Case Brief on ICTY, the Case between the Prosecutor and Bokoski and Tarulovski

Brook Kebede
1. Introduction
The writer under this paper is aimed to forward a brief commentary for the case of Bokoski
and Tarulovski on the decision made in the 10th day of July 2008 by International Criminal
Tribunal for the former Yugoslavia (ICTY), Trial Chamber, Case No IT-04-82-T.
On the stated day, the International Criminal Tribunal for the former Yugoslavia (ICTY)
delivered the judgment on the case concerned an alleged attack on the unarmed ethnic
Albanian village of Ljuboten, the subsequent murder and cruel treatment of its residents, and
the wanton destruction of property by the army and police of the Former Yugoslav Republic of
Macedonia (FYROM). Under this case Bokoskis was charged with superior responsibility for
failing to punish his subordinates who committed crimes during and subsequent to the police
operation in Ljuboten. But he was found not guilty on all charges. The prosecution against
Bokoskis alleged that he had ordered, planned and instigated crimes committed against ethnic
Albanians. And the Trial Chamber found Tarulovski guilty of ordering, planning and
instigating the murder of three ethnic Albanian civilians, wanton destruction of twelve houses
or other property and cruel treatment of thirteen ethnic Albanian civilians, all violations of the
laws or customs of war. He was sentenced to 12 years imprisonment.
Under international humanitarian law, this is an important case that it provides a
comprehensive application of the Tadic standard which help to determine the qualification of an
internal armed conflict1. The case also plays a significant role in determining the principle of
superior criminal responsibility for the acts of their subordinates. As to the decision of the Trial
Chamber II, it would suffice for the superior to report crimes to competent authorities to escape
LLB (School of Law, University of Gondar), BA in Sociology (Department of Sociology, University of
Gondar), LLM student of Human Right (College of Law and Governance, Addis Ababa University); Assistant
Lecturer, School of Law, University of Gondar (On study leave); also thought part time at Admas University
Email:kebedebrook89@yahoo.com .

international criminal responsibility. The paper classified in to two parts, firstly, the paper try to
provide a case brief. And in the second part, the student will try to provide a brief commentary
on the case.
2. Case Brief

2.1. Citation
The Prosecutor Vs Ljube Bokoski and Johan Tarulovski2
International Criminal Tribunal for the Former Yugoslavia (ICTY) Trial Chamber II, The
Netherlands
Case Number: IT-04-82-T
10 July 2008
2.2. Facts
The events giving rise to the case started on 12 August 2001, under the leadership of
Johan Tarulovski3 a group of armed people entered in one of the village called
1 Based on the Appeals Chamber of the ICTY in the Tadic case an armed conflict, exists whenever there is
a resort to armed force between States or protracted armed violence between governmental authorities
and organized armed groups or between such groups within a State. Further analysis will be made under
the second part of this paper. Prosecutor v Tadi, Case No. IT-94-1-T, Opinion and Judgment (Trial
Chamber), 7 May 1997, para. 562.

2The trial of Bokoski and Tarulovski started on 16 April 2007 and ended on 8 May 2008. The witnesses
were called by Prosecution are 56. Numbers of Prosecution exhibits were 1587. On the other hand
Bokoski and Tarulovski were called 13 and 7witnesses respectively. Along with, number of defence
exhibits by Bokoski and Tarulovski 363 and 118 respectively.

3 Johan Tarulovski was a relatively junior police officer serving in the unit providing security for the
President of Macedonia and his family. It is alleged that he commanded the police who actually entered
Ljuboten village on 12 August 2001, which he led the police during the attack and was present when the
crimes were committed.

