Should Duress Be Treated Differently Under ICL?

Abstract

This paper aims to show that International Criminal Law should not necessarily follow domestic criminal law doctrines. The paper focuses on whether duress should be a defence to crimes against humanity when it involves killing the innocent, an issue dealt with by the ICTY in the Erdemovic case. It argues that even domestic criminal laws of all jurisdictions were to arrive at a consensus that duress could excuse defendants who kill innocent persons to save their own lives, the unique characteristics of international criminal law require limiting duress to cases of lesser evil (duress as a justification). The paper's main claim is based on the following assertions: Duress includes a normative threshold for the willingness of criminal law to compromise its standards as a concession to human frailty. In setting the normative threshold, international criminal law should take into account the unique considerations relating to the commission of crimes against humanity during armed conflict, and mainly the high risk of atrocities in armed conflicts on the one hand, and the lack of a central and effective mechanism of criminal law enforcement on the other. These considerations require that all those who collaborate with committing crimes against humanity or war crimes involving the killing of innocent persons should be criminally accountable, whether or not their collaboration has been coerced by duress. A coerced actor who reprehensibly, but understandably, did not have the moral strength to choose death should nonetheless answer for his collaboration and be punished for the execution of innocent persons. The paper further relates to proportionality as understood by Judge Cassese in his dissenting opinion in the Erdemovic case and argues that it should not be satisfied by the assumption that if the person acting under duress had refused to commit the crime, the crime would in any event have been carried out by persons other than the accused. Whether or not other persons might have committed the crime should be normatively irrelevant; and in the light of cohesion a refusal to obey the order and to commit the crime might empirically lead other combatants to refuse the order as well.