Law Review Duress as Defense

8/2/2019 Law Review Duress as Defense

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The Soldiers Obligation to Die When

Ordered to Shoot Civilians or Face DeathHimself

Valerie Epps*

INTRODUCTION

Whether the defense of duress is available for murder or other seriouscrimes has been the subject of scholarly debate for decades.1 That debate

has also raised much contention when the defendant has been accused ofserious international crimes.2 This article examines the treatment of thedefense of duress in the context of the Yugoslav Tribunals decision in thecase ofProsecutor v. Drazen Erdemovic,3 and also attempts to place thedebate in the broader context of the jurisprudence of international criminalculpability.

The International Military Tribunal at Nuremberg rejected the

* Professor of Law and Director of the International Law Concentration, Suffolk University

Law School, Boston. Nicole Frederichs, who has served as my research assistant, deserves

much thanks for her diligent and ever cheerful help.1. See generally, Lon L. Fuller, The Case of the Speluncean Explorers, 62 HARV.L.

REV. 616 (1949).

2. See George C. Christie, The Defense of Necessity Considered from the Legal and

Moral Points of View, 48 DUKE L.J. 975 (1999); Major Stephen C. Newman, Duress as a

Defense to War Crimes and Crimes Against Humanity-Prosecutor v. Drazen Erdemovic,

166 MIL. L. REV. 158 (2000); David Turns, The International Criminal Tribunal for the

Former Yugoslavia: The Erdemovic Case, 47 INTL &COMP.L.Q. 461 (1998); Sienho Yee,

The Erdemovic Sentencing Judgement: A Questionable Milestone for the International

Criminal Tribunal for the Former Yugoslavia, 26 GA.J.INTL &COMP.L. 263 (1997); and

Abbe L. Dienstag, Comment, Federenko v. United States: War Crimes, the Defense of

Duress, and American Nationality Law, 82 COLUM.L.REV. 120 (1982).

3. Prosecutor v. Erdemovic, Case No.: IT-96-22-T, Sentencing Judgement, 29

November 1996; Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Judgement, 7 October

1997; and Prosector v. Erdemovic, Case No.: IT-96-22-Tbis, Sentencing Judgement, 5March 1998.

987


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988 NEW ENGLAND LAW REVIEW [Vol. 37:4

proposition that international law is concerned with the actions ofsovereign States, and provides no punishment for individuals.4 TheTribunal stated that [c]rimes against international law are committed by

men, not by abstract entities, and only by punishing individuals whocommit such crimes can the provisions of international law be enforced.5The creation of the International Criminal Tribunals for the FormerYugoslavia6 and for Rwanda7 carry forward the principle of individualresponsibility for violations of certain international crimes defined by the

statutes applicable to each tribunal.8

Criminal law, both domestic and international, requires an intentional acton the part of the culprit to secure conviction. Broadly speaking, the lawrequires the defendant to have intended the natural consequences of his

voluntary acts. Criminal law has always accepted the notion that there arecertain defenses, available to the defendant, even if it is proved that hecommitted the criminal act. A number of these defenses, including duress,essentially negate the intent necessary for conviction and demonstrate thatthe actions were not voluntary. Generally, when a criminal defendantraises the defense of duress, the court will examine whether the defendantwas threatened by a force to such an extent that a person of reasonablefirmness in his situation would have been unable to resist.9 If a sufficientthreat is found, the defendant will be acquitted. In such a situation, the

defendant, is not regarded as either having acted voluntarily or having thenecessary criminal intent.

In the famous British case ofRegina v. Dudley & Stephens,10 sailorswere adrift at sea and starving. The sailors killed and ate a dying cabin boyand were convicted of murder despite the courts acknowledgment that allwould have perished had they not eaten the boy. Though the case is strictly

4. International Military Tribunal (Nuremberg) Judgement and Sentences (Oct. 1,

1946), reprinted in 41 AM.J.INTL L. 172, 220 (1947).

5. Id. at 221.

6. S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/827 (1993)

[hereinafter ICTY Statute]. This statute has been amended three times, most recently by

U.N. Doc. S/RES/1411 (2002).

7. S.C. Res. 955, U.N. SCOR, 49th Sess., 3453rd mtg., U.N. Doc. S/RES/955 (1994)

[hereinafter ICTR Statute].

8. See ICTY Statute,supra note 6, arts. 2, 3, 5; ICTR Statute,supra note 7, arts. 2, 3,

4.

9. MODEL PENAL CODE, 2.09 (1) (1962).

10. 14 Q.B.D. 273 (1884), reprinted in THE ALL ENGLAND LAW REPORTS REPRINT

1881-1885 61 (G.F.L. Bridgman, Esq., O.B.E. ed., Butterworth & Co. Ltd. 1964). There is

a similar American case, U.S. v. Holmes, 26 F. Cas. 360 (C. C. E. D. Pa. 1842) (No. 15,

383), where sailors in a leaky longboat threw some of the passengers overboard to lighten

the load and save themselves.


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2003 THE SOLDIERS OBLIGATION 989

one of necessity11 rather than duress, the principle of an outside force

overbearing the will of the defendant is the same. Common lawjurisdictions tend to allow the defense of duress for all criminal activities,

except murder, where the criminal acts were carried out under threat ofimminent serious bodily injury or death. However, a number of Americanstates have adopted the Model Penal Code, which allows duress as adefense even for murder.

The refusal to allow the defense of duress in murder cases can be tracedto William Blackstones remark that a person ought rather to diehim[s]elf, than e[s]cape by the murder of an innocent.12 The idea behindthe exception for murder is that a person who, for example, is told to killanother person or face death himself has no basis upon which to prefer hisown life to anothers. Civil law countries and the Model Penal Code rejectthis exception based on the argument that the instinct for self-preservationis so strong that very few people, if any, will prefer preserving someoneelses life over their own and that the law should not require the criminaldefendant to make a choice that the overwhelming majority of people

would not make. The preference equation may be resolved differently ifthe defendant has a special relationship to the third party. For example,many parents would choose to die if the choice was between their life andtheir childs.

TheErdemovic case raises the important question of whether the defenseof duress should be available to those accused of war crimes. The facts ofthe case, however, present a troubling variation on the usual dilemma ofpreferring one life for another. Erdemovic was presented with the choiceof killing unarmed civilians during wartime or adding one more to thoseslaughtered by a firing squad, namely himself. This new factual twist tothe old problem resulted in a serious division between the judges on the

Yugoslav Tribunal who heard Erdemovics appeal.

MANIFESTLY ILLEGALORDERS

There is a line of authority, running from at least as far back as theLieber Code,13 to support the proposition that the defense of superiororders will not serve to exonerate a soldier who violates the laws of war if

11. The defense of necessity refers to coercion by physical force whereas duress

refers to threats by one human being against another;see alsoinfra note 122.

12. 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 30

(Dawsons of Pall Mall, 1966)(1765-1769) available at

http//:www.yale.edu/lawweb/avalon/blackstone/bk4ch2.htm (last visited April 5, 2003).

13. Instructions for the Government of Armies of the United States in the Field,

reprinted in THE LAWS OF ARMED CONFLICTS 3 (Dietrich Schindler & Jiri Toman eds., 3d

ed. 1988).


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the superiors order was manifestly unlawful.14 Such an order may serveto mitigate the sentence but will not prevent the soldier from being foundguilty of the offense.15 The cases where a low level soldier raises the

defense of having been ordered to violate the law by a commanding officerare always difficult. Usually the commanding officer will deny that suchan order was given,16so that the trier of fact first has to decide whether tobelieve the soldier. Even if the soldier is believed, there is always ashadow of doubt when the basis of the defense has been disputed.

