HETAIRAI OR THE MYTH OF FREEDOM
Војислав Станимировић, Уна Дивац
Отвори публикацијуThe main goal of this paper is to conduct a legal analysis of the way in which the International Criminal Tribunal for Former Yugoslavia (ICTY) has been created. In order to achieve this goal, the authors have researched the process of the creation of the tribunal, the theoretical reflections on its creation, as well as the decision of the ICTY itself on the matter in its Tadić case. The authors have ascertained that the UN Security Council, which has created the ICTY with reference to the Chapter VII of the UN Charter, did not have the authority to do such a thing – they concluded that the ICTY was created unlawfully. Therefore, the authors are of the opinion that the jurisprudence of the ICTY should not be interpreted in a way that it has any precedential effect, i.e. in a way that it contributes to the development of general customary international criminal law. In this sense, the authors conclude that other international criminal courts and tribunals, and especially the International Criminal Court, should not in their own practice refer to the jurisprudence of the ICTY as a source of law of any kind, as well as that such jurisprudence could only be relevant in the field of legal theory, as if it represented doctrinal work.