No excuse: the failure of the ICC's article 31 "duress" definition.

• Author: Risacher, Benjamin J.
• Position: International Criminal Court Statute

INTRODUCTION

"Your Honour, I had to do this. If I had refused, I would have been killed together with the victims. When I refused, they told me: 'If you are sorry for them, stand up, line up with them and we will kill you too.'" (1)

The introductory quotation is taken from the case of Drazen Erdemovic, a soldier in the Bosnian Serb army who was sentenced to ten years in prison after pleading guilty to one count of crimes against humanity for his participation in the execution of innocent civilians during the armed conflict in the former Yugoslavia. (2) The International Criminal Tribunal for the Former Yugoslavia (ICTY) Trial Chamber summarized the relevant facts as follows:

On the morning of 16 July 1995, Drazen Erdemovic and seven members of the 10th Sabotage Division of the Bosnian Serb army were ordered to leave their base ... and go to the Pilica farm.... When they arrived there, they were informed by their superiors that [busloads of Muslim civilians] would be arriving throughout the day.... The [civilians] were escorted to a field adjacent to the farm buildings where they were lined up with their backs to the firing squad. The members of the 10th Sabotage Unit, including Drazen Erdemovic, who composed the firing squad then killed them.... [Erdemovic] believes that he personally killed about seventy people. (3) Erdemovic made it clear in his testimony that he had no knowledge of the purpose of the mission when he was ordered to report to the site, that his immediate refusal to participate in the killings was met with a threat of instant death, and that he had personally observed another member of his unit ordering the death of a soldier who had refused to take part in the massacre. (4) The question then becomes: Should Erdemovic be treated the same or differently under the law from the other soldiers who participated in the massacre without being under duress or coercion? More importantly, is the moral culpability of Erdemovic the same as the culpability of the willing participants? This Note will focus on analyzing these questions through the lens of "duress" jurisprudence with particular attention devoted to the International Criminal Court (ICC) and the definition of "duress" under Article 31 of the Rome Statute. (5)

The question of whether and to what extent duress should be recognized as a defense by the ICC is of immense importance because in situations like those faced by Erdemovic, it could mean the difference between facing decades behind bars and being excused from punishment under a theory of duress. Additionally, the questions speak more to fundamental justice and moral culpability under the ICC and the Rome Statute. The drafters of the Rome Statute had to balance two competing interests: (1) punishment consistent with the moral culpability of the accused actor under duress; and (2) the fear that duress could be used (or even abused) (6) to create a lack of accountability (or impunity) for those brought before the ICC. Unfortunately the latter interest has prevailed, and in adopting the Rome Statute, the international community has rejected a definition of duress based on the actor's moral culpability in their desire to put forward a strong front and send a clear message that the killing of innocent civilians will not be tolerated no matter the situation. Accountability has trumped moral culpability.

Article 31 of the Rome Statute makes the unacceptable mistake of combining the elements of duress and necessity into one theory of excuse that includes a proportionality requirement. (7) The ICC should amend Article 31 so that duress is treated separately from necessity, and the proportionality requirement that currently limits the applicability of duress should be removed. Duress is an excuse, not a justification. Necessity is a justification, not an excuse. (8) These two distinct theories of defense must be separated if the Rome Statute is to achieve the fundamental criminal law principle of only punishing actors consistent with their moral culpability. A rush to punish any and all involved in the world's most heinous international crimes may have its appeal, but when calmer heads prevail, it must be recognized that some actors do not possess the moral culpability that would make them appropriate targets for punishment. (9)

