Death Before Dishonor: The Affirmative Defense of Duress in International Criminal Law Considered According to Lex Naturalis

• Author: Joshua Carback
• Position: University of Maryland Francis King Cary School of Law
• Pages: 651-703

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2016 e Institute for Migrant Rights Press

e author would like to thank Jerri Shahverdi, Administrative Assistant for the

Maryland Law Review, for her technical support. e author would like to thank

Maxwell O. Chibundu, Professor of Law at the University of Maryland School of Law,

for providing scholarly feedback on this article. Finally, the author would like to thank

Dr. Robert M. Frazier, Professor of Philosophy at Geneva College, for introducing me

to the wonderful discipline of Philosophy.

dEath BEforE dishonor

J D  A A D 

I C L A  L N

Joshua T. Carback

University of Maryland Francis King Cary School of Law

Email: joshua.carback@umaryland.edu

Should duress be a complete defense to homicide? Nowhere is the importance of

this legal question more pronounced than in Prosecutor v. Erdemovic. In Er-

demovic, the defendant, a Serbian soldier, stood before the International Crim-

inal Tribunal for the former Yugoslavia accused of committing crimes against

humanity. e defendant’s position was that his actions of helping to butcher

Bosnian Muslims should be legally excused because his superiors threatened

him with death if he did not join the slaughter. is article disputes the adequa-

cy of this defense, and answers the question posed above in the negative. is

article is novel in, for the rst time, advocating for a disposition in Erdemovic

that accords with natural law. e article breaks fresh ground in examining

the duress issue in Erdemovic through the lens of three dierent worldviews:

Kantianism, utilitarianism, and natural law. e rigor of this article inheres

in contrasting the deontological, consequentialist, and teleological frameworks

for analyzing the duress issue and assessing the merits and aws of each posi-

tion respectively. is article concludes that the natural law position is correct.

It further highlights the striking contrast in approaches to the acceptability of

duress as an armative defense to homicide between common law and civil

law jurisdictions: duress is not a complete defense to homicide at common law,

but in civil law jurisdictions and according to the Model Penal Code it is. e

importance of this article lies not only in its contribution to the philosophical

debate over the acceptability of duress as a defense to homicide in criminal law,

but also in exploring this issue as a ashpoint in comparativist discourse as

III Indonesian Journal of International & Comparative Law 651-703 (October 2016)

652

Carback

well. Finally, this article uses the duress issue in Erdemovic to illuminate how

the clash between positivist and transcendental ethical theories of human rights

impacts international law.

Keywords: International Criminal Law, International Humanitarian Law, Legal Rea-

soning, Jurisprudence, Self-Defence, Human Rights.

I. INTRODUCTION

Legal issues commonly involve philosophical controversies. Dierenc-

es of legal opinion oen turn on dierent normative conceptions of

"the good." It is unsurprising, therefore, that the International Criminal

Tribunal for the Former Yugoslavia’s ruling in Prosecutor v. Erdemovic

on a point of law impregnated with philosophical meaning continues

to inspire debate. In fact, it implicates the very crucial and fundamental

question at the heart of so many other legal debates: what is law? e

Appellate Chamber of the Tribunal confronted a timeless ethical di-

lemma when considering the appeal of a soldier convicted of commit-

ting a crime against humanity: is duress a legitimate armative defense

to homicide? ose jurisdictions that follow the common law standard

answer in the negative, while civil law jurisdictions, or those that follow

the Model Penal Code, answer in the armative. So should duress be a

complete defense to homicide? In Erdemovic, the defendant’s position

was that his cooperation in butchering busloads of Bosnian Muslims

should be legally excused because his superior’s threatened him with

death if he did not refrain from joining the slaughter.

is article disagrees with the adequacy of this defense, and answers

the question posed above in the negative. is article is novel in for the

rst time advocating for a disposition in Erdemovic that accords with

natural law. is article breaks fresh ground in in examining the duress

issue in Erdemovic through the lens of three dierent worldviews:

Kantian, utilitarian and natural law perspectives. e rigor of this

article inheres in contrasting the deontological, consequentialist, and

teleological frameworks for analyzing the duress issue and assessing

the merits and aws of each position. is article concludes that the

natural law position is most consistent with human rights values.

is article further highlights the striking contrast in approaches

653

Death before Dishonor: An International Criminal Law Vindication of Natural Law

Carback

to the duress issue between common law and civil law jurisdictions.

e importance of this article, therefore, lies not only in contributing

to the philosophical debate over the acceptability of duress as a defense

to homicide in international law and criminal law, but also in exploring

this issue as a ashpoint in comparativist discourse as well. us this

article uses the duress issue in Erdemovic to illuminate how the clash

between positivist and transcendental ethical theories of human rights

impacts international law. Finally, this article further assesses how the

resolution of this clash impacts how the international community’s

ability to uphold human rights values.

e author will rst set out the facts of the Erdemovic case in Part

II,1 and then discuss the legal background to the Tribunal’s disposition

in Part III.2 e author will summarize the Tribunal’s reasoning in

Part IV.3 e author will demonstrate in Part V that the Tribunal’s

decision followed a Kantian deontological approach in resolving the

duress issue according to the common law standard in the prosecutor’s

favor. is article will show that those judges who were in dissent, in

deferring to the Model Penal Code standard, reasoned pursuant to

a utilitarian, consequentialist conception of justice. e author will

argue that the basic fabric of utilitarian philosophy is incompatible

with the fundamental principles of international law. e deontological

paradigm is a plausible basis for the Tribunal’s decision. However,

the author will argue that reasoning in accordance with natural law

philosophy is the proper basis for rejecting duress as an armative

defense to homicide, due to the anity between natural law, the

common law, and international law.4 e author will conclude in Part

VI.5

1. See infra Part II.

2. See infra Part III.

3. See infra Part IV.

4. See infra P a rt V.

5. See infra Part VI.