Ljuboten. Our
22 objective was only to carry out an exhumation and to identify the persons
23 buried in the local cemetery in the village of Ljuboten
24 Trial Judgement 456.
25 International humanitarian law imposed an obligation on
1 Ljube Boskoski to ensure the crimes of his subordinates were punished.
2 He had the power to investigate, to have them investigated to provide
3 information to the competent authorities, to ensure a proper report was
4 compiled, to supervise, to discipline. He could have supervised better.
5 Trial Judgement 535.
6 Despite this obligation, he did nothing. And for doing nothing,
7 he was acquitted.
8 Your Honours, we invite you to overturn the acquittal and to
9 substitute convictions in relation to the crimes for which he was
11 Your Honours, those are my submissions. Unless I can assist you,
12 in answer to any questions I will pause and return.
13 JUDGE ROBINSON: Judge Liu has a question.
14 MR. ROGERS: Yes.
15 JUDGE LIU: Thank you very much, Mr. Rogers, especially for
16 answering the questions we posed to you concerning the Article 7(3), the
17 command responsibility.
18 In practice in certain situations in a structure like a ministry,
19 for instance, the Ministry of Interior or Justice, the minister himself
20 is impossible to involve, personally involved in every investigation
21 ever, you know, fact-finding mission himself. He may delegate his power
22 to investigate to his police, to his subordinates, to do that. And in
23 this particular case, the Defence may claim that, you know, he was in --
24 mistaken of the facts, that the matter has been taken care of, that his
25 subordinate. So my question to you is that, you know, do you think
1 the -- the head of the ministry while delegating his power of
2 investigation to his subordinate, also shifts or delegates his command
3 responsibility to his subordinate?
4 The second question is more specific. That is, do you have any
5 evidence to show that Mr. Boskoski knew that the police failed to perform
6 their duty, delegated by him, to investigate this matter? And -- and
7 does he know that reports was not fully or not accurate or not, you know,
8 detailed, you know, concerning of those incidents?
9 Thank you.
10 MR. ROGERS: Your Honours, obviously a number of matters there, a
11 compound question. Let me try to break it down.
12 In relation to the question as to whether he can delegate his
13 command responsibility to his subordinates, the answer is clearly no. He
14 cannot delegate his command responsibility. He retains the
15 responsibility. It ask a personal, we say, obligation upon him. And I
16 have to set out at some length, and that's why I did it, the historical
17 root of this notion. He can't just delegate it away. He has to ensure
18 that it is performed efficiently and properly. And even if he could
19 invite someone to carry out an investigation, there must remain an
20 obligation upon him to ensure that that investigation has been carried
21 efficiently and properly, and that the appropriate information is passed
22 on and acted upon, because the obligation is upon him to take the
23 necessary and reasonable measures to punish, to punish, to ensure
24 punishment occurs.
25 And Your Honours, of course, in relation to international
1 humanitarian law violations we're not talking about a theft of a bag of
2 sweets, which it may not be necessary for him to follow up. We're
3 talking here about grave violations of international humanitarian law and
4 a principle that -- that involves his personal responsibility for the
5 crimes of his subordinates. It is not the same as an obligation or as
6 obligations that might arise under ordinary domestic law, where anybody
7 has an obligation to report or to let police investigate crimes, for
9 This is a different form of obligation, and part of the
10 difficulty in this case is that the two notions coincide and can be a
11 little confusing, because of the particular functions within the Ministry
12 of Interior.
13 But he retains command responsibility, and it is that command
14 responsibility which engages his criminal responsibility. And it is
15 through that criminal responsibility that international humanitarian law
16 is enforced, international criminal law is enforced. That is why he
17 can't just delegate it away.
18 As to your question whether there is evidence that he knew police
19 had failed to perform. Your Honours, there is. The reports that he
20 received, which the Trial Chamber found he had received, the four
21 reports, the 1D363. I can't remember them now, but there are four of
22 them. I listed them earlier. Those four reports form the basis of the
23 knowledge that the Trial Chamber found he had concerning the reporting of
24 the incidents. Those four reports make no reference at all to crimes of
25 subordinates being investigated. Therefore, he cannot have had knowledge
1 that the crimes of the subordinates were being investigated. And so he
2 could not have been satisfied that his duty was discharged.
3 Those are my answers to Your Honours' questions. 1D361, 364,
4 373, and 374.
5 They are referred to in the Trial Judgement. I can give you the
6 reference. 447. But I have to take you back to 529 where they're picked
7 up in footnote 1976, two of them are picked in 1976, and also
8 Exhibit P402 which is his book. And the other reports that the Chamber
9 found he had between the relevant period are found in 447.
10 So the information about what had happened is in those reports
11 and is clear from those reports that crimes have not been reported, in
12 our submission.
13 JUDGE LIU: Just a follow-up question.
14 MR. ROGERS: Yes.
15 JUDGE LIU: I think you said that the Trial Chamber found that
16 there was sufficient information available to him that the police may
17 have committed crimes --
18 MR. ROGERS: Yes --
19 JUDGE LIU: -- is the finding of the trial judgements, I believe.
20 And I wonder whether this includes the incidents happened in the police
21 station or not, as you mentioned.
22 MR. ROGERS: Your Honour, it does. It does cover the incidents
23 in the police station because those were referred to within the Human
24 Rights Watch report of which the Chamber found he had knowledge. And I'm
25 not sure about the OSCE part, but certainly the Human Rights Watch
2 I'll check that and make sure whether there is anything else I
3 can tell you. But certainly it comes from there.
4 JUDGE LIU: Thank you very much.
5 MR. ROGERS: Thank you, Your Honour.
6 JUDGE ROBINSON: Thank you, Mr. Rogers.
7 MR. ROGERS: Thank you, Your Honour.
8 [Trial Chamber confers]
9 JUDGE ROBINSON: Thank you, Mr. Rogers.
10 MR. ROGERS: Thank you.
11 [Trial Chamber confers]
12 MR. METTRAUX: Your Honour, I think the Scheduling Order was
13 suggesting we would have a break, but I'm ready to start, if that's
14 Your Honours' wish.
15 JUDGE ROBINSON: We'll break for half an hour.
16 --- Recess taken at 3.02 p.m.
17 --- On resuming at 3.31 p.m.
18 JUDGE ROBINSON: So, Mr. Mettraux, you're up next.
19 MR. METTRAUX: Thank you, Your Honour.
20 Good afternoon, Your Honours. Good afternoon, Mr. President.
21 Guenael Mettraux appearing on behalf of Ljube Boskoski.
22 I will commence, Your Honour, our presentation with discussing a
23 number of legal issues which arise from this appeal, in particular, in
24 relation to the question that Your Honour Judge Robinson addressed to the
25 party last week. We have [indiscernible] question as a request for
1 assistance to determine what the law on that point is and not as the
2 appellant appears to have treated it, as a partisan rendition of what the
3 law ought to be.
4 In response and in short, Your Honour, the answer to your
5 question is a qualified yes. The manner in which, as a matter of
6 international law, a superior can fulfil his duty to punish depends on
7 the circumstances. Where the superior has the power to punish or
8 sanction subordinates, he can take steps himself to see the punishment of
9 the subordinates, or he can delegate that responsibility to subordinates
10 or others. This is the case, Your Honour, that was relevant to
11 Mr. Aleksovski, the case that the Prosecution has been citing this
13 Where, however, he possesses no such power and authority,
14 customary international law provides that he can fulfil his duty to
15 punish by having the matter remitted to the competent authorities for
16 that purpose. I will discuss later today, Your Honours, a number of
17 authorities, which we have cited in tab 1 of the binder that we have
18 distributed, and which establish that under international law such a
19 course of action is both legitimate and sufficient to fulfil a superior's
20 duty to punish whenever the superior does not himself possess the power
21 to sanction.
