Persons who have committed international crimes can be exonerated or acquitted when there are grounds for excluding criminal responsibility, i.e., a defence. International criminal courts have, however, rarely accepted the reliance on a defence. The judgment of the ICTY Appeals Chamber in the Drazen Erdemović case – together with the minority opinion of Judge Cassese in this case – illustrates the particular controversies surrounding the defence of duress in murder cases.
Article 31 of the International Criminal Court establishes the grounds for excluding criminal responsibility. Paragraph (d) of this article describes duress as one of the elements of exclusion if the criminal act has been committed as a result of the pressure or threat of imminent death or of continuing or imminent serious bodily harm against that person or another person.
In the Erdemović case the defence argued that the state of extreme necessity in which the perpetrator found himself while subordinated to orders and threats coming from his superiors gave him no moral alternative but to commit the offence contrary to his will. Based on case-law, the prosecution replied that customary international law precludes duress as a defence to killings under international humanitarian law. Alternatively, Judge Antonio Cassese replied in his dissenting opinion that there is no such exception derived from customary law evolution under international law and that duress should not be excluded as defence but tested instead.
Judges McDonald and Vohrah, though, opted for the exclusion of duress as complete defence given that there is no customary international law rule that can be derived on the question of duress as a defence to the killing of innocent persons and no consistent and uniform state practice underpinned by opinio juris can be tracked. Therefore, the Appeals Chamber established duress does not afford a complete defence to a soldier charged with a crime against humanity and/or a war crime involving the killing of innocent human beings. Notwithstanding, as Judge Cassese stated in his separate opinion, courts should not reject duress as a defence a priori but they should instead admit its applicability in principle and test during the proceedings if the requirements are met or not.
The four criteria for the assessment of duress are: a severe threat to life or limb; no adequate means to escape the threat; proportionality in the means taken to avoid the threat; the situation of duress should not have been self-induced. Judge Cassese’s argumentation is based on case-law from Italy and Germany, where militias committed offences by executing the orders of their superiors while being under threat of death. Some officials have been convicted while other have been acquitted but all judgments accepted the duress as defence. He infers that one must apply, on a case-by case basis, the general rule on duress to all categories of crime, whether or not they involve killing.
Given the difficulty of fulfilling all criteria, courts should assess the applicability of duress as defence on a case by case basis. Generally, in those cases where the accused is charged with participating in a collective killing which would have had occurred independently of the accused’s participation, this defence is in principle allowed. Additionally, in principle, duress could be a defence when the underlying offence is killing, as according to the accused’s version of the facts, he could do nothing to save the lives of the victims and by refusing to obey the order would have only added the forfeiture of his life to theirs.
Hence, we can conclude duress could be accepted as defence when the accused refuse to commit the crime, but the crime would have been committed by others in any case. The most frequent example is the one of execution squads as documented by Italian and German case-law. Eventually, duress should not be excluded but particularly strictly tested in the case of killing of innocents.
Lead image: Drazen Erdemovic on the day of his sentencing at the International Criminal Court for the former Yugoslavia (Photo: Pool/ANP)
A. Elena Ursu is a passionate international law graduate currently enrolled at the Yenching Academy of Peking University where she specialises in the Chinese justice system and its reform.
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