1 Art. 31(1)(d) ICC Statute. In addition to other grounds for excluding criminal responsibility provided for in this statute, a person shall not be criminally responsible if, at the time of that person's conduct; the conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) made by other persons; or (ii) constituted by other circumstances beyond that person's control.

2 DPP v. Lynch [1975] AC 653 (Lynch) permitted the defence to be raised in cases of murder, but was subsequently overturned in R v. Howe and Bannister [1987] 2 WLR 568.

3 As acknowledged by McGoldrick, Rowe, and Donnelly, it is thanks to the dissents of Cassesse and Stephen that duress was acknowledged as a defence in the ICC statute. See McGoldrick, D., Rowe, P., and Donnelly, E., The Permanent International Criminal Court (2004), at 275Google Scholar.

4 Ambos, K., ‘Grounds for Excluding Criminal Responsibility’, in Cassese, A., Gaeta, P., and Jones, J. R. W. D. (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. 1 (2002), at 1044Google Scholar.

5 In practice it was not considered in mitigation either. Wilhelm Keitel, e.g., openly admitted his guilt and pleaded superior orders, but was hanged following conviction. The Tribunal held: ‘In the face of these documents Keitel does not deny his connection with these acts. Rather, his defence relies on the fact that he is a soldier, and on the doctrine of “superior orders”, prohibited by Article 8 of the Charter as a defence. There is nothing in mitigation. Superior orders, even to a soldier, cannot be considered in mitigation where crimes as shocking and extensive have been committed consciously, ruthlessly, and without military excuse or justification’. Judgment, International Military Tribunal, 1 October 1946, (‘IMT Judgment’), § 493.

6 Ibid., para. 447.

7 Principles of International Law Recognised in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal (‘Nuremberg Principles’), Principle IV, Yearbook of the International Law Commission, Vol II (1950).

8 Greenspan, e.g., contends that the moral choice test does undermine Art. 8. Greenspan, M., The Modern Law of Land Warfare (1959), 493Google Scholar, at note 343.

9 Bassiouni, C., Crimes against Humanity in International Criminal Law (1992), at 427Google Scholar.

10 For a succinct summary of scholarly views on superior orders, see Bassiouni, C., Crimes Against Humanity in International Criminal Law (1999), at 457–63Google Scholar.

11 Casesse, A.et al., International Criminal Law Cases and Commentary (2011), 464, at 472Google Scholar.

12 Cassesse, A., ‘Justifications and Excuses in International Criminal Law’, in Cassese, A., Gaeta, P., and Jones, John R. W. D. (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. 1 (2002), at 951CrossRefGoogle Scholar.

13 Writing in relation to self-defence: ‘The conduct in self-defence is proportionate to the offence to which the person reacts’, Cassese et al., supra note 12, at 461.

14 Defined in English law as ‘reasonableness of force’. See Smith and Hogan, Criminal Law (2008), at 361.

15 Hall, J., ‘Comment on Justification and Excuse’, (1976) 24 AJIL 639Google Scholar, at 639. It is contended that the usage of ‘right’ in this context is problematic. Take for example the classic justificatory defence of self-defence: an individual faced with an attacker ‘armed’ with his fist and in fear of being assaulted is entitled as a matter of law to defend himself. Few would disagree that if the attackee, in order to save himself, were to hit the attacker with his fist that it is right that he should be allowed to do so without being criminally liable. However, the author questions whether it can properly be said in a case of necessity, another defence of justification, that the underlying act is necessarily right. Consider the case of Dudley and Stevens (1884) 14 QBD 273 (Mignonette Judgment): it is perhaps difficult to go so far as to claim that the act of killing the cabin boy was ‘right’ even in the circumstances as they existed.

16 Fletcher, G. P., Rethinking Criminal Law (2000) at 759Google Scholar.

17 Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity was a law enacted in 1945 by the Allied Control Council which created a framework for the prosecution of cases of a similar nature to those tried by the IMT.

18 van Sliedregt, E., Individual Criminal Responsibility in International Law (2012), at 251Google Scholar.

