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The Diverging Position Of Criminal Law Defenses Before The Icty And Icc: Contemporary Developments

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Chapter Summary

This chapter focuses on the contrasting position of the defenses at the level of the International Criminal Court (ICC), on the one hand, and their different position within the Statute and case law of the International Criminal Tribunal for the former Yugoslavia (ICTY), on the other hand. From the moment the ICC became operative various international and internationalized criminal tribunals were already functioning without having a uniform system as to the admissibility of criminal law defenses. The question that is examined in the chapter is whether this lack of cohesion comports to fair trial principles applicable within international criminal law (ICL). From the perspective of the accused persons, the invokability of defenses forms an essential part of the principle of a fair trial. Most defenses, such as duress, necessity, self-defense, mistake of law/fact and mental disease are legal postulations of a certain mental state of the accused.

Keywords: criminal law defenses; duress; ICTY; International Criminal Court (ICC); mental disease; military necessity; mistake of fact; self-defense



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