Suchergebnisse

A plea of superior orders in response to charges founded upon violations of the international laws of armed conflict has since 1945 been treated as a plea in mitigation of sentence rather than as a defence, a position founded upon article 8 of the 1945 Charter of the International Military Tribunal at Nuremberg. In 1998 the draft Statute of the proposed permanent International Criminal Court appeared, by article 33, to "restore" superior orders as a defence, a move deprecated by some as an apparent softening of the international legal approach to war crimes in an age in which such violations are all too prominently before the world's scrutiny. In fact both the formerly received "Nuremberg" doctrine and the appearance of a radical change, or reversion, in the 1998 Statute can be argued to be erroneous. It is the contention of this paper that far from advancing a new and stricter doctrine, the Charter of the IMT at Nuremberg correctly applied pre-existing doctrine in extreme and unusual circumstances but was mistakenly taken to have developed a new approach which was then applied with potentially distorting effect for the generality of circumstances. In this view the 1998 Statute has merely recognised the essential doctrine of superior orders as it existed prior to 1945 and which, properly understood, should not have been thought essentially to have been changed even in 1945.

The application of international humanitarian law during the 1999 Kosovo crisis prior to the deployment of the KFOR Force raises issues of serious concern. The initial confrontations between the KLA & the Federal Yugoslav (Serbian) forces in Kosovo focused renewed attention upon the serious impediments to the application of humanitarian norms in noninternational armed conflicts. These included both the increased tendency to the perpetration of atrocities found in intrastate conflicts & the long-standing problem of criteria for the application of humanitarian legal norms in such situations. The subsequent NATO air strikes perhaps raise more serious questions for the jus ad bellum than for the jus in bello. However, the choice of high-level aerial bombardment as the sole method of combat raises questions both of the practice & even the possibility of adequately discriminate target selection. These include the reasons for reliance upon this method of combat as well as the continuing ambiguity of the circumstances in which the Chinese Embassy in Belgrade was bombed. Finally, potentially alarming questions for the future of international humanitarian law arise from the revival of forms of "just war" rhetoric during the crisis & especially in relation to claims of "humanitarian intervention.". Adapted from the source document.

Discusses whether UN Security Council actions and NATO intervention in the ethnic conflict violated international law. Focuses on Serbian civilian casualties and collateral damage caused by NATO air raids, and evaluates the Yugoslavian government's charge that the air campaign constituted an act of genocide.