19 See Ambos, supra note 4, at 1005; Judgment, US v. Von Leeb et al. (case 12), in TWC XI (‘High Command judgment’); Judgment, US v. Krauch et al. (case 6), in TWC VIII (Farben Judgment), 1081–210, at 1174 et seq;, Judgment, US v. Ohlendorf et al. (case 9) (‘Einsatzgruppen Judgement’) § 480.

20 Einsatzgruppen Judgment, Ibid., para. 480.

21 Ibid., para. 470

22 Ibid., para. 479–82.

23 Dinstein, highly critical of the defence and in particular of Einsatzgruppen, contends that the correct approach is that ‘no degree of duress or necessity may justify murder’, Dinstein, Y., ‘International Criminal Law’, (1985) 20 Israel Law Review 206Google Scholar, at 235

24 Flick et al. US Military Tribunal Nuremberg, Judgment of 22 December 1947 Trials of War Criminals Before the Nuremberg Military Tribunals, Vol. VI (‘Flick Trial’) § 1200; Wharton's Criminal Law, Vol. I, Ch. III, subdivision VII, para. 126.

25 Flick trial, ibid., para. 1200.

26 Ibid., paras. 1199–201

27 See Farben Judgment, supra note 19, para. 1178.

28 Judgment, Krupp, US Military Tribunal Nuremberg, judgment of 31 July 1948, in Trials of War Criminals Before the Nuremberg Military Tribunals, Vol. IX (‘Krupp Trial’) at 1436; van Sliedregt, supra note 18, at 251.

29 Krupp Trial, supra note 28, paras. 1142–4.

30 Ibid., para. 1438.

31 High Command Judgment, supra note 19, 462 at 509.

32 Fitchelberg supports the view that an assessment of culpa in causa is a valid exercise in considering the legitimacy of a claim of duress and, in particular, an accused's claim that (s)he had no moral choice at the time of the impugned act. Fitchelberg, A., ‘Liberal Values in International Criminal Law’, (2008) 6 Journal of International Criminal Justice 3, at 15CrossRefGoogle Scholar.

33 Art. 7(4) ICTY Statute: ‘The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires’.

34 Judgement, Erdemović, (IT-96-22-A), Appeals Chamber, 7 October 1997, (Erdemović Judgement), paras. 8 and 11.

35 Ibid., para. 19.

36 Joint Separate Opinion of Judges Vohrah and McDonald, Judgement, Erdemović (IT-96-22-A), Appeals Chamber, 7 October 1991 (‘Joint Opinion Vohrah and McDonald’), para. 45.

37 Majority opinion, supra note 34, at 52–55; Separate and Dissenting Opinion of Judge Cassese, Judgement, Erdemović, (IT-96-22-A), 7 October 1997, (‘Cassese Dissent’), paras. 21, 27; see also Paphiti, ‘Duress as a Defence to War Crimes Charges’, (1999) 38 Mil. L & L. War Rev 247.

38 The majority relies on excerpts from case law including references to the ‘sanctity the law attaches to human life’, citing R v. Howe and Others [1987] 1 All ER 771, at 785. and that ‘the law regards the sanctity of human life and the protection thereof as of paramount importance’ citing R v. Gotts [1992] WLR 284, at 292–3. See Joint Opinion Vohrah and McDonald, supra note 36, paras. 23, 71–8; See also Van der Wilt, Justifications and Excuses in International Criminal Law: An Assessment of the Case-law of the ICTY, The Legacy of the International Criminal Tribunal for the former Yugoslavia (2011), 277, at 290–1; Weigend also rightly rejects the majority argument that duress in unlawful killing would have the effect that superiors can confer impunity on subordinates, Weigend, T., ‘Kill or be Killed, Another Look at Erdemović’, (2012) 10 (5)The Journal of International Criminal Justice 1119Google Scholar, at 1227.

39 Majority opinion, supra note 34, para. 77.

40 As noted by Van Verseveld, the majority failed to draw the vital distinction between justification and excuse and had it done so, it may well have reached an entirely different conclusion. Van Verseveld, A., Mistake of Law, Excusing Perpetrators of International Crimes (2012), at 65.Google Scholar

41 Cassese Dissent, supra note 37, para. 49 (emphasis added).

42 Conversely, in a situation such as that presented in the case of Erdemović where, regardless of the accused's actions, he would die along with those he had been threatened to kill, then like Stephens, Cassesse considers that there the defence may be raised. See Cassese Dissent, supra note 37, para. 43.