Where it is clear that the soldier was given an order which he knew, orshould have known, was clearly illegal, the cases are still troubling becausewe know that recruits to the armed forces are indoctrinated from the firstday on the necessity of obeying orders from superior officers and because

the soldier knows that if he wrongly disobeys an order, the consequenceswill be severe.17 If the soldier wrongly disobeys an order during hostilities,

14. Rome Statute of the International Criminal Court, art. 33, U.N. Doc. 32/A/CONF.

183/9 (July 17, 1998), reprinted in 37 I.L.M. 999 (1998) [hereinafter ICC Statute]. The

statute provides in part:

1. The fact that a crime within the jurisdiction of the Court has been committed by

a person pursuant to an order of a Government or of a superior, whether military

or civilian, shall not relieve that person of criminal responsibility unless Y (C) The

order was not manifestly unlawful. 2. For the purposes of this article, orders to

commit genocide or crime against humanity are manifestly unlawful.

See United States v. Calley, 22 C.M.A. 534 (1973) revd sub. nom. Calley v. Callaway, 382

F. Supp. 650 (M.D. Ga. 1974), revd, 519 F.2d 184 (5th Cir. 1975), cert. denied, Calley v.

Hoffman, 425 U.S. 911 (1976). Calleys defense counsel argued that the orders he received

to kill everyone in the village were not palpably illegalY. Calley, 22 C.M.A. at 539.

However, the court ruled that the proper test was that:

The acts of a subordinate done in compliance with an unlawful order given him by

his superior are excused and impose no criminal liability upon him unless the

superiors order is one which a man of ordinary sense and understanding would,

under the circumstances, know to be unlawful, or if the order in question is

actually known to the accused to be unlawful.

Id. at 542. See generally, Regina v. Finta, [1994], 1 S.C.R. 701 which includes a history of

the defense of superior orders together with the establishment of the manifestly illegal test.

See also, L.C. GREEN, Superior Orders and the Reasonable Man, in ESSAYS ON THE

MODERN LAWS OF WAR43, 49 (1985).

15. See ICTY Statute,supra note 6, art. 7 (4); ICTR Statute, supra note 7, art. 6 (4);

ICC Statute,supra note 14, art. 31, 33, 78; Agreement for the Prosecution and Punishment

of the Major War Criminals of the European Axis Powers and Charter of the International

Military Tribunal, art. 8, signed London, 8 Aug. 1945, entered into force 8 Aug. 1945; 59

Stat. 1554, 82 U.N.T.S. 279 [hereinafter The London Charter].16. See, e.g., Calley, 22 C.M.A. at 538.

17. See, e.g., Uniform Code of Military Justice, 10 U.S.C. 890(2) (2000):

Any person subject to this chapter who: Y (2) willfully disobeys a lawful


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the result could even be his own execution.18 Military law puts the soldier

operating under such orders in an almost untenable situation and, no matterhow heinous the soldiers alleged acts, none but the hardest hearted can fail

to be moved by the soldiers dark dilemma. In a very real sense the soldieris under duress, but international and domestic military law has been clearthat the soldier obeys the manifestly illegal order at his peril and if hemakes the wrong choice, he will bear the consequences.19 Internationallaw has decided to reject the defense of duress in such circumstancespreferring the preservation of the victims life to the exoneration of thesoldier. The statutes for the International Criminal Tribunal for the Former

Yugoslavia, the International Criminal Tribunal for Rwanda and theInternational Criminal Court all have roughly similar provisions making itclear that obeying illegal orders does not relieve the soldier from criminalresponsibility but may mitigate the sentence.20 The statutes reflect thesame provisions found in the London Charter, which governed theNuremberg Tribunal.21

THEERDEMOVICFACTS

The tale of Drazen Erdemovic presents an even darker dilemma and onethat has not received much legal attention. Erdemovic, a Croat, was a lowranking member22 of the Bosnian Serb army during the Balkan war. OnJuly 16, 1995, he found himself as part of a firing squad located at theBranjevo farm at Pilicia in Eastern Bosnia near Srebrenica. A number ofunarmed civilian Muslim men had been rounded up and were beingdetained by the Bosnian Serb army. Erdemovic claims that he was ordered

to shoot the civilians by his superior officer. In terms of the laws of war,

command of his superior officer; shall be punished, if the offense is committed in

time of war, by death or such other punishment as a court-martial may direct, and

if committed at any other time, by such punishment, other than death, as a court-

martial may direct.

Id.

18. See id.

19. See, e.g., The London Charter,supra note 15, art. 8.

20. See ICTY Statute, supra note 6, art. 7 (4); ICTR Statute, supra note 7, art. 6(4);

ICC Statute,supra note 14, arts. 31, 33, 78.

21. See The London Charter,supra note 15, art. 8.

22. See Prosecutor v. Erdemovic, Case No.: IT-96-22-T, Sentencing Judgement , 29

November 1996, para. 79. Erdemovic stated that he had been a sergeant in command of a

small unit but that he had been demoted before taking part in the alleged crimes. There

were no documents presented to confirm his rank and the indictment simply describes him

as a soldier in the10th Sabotage Unit of the Bosnian Serb Army. The Trial Chamber

describes him as low ranking.


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the Bosnians were either unarmed civilians23 or they were prisoners ofwar.24 In either case, the Bosnian Serb army was definitively prohibitedfrom shooting, or in any way mistreating, the Bosnians.25 Erdemovic

claims that he remonstrated with his commander when ordered to shoot:When I refused, they told me: >If youre sorry for them, stand up, line upwith them and we will kill you too.26Erdemovic concluded that, if he hadrefused to shoot the civilians, he would have been lined up with them andshot by the firing squad. He stated that he was not sorry for myself but for

my family, my wife and son who then had nine months.27 He reasonedthat the civilians were going to be shot by the firing squad no matter whathe did and that the only result of his refusal to shoot the men would be thatone more person, namely Erdemovic himself, would die. As a result, hejoined the firing squad and shot the civilians. A total of 1,200 unarmedcivilians were killed over a five-hour period.28 It was estimated thatErdemovic was responsible for the death of somewhere between ten andone hundred people. 29

ERDEMOVICS DEFENSE

Erdemovics defense was based not simply on the need to obey superiororders that he, and his lawyers, well understood would not exculpate himbut on the notion that his commanding officer placed him under duress,where he could either obey an illegal order or face death. The YugoslavTribunal, both at the trial and appellate level, decided that the defense of

duress could not be accepted with the result that the law required him tosacrifice his own life with no hope of saving the civilians rather than obeythe illegal order to shoot the civilians.30

TheErdemovic case is heartrending for a number of reasons quite apart

from the horrendous slaughter of the Muslim men and boys. If Erdemovic

23. See Geneva Convention Relative to the Protection of Civilian Persons in Time of

War, 12 August 1949, 75 U.N.T.S. 287, 6 U.S.T. 3516, arts. 3, 4 (entered into force 21

October 1950).

24. See Geneva Convention Relative to the Treatment of Prisoners of War, 12 August

1949, 75 U.N.T.S. 135, 6 U.S.T. 3316, arts. 3, 4 (entered into force 21 October 1950).

25. See Geneva Convention Relative to the Protection of Civilian Persons in Time of

War, supra note 23, at arts. 3, 13-78; Geneva Convention Relative to the Treatment of

Prisoners of War,supra note 24, at arts. 3, 12-108.

26. Prosecutor v. Erdemovic, Case No.: IT-96-22-T, Sentencing Judgement , 29

November 1996 para. 10.

27. Id.

28. See id. para. 85.

29. See id.

30. See id. para. 91; Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Judgement, 7

October 1997, para. 19.


