{"id":412,"date":"2009-11-10T00:12:47","date_gmt":"2009-11-10T07:12:47","guid":{"rendered":"http:\/\/www.harvardnsj.com\/?p=412"},"modified":"2009-11-10T00:12:47","modified_gmt":"2009-11-10T07:12:47","slug":"dershowitz-seeks-to-distinguish-crimes-in-icty-appeal","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2009\/11\/dershowitz-seeks-to-distinguish-crimes-in-icty-appeal\/","title":{"rendered":"Dershowitz Seeks to Distinguish Crimes in ICTY Appeal"},"content":{"rendered":"

By John Thorlin<\/strong>, HLS 2012 NSJ Staff Writer<\/p>\n

On October 29, 2009, Harvard Law School Prof. Alan Dershowitz appeared before the International Criminal Tribunal for the former Yugoslavia (ICTY)<\/a> to appeal the conviction of Johan Tarculovski.\u00a0 Tarculovski was charged with individual criminal responsibility (Art. 7 \u00a71 ICTY Statute<\/a>), as well as superior hierarchical responsibility (Art. 7 \u00a7 3 ICTY Statute<\/a>), on three counts of violations of the laws and customs of war:\u00a0 murder, wanton destruction, and inhumane treatment.<\/p>\n

The circumstances that gave rise to those charges took place during Tarculovski\u2019s time as part of Macedonian President Boris Trajkovski\u2019s security detail.\u00a0 The following account, based on a summary of the events prepared by Human Rights Watch<\/a> about a month after the incident took place, is the most detailed that has surfaced.<\/p>\n

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.\u00a0 The Macedonian authorities suspected that the Albanian National Liberation Army (NLA) had established a stronghold in the town.\u00a0 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.\u00a0 For two days beginning on August 10, 2001, the Macedonian army and police carried out house-to-house attacks.\u00a0 They summarily executed two civilians and killed three others who were attempting to flee the scene.\u00a0 Over one hundred ethnic-Albanian men were arrested, many of whom were beaten while in custody.<\/p>\n

Tarculovski claims that he was simply monitoring the situation on the ground on behalf of President Trajkovski.\u00a0 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.\u00a0 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.\u00a0 Tarculovski and Boskoski were the only people indicted by the ICTY in relation to the 2001 conflict.\u00a0 Boskoski was acquitted of all charges.<\/p>\n

Professor Dershowitz emphasized that this made Tarculovski the \u201conly man in prison\u201d as a result of the conflict.\u00a0 Dershowitz suggested that this indicated that \u201c[the incident] was a crime that should be punished in Macedonia.\u00a0 It should be investigated locally.\u201d\u00a0 The irregular nature of the NLA further muddles the case.\u00a0 The NLA\u2019s members sometimes wore uniforms and sometimes did not, a fact the Macedonian authorities cite in labeling them \u201cterrorists.\u201d<\/p>\n

Professor Dershowitz\u2019s 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\u2019s website one looks at.\u00a0 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.\u00a0 Would trying Macedonian offenders in the fledgling Macedonian court system really lead to justice?\u00a0 Should there be a broader, more permissive notion of due process in the context of a counterterrorist operation?\u00a0 The pending litigation may point towards some answers.<\/p>\n","protected":false},"excerpt":{"rendered":"

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.\u00a0 Tarculovski was charged with individual criminal responsibility (Art. 7 \u00a71 ICTY Statute), as well as superior hierarchical responsibility (Art. 7 \u00a7 3 ICTY Statute), on three counts of violations of the laws and customs of war:\u00a0 murder, wanton destruction, and inhumane treatment. The circumstances that gave rise to those charges took place during Tarculovski\u2019s time as part of Macedonian President Boris Trajkovski\u2019s security detail.\u00a0 […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-412","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZtUX-6E","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/412","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/comments?post=412"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/412\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/media?parent=412"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/categories?post=412"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/tags?post=412"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}