Ljuboten which is found in the Former Yugoslav Republic of Macedonia (FYROM) and
that members of this unit shot and killed six unarmed ethnic Albanian residents of the
village, that they severely mistreated 13 ethnic Albanian residents, 10 of whom were
subjected to further beatings at a police checkpoint at the entrance to the village and
later at Mirkovci police station in Skopje as a result of which one of the men died. It is
alleged further that members of the police unit intentionally set on fire at least 14 houses
in the village which caused serious damage to these houses or destroyed them, and
damaged houses by the use of hand grenades and rifle fire. Further, it is alleged that in
the afternoon of 12 August about 90 ethnic Albanian men fleeing from the village were
subjected to cruel treatment by other police at a police checkpoint near the village, and
later at several police stations in Skopje, in Skopje Court II, and Skopje City Hospital.
2.3. Primacy Jurisdiction of the Tribunal
The ICTY Statute has a separate provision for a primacy relationship whereby ICTY
prosecutions may trump national court prosecutions. Specifically, Article 9 of the ICTY
statutes concern about concurrent jurisdiction and it says 'the ICTY and national courts
shall have concurrent jurisdiction to prosecute persons for serious violation of IHL committed in
the in the former Yugoslavia since 1 January 1991'. In addition to this 'ICTY also shall have
primacy over national courts'. At any stage of the procedure, the ICTY may formally
request national courts to defer to the ICTY. In this regard the judgment history shows
that, Ljube Bokoski and Johan Tarulovski have each entered pleas of Not Guilty to the
counts with which they are charged in their national courts. Furthermore, in May 2002,
the Prosecution department of the Tribunal informed the Macedonian authorities of her
decision to assume primacy of, inter alia, the allegations concerning the activities of the
Macedonian forces against ethnic Albanian civilians in FYROM in 2001, including

alleged crimes in Ljuboten.4 Pursuant to Rule 9(iii) and 10 of the Rules, on 5 September
2002, the Prosecutor submitted a request for deferral. By a decision of 4 October 2002, a
Trial Chamber formally requested the Government of FYROM to order its national
courts to defer, inter alia, the Ljuboten investigation, and to forward the result of the
investigation as well as a copy of court records and the judgements of its national courts,
if any, to the Office of the Prosecutor of the Tribunal in The Hague.
2.4. General Requirements of Article 3 of the Statute and Armed Conflict
As we have seen above Johan Tarulovski and Ljube Bokoski are each charged with
three counts of violations of the laws or customs of war pursuant to Article 3 of the
Statute. However there are preconditions which must be satisfied before bringing the
case to the Trial Chamber. One among the essential requirements is the occurrence of an
armed conflict.5 As to Appeals Chamber in the Tadic Jurisdiction Decision: [a]n armed
conflict exists whenever there is a resort to armed force between States or protracted
armed violence between governmental authorities and organised armed groups or
between such groups within a State.6 In the Tadic case the two essential tests are; the
4 Exhibit P391, In Re: The Former Yugoslav Republic of Macedonia, Prosecutors Request for Deferral
and Motion for Order to the Former Yugoslav Republic of Macedonia, 5 September 2002, paras 3, 6-7.

5 In the case at hand ascertaining of the presence of an Armed conflict is important because the existed
conflict may be instructive to analyze the use of force by governmental authorities, in particular, how
certain human rights are interpreted, such as the right to life and the right to be free from arbitrary
detention, in order to appreciate if the situation is one of armed conflict. As is known, in situations falling
short of armed conflict, the State has the right to use force to uphold law and order, including lethal force,
but, where applicable, human rights law restricts such usage to what is no more than absolutely necessary
and which is strictly proportionate to certain objectives. [] However, when a situation reaches the level
of armed conflict, the question what constitutes an arbitrary deprivation of life is interpreted according to
the standards of international humanitarian law, where a different proportionality test applies. Tadic
Jurisdiction Decision, Para 70. As cited in Bokoski and Tarulovski Para. 174

6 Ibid

intensity of the conflict and the organisation of the parties to the conflict, as a method
to make a distinction between an armed conflict and banditry, unorganized and shortlived insurrections, or terrorist activities, which are not subject to international
humanitarian law7.
2.5. Major Legal Issues
Do the incidents occurred in FYROM in the material time reached the level of
intensity required by the jurisprudence of the Tribunal and that the NLA
possessed the characteristics of an organised armed group within the meaning of
the Tadic test to establish the existence of an armed conflict8?
Do the acts that took place during the particular incidents amount to crimes
under Article 3 and Article 5 of the ICTY Statute9?
Can Ljube Bokoski consider as a superior?
If so, can Ljube Bokoski and Johan Tarulovski be held responsible under the
provisions of Article 7(1) and (3) of the ICTY Statute?
2.6. Relevant Cases and Legal Provisions

Articles 3, Article 5, Article 7(1) and Article 7 (3) of the ICTY Statute10.