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had not decided to tell his story, there is every reason to think that the

world would never have heard of him or of his crimes. The Prosecutorstated that without Erdemovics statements he would not have known of the

massacres at the Branjevo farm and the killing of another 500 civilians inthe public building at Pilicia. Erdemovic has cooperated with theProsecutors office in The Hague and provided considerable evidence aboutthe massacres at Pilicia. He has also provided specific evidence in hearingsagainst Radovan Karadzic and Ratko Mladic.31

ERDEMOVICS GUILTY PLEA AND SENTENCING

On May 31, 1996, Erdemovic pled guilty to one count of a crime againsthumanity.32 He was initially sentenced to ten years imprisonment, withtime held in detention deducted.33 The trial court considered the followingcircumstances to mitigate his punishment: his youth at the time the crimeswere committed; his low military rank; his remorse; his voluntary

surrender; his cooperation with the Prosecutors Office; the fact that heposed no on-going threat; and that he had a personality capable of reform.34After his appeal, the case was remanded to a new Trial Chamber whereErdemovic was permitted to replead to the charges. On January 14, 1998,

he pled guilty to the alternative charge of a violation of the laws andcustoms of war, rather than pleading guilty to the charge of a violation of acrime against humanity.35 The Prosecutor withdrew the latter charge.After a sentencing hearing, the Trial Chamber reduced Erdemovicssentence to five years imprisonment with time deducted for the periodalready spent in custody.36

THE DURESS ORURGENTNECESSITYDEFENSE IN THE TRIALCHAMBER

In pleading guilty, Erdemovic raised the defenses of urgent necessity toobey his military superior and the physical and moral duress stemmingfrom fear for his own life and that of his wife and child.37 The court thushad to consider whether these defenses might be regarded as a defence for

31. See Prosecutor v. Erdemovic, Case No.: IT-96-22-T, Sentencing Judgement, 29

November 1996, para. 96.


33. See id. at Disposition.


35. See Prosecutor v. Erdemovic, Case No.: IT-96-22-Tbis, Sentencing Judgement, 5

March 1998, at Disposition.

36. See id.

37. Summary of Trial Chamber Judgement: Prosecutor v. Erdemovic, Case No.: IT-

96-22-T, Sentencing Judgement, 29 November 1996, para. 14.


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the criminal conduct which might go so far as to eliminate the mens rea ofthe offence and therefore the offence itself.38 In other words, although theICTY Statute only permits mitigation of punishment for obeying illegal

orders,

39

not removal of criminal responsibility, the court had to considerwhether the defenses proffered justified the acts. If so, the court wouldhave had to reject the guilty plea. An accused that pleads guilty but at thesame time asserts the elements of a defense, which, if proved, wouldexonerate him, is not knowingly and clearly waiving his right to a trial.40

The Trial Chamber recognized that, although the current statute is silenton the defenses of duress or urgent necessity, the International MilitaryTribunal at Nuremberg and other military courts have permitted duress andnecessity to remove responsibility for a crime in certain very limited

circumstances.41 In other cases, duress or necessity was merely considered

38. See id.39. See ICTY Statute,supra note 6, art. 7 (4).

40. See Rule 62 bis of the Rules of Procedure and Evidence of ICTY, U.N. Doc.

IT/32/Rev.26 (2002), available athttp://www.un.org/icty/legaldoc/index.htm (last visited on

April 5, 2003) [hereinafter ICTY Rules]. The rule states:

If an accused pleads guilty in accordance with Rule 62 (vi), or requests to change

his or her plea to guilty and the Trial Chamber is satisfied that:

(i) the guilty plea has been made voluntarily;

(ii) the guilty plea is informed;

(iii) the guilty plea is not equivocal; and

(iv) there is a sufficient factual basis for the crime and the accuseds

participation in it, either on the basis of independent indicia or on lack of any

material disagreement between the parties about the facts of the case,

the Trial Chamber may enter a finding of guilty and instruct the Registrar set adate for the sentencing hearing.

Id.

41. See Trial of Alfried Felix Alwyn Krupp von Bohlen and Halbach and eleven

others, U.S. Military Tribunal, Nuremberg, 17 November 1947-30 June 1948, Case No. 58,

The United Nations War Crimes Commission, Law Reports of Trials of War Criminals

[hereinafterL.R.T.W.C.], Vol. X, at 147;Einsatzgruppen Case,In re Ohlendorf and Others,

quoted in L.R.T.W.C., Vol. XV, at 174. See alsoThe German High Command Trial, Trial

of Wilhelm von Leeb and thirteen others, U.S. Military Tribunal, Nuremberg, 30 December

1947-28 October 1948, Case No. 72,L.R.T.W.C., Vol. XII, at 72;I.G. Farben Case, Trial of

Karl Krauch and twenty-two others, U.S. Military Tribunal, Nuremberg, 14 August 1947-29

July 1948, Case No. 57L.R.T.W.C., Vol X, at 57; Trial of Friedrich Flick and five others,

U.S. Military Tribunal, Nuremberg, 20 April 1947-22 December 1947, Case No. 48,

L.R.T.W.C., Vol. IX, at 20; Trial of Erhard Milch, U.S. Military Tribunal, Nuremberg, 20

December 1946-17 April 1947, L.R.T.W.C., Case No. 39, Vol. VII, at 40; Trial of

Lieutenant General Shigeru Sawada and three others, U.S. Military Commission, Shanghai,

27 February 1946-15 April 1946, Case No. 25L.R.T.W.C., Vol. V at 18-19; Trial of Rear-

Admiral Nisuke Masuda and four others of the Imperial Japanese Navy, Jaluit Atoll Case,


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as an element for mitigation of the sentence.42 The Trial Chamber noted

that the report of the Secretary-General of the United Nations on the ICTYStatute had addressed duress in the context of superior orders and noted

that the superior order may be considered in connection with otherdefenses such as coercion or lack of moral choice.43 In this case, the trialjudges did not consider that the defenses fell within the narrow class ofcases which warranted full exculpation, although they recognized that theWWII cases, which had rejected defenses of duress or necessity, hadinvolved officers claiming such defenses rather than a rank and file soldier,as here.44

In analyzing the mitigating circumstances occurring at the time of thecriminal act (as opposed to the accuseds attitude after the act), the TrialChamber listed questions to be addressed relating to urgent necessitystemming from duress and a superior order:45

- could the accused have avoided the situation in which he found

himself ?

- was the accused confronted with an insurmountable order which he

had no way to circumvent?

- was the accused, or one of his immediate family members, placed in

danger of immediate death or death shortly afterwards?

- did the accused possess the moral choice to oppose the orders he had

received? Had he possessed that freedom, would he have attempted to

oppose the orders?46

The Trial Chamber listed the above issues for consideration when

U.S. Military Commission, U.S. Naval Air Base, Kwajalein Island, Kwajalein Atoll,

Marshall Islands, 7-13 December 1945, Case No. 6, L.R.T.W.C., Vol. I, at 74-76, 79-80;

Trial of Wilhelm List and Others, U.S. Military Tribunal, Nuremberg, 8 July 1947-19

February 1948, L.R.T.W.C., Case No. 47, Vol. VIII, at 50-52; and 1956 U.S. Dept of the

Army, Field Manual 27/10 501 (1956).

42. SeeRU v. Eck(Peleus case),L.R.T.W.C. Vol. I at 21; U.S. v, Sawada,L.R.T.W.C.

Vol V at 13-14; U.S. v. Von Leeb (High Command case),L.R.T.W.C. Vol. XII, at 1; XI Trial

of War Criminals (T.W.C.) 1, at 563; France v. Carl Bauer, L.R.T.W.C. Vol. VIII, at 15;

U.S. v. Wilhelm List (Hostage case), L.R.T.W.C. Vol. VIII, at 74-76; U.S. v. Ohlendorf

(Einsatzgruppen case) (1948) 4 T.W.C., at 1.

43. The Report of the Secretary General Pursuant to Paragraph 2 of S.C. Res. 808,

U.N. Doc. S/25704, para. 57 (1993).

44. See Prosecutor v. Erdemovic, Case No.: IT-96-22-T, Sentencing Judgement, 29November 1996, paras. 92-95.


46. Id.


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addressing the defense of necessity or duress but did not undertake anyfurther analysis because Erdemovic provided no corroborating evidence ofhis version of the events constituting his defense.47 The judges, therefore,

refused to accept his defense of urgent necessity or duress even thoughthey recognized that some credibility may be given to the overall accountof the accused.48 The Trial Chamber did not engage in any discussion ofwhy Erdemovics defense required corroborative evidence.49 One can onlysuppose that the judges were concerned about the ease of raising such a

defense if no corroborative evidence were required.

