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

AuthorJoshua Carback
PositionUniversity of Maryland Francis King Cary School of Law
Pages651-703
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 Yugoslavias 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.

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