Duress, demanding heroism, and proportionality.

• Author: Chiesa Aponte, Luis Ernesto

ABSTRACT

This Article discusses the Erdemovic case in order to examine whether duress should be a defense to a crime against humanity. Although the Article contends that the arguments in favor of permitting the defendant to claim duress weaken as the seriousness of the offense charged increases, the Article also argues that the duress defense should usually succeed if it can be proved that the actor could not have prevented the threatened harm by refusing to capitulate to the coercion.

After balancing the competing considerations, the Author concludes that the defendant in Erdemovic should have been able to claim duress as a defense to the killing of dozens of civilians. Because 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 negate the wrongfulness of the defendant's act (i.e., justify his conduct), it should exempt him from responsibility (i.e., excuse his liability).

TABLE OF CONTENTS I. A CASE THAT PROBES THE THEORETICAL UNDERPINNINGS OF THE DEFENSE OF DURESS: PROSECUTOR V. DRAZEN ERDEMOVIC II. CHRONICLES OF A CONFUSION FORETOLD: THE OPINIONS IN THE ERDEMOVIC CASE A. The Majority Opinion: Duress as a Justification B. Judge Cassese's Dissenting Opinion: Duress as a Halfway House between Justification and Excuse III. THE NATURE OF THE DURESS DEFENSE AND ITS AVAILABILITY IN CASES OF MURDER IV. SHOULD DURESS BE A DEFENSE TO A CRIME INVOLVING THE KILLING OF DOZENS OF INNOCENT HUMAN BEINGS? A. Proportionality, Demanding Heroism, and the Seriousness of the Offense Thesis B. Beyond the Hard Choice and Involuntariness Theories: Duress as an "Understandable Choice" C. Communitarian Obligations, Proportionality, and the Understandable Choice Theory of Duress 1. Voluntarily Assumed Obligations of Self-Sacrifice and Proportionality Standards 2. Involuntarily Assumed Obligations That Require Self-Sacrifice and More Stringent Proportionality Standards 3. Communitarian Family Obligations and Laxer Standards of Proportionality 4. Understandability and the Capacity to Prevent the Harm Threatened from Occurring V. APPLYING THE UNDERSTANDABLE CHOICE THEORY TO THE ERDEMOVIC CASE VI. CONCLUSION I. A CASE THAT PROBES THE THEORETICAL UNDERPINNINGS OF THE DEFENSE OF DURESS: PROSECUTOR V. DRAZEN ERDEMOVIC

Prosecutor v. Erdemovic (1) presents a particularly difficult case for the defense of duress. In Erdemovic, the International Criminal Tribunal for the former Yugoslavia (ICTY) tried the soldier Drazen Erdemovic for crimes against humanity. He was charged with systematically killing Muslim men and children in July 1995 as a member of the Bosnian Serb army. (2) Initially, he refused to take part in the shootings, but his superiors threatened to kill him if he did not comply. (3) At trial, Erdemovic confessed that he succumbed to the threats and killed nearly seventy people. (4) Ultimately, the question before the ICTY Appeals Chamber was whether the defense of duress is available when the offense charged is a crime against humanity. (5)

After struggling to come to grips with the problem, a majority of the justices in the ICTY concluded that, according to customary international law, duress is not a defense to murder. (6) In contrast, the dissenters believed that duress could, in principle, exclude responsibility for the killing of innocent human beings; however, they concluded that the defense of duress is subject to strict proportionality requirements. (7) Thus, the dissenters ultimately concluded that, in light of the grave harm caused when crimes against humanity are committed, it would be nearly impossible to establish the requisite proportionality between the harm effected and the harm averted. (8)

The question before the ICTY in Erdemovic was a momentous one. Determining whether duress should be a defense to a crime against humanity requires delving deeply into the distinction between justification and excuse in order to 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? (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? (9)

Unfortunately, the justices who took part in the Erdemovic case did not adequately address these fundamental queries. (10) They assumed that the defense raised was a justification, even though a plausible argument could have been made in favor of classifying it as an excuse. (11) Therefore, the justices failed to examine whether Erdemovic was claiming that his wrongful act should be excused because he was coerced, rather than that his act was justified because he did the right thing by choosing the lesser evil. The fact that they ignored this is particularly surprising in light of many, if not most, scholars' belief that the defense of duress is an excuse and not a justification. (12)

Complicating the matter is the fact that, even if one were to conclude that duress functions as an excuse, it is not evident that it should be a defense to every crime. Some have suggested that duress should not be a defense to murder. (13) Furthermore, even if one believes that duress should be a defense to murder, one could still argue that duress should not excuse the commission of a crime against humanity that involves the commission of many murders. (14) To ascertain whether it is correct to excuse those who commit murder or crimes against humanity because they were coerced, it is necessary to examine the rationale that justifies excusing those who perform wrongful acts. Even though some have tackled the question of whether the rationale for excusing actors should compel the legal community to accept duress as a defense to murder, a similar analysis is wanting in the context of crimes against humanity. (15)

Finally, it is unclear whether a defendant should be able to successfully plead duress when the harm caused was of epic proportions. It may very well be that, under certain extreme circumstances, society could legitimately require the coerced actor to do everything in her power, even sacrifice her own life, to avert the grave harm that would be inflicted if she succumbed to the threat. Therefore, it makes sense to ask whether a defendant like Erdemovic should be held responsible in view of the fact that the harm he inflicted (the deaths of dozens of people) is significantly graver than the one he averted (the loss of his own life). (16) A satisfactory answer to this question requires an elucidation of the role of proportionality in the context of excuse defenses.

This Article will examine these three problems in four parts. Part II probes 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. Part III argues that their conclusion was injudicious and that, properly understood, duress is an excuse, not a justification. Part III also argues that, in light of the nature of the defense, it is unwise to disallow claims of duress when the offense charged is murder.

Part IV attempts to show that the arguments in favor of permitting the defendant to claim duress weaken as the seriousness of the offense increases. This contention, which this Article calls the "seriousness of the offense" thesis, provides 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 duress as a defense to the killing of dozens or hundreds of persons. While human sensibilities seem to point toward allowing the defense in cases of the former type, these intuitions do not support permitting the claim in situations of the latter type.

This Article finds theoretical support for the intuitions upon which the seriousness of the offense thesis is grounded in what the Author terms the "understandable choice" theory of duress. According to this theory, a coerced actor is properly excused when her decision to engage in wrongful conduct finds sufficient understanding amongst the community to warrant an exemption from liability. The latter portion of Part IV points 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 refusing to succumb would lead to the defendant's death; and (2) whether the actor could have prevented harm to the victims by refusing to capitulate to the coercion.

Finally, Part V applies the understandable choice theory of duress to the facts in the Erdemovic case. After balancing the competing considerations, Part V concludes that the defendant should have been able to claim duress as a defense to the killing of dozens of civilians. Because 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 negate the wrongfulness of the defendant's act (i.e., justify the conduct), it should exempt Erdemovic and those like him from responsibility (i.e., excuse the defendant from liability).

2. CHRONICLES OF A CONFUSION FORETOLD: THE OPINIONS IN THE ERDEMOVIC CASE (17)

   1. The Majority Opinion: Duress as a Justification

      Three of the five ICTY justices who decided Erdemovic ruled that duress is not a defense to murder or to crimes against humanity. (18) In doing so, they adopted the common law rule that duress is not a defense to the killing of innocent human beings. (19) After examining the writings of common law scholars such as Blackstone and Stephen, they concluded that "[i]f national law denies recognition of duress as a defence in respect of the killing of innocent persons, international criminal law can do no...