Justifications and excuses in international criminal law: an assessment of the case-law of the ICTY

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.