1 Allott, AN (ed) The Future of Law in Africa, Record of Proceedings of the London Conference (1960) 36–37Google Scholar and cited by Read, JS “Criminal law in the Africa of today and tomorrow” (1963) 7 Journal of African Law 5 at 17.Google Scholar

2 UN doc A/CONF.183/9*, available at <http://www.un.org/icc> (last accessed 16 December 2008), reprinted in (1998) 37 International Legal Materials 999.

3 As of 17 October 2007, 105 nations had ratified the statute.

4 For the position under international criminal law, see Cryer, RProsecuting International Crimes (2005, Cambridge University Press) at 302–04.CrossRefGoogle Scholar

5 The provisions are shared by several other African nations such as Botswana, Kenya, Tanzania and Uganda.

6 Stephen, JDigest of Criminal Law (9th ed, 1950, Sweet & Maxwell) art 11 at 9–11.Google Scholar

7 They are also shared by the northern regions of Nigeria and Somalia.

8 Interestingly, the drafters of the Sudanese code chose not to adopt the provision on necessity which appears in the Indian Penal Code. That provision (sec 81) reads: “Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.” The provision is accompanied by the following explanation: “It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.”

9 S v Goliath 1972 (3) SA 1 (A) at 24. This combined defence is called “necessity” by the South African courts. For the purposes of this article, the distinction between compulsion and necessity will be invoked wherever it is necessary to do so when discussing the South African law.

10 Burchell, EM and Hunt, PMASouth African Criminal Law and Procedure Vol 1: General Principals of Criminal Law (1970, Juta) at 285Google Scholar; approved of in S v Kibi 1978 4 SA 173(E) and S v Malan 1998 (2) SASV 143.

11 Saland, P “International criminal law principles” in Lee, R (ed) The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (1999, Kluwer) 189 at 208.Google Scholar

12 See generally, Fletcher, GBasic Concepts of Criminal Law (1998, Oxford UP) at chap 9.Google Scholar

13 See Triffterer, O “Article 32. Mistake of fact and mistake of law” in Triffterer, O (ed) Commentary on the Rome Statute (2nd ed, 2008, Verlag CH Beck) 895 at paras 14 and 28Google Scholar; Ambos, K “The general principles of the Rome Statute” (1999) 10 Criminal Law Forum 1 at 29–30.Google Scholar

14 R v Mahomed 1938 AD 30 at 36; R v Damascas 1965 (4) SA 598 (SR) at 600.

15 Snyman, CRCriminal Law (4th ed, 2002, Butterworths) at 143.Google Scholar

16 Burchell, JPrinciples of Criminal Law (3rd ed, 2005, Juta) at 258 and also at 514–15 and 517Google Scholar. See also Snyman Criminal Law, above at note 15 at 143.

17 Gambian Criminal Code, sec 8; Southern Nigerian Criminal Code, sec 25. The Sudanese Penal Code also has a similar provision, namely sec 44 which states that “no act is any offence which is done by a person who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be bound by law to do it or justified by law in doing it.” Sec 37 of the code defines “good faith” as: “Nothing is said to be done or believed in good faith which is done or believed without due care and attention.” When read together, secs 44 and 37 effectively require the accused's mistaken belief to have been based on reasonable grounds.

18 Fletcher Basic Concepts, above at note 12 at 162.

19 Art 123 of the ICC Statute provides for the establishment of such a commission to consider any amendments to the statute seven years after its entry into force.

20 Art 31(1)(c), which states: “[A] person shall not be criminally responsible if, at the time of that person's conduct … [t]he person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph.”

21 S v Kibi 1978 4 SA 173 (E).

22 S v Peterson 1980 (1) SA 938 (A).

23 S v Mtewtwa 1977 (3) SA 628 (E).

24 R v Damascas 1965 (4) SA 598 (SR).

25 For example, see S v Malan 1998 (2) SASV 143 where a farmer successfully pleaded the defence of necessity to a charge of criminal damage when he shot and killed animals belonging to other farmers which had strayed onto his land and caused damage to his crop.

