Duress, Demanding Heroism and Proportionality: The Erdemovic Case and Beyond

Abstract

The article examines one of the most difficult cases that any court has ever faced regarding the criminal defense of duress: Prosecutor v. Drazen Erdemovic. There, the International Criminal Tribunal for the Former Yugoslavia (ICTY) refused to allow the soldier Erdemovic to plead duress as a defense to a crime involving the killing of close to 70 Muslim men and children in July of 1995.

The question before the ICTY was a momentous one. Determining whether duress should be a defense to a crime against humanity requires us to delve deeply into the justification/excuse distinction in to order address three foundational problems that cut straight to the heart of criminal law theory: (1) is duress a justification or an excuse? (2) is the common-law rule disallowing duress as a defense to murder sound? and (3) is it proper to condition the availability of the defense on the existence of strict proportionality between the harm caused by the defendant's actions and the harm averted? In the article I undertake an examination of these problems in four parts. In Part I, I probe the opinions in the Erdemovic case with the purpose of demonstrating that both the majority and the dissent treated the duress defense as if it were a claim of justification. This, however, as it is argued in Part II, is injudicious. Properly understood, duress is an excuse, not a justification. In this part it is also argued that, in light of the nature of the defense, it is unwise to disallow claims of duress when the offense charged is murder.

In Part III, I attempt to show that the arguments in favor of permitting the defendant to claim duress as a defense to the crime charged weaken as the seriousness of the offense increases. This contention, which I call the "seriousness of the offense" thesis, provides us with intuitive support for distinguishing cases in which the defendant pleads duress to a crime involving the killing of one human being from those in which the actor claims coercion as a defense to the killing of dozens or hundreds of persons. While our sensibilities seem to point in the direction of allowing the defense in cases of the former type, they do not appear to support permitting the claim in situations of the latter type.

I find theoretical support for the intuitions upon which the seriousness of the offense thesis is grounded in what I dub the "understandable choice" theory of duress. According to this theory, a coerced actor is properly excused when his decision to engage in wrongful conduct finds sufficient understanding amongst the community to warrant an exemption from liability. In the latter portion of Part III I point out two factors that should be taken into account when making the aforementioned determination, namely: (1) whether the defendant had a legal duty to resist the threats he faced, even if doing so would lead to his death, and (2) if the actor would have avoided harm to the victims by choosing not to capitulate to the coercion.

Finally, in Part IV I apply the understandable choice theory of duress to the facts in the Erdemovic case. After balancing the competing considerations, I conclude that the defendant should have been able to claim duress as a defense to the killing of dozens of civilians. Since the civilians would have died anyway at the hands of other soldiers, resisting the threats would have been useless. Even though this fact does not provide us with sufficient reasons to negate the wrongfulness of the defendant's act (i.e. justify the conduct), it should afford us with enough reasons to exempt him from responsibility (i.e. excuse the defendant).

Keywords: duress, erdemovic, ICTY, Cassese, criminal law, justification, excuse, demanding heroism, crminal law theory, international criminal law, rome statute, icc