The Trial Chamber was thus in the unusual position of recognizing that aplea of duress or necessity, if proved, could exonerate the accused who had,nevertheless pled guilty. In such circumstances, the Trial Chamber could

not have accepted the guilty plea because the plea would have revealed adefense, which could have exonerated the accused. In this case, however,having discovered that defense counsel had no evidence for the proffereddefense, other than Erdemovics word, the judges reached the evidentiaryconclusion that they could not accept the defense as a matter of fact.50 Thatbeing the case, the defense collapsed and thus there was no reason not toaccept the guilty plea. In other words, although the Trial Chamber was, inprinciple, ready to hear defenses based on duress or necessity, it was notprepared to find in favor of any defendant who could not present

corroborating evidence on such defenses.

THE APPEAL CHAMBERJUDGMENT OF 7OCTOBER1997

On appeal, the Appeals Chamber was presented with the issue ofwhether the Trial Chamber correctly accepted the guilty plea. That issueturned on the embedded issue of whether duress or necessity were

exculpatory defenses and, if so, whether such defenses requirecorroborative evidence.51 If necessity or duress could be accepted asexculpatory defenses, then the Trial Chamber should not have accepted the

plea, unless such defenses always require corroborative evidence. If thedefenses of duress or necessity were simply unavailable for charges ofcrimes against humanity or violation of the laws and customs of war, then

47. Id. para. 90.

48. Id.

49. The Appeals Chamber determined that the requirement of corroborative evidence

to establish a defense of duress or necessity was not justified. Prosecutor v. Erdemovic,

Case No.: IT-96-22-A, Joint Separate Opinion of Judges McDonald and Vohrah, 7 October

1997.

50. See Prosecutor v. Erdemovic, Case No.: IT-96-22-T, Sentencing Judgement, 29

November 1996, para. 91.

51. See Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Joint Separate Opinion of

Judges McDonald and Vohrah, 7 October 1997, para. 90.


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the Trial Chamber would have been correct in accepting the guilty plea.

There were several grounds of appeal, but essentially one argumentrelated to duress. Although Erdemovic was guilty of the offense, it was

argued that his sentence be commuted or considerably reduced on theground that the Trial Chamber should not have required corroboration ofthe defenses of duress or necessity, given the fact that the only evidence ofErdemovics guilt was his uncorroborated testimony that he participated inthe firing squad?52 In other words, the appeal was not based on the theory

that duress or necessity should have been accepted as an exculpatorydefense, but rather that duress and necessity should have been accepted asarguments in mitigation of punishment without the requirement ofcorroborative testimony.53

The Appeals Chamber, however, decided to raise certain issues on itsown authority, all revolving around the validity of Erdemovics guilty plea.It addressed the following questions:

(1) In law, may duress afford a complete defence to a charge of crimes againsthumanity and/or war crimes such that, if the defence is proved at trial, the accused

is entitled to an acquittal?

(2) If the answer to (1) is in the affirmative, was the guilty plea entered by the

accused at his initial appearance equivocal in that the accused, while pleading

guilty, invoked duress?

(3) Was the acceptance of a guilty plea valid in view of the mental condition of

the accused at the time the plea was entered? If not, was this defect cured by

statements made by the accused in subsequent proceedings?54

The Appeals Chamber found unanimously that Erdemovics plea wasvoluntary but, with one dissent, that the plea was not informed. It wasunclear whether Erdemovic understood the difference between the twocharges (crimes against humanity or violation of the laws and customs of

war) in light of the fact that his defense counsel did not appear tounderstand the differences. The majority indicated that the charge ofcrimes against humanity was a more serious charge than violation of thelaws and customs of war and that it was not clear that Erdemovicunderstood the distinction. Judge Li vigorously disputed this point. As aresult, the case was sent back to a new Trial Chamber to allow Erdemovic

to replead in full knowledge of the nature of the charges and theconsequences of his plea.55 On remand, Erdemovic pled guilty to the

52. The Prosecutor did present evidence of a massacre at the Branjevo farm but not

that Erdemovic had killed any one there. See Prosecutor v. Erdomovic, Case No.: IT-96-22-

A, Judgement of 7 October 1997, para. 9.53. See id.

54. Id. Judgement of 7 October 1997, para. 16.

55. Id. at Disposition 5.


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alternative charge of a violation of the laws and customs of war, rather thana crime against humanity. After a sentencing hearing, the new TrialChamber sentenced Erdemovic to five years imprisonment, less the time

already spent in custody.

DURESS AS A COMPLETE DEFENSE TO CRIMES AGAINST HUMANITY ORWARCRIMES

A majority of the Appeals Chamber, Judges McDonald, Vohrah and Li,found that duress does not afford a complete defence to a soldier chargedwith a crime against humanity and/or a war crime involving the killing ofinnocent human beings.56 As a result, the majority accepted the guiltyplea and was not prepared to find it equivocal.57 Two members of theAppeals Chamber, Judges Cassese and Stephen, dissented from this viewand were prepared to find that, under certain limited conditions, duress or

extreme necessity could operate as a complete defense to indictments

alleging war crimes or crimes against humanity. In their opinion, therefore,the guilty plea should not have been accepted. This stark division betweenthe judges evoked a number of separate opinions.

APPROPRIATE SOURCES OF LAW ON THE AVAILABILITY OF THE DEFENSEOF DURESS

Judges McDonald and Vohrah, in their Joint Separate Opinion, firstasked what sources they might use in answering the question of the

availability of the defense of duress in this case. They quoted article 38 ofthe Statute of the International Court of Justice that, although only directlyapplicable to the World Court, is generally regarded as stating theappropriate sources of international law.58 They found no applicable treaty

56. Id. para. 19.

57. Id.

58. Statute of the International Court of Justice, 26 June, 1945, art. 38, 59 Stat. 1055

(entered into force 24 October 1945 [hereinafter ICJ Statute]. It states:

(1) The Court, whose function is to decide in accordance with international law

such disputes as are submitted to it, shall apply: (a) international conventions,

whether general or particular, establishing rules expressly recognized by the

contesting states; (b) international custom, as evidence of a general practice

accepted as law; (c) the general principles of law recognized by civilized nations;

(d) subject to the provisions of Article 59, judicial decisions and the teachings of

the most highly qualified publicists of the various nations, as subsidiary means for

the determination of rules of law.(2) This provision shall not prejudice the power of the Court to decide a case ex

aequo et bono, if the parties agree thereto.

Id.


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law on the subject of duress as a defense, thus the Appeals judges looked

for custom emanating from the post WWII military tribunals and nationalcourts.

(1) Custom

Judges McDonald and Vohrah insisted that the only cases they werewilling to consider relevant were the cases that related to duress as adefense where the charges were of killing innocent people. Although thejudges noted that the International Law Commission concluded that thepost World War II military tribunals of nine nations considered duress as a

complete defense,59 they distinguished most of the cases cited. In fact, theystated that the only cases supporting duress as a complete defense were theBritish Military Tribunal case ofJepson60 (which was overruled by boththe Stalag LuftIII61 case and theFeurstein62 case) and theEinsatzgrupen63case decided by a United States military tribunal. The latter case was

largely discounted as it failed to cite any precedent for the proposition thatduress affords a complete defense, was contrary to U.S. common lawprecedent, and was directly contradicted by the current U.S. Manual forCourts-Martial.64 Judges McDonald and Vohrah also noted that the

International Law Commission had conceded that [t]here are differentviews as to whether even the most extreme duress can ever constitute avalid defence or extenuating circumstance with respect to a particularlyheinous crime, such as killing an innocent human being.65

Despite numerous citations to national cases66 that appeared to accept

59. See Report of the International Law Commission on the work of its forty-eighth

session, 6 May-26 July 1996, U.N. GAOR, 51st Sess., Supp. No. A/51/10 (1996)

[hereinafter 1996 ILC Report].60. See Case of Gustaf Alfred Jepson and Others, Proceedings of a War Crimes

Tribunal held at Luneberg (13-23 August, 1943) judgment of 24 August 1946, Law Reports,

Vol. XV, at 172.

61. See Trial of Max Wielen and Seventeen Others (Stalag Luft III case), Law

Reports, Vol. XI, at 33.