22 An expression or an illustration of that position, Your Honours,
23 may be found, for instance, in paragraph 420 and 422 of the recent Bemba
24 Confirmation of Charges decision of the ICC which, I should underline,
25 relies solely upon Judgement and authorities from the ICTY. This is what
1 the Court said:
2 "The duty to punish requiring the superior to take the necessary
3 measure to sanction the commission of crimes may be fulfilled in two
4 different ways. Either by the superior himself, taking the necessary and
5 reasonable measures to punish his forces, or, if he does not have the
6 ability to do so, by referring the matter to the competent authorities."
7 And at paragraph 422 the ICC continued about the duty to submit
8 the matter to the competent authorities by saying this:
9 "This duty to submit the matter to the competent authorities
10 remedies the situation where commanders do not have the ability to
11 sanction their forces."
12 It is relevant in that regard to note that the Trial Chamber, at
13 paragraph 519 and 418, among others, did find that Mr. Boskoski had no
14 personal power to punish subordinates for the underlying crimes and the
15 Prosecution did not appeal these findings, neither did it make that
16 allegation at trial.
17 Mr. Boskoski was therefore entitled, as a matter of international
18 law, to fulfil his duty to punish by having the matter reported to the
19 competent authorities, as happened in this case.
20 In that sense, the remittal of the case to the competent
21 authority may be said to constitute necessary and reasonable measure for
22 the purpose of a superior duty, as was noted at paragraph 632 of the
23 Blaskic Appeals Chamber Judgement, which is at tab 1 of your binder. It
24 is well established under customary international law that the superior
25 does not have to personally take measures relevant to his duty to prevent
1 or punish, and that he might, instead, delegate that responsibility of
2 doing so to others.
3 An example of this may be found in the Hadzihasanovic
4 Appeals Judgement at paragraph 146 to 154, where reports of crimes
5 committed at the Slavonija Furniture Salon were filed with the Bugojno
6 district prosecutor, not by Mr. Hadzihasanovic himself, nor at his
7 express direction, but by subordinates acting in the normal exercise of
8 the obligation.
9 The Appeals Chamber was satisfied in these circumstances that
10 Mr. Hadzihasanovic could be said to have fulfilled his duty to punish.
11 It is of relevance to note here, Your Honours, that the
12 Appeals Chamber made that finding despite the fact that
13 Mr. Hadzihasanovic had not seen the terms of the report, despite the
14 absence of any -- any evidence of any investigation having been initiated
15 by the judicial authorities to which it had been referred, and of any --
16 that any of the perpetrators was ever punished.
17 Findings to the same effect were made by the Hadzihasanovic Trial
18 Chamber in relation to crimes committed in Dusina which were not appealed
19 by the Prosecution and they stand for a correct expression of
20 international law on that point.
21 This judicial pronouncement, Your Honours, also stand for the
22 proposition that the superior is not required to act if and where he is
23 satisfied that the matter has already been remedied to the competent
24 authorities, or where those authorities have made it clear that they
25 regard themselves as competent.
1 Indeed, what customary international law criminalizes is not a
2 failure to act per se, but the failure to act in the knowledge that such
3 failure would constitute a gross dereliction of duty. Akin, in the words
4 of the High Command case that our colleagues have cited from, to personal
5 neglect amounting to a wanton, immoral disregard of the actions of his
6 subordinates amounting to acquiescence.
7 Any other interpretation of international law, the US Military
8 Tribunal added, would go far beyond the basic principles of criminal law
9 as known to civilised nations.
10 This explained that under customary international law a superior
11 does not have to get personally involved to fulfil his obligation if he
12 knows that the authorities responsible to investigates and prosecute are
13 competent and have been seized of the matter. In such a case, the
14 superior would fulfil duty by standing aside. In the Ford v. Garcia
15 case, the following jury instructions, which were entirely based on
16 international law, were given, and I quote:
17 "A commander may be relieved of the duty to investigate or to
18 punish wrong-doers if a higher military or civilian authority establishes
19 a mechanism to identify and punish the wrong-doers. In such a situation,
20 the commander must simply do nothing to impede nor frustrate the
22 And it goes on to say this:
23 "A commander may fulfil his duty to investigate and punish wrong
24 doers if he delegates this duty to a responsible subordinate. A
25 commander has a right to assume that assignment entrusted to a
1 responsible subordinate will be properly executed. On the other hand,
2 the duty to investigate and punish will not be fulfilled if the commander
3 knows, or reasonably should know, that the subordinate will not carry out
4 his assignment in good faith, or if the commander impedes or frustrates
5 the investigation."
6 In its reply brief, the Prosecution has sought to undermine this
7 precedent by suggesting that as a matter of American law, the
8 Ford v. Garcia instructions do not carry the weight of a binding
9 precedent. This might or might not be the case as a matter of American
10 law, Your Honours, but it was certainly authoritative enough for the ICRC
11 to take this precedent into account and to rely upon it in its customary
12 law studies. It is really relevant to note that those instructions were
13 based not on any interpretation of American law, as might have limited
14 their relevance to American jurisdictions, but were intended to represent
15 the general statement of general principles on this point. Not
16 surprisingly, perhaps, these instructions were picked up by two of the
17 most important --
18 JUDGE ROBINSON: Just a minute, please. Judge Meron has a
20 MR. METTRAUX: Yes.
21 JUDGE MERON: Could you, in the course of your argument,
22 Mr. Mettraux, enlighten us as to the differences in the responsibility of
23 civilian versus military superiors.
24 MR. METTRAUX: I shall arrive at this point, Your Honour, with
1 Your Honours --
2 JUDGE MERON: Because when you speak of the absence of the
3 authority, in the case of Mr. Boskoski to punish, is that what you have
4 in mind?
5 MR. METTRAUX: I shall reach that point when you reach the fact,
6 Your Honour.
7 JUDGE MERON: Thank you.
8 JUDGE LIU: Excuse me, I didn't find the case you mention in the
9 American courts in this binder. Can you give me a direction of it?
10 MR. METTRAUX: Certainly, Your Honour. It should be at page 28
11 of your binder, tab number 1. And I apologise if it wasn't clear enough.
12 As I indicated Your Honour, these instructions in the
13 Ford v. Garcia case were based solely on an expression of international
14 law. And not surprisingly, perhaps, these instructions were picked by
15 two of the most important records of US practice in international law.
16 One, is the United States Practice in International Law, 1999-2001,
17 Volume 1, by Sean Murphy, at page 308 to 309; and the American Journal of
18 International Law, Volume 95, issue two, at page 394 and following.
19 These instructions and the principle which they reflect, Your Honours,
20 may perfect legal and practical sense, since the distribution of powers
21 and competence within a given state or within a given chain of command
22 would lose any meaning if it were otherwise.
23 Think, for example, of the president of the United States, who
24 constitutionally is the commander-in-chief of US armed forces. If,
25 anywhere, crimes are believed to have been committed by US forces, the
1 competent investigative and prosecuting authorities are required by law
2 to seize themselves of the matter, investigate it, and, where
3 appropriate, prosecute it. In most and possibly all cases, there will be
4 no involvement of the president, despite the fact that he is the superior
5 of those who committed the crimes and he might, in fact, never have been
6 informed of the course of such proceedings.
7 As a superior of those who committed the crimes, he is entitled
8 to assume, as a matter of international law, that the competent organs
9 are taking care of business unless he hears otherwise. The involvement
10 in a criminal investigation of a superior that often will have no
11 investigative competencies or skills and might in some cases wish to
12 shield subordinates, might also intentionally or inadvertently result in
13 unwarranted interferences with the course of the investigation.
14 This judicial or quasi-judicial statement also stand for another
15 principle, and that is that a superior may never have more than an
16 expectation that subordinates will perform their duty legally and that
17 perpetrators will be punished. But that expectation is recognised as
18 sufficient by customary international law, unless there is evidence to
19 rebut it.
