Should the Law Demand Heroism? The ICTY’s Moral and Legal Assessment of Duress in the Erdemović Case
“Your Honour, I had to do this. If I had refused, I would have been killed together with the victims.”
This statement was a part of the first-ever confession of guilt before the ICTY that resulted in the conviction of Dražen Erdemović. Erdemović is a Bosnian Croat soldier who participated in the genocide in the Srebrenica enclave by murdering between 10 and 100 people in the farm in Pilica. Erdemović confessed to these crimes and testified in a number of subsequent trials on Srebrenica, as he felt a moral responsibility towards the victims (See Erdemović’s Guilty Plea statement). The ICTY’s Trial Chamber found Erdemović guilty of crimes against humanity based on this confession. However, while admitting to the charges, as is evident from the quote above, Erdemović underscored that he committed the crimes in immediate fear of his own life, thus invoking the defense of duress.
In criminal law systems, duress is a defense which can be invoked when the accused committed a crime under such coercion that it is dubious whether their conduct calls for moral condemnation that should be punished with criminal law. In this sense, different legal systems attach different legal effects to duress. On one hand, continental law recognizes duress as a complete defense that fully exculpates the perpetrator (Witmer-Rich, pp. 225-226). In this determination, civil law underscores the perpetrator’s lack of criminal intent, holding that individuals cannot be held accountable when their free will has been practically destroyed by threats to life or limb, thereby leaving them no ‘moral choice’ i.e. a choice not to commit the crime (Risacher, pp. 1406-1408). The deprivation of choice does not depend on the gravity of the committed crime, and therefore can be invoked for all crimes (Risacher, pp. 1408).
On the other hand, common law systems consider that, as murder shatters the sanctity of life, its perpetration cannot be excused even when done under threats against the life of the actor (Risacher, p. 1408). The common law stance deems that the actor’s ability to choose freely is not completely destroyed by duress and their decision to commit the crime “is a calculated decision to do what he knows to be wrong” and, as such, a decision “of a man with, perhaps to some exceptionally limited extent, a ‘guilty mind’…” (Lynch v. DPP for Northern Ireland, 1975, Appeals Chamber Judgment p. 680). According to the common law view, this minimal level of culpability is deserving of punishment, and its diminished capacity is sufficiently accounted for when duress is considered as a mitigating circumstance at the sentencing stage.
The limits of duress under international law had not been subject to comprehensive analysis before the Erdemovićcase, which presented an opportunity to examine whether coercion can completely eliminate individual criminal responsibility for crimes against humanity. His case was exceptionally well-suited to this debate as it had been consistently underscored that Erdemović’s refusal of the order would not have changed the victims’ fates, since there were a number of soldiers who would have gladly stepped in for him. Essentially, the question posed was whether international law demands a soldier to sacrifice their own life, even when they have no prospect to save the victims, or does the defense of duress shield them from punishment for not doing so.
This question split the bench of the ICTY’s Appeals Chamber, which extensively discussed the moral and legal implications of allowing duress as a complete defense through the concurring and dissenting opinions. In a tight 3-2 majority, the Chamber found that coercion can only constitute a mitigation circumstance, and not a full defense for crimes against humanity. The following sections will delve into the judges’ analysis and argumentation.
Protecting the Vulnerable: the Concurring Judges’ Take on Duress
The concurring majority consisting of Judges McDonald, Vohrah and Li, argues that the ICTY should reject duress as a complete defense for the most heinous crimes, as are crimes against humanity, due to normative considerations related to the seriousness of the crimes, the foundational principles of IHL and deterrence concerns. The Judges concede that there exists no positive rule in international law which would bar the application of duress to crimes solely due to their gravity, yet are of the opinion that the guiding principle of IHL, that is to protect the vulnerable, should prevail. Therefore, Judges McDonald and Vohrah outline that the ICTY should reject duress as a complete defense “bearing in mind the specific context in which the International Tribunal was established, the types of crimes over which it has jurisdiction, and the fact that the International Tribunal’s mandate is expressed in the Statute as being in relation to ‘serious violations of international humanitarian law’.“
In a separate vein and concerned about deterrence of future crimes, Judge Li adds that allowing duress an exculpating effect for “the massacre of innocent persons is tantamount to both encouraging the subordinate under duress to kill such persons with impunity instead of deterring him from committing such a horrendous crime, and also helping the superior in his attempt to kill them.” In addition, Judge Li rejects the argument of Erdemović’s vain sacrifice, as in any case, other soldiers would have taken the lives of the innocent Bosniaks. He argues that taking such an argument under consideration “would justify every one of the criminal group who participated” in the murders and therefore lead to impunity for this gross atrocity.
What can be derived as a leitmotif of the concurring opinions is the propensity to avoid impunity for the horrific crimes against the innocent victims and to attach legal responsibility even when they are committed under a threat to one’s own life. In the opinion of these Judges, as well as of supporting authors (see for instance, Ehrenreich Brooks), the decreased level of culpability is sufficiently addressed through permitting duress as a mitigating factor at the sentencing stage of the proceedings.
Meeting the Moral Limits: the Dissenting Judges’ Perspective to Duress
Judges Cassese and Stephen offer an alternative assessment of Erdemović’s guilt by rejecting the value-driven decision of the majority and concluding that duress could constitute a complete defense even for the most serious IHL violations. Leaving aside Judge Cassese’s formalistic argument that the “policy concerns” of the majority could not override the positive rules of international law, the Judges outlined that the indiscriminate denial of duress as a defense for crimes against humanity would be unjust in the rare cases that meet its highly restrictive standards.