26 The second element in the list reproduced in the main text referenced by note 10 above. However, see R v Chipsea 1964 (4) SA 472 (SRA) at 477 per Beadle CJ who held that there was no hard and fast rule that the threat had to be imminent in every case where the defence of compulsion was raised. See also S v Mtewtwa 1977 (3) SA 628 (E) at 631 where the requirement of imminence was downplayed on the ground that the threatener had continuous control over the accused.

27 The meaning of this clause is unclear. It could refer to the absence of imminence as suggested here, or to the opportunity for the accused to take avoiding action, both of which would deny the accused the defence.

28 They are discussed in detail in the section on “The response to the threat” below.

29 S v Pretorius 1975 2 SA 85 (SWA). South African commentators have also advocated extending the defence to cases where the threat was directed at a third party's interests; see Burchell Principles of Criminal Law, above at note 16 at 279; Snyman Criminal Law, above at note 15 at 118.

30 S v Adams 1979 (4) SA 793 at 800 per King J.

31 Fletcher Basic Concepts, above at note 12 at 135, where he was discussing these concepts in relation to self-defence where the threat would be in the form of an attacker.

32 Compare with the observation in note 27.

33 As will be noted below, this requirement incorporates both the need for and reasonableness of the accused's response to the threat.

34 Ambos, K “Other grounds for excluding criminal responsibility” in Cassese, A, Gaeta, P and Jones, J (eds) The Rome Statute of the International Criminal Court: A Commentary, Vol II (2002, Oxford University Press) 1003 at 1041.Google Scholar

35 For example, see R v Chipsea 1964 (4) SA 472 (SRA) at 475 and R v Damascas 1965 (4) SA 598 (SR) at 599–600. South African commentators have also subscribed to this requirement of proportionality; see Snyman Criminal Law, above at note 15 at 119; Burchell Principles of Criminal Law, above at note 16 at 266.

36 This was the approach taken by the High Court of Australia in DPP (Victoria) v Zecevic (1987) 162 CLR 645 in relation to the closely related plea of self-defence. The court at para 18 said: “[I]t will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered. However, the whole of the circumstances should be considered, of which the degree of force used may be only part. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone.”

37 To be discussed in the next section of this article.

38 Although the word “necessary” appears alongside “reasonably” in this formulation, it is clear that this part of the provision is concerned more with the reasonableness of the response than with whether it was necessary. As noted earlier, the part of the Gambian provision which expresses this latter requirement is that which reads: “only in order to avoid consequences which could not otherwise be avoided”.

39 For a good summary, see Law Commission A New Homicide Act for England and Wales? A Consultation Paper (2006, The Stationery Office) at 177–83 and Burchell Principles of Criminal Law, above at note 16 at 267–76.

40 Prosecutor v Dražen Erdemović judgment IT-96-22-A, 7 October 1997 at para 19 and disposition (4). See further Ambos “Other grounds”, above at note 34 at 1010–14; Knoops, GDefenses in Contemporary International Criminal Law (2nd ed, 2008, Martinis Nijhoff Publishers) at 50–52.CrossRefGoogle Scholar

41 See S v Goliath 1972 (3) SA 1 (A) and S v Peterson 1980 1 SA 938 (A), both of which were murder cases.

42 Interestingly, sec 16 of the Kenyan Penal Code has the following additional words immediately following “threats of future injury do not excuse any offence”, namely: “nor do any threats excuse the causing of, or the attempt to cause, death”. Sec 15 of the Botswana Penal Code appears to be a clumsy rendition of the Kenyan provision, stating that “threats of future injury do not excuse the causing of, or the attempt to cause, death”. The Tanzanian and Ugandan provisions follow the Gambian provision in not having these additional words.