20 I have said earlier that our response was a qualified yes, and
21 that is because customary international law set certain limits regarding
22 the extent to which a superior may rely upon the acts of others and his
23 own entitlement to assume that they are acting legally. This limitation
24 was best articulated in the High Command case. When using the example
25 again of the president of the United States, the Tribunal said this:
1 "The President has the right to assume that details entrusted to
2 responsible subordinates will be legally executed. The President of the
3 United States is Commander-in-Chief of its military forces. Criminal
4 acts committed by those forces cannot in themselves be charged to him on
5 the theory of subordination. The same is true of other high commanders
6 in the chain of command. Criminality does not attach to every individual
7 in this chain of command from that fact alone. There must a personal
8 dereliction. That can occur only where the act is directly traceable to
9 him or where his failure to properly supervise his subordinates
10 constitutes criminal negligence on his part. In the latter case, it must
11 be a personal neglect amounting to a wanton, immoral disregard of the
12 actions of his subordinates amounting to acquiescence. Any other
13 interpretation of international law would go far beyond the basic
14 principles of criminal law as known to civilised nations."
15 This would be the case under customary international law, in our
16 submissions, in two situations: One, the Strugar scenario, where a
17 superior knows that the body to which he remits the case is part of a
18 sham investigation. Two, the Ford v. Garcia hypothetical, where the
19 superior has reason to know that the subordinate will not carry out his
20 assignment in good faith, or if the commander impedes or frustrates the
22 It is most significant in that regard, and this may answer
23 Your Honour Judge Liu's question, that neither of these scenarios was
24 proved and that the Trial Chamber instead specifically found, at
25 paragraph 536 of the Judgement, without any appeal, that and I quote:
1 "It is not shown that the failure of police to perform their
2 duties is attributed to his order."
3 That's Mr. Boskoski's order. And it goes on to say:
4 "Or was known to Ljube Boskoski at the relevant time, or that it
5 should have been anticipated by him."
6 Aside from the two exceptions that I mentioned earlier, superior
7 responsibility does not depend on proof having been made that an
8 investigation was in fact triggered. Although in the Hadzihasanovic
9 Trial Chamber Judgement the Trial Chamber rightly noted, paragraph 1062,
10 that where one is shown to have been triggered, as in this case, it would
11 show, and I quote:
12 "That the accused did not fail in his duty to take the necessary
13 and reasonable measures to punish the perpetrators."
14 Subject to the two above mentioned exceptions, it is
15 therefore sufficient for the purpose of customary international law that
16 reporting to the competent authorities has occurred, that the superior is
17 aware of it, and that he should have no reason to think that his
18 subordinate will not carry out their assignment in good faith.
19 It is not irrelevant to note in that context that Mr. Boskoski
20 was actually thanked by the Office of the Prosecutor for the assistance
21 that he and the organs of the ministry had given in this matter, and that
22 at no point during the relevant period was there any suggestion that the
23 competent organ of the ministries were failing in their duties.
24 Instead the Office of the Prosecution expressed its satisfaction with the
25 works performed by the Macedonian organs in this investigation.
1 If more than the possibility of punishment was required as a
2 matter of law, the liability of a superior would also be made dependant
3 on the actions of people over whom the superior may have no control so
4 that he could not advance the investigation further, nor increase the
5 chance of punishment. In the present case, for instance, the Trial
6 Chamber found, at paragraph 536, that Mr. Boskoski had no authority over
7 the competent judicial authorities so that he could not in any way
8 influence their choices and decision as regard the course of this
9 investigation. In the present --
10 JUDGE ROBINSON: Mr. Mettraux, I see the main difference between
11 your position and that of the Prosecution as this: The Prosecution says,
12 as I understand it, that should there be a delegation by the commander,
13 the commander, nonetheless, has a responsibility to carry out a further
14 check to ensure that the due punishment has been -- has been carried out.
15 You reject that.
16 MR. METTRAUX: Yes, Your Honour. Not only do we reject this, we
17 will establish the submissions of the Prosecution to be false and
18 unsupported either in evidence or in law, and we will use the
19 jurisprudence of this Chamber, in particular, in Hadzihasanovic and
20 Blaskic, to establish the fact that contrary to the submissions of our
21 colleague, there is no such requirement, whether that is a matter of
22 customary international law and/or under the jurisprudence of this
23 Tribunal. And if allowed to continue, Your Honour, I will reach that
24 point in a moment.
25 Your Honour, going back to Mr. Boskoski and his relation to the
1 judicial ongoing investigation of those events as was going on in
3 right, no entitlement and, in fact, no access to the judicial file that
4 contained the fruit of the judicial investigation.
5 In this case, for instance, the Ministry of Interior did not even
6 receive and had no right to receive the autopsy result that was conducted
7 in Ljuboten, nor the result of the ballistic testing that was conducted,
8 nor the result of the DNA
9 circumstances, Mr. Boskoski would have been unable to ascertain whether
10 the chances of punishments were high or low, and whether the
11 investigation may lead to the punishment of subordinates, or whether
12 there was a higher likelihood of this.
13 In such a case, it would be both wrong and unfair, in our
14 submission, to expect and require a superior to do more vis-a-vis a
15 process over which he has no control and to find him responsible for
16 investigative failures that are attributable to others. More
17 importantly, this is simply not the state of customary international law.
18 It is perhaps no surprise that in 15 years, no Chamber of this Tribunal,
19 no one Prosecutor of this Tribunal has ever put such a standard forward,
20 and certainly not in the Boskoski case. This is, in our submission,
21 should tell you something about the state of the law.
22 Another danger that would result from a higher threshold is the
23 risk and temptation of hindsight. Any determination pertaining to the
24 triggering of an investigation has to be made, as the Trial Chamber
25 correctly determined, based on the information at the disposal of the
1 superior at the relevant time. And Mr. Boskoski was said by the
2 Trial Chamber to have had no reason to doubt that the matter was, in
3 fact, being properly handle by the judiciary.
4 A higher standard of certainty would also have the affect of
5 creating the sort of transfer of competence, from the judicial organs to
6 the superior, which the ICRC warned against and which it said should not
7 result from the doctrine of command responsibility. Commentary to
8 Additional Protocol I, paragraph 3562. Instead, once the matter has been
9 placed in the hands of competent organ, it is for them to investigate and
10 decide how far it should go. Under customary international law, where a
11 superior does not have personal powers to
12 sanction, as in this case, the measure of whether that superior has
13 fulfilled his duty to punish is therefore the contradiction that he or
14 his subordinate have made to the triggering of an investigation by the
15 competent organ, not the punishment of culpable subordinates, nor the
16 likelihood that this will happen.
17 As I just promised, Your Honour, we can establish each and all of
18 these facts through the jurisprudence of this very Chamber.
19 In Hadzihasanovic, for instance, the Appeals Chamber took the
20 view that the mere fact that an incident was reported to investigative
21 authorities by subordinate of Mr. Hadzihasanovic, was enough to satisfy
22 his duty to punish, regardless of any consideration of a subsequent
23 investigation by the competent organs, regardless of the chances or
24 likelihood that Mr. Hadzihasanovic's effort might in fact lead to the
25 punishment of the culprits, and regardless of the fact that there was no
1 evidence that an investigation had, in fact, been initiated by the
2 competent organs. And I refer to paragraph 147 and following of the
4 In the Blaskic case, Your Honour, the Appeals Chamber, at
5 paragraph 418 to 420, found that the superior could be said to have
6 fulfilled his duty to punish when a report was made to the competent
7 authorities about a particular incident but in relation to which the
8 superior received no further information and had, therefore, no way of
9 ascertaining how likely the punishment was in this matter.
10 Finding to the same effect may also be found in the Blaskic
11 Appeals Chamber Judgement at paragraph 504, 505, and 507.
12 Less authoritative perhaps, but no less relevant here, are the
13 unappealed findings of the Hadzihasanovic Trial Chamber Judgement which
14 made it clear that Hadzihasanovic could be said to have fulfilled his
15 obligation to punish crimes in Dusina when subordinates reported the
16 matter to the competent judicial authorities, although there was no
17 indication that Hadzihasanovic knew of anything that happened thereafter,
18 or whether an investigation was in fact conducted by the competent
20 It is also important to note that despite the fact that the MOI
21 had notified the competent judicial authorities, Mr. Boskoski continued
22 to take active steps all through the relevant time with a view to attempt
23 to ensure that organs of the MOI were assisting the ongoing judicial
24 investigation, thereby going what was required of him under both domestic
25 and international law. And I will come to that in a minute. We will
1 discuss the document on under tab 13 that we have prepared for
2 Your Honours.
3 It will also be relevant that at the time when the Office of the
4 Prosecution announced that they would exercise primacy over the Ljuboten
5 case and when the case was eventually deferred to the jurisdiction of
6 this Tribunal, the Macedonian judicial investigation was still ongoing
7 and that the Prosecution suggested as one of the reasons for the deferral
8 of the case, the risk that the Macedonian investigation and the OTP
9 investigation might collide. There could therefore be no suggestion on
10 the part of the Prosecution that this investigation, the Macedonian
11 investigation, was unlikely to result in the punishment of the culprits,
12 nor is there any finding in the Judgement to that effect.