7 Ibid
8 Prosecutor v Bokoski (ICTY, Trial Chamber Case, No IT-04-82-T, 10 July 2008) (Bokoski).
9 Ibid
10 UN Security Council, (UNSC Res. 808), Statute of the International Criminal Tribunal for the Former
Yugoslavia (ICTY Statute), 25 May 1993.

Tadic Jurisdiction Decision, Para 70.

2.7. The Accusation of Ljube Bokoski and Johan Tarulovski

As we have seen above the causes for the accusation of Ljube Bokoski have occurred
from 12 August 2001 in Ljuboten and thereafter in Skopje. Perhaps more than hundred
police attacked Ljuboten, with the support of a police personnel carrier and mortar and
other fire support from the FYROM army. It was alleged that, during this attack, six
Albanian civilian residents were shot by police and another civilian was killed by
shelling from the army. Accordingly, Bokoski is charged under Article 7(3) of the
Statute of the Tribunal11, enacted by the United Nations, on the basis that, as the
Minister, he was the superior of the police who committed the alleged crimes, but
despite having knowledge of or reason to know, what they had done, he failed to take
reasonable and necessary measures to investigate and to ensure that they were
punished for their crimes. It is alleged his failure continued until May 2002 when the
Prosecutor of this Tribunal announced that she was assuming responsibility for the
It is on this basis of his alleged individual responsibility as their superior, that Ljube
Bokoski is charged in the Indictment of three counts. These are:
Based on Article 3(1) (a) he violates the laws or customs of war which is
recognised by of the Geneva Conventions of 1949. Therefore, the prosecution
history shows that Ljube Bokoski was accused for the Murder of 7 ethnic
Albanian men, these are the six men alleged to have been shot and killed in the
11 Article 7 sub Article 3 of the statute read as follow: The fact that any of th e acts referred to in articles 2
to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal
responsibility if he knew or had reason to know that the subordinate was about to commit such acts or
had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or
to punish the perpetrators thereof. Article 2 and Article 5 mention some lists of crimes which can be
considered as War crimes. These are Crimes against humanity and Genocide. See UN Security Council,
(UNSC Res. 808), Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY Statute),
25 May 1993.

village, and the 7th man who died in hospital from the beatings he had received
in the village and at Mirkovci police station12,
Based on the same provision he also accused for the crime of Wanton Destruction
of a village by setting fire to at least 14 houses, a violation of the laws and
customs of war13, and
Similarly he was accused for the crime of Cruel Treatment of ethnic Albanian
residents of the village at the various locations indicated which is considered as a
violation of the laws and customs of war, as recognised by Article 3(1)(a) of the
Geneva Conventions of 1949.14
On the other hand, Johan Tarulovski also accused for the crimes committed in the same
event. The prosecution history shows that Tarulovski commanded the police who
actually entered Ljuboten village on 12 August 2001 and he is charged under Article 7(1)
of the Statute with having ordered, planned, instigated and aided and abetted the
crimes committed in the village by the police, and also for participating in a joint
criminal enterprise with other persons to commit these same crimes.
2.8. The Defences of Bokoski and Tarulovski
2.8.1. Challenges to the Territorial, Temporal and Subject-Matter Jurisdiction of the
Tribunal
As to these defences the accused argued that:

