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. TRANSNAT’L 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. INT’L L. 405, 405–06 (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.”).