This Note proceeds in four Parts. Part I traces the historical development of "duress" through the common and civil law systems, World War II cases, the Model Penal Code (MPC) and, finally, through an in-depth analysis of the Erdemovic case before the ICTY Appeals Chamber discussed in the introduction. Part II then discusses "duress" under Article 31 of the Rome Statute and includes a survey of the Article's drafting history, a statutory analysis of Article 31, and an application of the ICC definition of "duress" to the Erdemovic set of facts. This Part highlights the unjust result that inevitably occurs under the current definition. Part III proposes a revised definition of duress for the ICC to adopt that would rest on principles of moral culpability and better comport with historical understandings of what an excuse defense is under criminal law. Part III concludes with an application of the proposed revision to Article 31 to the Erdemovic facts and analyzes why the proposed revision leads to a more just result. Finally, the paper concludes briefly in Part IV with a summary of the current shortcomings of Article 31 and a restatement of why this issue is of critical importance given the ICC's potentially vast power to handle and direct international criminal law. An organ with broad potential powers must be sincere in its efforts not only to punish and prevent the most heinous international crimes but also to ensure that fundamental justice is done for both the victims and the accused.

1. HISTORICAL DEVELOPMENT OF "DURESS" AND THE MURDER EXCEPTION

   Before proceeding to analyze "duress" under Article 31 of the Rome Statute in Part II, this Part will trace the historical development of duress jurisprudence through five major categories: (i) common law systems; (ii) civil law systems; (iii) World War II/IMT case law; (iv) the Model Penal Code; and (v) the Erdemovic decision of the ICTY Appeals Chamber. A brief but focused summary of these disparate areas will provide a proper framework to more deeply appreciate the theoretical underpinnings of the current ICC "duress" definition and also the principal reasons that it is flawed and in need of immediate revision. Additionally, a concise application of each of the five categories to the Erdemovic situation will illustrate the expected result had the trial taken place under that particular theory of "duress."

   1. Common Law Systems

      The general consensus among the common law legal systems of the world is that duress cannot be used to excuse murder. (10) This traditional rule regarding duress and murder can be traced back to statements made in the nineteenth century by the Englishmen Lord Hale and William Blackstone. (11) Hale wrote in his Pleas of the Crown:

      [I]f a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant's fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact; for he ought rather to die himself, than kill an innocent. (12) Blackstone followed similar lines by stating unequivocally that a man under duress "ought rather to die himself, than escape by the murder of an innocent." (13) Far from being dead letter law, this principle was reaffirmed in the 1987 English case of Regina v. Howe.

      Lord Hailsham described the common law rule as "good morals" and categorically rejected the conclusion "that the law must 'move with the times' in order to keep pace with the immense political and social changes since what are alleged to have been the bad old days of Blackstone and Hale." ... [T]he question of excusing a coerced killer should not be determined by juries.... "It is one of principle." (14) This decision reaffirming the common law rule in Howe was significant, as noted by Judges McDonald and Vohrah in their Erdemovic opinion because (1) it overruled an earlier English decision that had allowed duress as a "defence to murder for a principal in the second degree" and represented a "firm rejection of the view in English law that duress, generally, affects the voluntariness of the actus reus or the mens rea"; (15) and (2) that "duress as a defence affects only the existence or absence of mens rea." (16) This second point is bolstered by what Judges McDonald and Vohrah take to be the correct reasoning articulated by Lord Kilbrandon's minority opinion in the case overruled by Howe, "the decision of the threatened man whose constancy is overborne so that he yields to the threat, is a calculated decision to do what he knows to be wrong, and therefore that of a man with, perhaps to some exceptionally limited extent, a 'guilty mind.'" (17) Additionally, there is evidence in the Howe opinion that under the common law, duress is never to be afforded as a defense to murder (18) owing to the "special sanctity" (19) of human life and the "supreme importance" the law attaches to protecting human life. (20)

      The general theme, then, of the common law systems as evidenced by English duress jurisprudence is a rejection of duress as a defense to murder out of a concern for protecting human life and a seeming rejection of the idea that one under duress is completely incapable of making a reasoned decision. (21) It is uncontroversial to state that if Erdemovic had been tried under a common law legal system he would have been unable to raise a duress defense because duress is never allowed as a defense to the murder of innocent civilians.

   2. Civil Law Systems

      Duress as a defense to murder has been treated more favorably in the civil law systems of the world. Under French...