13 And to put, perhaps, in perspective the standard now put forth by
14 the appellant, it might be worth noting that despite all its good will,
15 and investigative might, this Prosecutor has made it no more than
16 possible that any of the perpetrators of crimes at Ljuboten will ever be
18 Turning to the first and principle ground of appeal,
19 Your Honours, and with the time left, I would simply ask you to turn to
20 tab 3 of your binders, where you will find the text of paragraphs 406,
21 415, 417, 536, and the subheading at page 178 of the Judgement. The
22 highlighted sections in this paragraph refer explicitly to the relevant
23 legal standard of necessary and reasonable measures which the Prosecution
24 claims the Trial Chamber failed to apply. Particularly important in that
25 regard is paragraph 536 of the Judgement, one of those paragraphs ignored
1 by the appellant brief which contain explicit finding to the effect that
2 the Trial Chamber found, and I quote:
3 "It is not shown that he," that is Mr. Boskoski, "failed to take
4 the necessary and reasonable measures."
5 This is the legal standard, Your Honours, which this appellant
6 says the Trial Chamber should have applied and which it claims it failed
7 to apply. And how does the Prosecution explain away the presence of
8 finds that so plainly and unavoidably demonstrate that the Trial Chamber
9 adopted the correct legal test?
10 Well, in its appeal brief, the Prosecution said not a word of
11 this particular finding, and not a word of most of the other relevant
12 paragraph. This is a case, Your Honour, of an appellant that hangs on to
13 the convenient findings of the Trial Chamber and is in denial on even on
14 convenient ones.
15 In paragraph 18 of its reply brief and after the appellant's
16 blind ignorance of this paragraph had been exposed, the appellant simply
17 declined to address this finding and claimed instead that paragraph 536,
18 k and I quote:
19 "Merely confirm the Chamber's use of the wrong legal test."
20 While the unshakeability of the appellant commitment to his
21 argument may be admired, its unwillingness to acknowledge its obvious
22 lack of merit is to be deplored.
23 Your Honours, the Judgement contains many clear and unassailable
24 indications, and I have mentioned the relevant paragraph, and you can
25 turn to tab 3, that the Trial Chamber in fact identified and applied the
1 correct legal standard to come to the view that Mr. Boskoski had, in
2 fact, adopted the necessary and reasonable measure in the circumstances.
3 It may therefore be concluded that the Prosecution first and
4 principle ground of appeal has no merit and should be rejected.
5 Turning to the appellant's second and alternative ground of
6 appeal. The Defence has already explained in its brief why the
7 Prosecution should not be permitted to raise on appeal an issue that was
8 not raised at trial, and I was content to hear our colleague, at page 65
9 and 66, agree that a party on appeal should not be permitted to do so.
10 It might be worth reiterating that the Prosecution did not ask a
11 single question of a single witness about either of the two documents,
12 1D6 and P46.16, that are the subject of this appeal. Nor did the
13 Prosecution make a single reference to either of these documents in its
14 final brief or final submission. And that is despite, Your Honour,
15 extensive examination and cross-examination by the Defence in relation to
16 these documents, and 40 or so references to them in its final brief.
17 In its appellant brief, the Prosecution makes no attempt to
18 explain its failure at trial to even acknowledge the existence and
19 relevance of either of these documents. In its reply brief, with its
20 failure having been exposed the appellant is telling that Rule 90(H)(ii)
21 only required him to put the substance of the contrary of evidence to the
22 witness and that this occurred at page 9249 to 9256 of the transcript.
23 First, concerning the pages referred to by the appellant, the
24 Appeals Chamber will have no difficulty ascertaining that the fact that
25 neither of the documents, nor their content, is even hinted at by the
1 Prosecution in these pages of the record, nor do these pages contain any
2 suggestion on the part of the Prosecution that it was suggesting to the
3 witness that Ministry of Interior reporting to the judiciary had been
4 inadequate or that it would be insufficient for Mr. Boskoski to fulfil
5 his duty to punish.
6 Secondly, Rule 90(H)(ii) is not pertinent here not just because
7 the Prosecution failure extended to both its witnesses and not just those
8 that the Prosecution cross-examined, but also because it falls short of
9 the standard of the Blaskic Appeals Chamber Judgement, at paragraph 222,
10 which requires a party to raise before the Trial Chamber, and I quote:
11 "Any issue that require resolution."
12 Considering the extensive use of these two documents by the
13 Defence in relation to the third element of command responsibility, the
14 appellant could not possibly pretend to have been surprised by the
15 reliance placed by the Trial Chamber on to these documents in relation to
16 that very issue.
17 Furthermore, when admitting P46, which is, Your Honour, a
18 judicial file which contain, among others, P46.16, the Trial Chamber took
19 notice of the Prosecution's submission that this file was said to be
20 relevant to Mr. Boskoski's alleged failure to investigate and punish
21 subordinates and admitted it on that basis. I refer Your Honours to the
22 Trial Chamber decision of 14 May 2007
23 There was therefore no indication that the Prosecution could
24 misunderstand or be oblivious to this fact that this document was to be
25 regarded as relevant to this part of their case.
1 Exhibit 1D6 was tendered and admitted on 15 May 2007 through
2 Witness M-037, and I refer Your Honour to pages 848 to 857 of the
3 transcript. This document was offered in evidence as relevant to the
4 system of communication of information between the MOI, the Ministry of
5 Interior, and the judicial organ as was relevant to establishing the
6 MOI's contribution to the triggering and supporting of the judicial
7 investigation into the events of Ljuboten. There was no objection on the
8 part of the Prosecutor as regard either the admission of this document or
9 its relevance to that part of the case.
10 In light of this, no diligent counsel could have failed to make
11 submissions as regards the relevance and weight of this document to this
12 issue, without also being said to have waived his right to raise this
13 issue for the first time on appeal.
14 The second ground, Your Honour, should be rejected summarily on
15 that basis.
16 If however the Appeals Chamber wishes to consider the substance
17 of the appeal on the second ground, I would draw Your Honours to the
18 paragraph of 142 of the Hadzihasanovic Appeals Chamber Judgement, where
19 Your Honours made it clear that the legal test relevant to the third
20 element of command responsible is whether a reasonable trier of fact
21 could conclude that the measure, or measures, adopted by a superior in
22 particular circumstances can be regarded as necessary and reasonable in
23 the circumstances.
24 That statement of the law reflects and integrates the fact that
25 under the doctrine of superior responsibility, a superior enjoys, and I
2 "Considerable latitude in the way in which he fulfilled his
4 That quote, Your Honour, is from the authorative World War II Law
5 Reports of the Trial of War Criminals, Volume 12, page 83 and 110. This
6 means that under international law, a superior may not be held criminally
7 responsible for choosing a particular course of action over another or
8 for opting for a particular set of measures rather than others, unless
9 that choice amounted to what is characterised under customary law as a
10 gross dereliction of duty amounting, according to the High Command case,
11 to acquiescence with the crimes.
12 Applying that same logic, the High Command case made it clear,
13 for instance, that the superior could not be held responsible for
14 preferring disciplinary measures over criminal sanctions, or the other
15 way around. If the measures which he chose appear to be adequate in the
17 At page 524 of the Judgement, the US Tribunal said this:
18 "The duty imposed upon a military commander is the protection of
19 the civilian population. Whether this protection be assured by the
20 prosecution of soldiers charged with offences against the civilian
21 population, or whether it be assured by disciplinary measures or
22 otherwise, is immaterial from an international standpoint."
