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The Legacy of the International Criminal Tribunal for the Former Yugoslavia$
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Bert Swart, Alexander Zahar, and Göran Sluiter

Print publication date: 2011

Print ISBN-13: 9780199573417

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199573417.001.0001

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Justifications and Excuses in International Criminal Law: An Assessment of the Case-law of the ICTY

Justifications and Excuses in International Criminal Law: An Assessment of the Case-law of the ICTY

Chapter:
(p.275) 9 Justifications and Excuses in International Criminal Law: An Assessment of the Case-law of the ICTY
Source:
The Legacy of the International Criminal Tribunal for the Former Yugoslavia
Author(s):

Harmen van der Wilt

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199573417.003.0010

This chapter explores the question of how defences, purporting to deny criminal responsibility, work out in international criminal law. Taking the case law of the ICTY as frame of reference, it demonstrates that international criminal tribunals have shown at least some sensitivity to the fact that soldiers are exposed to extremely tense situations. A parameter that also tends to influence the assessment of defences is the fact that in armed conflicts individuals cannot completely be separated from the collective they are part of. In view of the high stakes involved, the chapter concludes that justifications will hardly ever be accepted. Given the incommensurateness between frail human beings and extreme conditions of war fare, excuses are more likely to persuade the courts.

Keywords:   defences, justifications, excuses, jus in bello, jus ad bellum

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