12 Prosecutor v Bokoski (ICTY, Trial Chamber Case, No IT-04-82-T, 10 July 2008) (Bokoski).
13 Ibid
14 Ibid

 Firstly, the temporal jurisdiction of the Tribunal ceased in 1999 as a result of

peace agreements ending the war in Bosnia and Herzegovina and Croatia in
1995, and in Kosovo in 199915;
Secondly, the Tribunal lacked territorial jurisdiction because the FYROM at the
time the Tribunal was established in 1993 was not connected to Yugoslavia 16 and;
Thirdly, the Tribunal lacks subject matter jurisdiction on the basis, as argued,
there was no armed conflict, and the charged crimes do not meet the required
elements for applicability of Article 3 of the Statute.17
2.8. 2.Challenges to the Presence of Armed Conflict
The Prosecution history shows that an internal armed conflict existed from January
until at least September 2001 between the Security Forces and the Albanian National
Liberation Army. However, Bokoski and Tarulovski argued that;
Based on the Tadich case there is a distinction between armed conflict and acts of
banditry, unorganized and short-lived insurrections, or terrorist activities,
which are not subject to international humanitarian law, 18 acts of a terrorist
nature may not be taken into account in the determination of the existence of an
armed conflict. Therefore, the existed incident does not amount to an internal
armed conflict19.
2.8.3. Challenges to the Individual Responsibility of Boskoski
15 Prosecutor v Bokoski (ICTY, Trial Chamber Case, No IT-04-82-T, 10 July 2008) (Bokoski).
16 Ibid
17 Bokoski Jurisdiction Motion May 2005, paras 22-23; Tarulovski Preliminary Motion March 2005, p 7
para 3-4, p8, para1; Addendum to Preliminary Motion May 2005, pp 1-2;Tarulovski Jurisdiction Motion
May 2005, Para 5. As cited in Bokoski and Tarulovski Para. 610

18 Tadi Trial Judgment, Para. 562 [See ICTY, The Prosecutor v. Tadi [Part B., Para. 562]]

Ljube Boskoski also submitted a motion challenge to the accusation. 20 The submission
was concerned on three arguments:
Based on Article 7 Sub Article 3 of the statute there is no legal basis to establish
responsibility for acts committed by third parties which subordinates are alleged
to have aided and abetted21;
Secondly, that the necessary mental element with regard to armed conflict had
not been pleaded, and, the accusation therefore does not satisfy the jurisdictional
requirement of the provision of the statute;22 and
Thirdly, that the responsibility as pleaded in the Second Amended Indictment
amounts to an abuse of process because this amendment was sought as a result
of the Prosecutions awareness of the lack of legal foundation of its case.23
Bokoski further raised a defence concerning to the meaning of Article 7(3). He was
argued that, he was neither de jure nor de facto superior of the police that entered
19 At the trial, the Accused argued that the existed conflict did not meet the tests of Tadic case. With
respect to the intensity of the conflict, they try to compare the conflict with the 2001 situation in Northern
Ireland and the fighting between the Turkish army and the Kurdistans Workers Party and they concluded
that the hostilities were merely acts of a terrorist nature and, therefore, outside the scope of application of
international humanitarian law (IHL). With regard to the degree of organization of the parties to the
conflict, NLA did not exercise authority to control its own forces. Moreover, the Accused disputed the fact
that the NLA was an organized armed group on the basis that there was a lack of evidence to suggest that
it had sufficient organizational, fighting and logistical abilities, or the ability to carry out sustained attacks
and to implement humanitarian standards.

20 Prosecutor v. Ljube Bokoski and Johan Tarulovski, Case IT-04-82-PT, Assigned Pro bono Counsel
Motion Challenging Jurisdiction, 21 June 2006, paras 3-4 (Assigned pro bono Jurisdiction Motion June
2006). As cited in Bokoski and Tarulovski Para. 611