43 See Cassese Dissent, supra note 37, para. 42 (emphasis added).

44 Also known as the doctrine of ‘inexcusable choice’. G. J. Knoops, Defences in Contemporary International Criminal Law, (2001), at 94, citing the Mignonette Judgment.

45 See also the comments of Lord Coleridge: in referring to the taking of an innocent life he labels necessity as ‘a temptation to murder’ which if allowed as an absolute defence to murder would be ‘the absolute divorce of law from morality’, Mignonette Judgment, supra note 15, para. 287.

46 See also, e.g., La Fave and Scott who state that for reasons of ‘social policy it is better that the defendant faced with the choice of evils do the lesser evil in order to avoid the greater evil threatened by the other person’, La Fave, W. and Scott, A., Criminal Law (1986), at 433Google Scholar.

47 Cassese dissent, supra note 37, para. 43; The Italian cases to which Cassese refers include those of Massetti, Bernardi and Randozzo and Sra et al. all of which concerned executions carried out by fascists in Italy during the Second World War. The German cases were essentially an extension of Control Council Law No. 10, although as noted by Cassese that law had been repealed in 1956.

48 Cassese Dissent, supra note 37, para. 43; see also Van Verseveld, supra note 40, at 66 and Van der Wilt, supra note 38, at 292–3.

49 Separate and dissenting opinion of His Honour Judge Stephen, Judgement, Erdemović, (IT-96-22-A), 7 October 1997 (‘Stephen Dissent)’, para. 52.

50 Majority opinion, supra note 34, paras. 80–1.

51 If, e.g., the accused referred to above was told to cut off someone else's arm or his own arm would suffer the same fate then presumably he would be convicted because the harm with which he was threatened was not greater than that which he caused. It is submitted that this is an obviously unsatisfactory result. Dressler, J., ‘The Exegesis of the Law of Duress: Justifying the Excuse and Searching for its Proper Limits’, (1989) 62 (5)Southern California Law Review 1331Google Scholar, at 1366, note 194.

52 Dressler states that what we mean when we say moral choice is actually whether the actor had a meaningful choice to make, ibid., at 1366, note 194.

53 Dressler provides numerous cogent reasons as to why the categorization of duress as a defence of justification is unsatisfactory. He underlines that it is wrong in principle to base the availability of duress on the lesser evils test and indeed, this is contrary to the common law definition of duress. In illustrating the point, he uses the example of a threat to cut off the accused's arm if he does not commit rape. It is likely, he submits persuasively, that the accused would be acquitted of rape, but not on basis of an analysis of whether the cutting off of an arm is a lesser harm than rape. Ibid., at 1352.

54 See Weigend, supra note 38, 1219, at 1228–31.

55 See Fletcher, supra note 16, at 798.

56 See Ambos, supra note 4, at 1037.

57 The common law position, as highlighted by the majority, is that duress does not negate mens rea. See Majority Opinion, supra note 34, at 70–2.

58 See Cassese, supra note 4, at 952.

59 Eser underlines that if duress were properly categorized as a defence of excuse and not one of justification, it may be seen in a more favourable light as it would not be associated with condoning the acts of the accused, but rather excusing those acts. See Eser, A., ‘Defences in War Crimes Trials’, (1994) 24 Israel Yearbook on Human Rights 201Google Scholar, at 214; See also Ambos, ‘Remarks on the General Part of International Criminal Law’, (2006) 4 Journal of International Criminal Justice 660, at 666.

60 See Eser, supra note 59, at 209, 214; Van Sliedregt, supra note 18, at 247.

61 See Van Sliedregt, supra note 18 at 246; the conflation of justification and excuse, necessity, and duress of which Eser complains is arguably more of an Anglo-American concept than a continental one. The Mignonette case was one of necessity and was considered with reference to justification. The fault of subsequent courts, particularly in the case of Lynch, lay in their defining duress in terms of justification, as it had been in Mignonette, and not in terms of excuse. On the other hand, German law, e.g. draws such distinction, permitting duress as an excuse to be pleaded in cases of murder, and necessity is reserved for all other cases. See Lynch, supra note 2.

