Issues on Duress and Assessment of the Appeal of Erdemović

Defences are raised to excuse and justify criminal conduct, and if accepted by courts, they mitigate the sentence or acquit the defendant[1]. The defence of duress is defined as a constraint exercised to force a person to perform a wrongfully. This force must arise from another person and be accompanied by a threat to life or limb. This causes the accused to lose the ability to make moral choices, leaving them in a situation where they must engage in wrongful conduct. At the basis of the controversy surrounding duress lies the moral dilemma as to whether the accused can be acquitted for the murder of innocent people. Exemplary for the issue is discussed within the Erdemović case[2] decided by the International Criminal Tribunal for the Former Yugoslavia (ICTY). The majority ruling, in this case, faced criticism from Judge Cassese and Stephan who disagreed with the teleological, policy-approach deciding duress could not be a complete defence[3]. This essay will evaluate the issues surrounding aspects of duress and examine how far the judges in the Appeal of Erdemović went in assessing them. This essay will also discuss how far the Rome Statute has addressed the issue of duress in international legislation. Finally, this essay will conclude by assessing that the opinion held by Judge Cassese is the preferable law as it supplies realistic guidelines for future crimes against humanity concerning the defence of duress.

Erdemović Case

The facts of the case are as follows[4]: Erdemović was a Bosnian Croat soldier and a member of a firing squad. In 1995, he participated in the massacre of 1200 Bosnian Muslim men near Srebencia. During his trial in 1997, he admitted to killing approximately seventy victims, after initially refusing. He was told that if he refused, he then could line up and be shot by a comrade. As he was threatened with death for disobeying higher-ranking orders from, Erdemović complied against his will. Luban[5] recognises the significance of the Erdemović case as there was not culpa in causa, as Erdemović came from a pacific background and was genuinely unwilling to participate in the crimes, thus the pressure to consider duress was present.

The Appeal Chamber accepted Erdemović’s plea as guilty of crimes against humanity and concluded that duress was only a mitigating factor rather than a full defence. The majority decision of Judges McDonald, Vohrah and Li reasoned this using customary international law, as there was no existing law on duress in the ICTY Statute. Furthermore, the Judges used a teleological policy-oriented approach which faced criticism from dissenting Judges and academics alike.

Appeals Chamber Opinions

By three votes (Judges McDonald, Vohrah and Li) to two (Judges Cassese and Stephan), the Appeal Chamber found that duress was limited to be a mitigating factor. Judges McDonald and Vohrah formed the basis of the majority by rejecting the uncertain approach set out by the Nuremberg Trial. Instead, the Judges analysed domestic jurisdictions, highlighting that duress is handled differently in common law and civil law contexts. Civil law sees duress as a complete defence, whilst common law does not. By taking a policy-orientated approach, the majority Judges ruled that there must be a stricter standard at international law than in domestic law, as recognising duress as a complete defence at an international standard would go against the duty to protect innocent people[6]. However, Judge Cassese condemned the activist role taken as he argued that a policy-orientated argument runs counter to the principle of legality[7]. As there was no specific international law applicable, he argued the general rule on duress should be applied. Moreover, with the majority applying domestic jurisprudence (from English Law), Cassese highlighted that the Tribunal had acted ultra vires. It would have been more satisfactory for the Tribunal to use the national law from the former Yugoslavia.

Haenen[8] highlights that the majority Judges conflate the issue of duress as both an excuse and a justification with Judge Li, in particular, failing to distinguish between these two concepts which created a complex, hybrid approach to the application of duress. Li reasoned that duress could be applied in certain conditions, but in cases of unlawfully killing innocent civilians, duress could only be a mitigating factor[9]. This faced criticism by Risacher as Li’s conditions were unreasonably high, as no innocent killing could be justified[10], suggesting that duress could not be applied as a defence in any case.

The Rome Statute

The ICC, under the Rome Statute, plays a role in establishing duress. Despite the ICTY’s judgement stating there was no rule guaranteeing the defence of duress, the Rome Statute included a provision on duress in the ICC Statute. Cryer recognises that Article 31 does not explicitly include a provision on duress for murder-based charges[11]. However, the Rome Statute was a subsequent development of the Erdemović case and so the agreement of the ICTY was rejected.

The criteria for the acceptance of duress as a defence is similar to that of Cassese, with Article 31 (1) (d) stating that:

“a person shall not be criminally responsible if, at the time of the person’s conduct…there was a threat of imminent death or serious bodily harm, and the person acts necessarily and reasonably to avoid this threat, provided they do not create greater harm than that to be avoided”[12].

Risacher is critical of this approach as he argues that the Rome Statute merge the concepts of necessity and duress into one provision[13], similar to that of the judgement of Li who failed to distinguish. Necessity is a justification, focusing on the ‘righteousness’ of the act, and is question to proportionality; determining the crime severity. Duress is an excuse based on the mental state of the accused and applies in exceptional circumstances. With the Rome Statute merging the two concepts, the proportionality test (justification of necessity), seems to apply to duress. This results in the threshold in proving duress as unreasonably high, resulting in cases such as Erdemović impossible to invoke duress.

As the innocent killing of persons can never be considered as morally ‘right’, it is highly unlikely that the proportionality requirement will be met. Therefore, it would be beneficial for the ICC to apply the proportionality test flexibly, following the guideline of Cassese[14] (discussed below). By distinguishing between necessity as a justification and duress as an excuse, the Rome Statute would have a critical and fair way of dealing with whether the accused faced a serious enough threat to affect his ability to make a moral decision. Eser continues that the burden of proof for the existence of duress as a full defence should remain on the accused[15].