Particularly, Judge Cassese relies on the criterion of proportionality as safeguard of innocent human lives from the over-extensive invocation of duress. Proportionality, as a condition for admitting duress, demands that the evil that emerges as a result of the unlawful act, is lesser than the evil sought to avoid. According to Judge Cassese, this criterion would not be satisfied when the perpetrator chooses to save their own life at the expense of the victim’s, as that would engage in impermissible weighing of which human life is worthier (See also Ambos, 2013, p.365). Yet, this threshold may be reached when the perpetrator had no reasonable prospect to save the victims’ lives. In such cases, it would be disproportionate to demand that the accused sacrifice their own life just for the sake of setting “a heroic example for mankind”, as that is “an example which the law cannot demand him to set”. On this basis, he recalls the fundamental purpose of criminal law, punish reprehensible behavior, and concludes that such reprehension is “unjust and unreasonable when the accused can do nothing to save the victims by laying down his own life”.
Although Judge Stephen does not engage in a proportionality analysis, he treats the inevitability of the victims’ deaths as a factor when assessing whether any “moral choice” was available to the perpetrator. In his view, “where resistance to the demand will not avert the evil but will only add to it”, no such choice could be said to exist. He emphasizes that the accused’s decision to commit the crime is not guided merely by his survival instinct, but rather by the rational notion that the self-sacrifice would have no meaningful impact over the victims’ fates. Thus, the number of the victims is considered only to derive a broader conclusion on the accused’s mental state, rather than to balance harms. On this basis, he arrives at a similar conclusion as Judge Cassese, that sacrificing one’s own life in the pursuit of the highest values ‘is not the sort of choice the making of which criminal laws should enforce with penal sanctions.”
Judge Stephen additionally poignantly addresses Judge Li’s concerns about deterrence, observing that “It is surely difficult to suppose that an heroic act of self-sacrifice by the Croatian Appellant would have deflected the Bosnian Serb army from the task of extermination of Muslim civilians on which it was embarked.”
In summary, the dissenting opinions contradict the value-driven approach of the majority, and instead rely on the justifiability of imposing criminal sanctions upon perpetrators and the moral condemnation that comes in hand with them. This approach, supported by a portion of scholars, (see for instance Chiesa and Wall), in essence insists that individual responsibility must be anchored in the actor’s willingness to commit the crime.
Concluding remarks
This judgment serves to show the entanglement of the moral and legal perspectives that the ICTY had to confront within its jurisprudence. The question of duress raised in the Erdemović decision invoked the fundamental dilemma of how to reconcile the pursuit of accountability for the gravest atrocities, as is the genocide of Srebrenica, with the diminished personal and moral agency of a lower level perpetrator who physically conducted them. In this sense, although it has been correctly cautioned by Judges McDonald and Vohrah that “the law should not be the … slave of logic or intellectual hair-splitting”, equal attention should be paid to the risks of overstretching individual responsibility at the expense of international criminal law’s, and transitional justice’s, commitment to truly individualized accountability. Ultimately, allowing duress as a complete defense, provided that a stringent threshold for its application is satisfied, would reaffirm that the reprehension of the international community is directed at the orchestrator of the crime, and not the finger that pulled the trigger.
References
Benjamin J. Risacher, No Excuse: The Failure of the ICC’s Article 31 “Duress” Definition, Notre Dame Law Review, volume 89, issue 3.
Guilty Plea of Dražen Erdemović available at International Criminal Tribunal for the Former Yugoslavia, Dražen Erdemović, available at https://www.icty.org/en/content/dra%C5%BEen-erdemovi%C4%87.
ICTY, Prosecutor v. Drazen Erdemović, Judgment of the Appeals Chamber, IT-96-22-A, 7 October 1997.
ICTY, Prosecutor v. Drazen Erdemović, Judgment of the Appeals Chamber, IT-96-22-A, 7 October 1997Separate and Dissenting Opinion of Judge Li.
ICTY, Prosecutor v. Drazen Erdemović, Judgment of the Appeals Chamber, IT-96-22-A, 7 October 1997, Separate and Dissenting Opinion of Judge Cassese.
ICTY, Prosecutor v. Drazen Erdemović, Judgment of the Appeals Chamber, IT-96-22-A, 7 October 1997, Separate and Dissenting Opinion of Judge Stephen
ICTY, Prosecutor v. Drazen Erdemović, Judgment of the Appeals Chamber, Case No. IT-96-22-A, 7 October 1997, Separate and Dissenting Opinion of Judge McDonald and Judge Vohrah,
ICTY, Prosecutor v. Drazen Erdemović, Sentencing Judgment of the Trial Chamber, IT-96-22-T, 29 November 1996.
Illan Rua Wall, Duress, International Criminal Law and Literature, Journal of International Criminal Justice, Vol. 4, Issue 4, 2006.
Jonathan Witmer-Rich, The Defense of Duress to Killing Innocents: Assessing the Mixed Legacy of the ICTY and the ICTR in “The Legacy of Ad Hoc Tribunals in International Criminal Law: Assessing the ICTY's and the ICTR's Most Significant Legal Accomplishments”, Edited by Milena Sterio and Michael Scharf, Cambridge University Press, 2019.
Luis E. Chiesa, Duress, Demanding Heroism and Proportionality, Vanderbilt Journal of International Law, Volume 41 issue 3, May 2008, pp.764-766.
Lynch v. DPP for Northern Ireland, 1975, Appeals Chamber Judgment
Rosa Ehrenreich Brooks, Law in the Heart of Darkness: Atrocity & Duress, Virginia Journal of International Law, 2003.