62 Fletcher distinguishes this involuntariness, which he terms normative involuntariness, from physical involuntariness. In doing so, he states, in reliance on Hart, that the ‘distribution of punishment should reserved for those voluntarily break the law’ on the basis that we should ‘live in society where we have the maximum opportunity to choose whether we become subject of criminal liability’. See Fletcher, supra note 16, at 802–4; Hart, H. L. A., Punishment and Responsibility, (1968), at 22–24Google Scholar; See also Paphiti who suggests that the distinction between regarding the act as voluntary and involuntary is at the ‘root of the difference between common and civil law systems’, supra note 37, at 274.

63 Cassese, A., International Criminal Law (2008), at 280–1Google Scholar.

64 See Flick trial, paras. 1199–200; Krupp trial, para. 1438.

65 See Dressler, supra note 51, at 1357–9. It needs emphasizing that ‘capacity’ in this sense means ‘possessing the mental capability to’ and is not a concession by the author that an accused under duress has any type of meaningful choice open to him.

66 See Weigend, supra note 38, at 1232–33. Weigend draws a distinction between duress as ‘mere excuse’ contrasting it with insanity and unavoidable mistake which he contends are grounds of exculpation. However, it is more correct to draw a distinction on the basis that duress, due to its normative nature, is an atypical excuse. Furthermore, the author does not make the important distinction between the capacity to make a choice and the free will to give effect to that capacity. In a case of excessive self-defence, as highlighted by the author, the actor has both the capacity and freewill to use whatever force he sees as necessary. This is not the case in duress where the only choice is to comply or be killed, a choice which the author concedes amounts to the use of ‘extraordinary self-control or restraint’.

67 See Fletcher, supra note 16, at 803. In illustrating the gap between harm done and benefit accrued Fletcher uses the example of blowing up a city to prevent a broken finger. He is correct in stating that in such a case it is highly unlikely that the accused would be excused, but perhaps this is not because of the gap between the harm avoided and the harm suffered, rather there would be no defence of duress because the harm avoided is not sufficiently grave to meet the threshold of threat of serious injury or death required to plead duress.

68 See Fletcher, supra note 16, at 804.

69 See discussion of the Flick trial above: Flick and Weiss had increased the production quota beyond what was required which was determinative of the rejection of their plea of duress.

70 Art. 31, ICC Statute.

71 As Eser states ‘Thus, this defence requires less than “justifying necessity” would afford, and . . . more than excusing “duress” would be satisfied with’. See Eser, A., ‘Article 31, Grounds for Excluding Criminal Responsibility’, in Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court (1999), 537Google Scholar, at 552.

72 Legal commentators have raised doubts about the provision, Eser referring to it as a ‘failed attempt’, ibid., at 550, and Ambos on the basis that it should have maintained separation between necessity and duress. See Ambos, supra note 4, at 1047.

73 See Eser, supra note 71, at 550; McGoldrick, Rowe, and Donnelly, supra note 3, at 274.

74 Ambos points to what he terms as only a ‘terminological’ difference between the ‘necessary and reasonable’ language of Art. 31(1)(d) and ‘proportionate’ as contained in Art. 31(1)(c). See supra note 4, at 1040.

75 See also Van Verseveld, supra note 40, at 66.

76 Art. 31(2) ICC Statute. Furthermore, the case law of the international criminal tribunals offers little assistance on this matter: as noted by Schabas, in Kupreskić, the Appeals Chamber of the ICTY considered the defence of necessity, but held that it was unnecessary to decide whether duress and necessity are the same defence under international law. See W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2010), at 491.

77 Ibid., at 491.

78 See Weigend, supra note 38, at 1224.

79 See also the mens rea requirements of Art. 30 ICC statute.

80 This subjectivity therefore differs from that in Krupp, which avoided any balancing: The test in Krupp required only that the accused hold a bona fide belief in the danger to him, not that he must balance that danger against the harm he is coerced into causing. See Krupp, supra note 28.