21 Prosecutor v Bokoski (ICTY, Trial Chamber Case, No IT-04-82-T, 10 July 2008) (Bokoski).
22 Ibid
23 Ibid

Ljuboten on 12 August 2001, nor over Tarulovski, nor over the other police at the police
checkpoints, police stations, the court or in the hospital, where it is alleged the offences
occurred. Moreover, the stated provision demands the superior to take the necessary
and reasonable measures to prevent such acts or to punish the perpetrators thereof. But
as to the arguments of Bokoski, he had no power to punish any of these persons within
the meaning of Article 7(3)24.
2.9. The Decision of the Trial and Appeal Chambers
After critical examination of witness and evidences related to the incident occurred in
Ljuboten and other locations the Trial Chamber II decided on each issues as follow;
Based on Article 5 of the ICTY Statute, the Tribunal will only have the jurisdiction to
punish perpetrators of war crimes where the prosecution can establish that an armed
conflict; either international or internal in character existed. The accused were
challenged the existence of an internal armed conflict. However, the challenge was
unsuccessful. The Trial Chamber was convinced that in August 2001 there was a state of
internal armed conflict in FYROM between the FYROM Security Forces and the NLA 25.
In reaching this decision, the Trial Chamber was strongly relied on the Tadic test. The
Trial Chamber uses a number of indicative factors to examine the degree of intensity
including: the seriousness and occurrence of armed clashes had escalated to almost
daily violence in FYROM between May and mid-August 2001; the conflict covered a
large geographical area from Tetovo, to Kumanovo-Lipkovo, around Skopje and in
Gostivar; the increase in the mobilization of army, police and additional reserve units of
FYROM; the United Nations Security Council issued a statement condemning the
24 Prosecutor v Bokoski (ICTY, Trial Chamber Case, No IT-04-82-T, 10 July 2008) (Bokoski).
25 Ibid

violence by ethnic Albanian armed extremists and, subsequently, passed Resolution

1345 condemning the hostilities and welcoming international involvement; the large
number of persons that had become refugees or internally displaced as a result of the
conflict; the use of heavy weapons, such as grenade launchers, landmines, helicopters,
tanks, ground attack fighter planes, mortars and surface-to-air missiles; the besieging of
towns and villages, such as Tetovo and Aracinovo; the significant number of FYROM
Security Forces deployed to conflict areas; the territory of FYROM that was occupied
and controlled by the NLA; the towns and villages of FYROM that were occupied by the
NLA26.
In addition to the intensity test, the Trial Chamber tried to evaluate evidences that
demonstrated the sufficient characteristics of an organized group 27. Basically the tests
used by the Chamber the NLAs: command structure, with a recognized leader,
structure and hierarchy, and internal regulations that outlined the chain of command
and established disciplinary measures; ability to conduct military operations, such as
troop movements and logistics, and the ability to conduct hit and run military exercises;
level of logistics, such as supplying weaponry and equipment, providing military
training, the wearing of a uniform and the ability to recruit new members; discipline
and the obligations to observe the laws of war; and unity and ability to speak with one
voice28.
Based on the above tests and facts, the Trial Chamber said that it is a day to day practice
for states and organizations to proscribe acts of non-state actors like NLA as terrorist
acts in spite of the fact that the act might have been committed during an armed conflict
26 Ibid
27 Ibid
28 Ibid

and, therefore, rejected the proposition of the Accused 29. Furthermore, the Trial
Chamber rejected the point of view of the Accused that the NLA did not exercise
control over its ground forces. And argued that members of the NLA had violated IHL
in the conflict is not the only ground to say NLA was not an organized. Instead, the Trial
Chamber indicated that what needed to be considered was how the attacks were
planned and carried out, and whether they were conducted as a result of military
strategy dictated by a chain of command.30
As discussed in the above paragraphs, challenges as to the jurisdiction of the Trial
Chamber based on the submission that there was no armed conflict in FYROM in 2001
were dismissed by a decision of the Pre-Trial Chamber, which was afterward upheld by
the Appeals Chamber. As affirmed in those decisions, the question of whether there
was an armed conflict at the relevant time is a factual determination to be made by the
Trial Chamber upon hearing and reviewing the evidence admitted at trial31.
With regard to the challenges related to lack of territorial jurisdiction, the Trial Chamber
persuaded that, the Tribunal had territorial jurisdiction over the charged crimes in the
Indictment because its jurisprudence had consistently recognized that the territory of
the former SFRY included the FYROM, that the Tribunal has temporal jurisdiction over
crimes committed on the territory of the former Yugoslavia since 1991 and there is no
clear indication as to the Statute a jurisdiction which ends, and that the issue of whether
an armed conflict existed did not be relevant to the arguments of jurisdiction, but rather
requires a factual determination that could only be made by a Trial Chamber after
29 Ibid
30 Ibid.
31 Ibid