Why Judge Cassese’s Opinion is Preferable for Future Cases

Judge Cassese defended the use of a ‘realistic and flexible’ application of duress, by not requiring a particularly high standard of behaviour, which was adopted by the majority. Cassese understood that “law is based on what society can reasonably expect of its members”[16], and so the law should not expect members of society to act as heroes when they own life is at risk, nor should the law brand those who fall below this as a criminal. The case of Einsatzgruppen[17]echoes this opinion of Cassese by stating that humans have an “overpowering will to live” and so it would be hypocritical to legally expect the likes of Erdemović to act heroically[18]. 

Cassese sets out the criteria for duress to be applied as a full defence: (1) a severe threat of life or limb; (2) no adequate means to escape the threat; (3) proportionality in the means taken to avoid the threat; (4) the situation of duress should not have been self-induced[19]. Therefore, for future cases arguing duress, it may be applied in exceptional circumstances. If this criterion was applied to Erdemović, then his case would have been acquitted, with Cassese arguing he refused to obey. If Erdemović had given up his life, this would not have benefitted anyone as the life of the civilians could not be saved because the massacre would have occurred with or without Erdemović [20]. However, Kiener recognises acquitting Erdemović from liability may be seen as a betrayal to the victims who innocently died for his actions. Considering this criticism, for future cases, international criminal law should direct punishment at the commanders who threaten the likes of Erdemović by ordering them to kill[21].

This would satisfy the duty of international criminal law to protect the ‘weak and vulnerable’, with Cassese’s opinion presenting a comprehensive form of protection. For the likes of Erdemović, who are bottom rank soldiers treated poorly by their commanders, he is similar to victims. The majority decision forgets this level of protection.

Finally, the opinion of Cassese is in line with the Rome Statute, as Article 31(1)(d) contains a similar four-part test which is complimentary of Cassese’s. Gilbert recognised that the ICC demands proportionality which can be interpreted following Cassese’s assessment[22]. Furthermore, by following the dissenting opinion, future judges would be able to interpret culpa in causa set out in the Rome Statute and assess how this would play a part in a plea of duress.

Conclusion

Duress has become a provocative area in international criminal law due to the current hybrid approach resulting from civil and common law approaches. The Erdemović case allowed for the ICTY to clear the ambiguity surrounding the complexity of duress, however, the majority were based on policy-oriented reasoning to reject duress as a full excuse. In a liberal legal system, by following the dissenting opinion of Judge Cassese, duress as a full defence should only be accepted under stricter conditions. However, it should be accepted as a defence unlike that of the majority ruling in Erdemović. The Rome Statute does address duress, however, by containing necessity and duress under one provision caused problematic issues. If the ICC was to consider necessity as a justification and duress as an excuse, then the threshold in Article 31(1)(d) would be realistic. Overall, both the ICTY and the Rome Statute have discussed the area of duress and both have attempted to clear the law. However, I would argue that for the issue of duress to be complementary of the current liberal legal system, the international community should follow the opinion of Cassese and interpret the proportionality test flexibly, with judges basing decisions on principles rather than policies.  

[1] David Luban, International And Transnational Criminal Law (2nd edn, Wolters Kluwer Law & Business 2014).

[2] ICTY, Prosectuor v Erdemovic, Case No. IT-96-22-A, Appeals Chamber (October 7, 1997)

[3] Joint Separate Opinion of Judge McDonald and Judge Vohrah (October 7, 1997)

[4] Erdemovic (n 2)

[5] Luban, (n 1)

[6] Joint Separate Opinion of Judge McDonald and Judge Vohrah (October 7, 1997)

[7] Erdemovic Case, Dissenting Opinion Judge Cassese,

[8] I. Haenen, 'Justifying A Dichotomy In Defences. The Added Value Of A Distinction Between Justifications And Excuses In International Criminal Law' (2016) 16 International Criminal Law Review.

[9] Opinion of Judge Li, para 8-11 (October 7, 1997)

[10] B. J. Risacher, ‘No Excuse: The Failure of the ICC’s Article 31 “Duress” Definition’, Notre Dame Law Review, 89:3 (2014), p 1417

[11] R. Cryer, 'International Criminal Tribunals And The Sources Of International Law: Antonio Cassese's Contribution To The Canon' (2012) 10 Journal of International Criminal Justice accessed 25 February 2020.

[12] Article 31 Rome Statute 1998

[13] Risacher (n 10)

[14] Erdemovic Case, Dissenting Opinion Judge Cassese

[15] A. Eser, ‘Defences in War Crime Trials’, Israel Yearbook on Human Rights, 24 (1994) pp 201-222

[16] Separate and Dissenting Opinion of Judge Cassese, Judgement, Erdemović, (IT-96-22-A), 7 October 1997, para. 47.

[17] USA v Otto Ohlendorf, et al, Case No.9

[18] Luban (n 1)

[19] Separate and Dissenting Opinion of Judge Cassese, para 43

[20] ibid 11, para 44

[21] Maximilian Kiener, 'Duress As A Defence In A Case Of Murder' (2017) 1 Philosophical Journal of Conflict and Violence accessed 27 February 2020.

[22] Jérémie Gilbert, 'Justice Not Revenge: The International Criminal Court And The ‘Grounds To Exclude Criminal Responsibility’ – Defences Or Negation Of Criminality?' (2006) 10 The International Journal of Human Rights.