62. See Trial of Valentine Feurstein and Others (Feurstein Case), Proceeding of the

Court held at Hamburg (4-24 Aug. 1948), Law Reports, Vol. XV, at 173.

63. See Trial of Otto Ohlendorf (Einsatzgruppen Case), Trials of War Criminals, Law

Reports, Vol. IV, at 480.

64. See U.S.MANUAL FORCOURTS-MARTIAL RULE 916(h) (2000 ed.). Duress is a

defense to any offense except killing an innocent person. Id.

65. 1996 ILC Report,supra note 48, at 77.

66. See Prosecutor v. Erdemovic,supra note 3 and cases cited therein; Joint Separate

Opinion of Judge McDonald and Judge Vorhrah, para. 47; Llandovery Castle Case (German

Supreme Court 1920), English translation printed in 16 AMER. J. INTL L. 708 (1922);

Mueller (1949 Belgian Military Court and Belgian Court of Cassation); 1949 Annual

Digests and Reports of Public International Law Cases, 400-403; Attorney-General of the


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the notion of duress as a complete defense to murder, the judges eitherdistinguished the particular case or discounted it for a variety of reasonsand refused to accord the principle any status as customary international

law. Even the trials carried out under the London Charter of 1945 andControl Council Law No. 10, although created by the four allied powersand in that sense international, were regarded by the judges as applyingnational law. Judges McDonald and Vohrah ultimately concluded that norule may be found in customary international law regarding the availability

or the non-availability of duress as a defense to a charge of killing innocenthuman beings.67

(2) General Principles of Law

The judges next examined whether general principles of law,recognized as a source of international law,68 revealed a rule on duress.

They undertook a limited survey of the treatment of duress in the worlds

legal systems.69

Within the civil law countries, the judges determined thatcivil law systems . . . consistently recognise duress as a complete defenceto all crimes.70 They quoted from a variety of civil codes, ranging fromChile to Finland.71 Turning to the common law systems, the judgesexamined a wide range of national laws.72 Some countries allowed duress

Government of Israel v. Eichmann (1962 Supreme Court of Israel), English translation

printed in 36 INTL L. REP. 277, 318 (1962) (E. Lauterpacht ed. 1968); Papon Case,

unpublished transcript of Judgment of 18 Sept. 1996, Cour DAppel de Bordeaux, Chamber

dAccusation, Arrt du 18 Sept. 1996, No. 806; Retzlaff. (Soviet Military Tribunal)

discussed in The Peoples Verdict A Full Report of the Proceedings at the Krasnodar and

Kharkov German Atrocity Trials 65 (London-New York). Sablic (Military Court of

Belgrade, Yugoslavia) Decision of 26 June 1992; Bernadi and Randazzo, unpublished text,Italian Court of Cassation, 14 July 1947; Sr. (Italian Court of Cassation) printed in

Giurisprudenza Completa Della Corte Suprema di Cassazione, sez. pen., 1947, No. 2557, at

414; Masetti (Italian Court of Cassation 17 Nov. 1947) printed in Massimario della

Seconda Sezione della Cassazione, 1947, No. 2567, at 416; S. and K. (Landesgericht of

Ravensburg, 21 May 1948) printed in II Justiz and NS-Verbrechen at 521, 526-527 (1969);

Warsaw Ghetto Case (Court of Assize of Dortmund, 13 March 1954) XII Justiz und NS-

Verbrechen at 340-341 (1974); Wetzling (Court of Assize in Arnsberg, 12 Feb. 1958) XIV

Justiz und NS-Verbrechen at 563, 616-623 (1976).

67. Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Joint Separate Opinion of Judge

McDonald and Judge Vohrah, at para. 55.

68. I.C.J. Statute,supra note 47, art. 38(1)(c).


McDonald and Judge Vohrah, 7 October 1997, para. 58.

70. Id. para. 59.71. See id.

72. See Prosecutor v. Erdemovic, Case No.: IT-96-22-A,



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to operate as a complete defense for all crimes except a few very serious

crimes such as murder or treason.73 Other states, such as Japan or China,engaged in a balancing analysis and asked whether the harm produced by

averting the danger to the accuseds life exceeded the harm that was soughtto be avoided.74 Duress operated as a complete defense only wherepreserving the accuseds life was seen as avoiding a greater harm thankilling the victims.75 Virtually all legal systems were prepared to takeduress into account when determining whether to mitigate punishment orsometimes even to lessen the offense charged.76

After this detailed survey of the treatment of duress as a defense ormitigation, the judges concluded that:

The rules of the various legal systems of the world are, however, largely

inconsistent regarding the specific question whether duress affords a

complete defence to a combatant charged with a war crime or a crime

against humanity involving the killing of innocent persons.77

The judges noted, however, that: the common law systems throughoutthe world, with the exception of a small minority of jurisdictions in theUnited States . . . reject duress as a defense to the killing of innocent

persons. 78 Some states that allowed duress to operate as a completedefense required proportionality between the harm caused and the harmthreatened.79 Some cases did not permit duress as a complete defensewhere >it can be fairly expected of the actor that he suffer the risk . . . if hestands in a special legal relationship to the danger.80

The common law rule that rejected duress as a complete defense tomurder, even when the accused would suffer death, was seen as arising

from the assertion Yof a moral absolute.81 This moral absolute had twoparts; first, the protection of human life and second, the notion that the

accused had no right to prefer his own life to that of another person. 82 Anumber of British cases were cited as stating unequivocally that in suchcircumstances, the accused ought rather to die himself, than kill an


73. See id.

74. See id.

75. Seeid. para. 61.

76. See id. para. 63-65.

77. Id. para. 67.

78. Id. para. 63-64.

79. Id. para. 68.80. Id. para. 69 (quoting from the German Penal Code, 35(1)).

81. Id. para. 71.

82. See id.


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innocent,83or that the law denies to a man the right to take an innocentlife even at the price of his own or anothers life.84

CHOOSINGNORMATIVE PURPOSES AS AGUIDE WHENNO RULE EMERGES

Having failed to find treaty law, customary law or general principles oflaw that answer the question of whether duress can operate as anexculpatory defense to crimes against humanity or war crimes involvingthe killing of civilians, one might have expected the judges simply to rejectthe notion of such a defense. However, Judges McDonald and Vohrahdelved further in seeking to justify their rejection of the defense.85 Perhapsthey were somewhat unsettled by the fact that there are a good number ofcases that permit the defense of duress even for war crimes.86 The lack of aconsistent rule on the exculpatory effect of the defense of duress persuadedthe judges to examine the context of the creation of the Tribunal, including

the crimes over which it exercised jurisdiction and its mandate Y in the

Statute . . . in relation to >serious violations of international humanitarianlaw.87 The judges feared that allowing duress to operate as a completedefense would bring in its wake a panoply of evils such as securingimpunity for criminals who collude with their agents in threatening themwith death if they do not obey their commands. The judges recognized thatthey were choosing to reject duress in order that the law should servenormative purposes in light of its social, political and economic role.88The crucial factor that persuaded the judges to reject duress as a defense to

charges of war crimes and crimes against humanity was that the Tribunalwas dealing with the most heinous crimes known to humankind . . . .89The judges noted that national courts and national criminal codes are onlydealing with ordinary domestic crimes, whereas the Tribunal is dealingwith crimes committed in armed conflicts of extreme violence withegregious dimensions.90 They were concerned about the normative effectof the rules attaching to duress upon soldiers bearing weapons ofdestruction and upon the commanders who control them in armed conflict

83. See, e.g. id., para. 71 (quoting Lord Hale, Pleas of the Crown 51 (1800) vol. 1, p.

51). See id. para. 71 n. 153.

84. See, e.g., id. para. 71 (quoting Regina v. Howe and Others [1987] 1 ALL ER 777

at 785). See id. para. 71 n.155.

85. See id. para. 66-67.

86. See id.


McDonald and Judge Vohrah, 7 October 1997, para. 72.88. Id. para. 75/

89. Id.

90. Id.


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situations.91 They noted that one of the main objectives of international

humanitarian law is the protection of the weak and vulnerable in such asituation where their lives and security are endangered.92 The judges

meant the rule rejecting duress to operate as a deterrent, and they noted thatsituations such as the one in this case are not infrequent during armedconflict. Waxing more philosophic, the judges readily admitted that socialpolicy and law are never truly separate and that ultimately the choice of alegal rule is grounded in social policy.

