Current Developments at the Ad Hoc International Criminal Tribunals

Extract

1. Substantive Developments

A. Crimes

1. Jurisdiction for Crimes Committed in the Course of an Operation Conducted by a State in Self-Defence

In Boškoski & Tarčulovski, the Appeals Chamber¹ rejected Tarčulovski’s argument that, where purely domestic acts are carried out by a sovereign state in self-defence, those acts are outside the jurisdiction of the Tribunal. It upheld the Trial Chamber’s finding that the charged crimes constituted serious violations of international humanitarian law.² The Appeals Chamber explained that ‘[t]he fact that a State resorted to force in self-defence in an internal armed conflict against an armed group does not, in and of itself, prevent the qualification of crimes committed therein as serious violations of international humanitarian law.’³ It reiterated that it is legally irrelevant whether an action was pre-emptive, defensive or offensive; what matters is ‘whether the way the military action was carried out [during an armed conflict] was criminal or not’.⁴ The Appeals Chamber further recalled Article 2(7) of the UN Charter, which provides that the principle of non-intervention by the UN in domestic matters does not prejudice the application of enforcement measures under Chapter VII of the Charter.⁵ Since the Tribunal was established under Chapter VII, it had jurisdiction over serious violations of international humanitarian law committed during anti-terrorist operations, provided they were committed in the context of an armed conflict.⁶ Furthermore, the fact that the Security Council had acknowledged the need to respect the sovereignty of the FYROM did not mean ‘that the Security Council excluded the Tribunal’s jurisdiction for any serious violations of international humanitarian law committed during the internal armed conflict on the territory of the FYROM’.⁷