23 This is why, for instance, in Blaskic, having been satisfied that
24 the underlying incident in Ahmici which was relevant to the charges had
25 been reported to the competent judicial authorities, the Appeals Chamber
1 did not inquire further, nor seek to establish whether the accused could
2 also have adopted disciplinary measures or conducted further
3 investigation, nor did the Appeals Chamber suggest that he could be
4 liable for failing to do so.
5 This is also why the Appeals Chamber in Hadzihasanovic has said
6 that the question of whether a superior has fulfilled his obligation is
7 not resolved by the question of whether the measures were penal or
8 disciplinary or a combination of both, but whether those that were
9 adopted were appropriate in the circumstances.
10 The same approach which was adopted by the Boskoski Trial Chamber
11 is also consistent with Article 87(3) of Additional Protocol I.
12 If the wish list approach advanced by the appellant in this case was
13 accepted as law, it is not just the discretion of the superior that would
14 be abolished and taken away, but so, too, would the significant margin of
15 deference which Trial Chamber's possess when determining whether the
16 measures adopted in a particular case were, in the circumstances,
17 necessary and reasonable.
18 I shall demonstrate in a few minutes how and why the Trial
19 Chamber was well within its margin of appreciation when it took the view
20 that Mr. Boskoski had, in fact, fulfilled his duties, and this can be
21 established by asking and answering three questions.
22 The first one is this: Under what circumstances does
23 international law take the view that reporting to the competent authority
24 suffice to fulfil a superior's duty to punish?
25 Under international law we have already seen a superior may
1 fulfil his obligation to punish by reporting the crimes to the competent
2 authorities whenever he does not himself possess the power to punish or
4 And I will come back in a minute when discussing Hadzihasanovic
5 and Blaskic.
6 In this case, the Prosecution never alleged and the Trial Chamber
7 correctly found that, under Macedonian law, Mr. Boskoski had no power,
8 nor any authority to punish or sanction the crime of murder, cruel
9 treatment and wanton destructions that form the bases of the charges.
10 The Trial Chamber was, therefore, correct in law and fact and well within
11 its margin of appreciation when concluding that Mr. Boskoski could, in
12 law, fulfil his duty to punish by having the matter reporting to the
13 competent authority, as happened in this case, and as he was informed had
15 The second question that was to be addressed here is this: What
16 effect, in law, does the reporting to the competent authorities have on a
17 superior duty to punish?
18 As we pointed out earlier, all statements of international law
19 mentioned are unqualified where a superior cannot himself impose
20 punishment, and once a superior or his subordinates have reported to the
21 competent authority, the obligation of the superior to punish is
22 displaced and the obligation is extinguished. This principle may be
23 illustrated, contrary to what the Prosecution has suggested, with the
24 statement of law of Judge Meron and Judge Kwon at paragraph 3 of their
25 Strugar opinion where the two Judges, who were not dissenting on that
1 point of law, rejected explicitly the Prosecution's submission that the
2 superior would retain his duty to investigate, even where another person
3 had been designated to carry out the investigation.
4 And I draw your attention in particular to the footnote attached
5 to that paragraph. This legal statement of principle is sound and may
6 likewise be extracted from the Hadzihasanovic and Blaskic Appeals Chamber
7 Judgements. As Your Honour will recall, in both of these cases,
8 subordinates of the accused had sent reports to the competent
9 investigative authorities. In both of these cases, the Appeals Chamber
10 took the view that the accused had thereby fulfilled his obligation to
11 punish in relation to crimes committed in the context of the incidents
12 that were reported, and the Appeals Chamber did not conduct any further
13 review of the record to establish whether the superior could have taken
14 additional measures.
15 The Appeals Chamber finding as to the effect of reporting in both
16 of these cases was absolute, all encompassing and unqualified.
17 And that is why also, as will be discussed in a moment, the
18 Appeals Chamber never suggested that after reported had occurred, in the
19 Blaskic case for instance, the Trial Chamber should further have
20 satisfied itself whether the accused could have taken other measures such
21 as disciplinary measures or further investigative steps, as the appellant
22 now seeks to claim. In that sense, the Trial Chamber was entirely right
23 and acting well within the boundaries of its discretion when taking the
24 view that the matter, having been reported to the competent authorities,
25 and in the absence of any suggestion that Mr. Boskoski was aware of any
1 failure on the part of the MOI organ to perform the duties, he could be
2 said to have fulfilled a duty to punish.
3 The third and final question is this: What, in law, are the
4 requirements for such reporting to have the effect of displacing the
5 superior's duty to punish?
6 According to the Prosecution, in order to fulfil his obligation
7 to punish, Mr. Boskoski was required to report and I quote:
8 "The allegation of criminal conduct by subordinates," it's in
9 various parts of reply brief, "and should also have satisfied various
10 other requirements of form."
11 There is no legal or evidential support to back such a claim,
12 and, in fact, it directly contradicts the jurisprudence of this very
14 Customary international law does not impose any requirement of
15 form or content to the way, manner or shape of the reporting by a
16 superior or his subordinates. Again, all legal statement, some of which
17 you will find in tab 1 of our binder, are unqualified statements of law
18 on that point. More interestingly and perhaps even more enlightening in
19 that respect are the factual findings that have been made by this Chamber
20 in the context of applying that standard and the principle that can be
21 extracted from these.
22 If you look, for instance, to paragraph 418 of the Blaskic
23 Appeals Chamber Judgement, you will recall a finding of the Appeals
24 Chamber to the effect that Blaskic had requested an investigation into
25 the events of Amici and that the investigation was immediately taken over
1 by SIS Mostar. Blaskic's instructions to his chief of security were, and
2 I quote:
3 "To carry out an investigation into the incident so that he could
4 sends a report to Mostar."
5 This was regarded as sufficient by the Appeals Chamber to
6 displace his obligation to punish in relation to all crimes committed in
7 Amici. And that despite the fact that -- the Appeals Chamber was aware
8 that the investigation had been obstructed and conducted incompetently.
9 No reference was made in that report pointing to subordinates as
10 potential suspects, nor did the Appeals Chamber take the view that such a
11 report should have listed crimes believed to have been committed during
12 that incident.
13 On that basis, at paragraph 420, and 422, the Appeals Chamber
14 held that it was satisfied that Blaskic had fulfilled his obligation
15 under Article 7(3) and should be acquitted of these crimes. Again
16 similar finding and to the same effect may be found at paragraph 504, 507
17 and 511 of the Blaskic Appeals Chamber judgment.
18 The Chamber would also be able to reach the same conclusion by
19 reviewing its findings in the Hadzihasanovic case. At paragraph 146,
20 this Chamber found that a subordinate of Mr. Hadzihasanovic had filed a
21 report to the Bugojno municipal prosecutor regarding an incident that
22 occurred on the 5th of August, 1993. The report did not refer to all the
23 suspected crimes committed during that incident and in relation to which
24 Mr. Hadzihasanovic was later charged for failure to punish, but the
25 Appeals Chamber did not regard the incompleteness of the report as a
1 basis to find that Hadzihasanovic had failed in his duty to report all of
2 the crimes relevant to that incident, nor was the fact that there was no
3 evidence that an investigation had actually been initiated by the local
4 prosecutor, nor was the fact that the report failed to mention
5 subordinates as potential suspects.