The basis of Judges McDonald and Vohrahs rejection of duress as adefense to war crimes or crimes against humanity rests on the notion thatregular domestic criminal murder is distinct from, and therefore not usefulas a guide for, the international criminal offenses of war crimes or crimesagainst humanity. They regarded the latter crimes as different in kind fromregular domestic murder and they saw the soldier cast in a protective roletowards civilians under the rubric of international humanitarian lawgoverning the conduct of armed hostilities. That being so, they refused touse the test of whether an ordinary person in similar circumstances would

prefer his own life to shooting the victims.

DURESS AS A DEFENSE WHERE DEATH IS THREATENED IF ILLEGALORDERS ARENOT OBEYED

Judges McDonald and Vohrah then examined the exceptional situationof the Erdemovic case. They observed that the dissenters concluded that

although the rejection of duress may be justified in most cases, theErdemovic situation could be distinguished by the fact that the victimswere going to be shot by the firing squad anyway. This then was not asituation where the accused was choosing his own life over that of hisvictims. Regardless of what Erdemovic did, the Muslim civilians weregoing to be shot. If Erdemovic had disobeyed his commander, the resultwould have been one more person dead, namely Erdemovic. The 1948Italian case of Masett93i accepted the argument that, in such extraordinarysituations, the defense of duress should be accepted. The court acquitted

the accused on the ground that the sacrifice of Masettis life would havebeen to no avail because the victims were going to be executed anyway.The decision to accept duress in such circumstances is referred to by theTribunal as the Masetti approach.94 Judges McDonald and Vohrah

91. Id.

92. Id.

93. See id. and citation therein at n. 169; see also Masetti (Italian Court of Cassation

17 Nov. 1947) printed in Massimario della Seconda Sezione della Cassazione, 1947, No.

2567, at 416.

94. Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Joint and Separate Opinion of


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carefully rejected this approach.

The judges described the Masetti approach as based on utilitarianlogic95 that they did not accept. They refused to balance harms for and

against killing because of the context in which the rule operates under theTribunals mandate. They wanted to send a clear message to soldiers thatduress will not be available as a defense to any killing of innocent civiliansduring armed conflict. In any event, trying to weigh harms in any contextis extremely difficult and the judges determined that the better approachwas to consider duress in mitigation of punishment.

In rejecting the Masetti approach, the judges wondered whether theywere creating a law demanding more than is reasonable, that is, what theproverbial ordinary person could be expected to do in similarcircumstances. The judges quoted from some eloquent passages whichannounce in various forms that law is ineffective in the deepest sense,indeed . . . hypocritical, if it imposes on the actor who had the misfortune to

confront a dilemmatic [sic] choice, a standard that his judges are notprepared to affirm that they should and could comply with if their turn toface the problem should arise.96 This interesting discussion was broughtto an abrupt halt by the assertion that the judges rejection of the Masetti

approach does not depend upon what the reasonable person is expected todo. [The judges] assert an absolute moral postulate which is clear andunmistakable for the implementation of international humanitarian law.97The absolute moral postulate from which the judges appear to devise therule is that a soldier can never kill unarmed civilians even where his refusalto kill the civilians will result in the soldiers own death and even where hisown death will not prevent the civilians deaths. Such an absolute rule isbound to be controversial.

Despite asserting an absolute moral postulate, the judges attempted tojustify their rule by pointing out that soldiers are expected to exercisefortitude and a greater degree of resistance to a threat than civilians, at leastwhen it is their own lives which are being threatened 98 So the questionfor the judges became: what may be expected of ordinary soldiers who by

the very nature of their occupation, must have envisaged the possibility ofviolent death in pursuance of the cause for which they fight.99 Given the

Judge McDonald and Judge Vohrah, 7 October 1997, para. 79.

95. Id. para. 80.

96. Id. para. 82 (quoting American Law Institute Model Penal Code 2.09, cmt. 2

(1985)).

97. Id. para. 83.

98. Id. para. 84.

99. Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Joint and Separate Opinion of

Judge McDonald and Judge Vohrah, 7 October 1997, para. 84. One might reasonably reply

that although the soldier may envisage violent death at the hands of the enemy (or even from


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known occupational hazard of death for soldiers engaged in combat, the

judges concluded that the defense of duress was unacceptable where theaccused killed innocent persons. Because of the special protective role

given by international humanitarian law to soldiers towards civilians, thejudges concluded that suffering death is the unwavering rule for the soldierrather than killing civilians, regardless of whether the soldiers death willsave the civilians.

Because the judges recognized that duress does operate as a mitigationof punishment under the ICTY Statute,100 their argument then took anextraordinary turn. They reasoned that because mitigation of punishment isavailable, the law does not in fact expect the soldier to throw away his lifein vain. What the judges seemed to imply is that soldiers who findthemselves in the same situation as Erdemovic in the future, should carryout the order to shoot (despite the fact that such killing is illegal and duresswill not exonerate them) thereby saving their own lives, in the knowledgethat duress will operate to save them from harsh punishment. In fact thejudges recognized that in some cases the offender may receive no

punishment at all.101 The whole tenor of this part of the opinionundermines the high moral tone of the insistence that the rejection of duressas a defense was based on the necessity of having an absolute rule forsoldiers engaged in combat. The Geneva Convention require states toinstruct their troops in the laws of war.102 Trying to formulate the rule thatan instructor would announce in light of judges McDonalds and Vohrahs

opinion, is a considerable challenge but it might go something like this:

Soldiers are never allowed to shoot unarmed civilians. If your superior

officer orders you to shoot civilians, that is a manifestly illegal order

and you will be held responsible if you obey the command although

your punishment may be reduced because of the order. If your superior

officer orders you to shoot civilians and tells you that if you refuse to

obey his order, you will be lined up with the civilians and be shot by a

firing squad that is ready to carry out the officers orders, you will still

be held responsible for the civilians deaths if you join the firing squad.

friendly fire), he can hardly expect violent death at the hands of his superior officer.

100. See ICTY Statute,supra note 6, art. 7(4)



102. See Geneva Convention for the Amelioration of the Condition of the Wounded

and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 3314, 6 U.S.T. 3114,

art. 47 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the

Condition of Wounded, Sick and Shipwrecked Members of Armed Forces At Sea, 12

August 1949, 75 U.N.T.S. 3217, 6 U.S.T. 3217, art. 48; Geneva Convention Relative to the

Treatment of Prisoners of War,supra note 24, art. 127; Geneva Convention Relative to the

Protection of Civilian Persons in Time of War,supra note 23, art. 144.


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If you decide to save your own life and join the firing squad, however,

duress will operate to mitigate your punishment and may, in fact, result

in no punishment being imposed, although you would still, technically,

be guilty of war crimes or crimes against humanity.

Is there a responsible lawyer who could in good conscience tell asoldier-client that he should not join the firing squad under suchcircumstances?

Having concluded that duress is never a full defense to war crimes orcrimes against humanity, the judges determined that Erdemovics guiltyplea was not equivocal. They noted that the Trial Chamber had incorrectly

required corroborating evidence of the defense. Because of other issuesconcerning the accuseds lack of understanding of the distinction betweenwar crimes and crimes against humanity,103 the plea was determined not tobe informed and the case was remanded to another Trial Chamber forrepleading.

