Excuse in International Law

Author:Arthur Kutoroff
Position:Associate, Fried, Frank, Harris, Shriver & Jacobson. Cornell Law School, Juris Doctor, 2015. Thank you to Nadia Banteka, Michael Dorf, and Jens Ohlin for helpful and thought-provoking comments on earlier drafts. All remaining errors are my own.
Pages:189-244
SUMMARY

International law displays an asymmetry in its treatment of individuals and states: individuals may claim excuse under some circumstances, but state wrongdoing is always inexcusable; this asymmetry has been largely unexamined and (rightfully) undefended.

 
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EXCUSE IN INTERNATIONAL LAW
ARTHUR KUTOROFF*
I. INTRODUCTION
Philosophers and lawyers distinguish between justification and excuse:
an action is justified if it is morally good or right; an action is excused if it is
wrongful but the actor is not culpable for the wrongful action.1 This
distinction is considerably influential in domestic criminal law, as many
jurisdictions recognize excuses for wrongful acts.2
International criminal law has distinguished between justifications and
excuses for individuals. For example, the Rome Statute, which established
the International Criminal Court, recognizes the following excuses: insanity,
intoxication, necessary defense, duress, and mistake of law or fact.3 The
Copyright © 2016, Arthur Kutoroff.
* Associate, Fried, Frank, Harris, Shriver & Jacobson. Cornell Law School, Juris Doctor,
2015. Thank you to Nadia Banteka, Michael Dorf, and Jens Ohlin for helpful and thought-
provoking comments on earlier drafts. All remaining errors are my own.
1 See, e.g., J.L. Austin, A Plea for Excuses, 57 PROC. ARISTOTELIAN SOCY 1, 2 (1956)
(“In the one defense [justification], briefly, we accept responsibility but deny that it was bad:
in the other [excuse], we admit that it was bad but don’t accept full, or even any,
responsibility.”); Marcia Baron, Justifications and Excuses, 2 OHIO ST. J. CRIM. L. 387, 389
90 (2005); Mitchell N. Berman, Justification and Excuse, Law and Morality, 53 DUKE L.J. 1,
4 (2003); Joshua Dressler, Justifications and Excuses: A Brief Review of the Concepts and
the Literature, 33 WAYNE L. REV. 1155, 116163 (1987). However, not all scholars believe
that the distinction between justifications and excuses is clear. See, e.g., Michael Corrado,
Notes on the Structure of a Theory of Excuses, 82 J. CRIM. L. & CRIMINOLOGY 465, 483 (1991)
(“[S]eeing justification as a type of excuse is th e better view. . . . [J]ustification fits into the
scheme of excuses.”); Kent Greenawalt, Distinguishing Justifications from Excuses, 49 L. &
CONTEMP. PROBS. 89, 90 (1986) (“[T]he law should not aim for comprehensive, precise
distinctions between justification and excuse.”); Kent Greenawalt, The Perplexing Borders
of Justification and Excuse, 84 COLUM. L. REV. 1897, 1898 (1984) (“Anglo-American
criminal law should not attempt to distinguish between justification and excuse in a fully
systematic way.”).
2 See, e.g., CODE PÉNAL [C. PÉN.] [PENAL CODE], tit. II, ch. II (Fr.); STRAFGESETZBUC HES
[STGB] [PENAL CODE], ch. I, tits. I & IV, translation at https://www.gesetze-im-
internet.de/englisch_stgb/german_criminal_code.pdf (Ger.); N.Y. PENAL LAW § 40
(McKinney 2015); TEX. PENAL CODE ANN. ch. 8 (West 2013).
3 See Rome Statute of the International Criminal Court, arts. 3132, July, 17, 1998, 2187
U.N.T.S. 90, entered into force July 1, 2002 [hereinafter Rome Statute]. See also GEORGE P.
190 CAPITAL UNIVERSITY LAW REVIEW [44:189
International Criminal Tribunal for the Former Yugoslavia has also
considered the excuse doctrines, most prominently in the Erdemovic case.4
However, international law does not clearly distinguish between
justifications and excuses for states.5 Rather, under the Articles on
Responsibility of States for Internationally Wrongful Acts, any wrongful act
of a state entails international responsibility of that state.6 Thus,
international law displays an asymmetry in its treatment of individuals and
states: individuals may claim excuses under some circumstances, but state
FLETCHER & JENS DAVID OHLIN, DEFENDING HUMANITY: WHEN FORCE IS JUSTIFIED AND WHY
122 (2008) (noting the ambiguity over whether the “grounds for excluding criminal liability”
are excuses or justifications).
4 See Case No. IT-96-22-A, Judgment on Appeal (Int’l Crim. Trib. for the Former
Yugoslavia Oct. 7, 1997). In this case, Drazen Erdemovic, a member of the Bosnian Serb
army was ordered to execute dozens of innocent civilians. Id. at *2 . Erdemovic initially
refused, but complied with the order when he was told that if he did not comply then he would
be killed. Id. at *12. Erdemovic claimed duress at trial for the killings, but the court denied