6 What mattered for the purpose of Mr. Hadzihasanovic's
7 responsibility under Article 7(3) is the fact that the incident in the
8 context of which crimes were believed to have been committed was referred
9 to the competent authorities so that the report created reasonable doubt
10 as to whether his subordinate had initiated an investigation into
11 relation to all crimes committed there. And contrary to what the
12 appellant is now seeking to suggest, the Appeals Chamber explicitly found
13 that the absence of a reference to some of the crimes believed to have
14 been committed there, for instance, cruel treatment, did not undermine
15 the reasonable doubt that the report had the effect of reporting what the
16 Appeals Chamber characterised as the entire matter to the Bugojno
18 Once reporting had occurred and as a matter of international law,
19 Mr. Boskoski had therefore fulfilled his obligation.
20 Under domestic Macedonian law, the responsibility to investigate
21 and to expand the investigation where appropriate belonged to the
22 judicial organs. As will be clear from our brief, and I don't need to
23 repeat our submissions on that point at paragraph 213 and following, the
24 judicial authorities were seized of the entire set of allegations which
25 now form the basis of these charges. And after the report had been made
1 to the competent authorities, Mr. Boskoski had no further obligation
2 under customary international law as will have a reason only if and when
3 he had received information that subordinates were interfering with the
4 investigation, which the Trial Chamber found he never received.
5 In those circumstances, and as the Trial Chamber found,
6 Mr. Boskoski was acting in a manner consist with his obligation, and the
7 Trial Chamber was well within the scope of its discretion.
8 The appellant finally submits that should you find fault with the
9 Trial Chamber's findings, you should reverse Mr. Boskoski's acquittal and
10 convict him. The appellant made this extraordinary submission without
11 saying a word in its appeal brief of how you, the Judges, could possibly
12 reach that conclusion, and without saying a word of the evidence that
13 would stand behind -- between the question of the decision and the relief
14 which the appellant is seeking. This is therefore relief which, as we
15 understand it, the Prosecutor is asking you to grant at face value and to
16 ignore the evidence that is on the record.
17 We prefer, however, Your Honour, to ask to you base your decision
18 on the evidence in this case which is on the record, which we have
19 identified in our brief, and which is described in detail in tab 13.
20 There is no mention, for instance, in the appeal brief that on
21 13 August 2001
22 met with the head of the OSCE to discuss the events of Ljuboten. That on
23 the same day, and immediately after the meeting, he announced publicly
24 that the truth about what happened should be established, and he
25 immediately set up a commission of inquiry and appointed the three
1 highest ranking officers of the ministry to head that commission, thereby
2 by demonstrating his readiness and willingness to look into this incident
3 and sending a powerful message to all organs of the ministry that they
4 were expected to assist the judicial authorities in elucidating this
6 In its reply, the Prosecution suggests that the Chamber could not
7 rely upon this measure, as the terms of reference of the commission were
8 narrow and factually inaccurate because they referred to the MOI as
9 having responded to a terrorist attack. This, however, was taken into
10 account by the Trial Chamber which found, nevertheless, at paragraph 528,
11 that the establishment of the commission, and I quote:
12 "Indicates action which could be advanced as meeting his
13 obligation pursuant to Article 7(3)."
14 And whilst the terms of reference might with hindsight have
15 proved to have been partly inaccurate, as the Trial Chamber noted, the
16 Trial Chamber nowhere suggested that Mr. Boskoski was aware of these
17 inaccuracies, and the evidence is clear that Mr. Boskoski was acting, as
18 he was entitled to, upon the information which he has at his disposal at
19 the time.
20 More importantly, by ordering the review of these reports which
21 he had received, he effectively sought to verify the accuracy of this
22 report. The Prosecution also seek to dismiss Mr. Boskoski's public call
23 of the same day, 13 August, that this matter should be fully investigated
24 and should be elucidated whereby he put his political weight behind the
25 investigative effort.
1 The Prosecution suggest that you should disregard this because
2 Mr. Boskoski expressed the belief that the victims had been terrorists
3 not civilians. It is clear, however, Your Honours, from Exhibit 1D203,
4 in combination with 1D24, among others, that Mr. Boskoski's view on that
5 point was based on a good faith belief acquired from information that he
6 this received both from the OSCE and from its ministry, that were
7 consistent with the view that expressed.
8 As explained earlier, the superior is entitled to trust and act
9 upon information which he received from his chain of command unless he
10 has reasonable to disbelieve it, and there is]was none here.
11 And while the Prosecution seeks to discredit Mr. Boskoski's
12 statement -- public statement, Exhibit P362 explicitly records
13 Mr. Boskoski as saying this:
14 "In order to discover the truth, the Prosecution will need
15 authorisation to perform an exhumation in accordance with the legal
16 procedure if we want the truth to be confirmed."
17 Those, Your Honours, were not empty words, as a written
18 recommendation was made on his behalf for an exhumation and autopsy which
19 was sent to the competent judicial authorities, and upon which the
20 judicial authorities acted. And according to the Mitevski report, that's
21 Exhibit P378, such a measure was intended to achieve, and I quote:
22 "Comprehensiveness and all-inclusiveness" with a view to "take
23 necessary legal action towards confirmation of all relevant facts and
24 receipt of an answer to the open substantive question about this event."
25 And whilst the Trial Chamber found fault with the work of the
1 commission, it took care to note, however, at paragraph 436, in fine,
2 that its report -- that in its report, the commission did identify the
3 need for exhumation of the buried as a step towards confirmation of the
4 relevant facts and acknowledged that open substantive question of this
5 event remained unanswered.
6 Mr. Boskoski continued to take steps to push the issue of the
7 Ljuboten investigation up the agenda all through the relevant period so
8 as to make it clear to all those involved that they were expected to help
9 elucidate this case. For instance, on 20 August and 4 September 2001
10 respectively, Mr. Boskoski reported the preliminary findings of his
11 ministry to both the coordinative body of management of the crisis and
12 the government. In reply, at paragraph 41, the Prosecution suggests that
13 you should disregard this because Mr. Boskoski said in his report that
14 victims were believed to have been terrorists.
15 But again the Prosecution attributes to Mr. Boskoski power of
16 hindsight, which unfortunately he does not possess. Mr. Boskoski was
17 entitled to act based on the information that the competent organs of the
18 ministry and the OSCE had provided him.
19 It should be noted also furthermore that, at least as far as
20 three of the victims were concerned, the Trial Chamber found that they
21 could not conclude beyond a reasonable doubt that they had been
22 civilians. It was also Mr. Boskoski who proposed and pushed for the
23 drafting of a joint Ministry of Interior and Ministry of Defence joint
24 report that, again, provided further impetus for the investigation and
25 prevented the Ljuboten investigation from slipping away from the agenda.
1 And it was he who provided more information to the government on
2 25th of September, 2001.
3 Mr. Boskoski also publicly supported the idea that the Office of
4 the Prosecutor of this Tribunal should be involved in the investigation
5 and provided that office with information, thereby displacing any
6 suggestion that he was trying to shield anyone from punishment. And when
7 he offered again, in early 2002, to assist with the exhumation process in
8 Ljuboten, his assistance and that of the police was turned down by the
9 Office of the Prosecutor who today claims that he should have done more
10 in relation to this investigation.
11 And all through the relevant period, Mr. Boskoski also put all
12 relevant organs of the ministry at the disposal of the competent
13 Macedonian judicial authorities and when they asked the Office of the
14 Prosecutor, and during that time he did nothing that could be interpreted
15 as an interference with the work of the competent investigative organs.
16 And what's, Your Honours, of the hundred or so measures taken by
17 the competent organs of the MOI with a view to elucidate these crimes?
18 In the evidence-free world inhabited by the Prosecution, none of those
19 are mentioned in its appeal brief, as if they were not relevant to the
20 consideration of the Appeals Chamber which is asked to convict
21 Mr. Boskoski for an alleged failure to punish.
22 Ignore, therefore, if you are to believe the appellant, the fact
23 that it is the MOI that notified the competent judicial organs that force
24 had been used in the village and that the bodies lied in the streets of
25 Ljuboten. Ignore that it is the reports of the MOI that triggered the
1 judiciary into action. Ignore also that the competent organs of the
2 ministry sought to obtain information from the villagers about what
3 happened. Ignore that members of the MOI were part of the investigative
4 team that was formed to enter Ljuboten after these events. Ignore that
5 it is pursuant to an MOI recommendation that an exhumation autopsy was
6 ordered by the judicial organs. Ignore that the ministry professional
7 leadership sought to engage the international organisation present in
9 competent organs of the MOI responded to all judicial requests for
10 assistance to the greatest extent feasible. Ignore that MOI organs took
11 part in all preparatory meetings organised by the competent judicial
12 organs and that they played a major part in the process of exhumation and
13 autopsy. Ignore that it is they who conducted various technical and
14 forensic examination that were relevant to this investigation. Ignore
15 that the MOI provided information and support to the Office of the
16 Prosecutor all through this time. Ignore that no one during that time
17 complained of the work of the MOI, and ignore the fact that the MOI was
18 thanked for its effort, including by the Office of the Prosecutor itself.