DISSENTING SEPARATE OPINION OF JUDGE LI

The separate opinion of Judge Li is interesting because he concluded,together with Judges McDonald and Vohrah, that if the act was a heinouscrime, for instance, the killing of innocent civilians or prisoners of war,duress cannot be a complete defence, but can only be a ground ofmitigation of punishment if justice requires.104 Nonetheless, afterexamination of military tribunals, he concluded that generally duress canbe a complete defence if the following requirements are met, (a) the actwas done to avoid an immediate danger both serious and irreparable, (b)

there was no other adequate means to escape, and (c) the remedy was notdisproportionate to the evil.105 In this case, the exception to accepting

duress as a complete defense was applicable because the act charged washeinous and international humanitarian law is quintessentially concernedwith the protection of innocent civilians. Judge Li would not haveremanded the case to the Trial Chamber because he regarded it as quiteclear that Erdemovic understood the charge to which he was pleading andwas only asserting duress as a ground of mitigation of punishment and notas a defense. Judge Li also argued forcefully that there was no indication,

from any source, that crimes against humanity are necessarily more seriousthan war crimes.

103. See Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Joint Separate Opinion of

Judge McDonald and Judge Vohrah, 7 October 1997, Joint Separate Opinion of Judge

McDonald and Judge Vohrah, para. 91.

104. Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Separate and Dissenting Opinion

of Judge Li, 7 October 1997, para. 5.

105. Id.


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THE TWO SEPARATE AND DISSENTING OPINIONS OF JUDGE CASSESE ANDJUDGE STEPHEN

Both Judges Cassese and Stephen concluded that, because of the

circumstances of Erdemovics case, duress could operate as a completedefense and that the case should therefore be remanded for repleading with

clear knowledge of the possibility of exculpation, or in the event thatErdemovic decided not to plead guilty, a trial.

SEPARATE AND DISSENTING OPINION OF JUDGE CASSESE

Judge Cassese noted that Judges McDonald and Vohrah found nospecific international law on duress. In such circumstances, he concluded,

they should have applied the general rule, namely, that duress can operateas a defense to murder under certain conditions. He criticized the pluralityopinion for simply adopting common-law concepts while rejecting the civil

law approach. He then undertook an examination of the idea of duress and

the conditions required for its applicability. He distinguished duress,which involved threats or compulsion [by] a third party from necessity,which is a broader concept involving duress from causes other than thirdparties such as extreme hunger where life is threatened by lack of food.

He concluded that duress required four conditions to be met:

(i) the act charged was done under an immediate threat of severe and

irreparable harm to life or limb;

(ii) there was no adequate means of averting such evil;

(iii) the crime committed was not disproportionate to the evil

threatened . . . . In other words . . . the crime committed under duress

must be, on balance, the lesser of two evils;

(iv) the situation leading to duress must not have been voluntarily

brought about by the person coerced.106

He also added that if the accused had some special protective dutytowards the victim, the defense may not be available, though he did notelaborate on this point. Specifically, he did not indicate whether he thoughtthat a combatant had any special protective duty towards civilians thatwould vitiate the defense. One can only assume that Judge Cassese wouldnot always conclude that combatants have such a duty towards civilians,sufficient to rule out the defense.

Judge Cassese did not subscribe to the Prosecutions view that

106. Prosecutor v. Erdemovic, Case No.: IT-96-22A, Judgment, 7 October 1997,

Separate Opinion of Judge Casesse, para. 16.


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customary international law precluded duress as a defense to murder. Heundertook a detailed analysis of the British cases upon which the pluralityrelied and concluded that they do not, in fact, support the proposition that

duress is unavailable to an accused charged with unlawful killing.

107

Ultimately, he found only one Canadian case and British and U.S. MilitaryManuals that except duress as a defense to murder, which he pointed out ishardly a sufficient basis upon which to ground a customary rule.

In fact, Judge Cassese found and discussed a good number of caseswhere courts assumed that duress was a complete defense to murderalthough under the facts presented the defense was not successful. Indeed,even in the Eichmann108 case in the Israeli Supreme Court, there was adiscussion of the conditions to be met if a plea of constraint, necessity

or coercion was to be met. Although Eichmann did not in fact raise thedefense of coercion, the Court noted that the facts would not havesupported such a plea, thereby implying that different circumstances couldhave supported such a defense.

Judge Cassese then examined a number of cases where the defense ofduress was successful in cases charging unlawful killing. He detailed anumber of Italian cases, including the Masetti case, and a number of

German cases. In some of these cases, the crimes in question were warcrimes or crimes against humanity involving the killing of innocentpersons. Judge Cassese thus concluded that no special customary rule hasevolved in international law on whether or not duress can be admitted as adefence in cases of crimes involving the killing of persons.109 From theabsence of a rule, Judge Cassese would have concluded that the Tribunalmust apply the general rule on duress to all crimes, including the fourpreconditions for its application. He recognized that the proportionalityrequirement will often be the most difficult to meet and may perhaps never

be met where the accused shoots the victim in order to save his own life110but, where the life for a life situation is not present, it may be possible tosatisfy the requirement. In any event, the defense should have beenavailable to be presented to the trial court. Of course, he recognized thatthe availability of duress as a defense is severely restricted because theright to life is one of the most fundamental and precious human

rights . . . .111 In a case, such as Erdemovics, where the victims will be

107. Id. para. 25.

108. Attorney-General of the Government of Israel v. Eichmann, 36 I.L.R. 277

(Sup.Ct.Israel 1962).

109. Prosecutor v. Erdemovic, Case No.: IT-96-22A, Judgment, 7 October 1997,

Separate Opinion of Judge Cassese, para. 40.

110. Judge Cassese does in fact relate such an instance where he believed duress

should be upheld. See id. para. 47.

111. Id. para. 43.


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shot anyway by a firing squad, the law cannot demand that the accused

sacrifice his own life112 for no benefit to anyone and no effectwhatsoever apart from setting a heroic example for mankind . . . .113 The

low military rank of the perpetrator may also make it more likely that heenjoyed no real choice when threatened with death. The law should notrequire acts of martyrdom.114

Judge Cassese considered mitigation of punishment, even the possibilityof no punishment, insufficient if duress is proved. He pointed out that if

there is a conviction, the court has ruled that the accuseds act is criminal,whereas if duress is accepted as an exculpatory defense the accused will beacquitted. Judge Cassese also criticized the Appeals Chamber for blatantlybasing its refusal to accept duress as a defense on policy considerations.He believed that the Tribunal must apply lex lata, otherwise it would runthe risk of violating the principle nullam crimen sine lege.

As a result of Judge Casseses determination that duress can, underlimited conditions, operate as a complete defense even to charges of warcrimes or crimes against humanity, he would have remanded the case to theTrial Chamber to allow Erdemovic to replead. If Erdemovic raised thedefense of duress, the Trial Chamber should then determine whether theevidence satisfied the stringent conditions for the plea. If it did, Erdemovicshould be acquitted.

THE SEPARATE AND DISSENTING OPINION OF JUDGE STEPHEN

Judge Stephen concluded that because Erdemovic in his guilty pleadisclosed evidence, which might have formed the basis of a completedefense, the plea should not have been accepted. The Trial Chambersfactual conclusion that Erdemovic could not present evidence sufficient to

meet the stringent requirements of the duress defense was improperbecause the Trial Chamber had no evidence at all before it. Judge Stephenfound no rule of customary international law on duress and thus looked to

general principles of law recognized by civilized nations.115 There hefound duress accepted by the great majority of . . . legal systems, otherthan those of the common law.116 In the common law jurisdictions he didfind an exception on the viability of the defense of duress in murder cases,but only when the choice offered was between the accuseds life and thelife of another. Erdemovics case was clearly distinct from such a line of

112. Id. para. 44.

113. Id.

114. Id. para. 47.

115. ICJ Statute,supra note 47, art. 38(1)(c).

116. Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Separate and Dissenting Opinion

of Judge Stephen, 7 October 1997, para. 25.


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cases. The refusal to accept duress as a defense in murder cases had, in anyevent, been heavily criticized in common law jurisdictions. The exceptionfor murder was based entirely on the concept of the laws refusing to allow

the accused to prefer his own life over that of an innocent victim, and manycases had referred to the maxim that the accused ought rather to diehimself than kill an innocent. The common law cases were based oncircumstances concerning the choice between saving the life of the accusedorsaving the life of the victim, not between saving the life of the accused

or ensuring that the accused was killed along with the victims. JudgeStephen noted that in Erdemovics case it was never possible to save thevictims lives.

