No Excuse: The Failure of the ICC's Article 31 "Duress" Definition
Risacher, Benjamin J., Notre Dame Law Review
"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. …