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Critique of the Mrkšić Trial Chamber (ICTY) Judgment: A Re-evaluation on Whether Soldiers Hors de Combat Are Entitled to Recognition as Victims of Crimes Against Humanity

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On 27 September 2007, the Mrkšić Trial Chamber held that the unlawful killing of soldiers hors de combat ("out of the battle") did not entitle them to recognition as victims of crimes against humanity under Article 5 of the ICTY Statute. This article critically analyses the Court's mischaracterization of precedent, revealing both historical and contemporary support for a broader definition of "civilian population" under Article 5. Moreover, by looking at case law and statutes from Nuremberg, foreign countries, and international courts, a continuous pattern that encompasses soldiers hors de combat within the definition of "civilian population" begins to emerge. Ultimately, to validate the increasing role of international humanitarian and human rights law, international criminal law must provide greater protections for those most vulnerable, in this case, soldiers hors de combat.

Affiliations: 1: California Western School of Law, San Diego, CA 92101, USA


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