19 Ignore also at paragraph 452 and following of the Judgement the Trial
20 Chamber took notice of a number of relevant measures which, had it not
21 found that the matter had been properly reported to the competent organs,
22 it would have had to consider in that context.
23 THE INTERPRETER: Could counsel please slow down.
24 MR. METTRAUX: Ignore also, Your Honour, the sensitive security
25 situation in Macedonia
1 JUDGE ROBINSON: Don't ignore the interpreters request to slow
3 MR. METTRAUX: I will make amend, Your Honour, after the hearing
4 with the interpreters who I am sure have suffered through my
5 presentation, and I apologise do them.
6 Ignore, Your Honour, the evidence that the security situation in
7 the Republic of Macedonia
8 entering the village for many months. Ignore also that the lack of
9 cooperation of the villagers denied the authorities access to eye-witness
10 testimony from victims that could have helped identify the perpetrators.
11 And ignore that the resources of the Macedonian state, and that of
12 Ministry of Interior in particular, were being drained by the MOI's
13 involvement into the fighting which the Trial Chamber said amounted to an
14 armed conflict.
15 Ignore, you are told in the reply brief, some of the steps taken
16 by MOI because the result of those was used by the judiciary in relation
17 to the investigation of crime against Albanian villagers but for the
18 investigation of terrorist crimes committed by members of the NLA.
19 So according to the appellant, the Ministry of Interior and the
20 minister should be held criminally responsible because the judiciary,
21 over which he had no control, chose to use the material for one purpose
22 rather than another.
23 Your Honour, the course that the Prosecution invites you to adopt
24 is an unreasonable one that has no connection to the record of these
25 proceedings and bears no relationship with the law of superior
1 responsibility as recognised under customary international law. But
2 because the Prosecution is never short of an argument, Your Honour, there
3 is a new one, which has been put forward in the context of its appellant
4 brief, which is to suggest that to the extent that some investigative
5 steps might have been taken, this was an investigation to establish not
6 the facts and circumstances relevant to this case but solely the identity
7 of the seven dead persons.
8 Before making that submission, has the appellant even looked at
9 the autopsy reports and the evidence of its own witness, forensic doctor,
10 Jakovski, who conducted some of those autopsies and which deal in detail
11 not with the identity of the persons but with the causes and
12 circumstances of their death. Has the appellant asked itself why if the
13 matter pertained solely to the identity of the dead, the chief of the
14 Mirkovci police, where abuses occurred, was interviewed by his colleague?
15 Has the appellant taken any notice of the fact that the judicial
16 investigation pertained not just to the events of the 12th of August but
17 to the period 10 to 14, that covered each and all of the crimes charged
18 in this case, not just the death of seven people. And I direct
19 Your Honours to paragraph 213 to 230 of our brief.
20 The appellant --
21 JUDGE ROBINSON: Actually, I'm told you have one minute left.
22 MR. METTRAUX: Well, Your Honour, I will simply, then, point to
23 tab 4, 20 or 4, 19, I should say to tab 14, 24 and also to 14, 25 and
24 tab 12, 9, and simply invite Your Honour to take notice of the fact that
25 in each and every one of these documents, reference is being made, not to
1 the identity of the victim, but to the cause, circumstances and other
2 matter pertaining to these events. I will also note, Your Honour, that
3 in its reply brief, the Prosecution seeks to assert that in his
4 statement, Mr. Cakic indicated that he was only interested to identify
5 the victims and nothing else. If that's the case, Your Honour, this was
6 his responsibility. But we draw your attention to Exhibit P55.10,
7 P55.11, P55.13 which was signed by Cakic himself, and which clearly
8 referred to the cause, time and circumstances of their death.
9 And, Your Honour, if I may correct one last matter before
10 concluding, in its reply brief, the Prosecution refers to the so-called
11 internal control, to take issue with the Defence submission that internal
12 control could not act without complaint of a citizen or a victim. And it
13 says that Mr. Ruseski, Kire Ruseski, does not suggest that at paragraph 6
14 of his statement, which is Exhibit P385.
15 The Prosecution is correct. That statement, Your Honour, is to
16 be found at paragraph 3 of Mr. Ruseski's statement.
17 Your Honour, before I reiterate -- before I conclude, I will
18 simply reiterate and adopt by reference the submissions that we've made
19 in our respondent brief, and before giving the floor back to the
20 Prosecution, I will expression our appreciation to Your Honours for their
22 Yes, Your Honour.
23 JUDGE ROBINSON: Judge Meron.
24 JUDGE MERON: I'm sure that you've answered my question regarding
25 civilian versus military superiors.
1 MR. METTRAUX: Well, I'm pretty sure, Your Honour, that I have
2 not answered your question --
3 JUDGE MERON: Well, I think that, if you allow me to say so, when
4 Judges ask a question, it is not quite correct to say, I will come to it.
5 It is better practice to answer it right away.
6 Being as it is, could you please explain to us how would the
7 responsibilities of Mr. Boskoski vary had he been a military superior not
8 a civilian minister.
9 MR. METTRAUX: Well, I apologise to start with, by not having
10 answered your question earlier, Your Honour, and I should have done so at
11 the time.
12 The answer is multi-layered. I think the main issue relevant
13 here is the absence of a chain of command similar to the sort of chain of
14 command that you would find in a military context, where in fact the
15 responsibility of guaranteeing the protection of the standards of
16 humanitarian law is, as the Prosecution indicated, put very heavily on
17 the shoulders of military leaders and commanders.
18 In the context of a civilian leader, the distribution of that
19 responsible is organised very differently. Whether it is in Macedonia or
20 in any other country, the responsibility to prevent and punish is
21 distributed differently between organs, depending on the constitutional
22 and legal arrangement relevant here. And in the case of Macedonia, as
23 with many civil law system, the responsibility to conduct criminal
24 investigation is placed not upon the police but upon the judicial
25 authorities which have the authority to use the assistance of the police
1 in that context.
2 In that sense, Your Honour, if you want the -- the making of the
3 structure, relevant to the application of the doctrine of superior
4 responsibility is very different. Furthermore, in the case of
5 Mr. Boskoski, an important factor was the difference between the -- I
6 would say the professional background of Mr. Boskoski, who is a lawyer by
7 training and appointed as a political appointee to his position, there is
8 a chain of command of professionals within the body which stops before
9 the minister; whereas in the military context, each and all of the
10 subordinates come, if you wish, from the same background and have the
11 same responsibility. In that case, the responsibility is to conduct
12 criminal investigation, and related issues belonged at no point and to no
13 extent to the minister of the interior.
14 JUDGE MERON: The Rome Statute would be sort of relevant to this
15 argument, wouldn't it?
16 MR. METTRAUX: Well, Your Honour to the extent that it offers a
17 different standard of mens rea, it certainly would. And it would also,
18 as, Your Honour, I'm grateful for pointing that out, it specifically
19 provides in the text of the Statute that where a subordinate does not
20 have the ability to conduct an investigation himself that could lead to
21 the punishment, he or she has, in fact, the ability to remit the matter
22 to the competent authorities.
23 So, yes, I agree, Your Honour.
24 JUDGE MERON: Thank you.
25 JUDGE LIU: To follow up Judge Meron's question, so is that your
1 position that, in the jurisprudence of our Tribunal, there's no
2 differences concerning with the mens rea of a military commander or a
4 MR. METTRAUX: As I understand the jurisprudence of the Tribunal,
5 Your Honour, there is, in fact, no distinction based per se on whether
6 you are a civilian or a military leader. What is there, however, in the
7 findings of this Tribunal, in this Appeals Chamber in particular, a
8 mechanism at the disposal of military commanders which are not at the
9 disposal of civilian superior that may be relevant to certain inferences
10 that may be drawn in that regard, in particular the presence in the
11 military context of a chain of command which has that very purpose.