43 By virtue of the crime of murder being punishable with death under the Southern Nigerian code, and murder being expressly excluded under the Sudanese provision.

44 This was one of the main reasons given by the House of Lords in R v Howe [1987] AC 417 at 426 for refusing to recognize compulsion as an answer to a murder charge.

45 The emphasis on “ordinary” may be contrasted with the demand for heroism by the House of Lords in R v Howe id at 426–27 which caused it to deny the defence to murder cases.

46 1972 (3) SA 1 (A) at 21 per Rumpff JA.

47 Id at 25.

48 For a detailed analysis of this concept, see P Robinson “Causing the conditions of one's own defense: A study in the limits of theory in criminal law doctrine” (1985) 71 Virginia Law Review 1 and S Yeo Compulsion in the Criminal Law (1990, Law Book) at chap 5.

49 That is, art 31(d)(i) which refers to threats “made by other persons”.

50 See Cassese, AInternational Criminal Law (2003, Oxford University Press) at 245–46Google Scholar and Ambos “Other grounds”, above at note 34 at 1039, for some of these case authorities.

51 That is, art 31(d)(ii).

52 This clause may have been borrowed from the Siracusa Draft: Association Internationale de Droit Pėnal, International Institute of Higher Studies in Criminal Sciences/Max Planck Institute for Foreign and International Criminal Law et al 1994 ILC Draft Statute for an International Criminal Court with Suggested Modifications (15 March 1996, Siracusa/Freiburg/Chicago). Art 33-13 of the draft states in part that “[n]ecessity excludes punishment when circumstances beyond a person's control are likely to create an unavoidable private or public harm”.

53 S v Bradbury 1967 1 SA 387 (A); S v Lungile 1999 2 SACR 597 (SCA); S v Mandela 2001 1 SACR 156 (C).

54 Or, applying a more stringent view, “ought to have known” which imputes knowledge on the accused of the subsequent compulsion. For a detailed discussion of this issue, see Yeo Compulsion, above at note 48 at 173–84.

55 Criminal Code 1995 which applies to the federal jurisdiction of Australia. Australia comprises a federation of states and territories each having their own criminal codes which vary from one another, much like the situation in the United States of America.

56 Model Criminal Code Officers Committee Final Report. Chapter 2, General Principles of Criminal Responsibility (1992, Commonwealth Attorney General's Department). For a description of the background and work of the committee, see Goode, M “Constructing criminal law reform and the model criminal code” (2002) 26 Criminal Law Journal 152 at 155–63.Google Scholar

57 Namely, New South Wales, South Australia and Victoria.

58 It is unclear why this provision does not also contain a clause on the absence of prior fault, like the one appearing in sec 10.2(3) for the defence of compulsion.

59 The choice of names as such is unimportant. It could alternatively be called “duress” as is the case in the ICC Statute.

60 For an alternative formulation of this issue of prior fault, there is the American Law Institute's Model Penal Code Proposed Official Draft (1962), of which sec 2.09(2) states: “The defence as provided by this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defence is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offence charged.” For a detailed evaluation of this and other formulations on prior fault, see Robinson “Causing the conditions”, above at note 48 at 15–16 and Yeo Compulsion, above at note 48 at 176–84.

61 For an alternative formulation, see the American Law Institute's Model Penal Code, of which sec 3.02(2) states: “When the actor was reckless or negligent in brining about the situation requiring a choice of harms or evils or in appraising the necessity of his conduct, the justification afforded by this section is unavailable in a prosecution for any offence of which recklessness or negligence, as the case may be, suffices to establish culpability”. See further Robinson “Causing the conditions”, above at note 48 at 18–19 and Yeo Compulsion, above at note 48 at 186–93.

62 In Gambia, Southern Nigeria and the Sudan, this outcome may already be attained by reading their provisions on reasonable mistake of fact together with those on compulsion and necessity; see note 17 and the discussion in the accompanying main text.