Tadić v. Prosecutor: International Criminal Tribunal for the Former Yugoslavia, 1995
Chapter in: Landmark Cases in Public International Law (Hart, 2017), Forthcoming
30 Pages Posted: 6 Apr 2017
Date Written: March 31, 2017
Forthcoming in Landmark Cases in Public International Law (Hart, 2017), this chapter investigates the ‘landmark’ status of the decision of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in Tadić v Prosecutor (1995). The chapter differentiates between two types of landmarks: signposts for other travelers, indicating the direction to be followed, or high-water points, relics of a particular moment in time. This chapter considers the significance of the Tadić case in both senses of landmark. After reflecting upon the case as a matter of diplomatic and legal history, it analyses the interlocutory appeal decided by the Appeals Chamber on 2 October 1995 as a landmark with respect to three areas of international law: general international law, international humanitarian law and international criminal law. It ends with a perspective on the significance of the interlocutory appeal for legal reasoning in international law. It concludes that in some areas the Tadić Interlocutory Appeal has been a signpost (for instance, its validation of the power of the Security Council to pursue the project of international criminal law and developments in international humanitarian law, particularly the diminishing relevance of the distinction between international and non-international armed conflict), while in others more a high-water mark (for example, as a case study in judicial law-making and legal reasoning that invokes natural law or appeals to morality to overcome perceived shortcomings in the positive law).
Keywords: landmark, Tadic, ICTY, judicial review of the Security Council, international humanitarian law, international criminal law, legal reasoning, judicial law making
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