12 But Your Honour is quite correct to suggest that unlike the ICC
13 system, there is no distinction in principle between the mens rea
14 relevant to a civilian superior or to a military superior.
15 JUDGE LIU: Thank you.
16 MR. ROGERS: I think it's fair to say that the battle-lines are
17 fairly drawn between the parties in this case, and, Your Honours, I'm not
18 going repeat everything that I have already said.
19 What I would like to touch upon are just three small matters.
20 First of all, in relation to the case of Bemba. I think we've already --
21 we have already dealt with it now. That's dealing with a different
22 statutory framework, and therefore may not be of direct relevance to an
23 application in the proceedings here.
24 So far as Hadzihasanovic and Blaskic are concerned, which my
25 learned friend refers to at some length and relies upon to develop his
1 notion of delegation and as some support for this notion, looking
2 quickly, as I have been able to do, at the Blaskic Appeals Chamber
3 Judgement on which he relies, it's curious that following on from
4 paragraphs that he mentioned, the finding of the Appeals Chamber, having
5 received additional evidence, was that the appellant lacked effective
6 control over the military units responsible for the commission of crimes
7 in the Ahmici area.
8 So the final finding was not to as to whether or not he had in
9 fact taken all the necessary and reasonable measures, although there is
10 some discussion about it rightly, at paragraph 420, but it appears that
11 wasn't really what they were dealing with. They were dealing with
12 whether or not he actually had effective control over the subordinates.
13 So it's perhaps moot as to how useful that case is, in -- to support his
15 Secondly, in relation to Hadzihasanovic, again, the problem that
16 perhaps all of us face in extracting anything useful from the
17 Hadzihasanovic approach, is that on the particular facts of that case,
18 the reason that he was acquitted was that the Appeals Chamber found that
19 there was a reasonable doubt about whether any reports had been made.
20 The issue, or one of the arguments that was made, as I understand it, by
21 Hadzihasanovic was as to whether he had actually taken penal measures
22 from that -- or one of the reasons why you found in the Hadzihasanovic
23 Appeals Judgement the determination that it doesn't really matter what
24 you call them, whether they're disciplinary measures or criminal
25 measures. One doesn't want to get bogged down, as it were, in precisely
1 what the term is that you apply to the type of the measure.
2 Hadzihasanovic, however, was aware that there had been an
3 investigation, that perpetrators had been identified, that crimes had
4 been identified, that some form of punishment, at least 60 days
5 imprisonment had been imposed upon them, and he, therefore, said, Well,
6 as I understood it, they'd been punished. All the measures that needed
7 to be taken had been taken. Appeals Chamber took the view that in fact
8 the measures were disciplinary measures and, therefore, there was more
9 that needed to be done, but then went on to find that there was a
10 reasonable doubt about whether actually a report had gone on to the
11 public prosecutor, and, therefore, the accused should benefit from that
12 reasonable doubt - quite rightly - and he was acquitted.
13 So I'm not sure it's as helpful to my learned friend as he thinks
14 it is.
15 Your Honours, as I've said, the battle-lines are fairly drawn.
16 We have addressed at length between us over the course of this afternoon
17 the issues between the parties, and I don't propose so say any more at
18 this stage, other than to deal with the binder that has been handed up to
19 Your Honours. I only saw it just before you came back into court, and so
20 I didn't have an opportunity to look through it to see whether there was
21 any material in it that perhaps ought not to be placed before Your
23 We do have some concerns over tab 13, where the analysis has been
24 made, and it would appear to be an impermissible filing, or an additional
25 impermissible filing, because there is a commentary at the side of the
1 measures taken by competent MOI organs, and that isn't strictly what
2 should be done. That's -- would count against the word limits and the
3 filings before the Court, and there is no permission to file any
4 additional material that comments or analyses what's gone on.
5 So, Your Honours, I think that should be removed from the bundle,
6 because it's not transcript, it's not pieces of evidence, and it's not
7 Trial Judgement or other case references. It's an analysis by the
8 respondent as to what he says the various documents amount to, and that's
9 not, in our submission, permissible.
10 So we would ask that that part of the brief be removed.
11 JUDGE ROBINSON: Mr. Mettraux, let me hear you on that.
12 MR. METTRAUX: Yes, thank you, Your Honour.
13 Simply to explain what that document is, Your Honour. It is
14 simply a support used, for our purposes, to direct Your Honours to the
15 various measures that we've indicated during our submissions. This
16 document is nothing other than a chronological reordering of the measures
17 which have listed in our brief. There is nothing new in terms of
18 submissions, in terms of references to what has already been said in our
19 brief, Your Honour. It was done for the purpose of assisting the Chamber
20 in having a snap-shot, if you want, of the chronological order in which
21 measures were taken by both Mr. Boskoski personally and by the various
22 organs of the Ministry of Interior, as were explained in a different
23 fashion in our case. There is nothing new. There can be no suggestion
24 of any prejudice or anything new coming out of this document that the
25 Prosecutor could point to. It was simply a hope, one, to accelerate
1 matters in the presentation; and to provide Your Honours with some degree
2 of assistance, in terms of chronological mapping of the measures that
3 were taken.
4 JUDGE ROBINSON: Would it help, Mr. Rogers, if you could read
5 into it as prepared by counsel. It is really just to assist. It's an
6 aid, as far as can I see.
7 MR. ROGERS: Your Honours, the difficulty is, is that we all
8 labour under the Rules that are imposed upon us, and to come to court to
9 the hearing and to try to impermissibly file a matter which adds
10 argument, effectively, is not right. It's not something that the
11 Prosecution would be permitted to do, and it's not something that the
12 defendant -- the respondent should be permitted to do.
13 If he had wanted to organise his materials better, he should have
14 done it in his brief.
15 I understand Your Honour's point, that it is an attempt to try to
16 be helpful; but the help should have been provided within the brief and
17 not in this way.
18 Those are my submissions.
19 [Trial Chamber confers]
20 JUDGE ROBINSON: Mr. Mettraux, we'll disregard it.
21 What remains now is to ascertain from Mr. Tarculovski whether he
22 wishes to avail himself of the opportunity to make a personal statement.
23 If you wish to do that, Mr. Tarculovski, you may do so, but for
24 no more than 15 minutes.
25 MR. A. DERSHOWITZ: He does wish to, yes. Thank you.
1 THE ACCUSED TARCULOVSKI: [Interpretation] Your Honours, first of
2 all, I'd like to point out that I really regret the loss of life. I
3 myself have a family, and I sympathise with their deep pain.
4 Personally I would never hurt innocent people. The President
5 sent me to be in the region in order to coordinate and to report to him
6 about the events throughout this action, if there's problem between -- to
7 report if there is problems between the army and police.
8 I did not organise anyone to do any harm. I'm sorry for the
9 suffering experienced by both sides, and I'm hopeful there will be
10 permanent peace in Macedonia between all sides.
11 Thank you very much.
12 JUDGE ROBINSON: Thank you, Mr. Tarculovski.
13 [Trial Chamber confers]
14 JUDGE ROBINSON: You may sit -- you may sit.
15 [Trial Chamber confers]
16 JUDGE ROBINSON: Mr. Boskoski, I'm to ask you whether you wish to
17 make a statement.
18 Mr. Mettraux.
19 MR. METTRAUX: Thank you, Your Honour.
20 We have discussed the matter with Mr. Boskoski prior to the
21 hearing, and he has indicated that there is no need for him to address
22 the Court, but he is grateful for the opportunity.
23 JUDGE ROBINSON: Thank you. Well, in that case, we'll be --
24 we'll adjourn, and I wish to thank all the parties for the submissions
25 which they have made and which the Trial Chamber has found helpful.
1 --- Whereupon the hearing adjourned at
2 4.55 p.m.