having duly examined all the evidence tendered during trial. Even if the accused
submitted an interlocutory appeal against the Pre-Trial Chambers on the same issues
the Appeals Chamber on the grounds that firstly, the Tribunals temporal jurisdiction
was open-ended and reaffirmed the decision of the Pre Trial Chamber. 32
In respect to the accusation of Bokoski, as we have seen somewhere else above, he was
charged with command responsibility for failing to investigate the crimes and to ensure
those responsible be punished. The Trial Chamber found that while evidence revealed
that he is a superior but a serious failure of the functioning of the police and the
responsible Macedonian authorities at that time, it has not been established that Ljube
Bokoski failed to take the necessary and reasonable measures for the punishment of
the police. One of the judges of the Trial Chamber further argued that report was the
only expected duty of Ljube Bokoski and he had no authority or powers in respect
of the investigative judge and the public prosecutor because of the fact that they were
not within the Ministry of Interior 33 Therefore, Bokoski that he knew the stated crimes
but he fulfilled his obligations to take steps to punish those who were responsible. For
that reason, he found not guilty or acquitted for any of the counts brought against him.
Even if the evidence did not show the Tarulovski participation in a joint criminal
enterprise as alleged in the accusation. In the time being the police department in the
Ljuboten village were acting under his orders not as fellow participants in a joint
criminal enterprise. Further, as detailed in the written judgement, the Chamber was
satisfied that Tarulovski was himself acting under orders in carrying out the police
operation in Ljuboten. The evidence did not enable the person or persons responsible
for the orders to Tarulovski to be identified. The circumstances confirmed it was a
32 Ibid
33 Judge Kevin Parker, Presiding Judge, said.

person or persons superior to him. Finally, On 10 July 2008, the Trial Chamber rendered
its judgement convicting Tarulovski on the basis of individual criminal responsibility
stated under Article 7(1) of the Statute of the Tribunal convicted with a crime of murder
in violations of the laws or customs of war, Article 3; wanton destruction of cities, towns
or villages in similar violations of Article 3 and cruel treatment in the same provision
sentenced 12 years imprisonment34.
After the Trial chamber judgment, the Prosecution filed its notice of appeal in respect of
Bokoski and the Defence of Tarulovski filed its notice of appeal and the appeal
hearing took place on 29 October 2009. However, the Appeals Chamber dismissed all
seven grounds of appeal presented by the Defence of Tarulovski 35. As far as the
Prosecution's appeal concerned, the Appeals Chamber found that it was not shown that
Bokoski had failed to take the necessary and reasonable measures to punish his
offending subordinates. The Chamber stated that, in the circumstances of the case, it
was open to a reasonable trier of fact to acquit Bokoski of failure to punish
responsibility, on the basis of reports about the events described in the indictment
which had been provided by the Ministry of Interior to the competent judicial
authorities. As a result, the Chamber dismissed the Prosecution's appeal in its entirety 36.
Finally, the Appeals Chamber affirmed the Trial Chamber judgement, confirming the
acquittal of Bokoski and sentencing Tarulovski to 12 years imprisonment.
2.10. The contribution of the Bokoski and Tarulovski case for IHL
2.10.1. It Provide an Extensive Lists of Tests for Intensity an Internal Armed Conflict
34 Ibid
35 Ibid.
36 Ibid

Albeit the issue was highly contested, in proving the occurrence of an internal armed
conflict the Trial chamber uses different tests basically by relying on the Tadic case. As
we have seen above the conflict was between the Security Forces and the Albanian
National Liberation Army37. As to the Chamber decision made on August 2001 there
was an internal armed conflict between the Security Forces and the National Liberation
Army38.
The Trial Chamber had properly embark the relevant legal analysis that to check the
occurrence of an armed conflict. Furthermore, the Appeal Chamber also endorsed the
Trial Chambers analysis that in order to distinguish an armed conflict from banditry,
unorganized and short-lived insurrections or terrorist activities, two closely related
criteria, namely the intensity of the conflict; and the level of organization of the parties
to the conflict must be applied. Moreover, with regard to the application of the test of
intensity and level of organization the Appeal Chamber tried to identify the error made
by the Trial Chamber but it didnt found any error in its decision.
The case of Bokoski, instead of coming with novel international legal principles, the
decision endows with an exhaustive and systematic application of the test, particularly
with respect to the intensity test, which will have relevant for future tribunals when
appraising the occurrence of internal armed conflict. As to literatures there are different
indicative factors used to test the intensity of the conflict. But the tests utilized in
Bokoski case is relatively higher than other cases 39. Even if, it should not be considered
an exhaustive list, the decision of the Trial Chamber in Bokoski provides the most
extensive list of indicative factors considered by the ICTY in any of its judgments 40.

