Uncategorized — November 10, 2009 at 12:12 am

Dershowitz Seeks to Distinguish Crimes in ICTY Appeal

By John Thorlin, HLS 2012 NSJ Staff Writer

On October 29, 2009, Harvard Law School Prof. Alan Dershowitz appeared before the International Criminal Tribunal for the former Yugoslavia (ICTY) to appeal the conviction of Johan Tarculovski.  Tarculovski was charged with individual criminal responsibility (Art. 7 §1 ICTY Statute), as well as superior hierarchical responsibility (Art. 7 § 3 ICTY Statute), on three counts of violations of the laws and customs of war:  murder, wanton destruction, and inhumane treatment.

The circumstances that gave rise to those charges took place during Tarculovski’s time as part of Macedonian President Boris Trajkovski’s security detail.  The following account, based on a summary of the events prepared by Human Rights Watch about a month after the incident took place, is the most detailed that has surfaced.

In the aftermath of a landmine explosion that killed eight government soldiers, Macedonian police forces sealed off and assaulted the nearby ethnic-Albanian town of Ljuboten.  The Macedonian authorities suspected that the Albanian National Liberation Army (NLA) had established a stronghold in the town.  Considered a terrorist group by the Macedonian government, the NLA had a base near the town and had met international journalists in Ljuboten on several occasions.  For two days beginning on August 10, 2001, the Macedonian army and police carried out house-to-house attacks.  They summarily executed two civilians and killed three others who were attempting to flee the scene.  Over one hundred ethnic-Albanian men were arrested, many of whom were beaten while in custody.

Tarculovski claims that he was simply monitoring the situation on the ground on behalf of President Trajkovski.  In the original trial, the ICTY found Tarculovski guilty of directing and taking part in the criminal aspects of the operations and sentenced him to twelve years in prison.  At that same trial, the ICTY also tried former Macedonian Interior Minister Ljube Boskoski, who was also physically present in Ljuboten at the time of the assault.  Tarculovski and Boskoski were the only people indicted by the ICTY in relation to the 2001 conflict.  Boskoski was acquitted of all charges.

Professor Dershowitz emphasized that this made Tarculovski the “only man in prison” as a result of the conflict.  Dershowitz suggested that this indicated that “[the incident] was a crime that should be punished in Macedonia.  It should be investigated locally.”  The irregular nature of the NLA further muddles the case.  The NLA’s members sometimes wore uniforms and sometimes did not, a fact the Macedonian authorities cite in labeling them “terrorists.”

Professor Dershowitz’s argument brings up significant questions regarding the fine line between ordinary criminal acts and war crimes, particularly in the context of an ill-defined, irregular conflict whose categorization fluctuates between counterterrorism, counterinsurgency, or regular police work depending on which group’s website one looks at.  Given the highly emotional nature of most debates about counterterrorist and counterinsurgency operations by Israel or the United States, cases involving the former Yugoslavia give all sides of the ideological debate over war crimes a fairly neutral background against which to test their theories.  Would trying Macedonian offenders in the fledgling Macedonian court system really lead to justice?  Should there be a broader, more permissive notion of due process in the context of a counterterrorist operation?  The pending litigation may point towards some answers.

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