Death Before Dishonor: Judging Duress as an Affirmative Defense in International Criminal Law According to Lex Naturalis

Abstract

Should duress be a complete defense to homicide? Nowhere is the importance of this legal question more pronounced than in Prosecutor v. Erdemovic. In Erdemovic, the defendant, a Serbian soldier, stood before the International Criminal Tribunal for the former Yugoslavia accused of committing crimes against humanity. The defendant’s position was that his actions of helping to butcher Bosnian Muslims should be legally excused because his superiors threatened him with death if he did not join the slaughter. This article disputes the adequacy of this defense, and answers the question posed above in the negative. This article is novel in, for the first time, advocating for a disposition in Erdemovic that accords with natural law. The article breaks fresh ground in examining the duress issue in Erdemovic through the lens of three different worldviews: Kantianism, utilitarianism, and natural law. The rigor of this article inheres in contrasting the deontological, consequentialist, and teleological frameworks for analyzing the duress issue and assessing the merits and flaws of each position respectively. This article concludes that the natural law position is correct. It further highlights the striking contrast in approaches to the acceptability of duress as an affirmative defense to homicide between common law and civil law jurisdictions: duress is not a complete defense to homicide at common law, but in civil law jurisdictions and according to the Model Penal Code it is. The importance of this article lies not only in its contribution to the philosophical debate over the acceptability of duress as a defense to homicide in criminal law, but also in exploring this issue as a flashpoint in comparativist discourse as well. Finally, this article uses the duress issue in Erdemovic to illuminate how the clash between positivist and transcendental ethical theories of human rights impacts international law.

Keywords: International Criminal Law, International Humanitarian Law, Legal Reasoning, Jurisprudence, Self-Defence, Human Rights

JEL Classification: K14, K33