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3. The Protection of States'National Security Interests in Cases before the ICTY: a Descriptive and Prescriptive Analysis of Rule 54Bis of the Rules and Procedure and Evidence

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Chapter Summary

The ILC has articulated a distinction between the two notions of self-defence in its Commentary on Article 14 - the general provision on defences - of the 1996 revised Draft Code of Crimes against the Peace and Security of Mankind. This chapter deals with the current state of the law and identifies relevant tests for application of the defences. It discusses relevant international jurisprudence, although it is noted that the international crime of aggression has only ever been prosecuted before the IMT and the IMTFE in the aftermath of World War II. In contrast, self-defence has arisen in trials against the physical perpetrators of alleged war crimes in more contemporary trials as well as in the post-World War II era. The exclusion of individual criminal liability for resort to military force in national defence arises as an exception to the criminalisation of resort to aggressive and illegal war.

Keywords: IMT; IMTFE; international crime; military force; self-defence; war crimes; World War II



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