37 Ibid
38 Prosecutor v Bokoski (ICTY, Trial Chamber Case, No IT-04-82-T, 10 July 2008) (Bokoski).

All in all, the case of Bokoski will play a potential role in providing important
assistance for future war crimes tribunals in relation to the determination of an internal
armed conflict.
2.10.2. It Provides a standard for Superior Responsibility of Civilian
Article 7(3) of the ICTY Statute provide a provision that is used to hold superiors
criminally responsible for the crimes of their subordinates 41. In assessing the
responsibility of Bokoski the Trial Chamber apprehended that Bokoski by providing a
report to the competent authorities satisfied his obligation that anticipated under
Article 7(3) of the Statute. Therefore, another the contribution of Bokoski case is
established a doctrine for superior responsibility. As to this decision a superior who
39 The ICTY in its history uses around 17 tests for minimum intensity threshold limb of the
Tadic test: Out of seventeen tests, except Extent of destruction, Road closures and Number of
casualties fighting and shelling, in Bokoski case around 14 tests are utilized. These are:
Seriousness and increase of attacks, Spread of attacks over a period of time, Increase in
mobilisation of forces and weapons, Received UN Security Council attention/ resolutions,
Number of civilians affected, Types of weapons used, Use of heavy weapons, Use of heavy
weapons, Use of tanks or other heavy vehicles/ military equipment, Blocking/ besieging or use
of heavy shelling of towns, Quantity of units deployed, Existence/ change of front lines,
Occupation of territory, Occupation of towns/villages, and Deployment of government forces to
conflict area. but in other cases number of tests used by ICTY are fewer than Bokoski case. For
example Limaj (12), Tadic (9), Haradinaj (8), Halilovic (8) Celiblic(5) and Kordic (5). See Timothy
J Poisel, Australian International Law Journal, Case Notes, Prosecutor V Bokoski (ICTY, Trial
Chamber, Case No It-04-82-T, 10 July 2008.
40 Prosecutor v Bokoski (ICTY, Trial Chamber Case, No IT-04-82-T, 10 July 2008) (Bokoski).
41 Article 7 which deals Individual criminal responsibility under Article 7(3) reads as "The fact
that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does
not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate
was about to commit such acts or had done so and the superior failed to take the necessary and reasonable
measures to prevent such acts or to punish the perpetrators thereof."

does not have personal power to punish subordinates, such as political leaders, what is
required is that there be a report to the competent authorities which is likely to give rise
to an investigation or initiation of appropriate proceedings. Because of the fact that, this
argument is that militaries have their own arrangement of disciplinary systems to deal
with violations of International Humanitarian Law and civilians fall outside this
military system42. In addition to this the comments made by the ICTY shows that the
duty imposed by article 7(3) on civilian superiors are significantly less stringent than on
military commanders. On the one hand, military commanders are required to actively
punish perpetrators, whereas civilian superiors are merely required to report the crimes
to a competent authority in order to satisfy the obligation imposed by article 7(3) 43.
Therefore, the case of Bokoski clearly distinguish the principle of superior
responsibility in case military commanders and civilian authorities.
References

Prosecutor v Bokoski (ICTY, Trial Chamber Case, No IT-04-82-T, 10 July 2008)

(Bokoski).
Tadi Trial Judgment, Para. 562 [See ICTY, The Prosecutor v. Tadi [Part B., Para.
562]]
Timothy J Poisel, Australian International Law Journal, Case Notes, Prosecutor V
Bokoski (ICTY, Trial Chamber, Case No It-04-82-T, 10 July 2008.
UN Security Council, (UNSC Res. 808), Statute of the International Criminal
Tribunal for the Former Yugoslavia (ICTY Statute), 25 May 1993.

42 sup era n: 40
43 Prosecutor v Bokoski (ICTY, Trial Chamber Case, No IT-04-82-T, 10 July 2008) (Bokoski).