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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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Civilizing Civil War: Writing Morality as Law at the ICTY

Civilizing Civil War: Writing Morality as Law at the ICTY

Chapter:
(p.469) 16 Civilizing Civil War: Writing Morality as Law at the ICTY
Source:
The Legacy of the International Criminal Tribunal for the Former Yugoslavia
Author(s):

Alexander Zahar

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199573417.003.0017

International law governing international armed conflict has grown since 1945 to include many crimes for which individuals may be held criminally liable. The ICTY and its supporters claim that much of this law has been extended to non-international armed conflict. This chapter argues that the rapid growth of internal-armed-conflict law at the ICTY has been accomplished by an ICTY moral philosophy masquerading as method. The tribunal's judges were well aware that the majority of states were, as late as 1977, opposed to, or had doubts about, such expansionism. Under a veneer of legality, a humanitarian sentiment that had been blocked by states at the diplomatic conferences convened by the ICRC found an opening with the establishment of the ICTY. Can the ICTY's law survive in the long term against the power of sovereign interest? The chapter considers this question in the light of the United States' critique of the ICRC's 2005 customary-law study.

Keywords:   ICTY, customary international law, non-international armed conflict, civil war, international committee of the red cross, ICRC, customary law study, Antonio Cassese

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