duress as a defense to homicide. Id. at *1 6. But see Luis E. Chiesa, Duress, Demanding
Heroism, and Proportionality, 41 VAND. J. TRANSNATL L. 741, 773 (2008) (“Ultimately,
despite [those] considerations, Erdemovic should have prevailed on a plea of duress.”).
5 See FLETCHER & OHLIN, supra note 3, at 58; V aughan Lowe, Precluding Wrongfulness
or Responsibility: A Plea for Excuses, 10 EUR. J. INTL L. 405, 40506 (1999).
6 See Articles on Responsibility of States for Internationally Wrongful Acts, G.A. Res.
56/83, Annex, U.N. GAOR, 56th Sess., Supp. No. 49 (Vol.1), at ch. I, art. 1 (Dec. 12, 2001);
Special Rapporteur on State Responsibility, Draft Articles on Responsibility of States for
Internationally Wrongful Acts, Int’l Law Comm’n, U.N. Doc. A/CN.4/602, at ch. I, art. 1
(Aug. 3, 2001). See id. at ch. V, cmt. 6 (defining wrongfulness as a state responsibility)
“[T]he subject of excuses for the non-performance of treaties was not included within the
scope of the 1969 Vienna Convention.” Id. The Articles do occasionally use the language
of excuse; they mirror the language of the 1969 Vienna Convention “in establishing, in
paragraph 1, two conditions without which necessity may not be invoked and excluding, in
paragraph 2, two situations entirely from the scope of the excuse of necessity.” (emphasis
added). Id. at ch. V, art. 25, cmt. 14. However, the Articles do not clearly distinguish between
justifications and excuses and seem to view the two as roughly interchangeable. See, e.g., id.
at ch. V, cmt. 2 (“[C]ircumstances precluding wrongfulness . . . . do not annul or terminate
the obligation; rather they provide a justification or excuse for non-performance while the
circumstance in question subsists.”). See also Lowe, supra note 5, at 406 (“There is behavior
that is right; and there is behavior that, though wrong, is understandable and excusable. The
distinction between the two is the very stuff of classical tragedy. No dramatist, no novelist
would confuse them. No philosopher or theologian would conflate them. . . . Yet the
distinction practically disappears in the Draft Articles.”).
2016] EXCUSE IN INTERNATIONAL LAW 191
wrongdoing is always inexcusable.7 Until now, this asymmetry has been
largely unexamined and (rightfully) undefended.8
This Article is a plea for excuses. International law should recognize
excuses for the international wrongdoing of states. Part II explains the
distinction between justifications and excuses, grounds this distinction in the
choice and character theories of excuse, and provides an illustration of
excuse doctrines. Part III explains why international law has not yet
recognized excuse doctrines for states but argues that the choice and
character theories of excuse entail that states deserve excuses to the same
extent individuals do. Part III also defends the thesis against four possible
objections. Parts IV, V, and VI explain and illustrate three potential excuse
doctrines for states: mistake, duress, and diminished capacity. Part VII
offers a conclusion.
II. ON EXCUSES
A. Excuses and Justifications
An action is justified if it is morally good or right; an action is excused
if it is wrongful but the actor is not culpable for the wrongful action.9 As an
illustration, consider Immanuel Kant’s example of “a man who, when
shipwrecked and struggling in extreme danger for his life, and to save it,
may thrust another from a plank on which he had saved himself.”10 Kant
reasons that the fear of an uncertain death, i.e., death by judicial sentencing,
would not overcome the fear of a nearly certain death, i.e., death by
drowning.11 Because punishing the shipwrecked sailor would not deter such
an act of self-preservation, it would be pointless to do so.12 Therefore, even
though the sailor’s actions were wrongful, he should be excused from
punishment.13
7 See FLETCHER & OHLIN, supra note 3, at 58.
8 This is not to say that scholars have neglected the topic entirely. See FLETCHER & OHLIN,
supra note 3, at 10728 (discussing excuses for international aggression); see generally
Lowe, supra note 5. Scholars have also discussed the necessity defense as a po tential excuse
in international law. See, e.g., Paul Weidenbaum, Necessity in International Law, 24
TRANSACTIONS OF GROTIUS SOCY 105, 110 (1962). Necessity, however, is a justification and
not an excuse. See infra Part V.A.
9 See note 1 and accompanying text.
10 IMMANUEL KANT, THE SCIENCE OF RIG HT, at Introduction F.II. (1790).
11 Id.
12 Id.
13 Id. See also ARTHUR RIPSTEIN, EQUALITY, RESPONSIBILITY, AND THE LAW 166 (1999)
(“Kant’s claim is rather that even if punished, the sailor’s deed remains rational from the

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