The power of the international organizations and authorities to intervene in the political and military decisions of states has been enforced under the influence of the humanitarian law. On the other hand, when the national law and practices in regard to a specific issue are not…
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The International Criminal Tribunal for the former Yugoslavia was created in the context of the United Nations aiming to criticize the military activities developed in the greater area of Balkans during the 1990s. A particular decision of this Court is examined in this paper: the case Kupreskic et al. (no. IT-95-16-T); the justification of the Court’s decision on the above case is presented and explored. The role of this decision on the development of customary law is also examined; the involvement of humanitarian law in the establishment of customary law is criticized. One of the most important contributions of the above case seems to be its role in the expansion of customary law: it is held that principles of humanitarian law can be applied even when such case is not clearly stated in the national law – the customary law is expected to be used in order to develop such schemes; the relevant initiatives can be justified by referring to the humanity or the public interest – an issue that is analytically explored through the case law developed in the specific field – in addition with the case under examination.
In accordance with the Court’s decision – par. 531 – in the case under examination ‘a customary rule of the international law has emerged’; the existence of this rule is justified by referring to the ‘requirements of humanity and the dictates of public conscience’1; at this point, it would be necessary to identify the Chamber’s way of determining rules of customary law in the field of international humanitarian law. Of particular importance would be at this point the reference to the view of Kwakwa who mentioned that a reprisal action can be regarded as opposing the international customary law mostly because these initiatives are expected to have ‘injurious effects on a civilian population’;2 in other words,
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