Mental incapacity defenses at the war crimes tribunal: Questions and controversy

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7 Citations (Scopus)

Abstract

Following a report from the Secretary General in May 1993, the United Nations Security Council adopted Resolution 827 and its Statute establishing an International War Crimes Tribunal for the Former Yugoslavia (ICTY) located in The Hague, The Netherlands. Although such action has been discussed in the past, this is the first time the international community has established a tribunal to indict and try individuals for war crimes. The crimes had been previously "created" by multilateral international treaties. The ICTY Rules of Procedure and Evidence allowed for "any special defense, including that of diminished or lack of mental responsibility." Precise legal parameters of the defense were not specified. In 1998, a defendant at the ICTY "Celebici" Trial named Esad Landzo raised the defense of diminished mental responsibility. The Celebici Trial Chamber thus became the first legal body to consider reduced mental capacity as it applies to international criminal law. This article is an examination of the application of the affirmative defense of diminished responsibility at the ICTY and relates the process to the need for further definition of mental incapacity defenses at the newly established International Criminal Court (ICC). At the ICC preparatory commission, drafting material elements of crimes was emphasized, with less consideration given to mental elements. That diminished capacity and diminished-responsibility defenses have often confused scholars and practitioners alike is explored in this article with suggestions for further directions.

Original languageEnglish (US)
Pages (from-to)59-70
Number of pages12
JournalJournal of the American Academy of Psychiatry and the Law
Volume33
Issue number1
StatePublished - 2005

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War Crimes
war crime
Crime
Yugoslavia
International Cooperation
Criminal Law
United Nations
Netherlands
responsibility
International Criminal Court
offense
international agreement
criminal law
chamber
international law
statute
UNO
examination
lack

ASJC Scopus subject areas

  • Law
  • Psychiatry and Mental health

Cite this

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