Judge Stephen then undertook a detailed description of a number ofEnglish cases where the unavailability of the defense of duress in murdercases was heavily criticized, briefly ruled available, and then rapidlyrestored to the former rule of unavailability.117 He concluded it wasillogical to allow duress to operate in mitigation of punishment but not as adefense. All the English cases involved one life or another rather thanone life or both lives, as in Erdemovics case.

A review of various authors also persuaded Judge Stephen that duressshould sometimes operate as a complete defense. Proportionality mustalways play a role in determining whether the defense of duress isavailable. The evil perpetrated by succumbing to the duress must notoutweigh the evil perpetrated if the accused had not succumbed to theduress.

From the cases he reviewed and a discussion of the reasons for the rulesand the exceptions, Judge Stephens deduced a general principle of lawaccepting duress as a defense to murder. He was ready to apply thisprinciple in international jurisprudence at least where the accused is notsimply preferring his life over another persons life but is choosing, underextreme duress, to save his own life where the victims will die no matterwhat the accused does. Judge Stephen agreed that the case should beremanded so that Erdemovic could replead to the charges in full knowledge

of the consequences.

THE IRRECONCILABLE DIFFERENCE IN THE JUDGESOPINIONS

The Erdemovic case reveals a sizable chasm in the thinking of theAppeals Chamber judges both with respect to the availability of the defenseof duress in war crimes trials and on the question of appropriate sources of

law applicable in the Tribunal. Judges McDonald, Vohrah, and Li were not

prepared to allow the defense of duress to exonerate a soldier accused ofwar crimes or crimes against humanity despite the fact that they recognized



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that most countries do allow such a defense to murder, that certain

international tribunals had allowed such a defense, and that Erdemovicscase presented a distinctive factual scenario where his refusal to obey his

commanding officers illegal order would not have resulted in the saving ofthe victims lives. These judges wanted an absolute rule prohibiting theshooting of civilians made applicable to all soldiers in combat.

Judges Cassese and Stephen, in their separate dissenting opinions,thought there was ample precedent permitting the defense of duress, in both

domestic and international courts, for murder and for the killing of civiliansin certain very limited circumstances. They thought that the factualpeculiarity of Erdemovics case, where none of the victims would be saved,meant that it was possible that Erdemovic might be able to meet thestringent conditions applicable to the availability of the duress defense andthat Erdemovic was entitled to a trial on the issue.

As for appropriate sources of law to be applied by the Tribunal, JudgesMcDonald and Vohrah found no applicable treaty, customary rule, orgeneral principles of law. They therefore looked to the overall purposes ofthe Tribunal and of international humanitarian law, and, rejectingutilitarian logic,118 based their judgment on an absolute moralpostulate.119 Such a source of law may come close to resembling thepersonal moral views of particular judges and thus may be expected to

change as the judges change.

Judge Cassese also found no applicable treaty or customary rule but,from the absence of such sources, he concluded that the Tribunal shouldapply the general rule on duress, which he found available as a defense incertain limited circumstances. Judge Stephen also concluded that theappropriate source of law was general principles of law recognized bycivilized nations,120 which he concluded did not prevent the availability of

the defense of duress in the unusual circumstances of Erdemovics case.

DURESS UNDER THE STATUTE OF THE INTERNATIONAL CRIMINAL

Article 31 of the Rome Statute of the International Criminal Court istitled Grounds for excluding criminal responsibility and specificallyincludes duress:

1. In addition to other grounds for excluding criminal responsibility

provided for in this Statute, a person shall not be criminally responsible

if, at the time of that persons conduct: . . .

118. Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Separate Opinion of JudgeMcDonald and Judge Vohrah, 7 October 1997, para. 80.

119. Id. paa. 83.

120. See id. para. 1(d)(ii).


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(d) The conduct which is alleged to constitute a crime within the

jurisdiction of the Court has been caused by duress resulting from

a threat of imminent death or of continuing or imminent serious

bodily harm against that person or another person, and the person

acts necessarily and responsibly to avoid this threat, provided that

the person does not intend to cause a greater harm than the one

sought to be avoided. Such a threat may either be:

(i) Made by other persons; or

(ii) Constituted by other circumstances beyond that persons

control.121

The ground of duress122 as a basis for excluding criminal responsibilityis included in the ICCs Statute despite the fact that the Statute also treatsthe defense of superior orders in much the same way as the ICTY and

ICTR Statutes. Article 33 of the ICCs Statute states:

1. The fact that a crime within the jurisdiction of the Court has been

committed by a person pursuant to an order of a Government or a

superior, whether military or civilian, shall not relieve that person of

criminal responsibility unless:

(a) The person was under a legal obligation to obey orders of the

Government or the superior in question;

(b) The person did not know that the order was unlawful; and

(c) The order was not manifestly unlawful.

2. For purposes of this article, orders to commit genocide or crimesagainst humanity are manifestly unlawful.123

The ICCs Statutes treatment of the defense of duress and the defense ofsuperior orders as separate defenses means that the statute contemplatesthat there may be some crimes within the jurisdiction of the Courtinvolving superior orders, even superior orders that are manifestlyunlawful, but which may, nevertheless, permit a defense of duress.

Perhaps the main legal flaw of the majoritys analysis in theErdemoviccase was the assumption that the type of duress under which a soldier findshimself when issued a manifestly illegal order to kill civilians is always the

121. Rome Statute of the International Criminal Court, art. 31, U.N. Doc.

32/A/CONF.183/9, reprinted in 37 I.L.M. 999 (1998).

122. It is clear from art. 31, para. 1(d)(ii) that the defense of necessity is also included

in the ICC Statute.

123. Id. art. 33, paras. 1-2.


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same or, if not the same, should be treated similarly by the Tribunal. While

it is true that the defense of duress often accompanies the defense ofsuperior orders, and that there are always elements of duress in superior

orders, the levels of duress attached to superior orders may be of afundamentally differing degree. In Erdemovics case, if his commandingofficer has simply said Shoot those civilians and had not threatened tokill Erdemovic if he disobeyed, there would have been some level of duressapplied to Erdemovic. Soldiers certainly feel pressure to obey theircommanding officers, but the duress involved would not have given rise toany separate defense of duress. On the other hand, when the manifestly

illegal order is also accompanied with threats to kill (or maim, or rape, orcause other grievous bodily harm to the soldier or to someone for whom hecould reasonably be expected to have special concern) then the separatedefense of duress should be available even when the crimes alleged are themost heinous and committed against persons protected by internationalhumanitarian law.

Judge Cassese carefully distinguished the defense of superior ordersfrom the defense of duress and noted that [s]uperior orders may be issuedwithout being accompanied by any threats to life or limb.124 He wouldhave allowed Erdemovic a defense of duress but only in carefully limitedcircumstances as outlined above.125

The crucial question then is whether all duress in the context of superiororders should receive the same legal treatment. The majority thought thatall levels of duress should be rejected as grounds for a defense to warcrimes or crimes against humanity. The dissenters were prepared todistinguish levels of duress, and while dismissing some levels of duress asnot giving rise to a defense would, nevertheless, preserve the defense ofduress in the context of superior orders to commit a manifestly illegal

order, provided certain stringent conditions were met. The dissenterscareful gradation of culpability ultimately seems fairer, especially in the

peculiar factual circumstances of the Erdemovic case. The judges who willsit on the International Criminal Court will no doubt have to grapple withthe inter-relationship of the defense of superior orders and the defense ofduress. They should find the dissenting opinions of Judges Cassese andStephen illuminating.

124. Prosecutor v. Erdemovic, Case No.: IT-96-22, Appeals Chamber Judgement, 7

October 1997, Separate Dissenting Opinion of Judge Cassese, para. 15;see also, GEERT-JAN

G. J. KNOOPS, DEFENSES IN CONTEMPORARY INTERNATIONAL CRIMINAL LAW, 166-168

(2001).

125. Prosecutor v. Erdemovic, Case No.: IT-96-22, Appeals Chamber Judgement, 7

October 1997, Separate Dissenting Opinion of Judge Cassese, paras. 43-46.

Documents

Law Review Duress as Defense