Duress defense refers to the use of coercion to commit a crime as justification for it. In the contemporary times, duress defense is one of the subjects that attract attention in criminal law across jurisdictional boundaries. While some jurisdictions allow the use of duress as a form of defense for a crime committed, there are many other states that oppose such defense on grounds that it has the capacity of being misused after intentional criminal activity. In the international law, the use of duress defense is limited to the satisfaction of certain conditions. In the same way, the countries which allow duress defense also do so with limitations to its extent in the court of law. Most of the countries particularly oppose the use of duress defense in murder cases while others argue that duress defense should only be used in cases where theharm caused through the crime action is lesser than the harm that would have resulted in case the crime would not have been committed by the criminal.
In particular, the international law prohibits the use of duress defense by soldiers following commitment of war crimes against humanity. On the other hand, the use of duress defense is not yet confirmed in cases where civilians kill fellow civilians for any reason. In this, there are divergent views on the justification of duress defense. Various authors such as Heim (2013) have proposed policy considerations in the determination of applicability of duress defense in various criminal cases. The international criminal law, which provides a blue print for the formulation of other laws do not explicitly highlight the extent to which duress defense can be applied. According to proponents of the use ofduress defense, its application should be carried out after consideration of the moral culpability of the offender in the situation of the crime.
Although several studies have been carried out on the subject of duress defense, there is still need to carry out more studies on the subject, particularly with the objective of determining discrepancies between the international and various state laws. As such, the present study was conducted with the objective of narrating the history of duress defense, its application in international criminal law and the extent to which it is applied in the U. S criminal law. The study was conducted to address the following research questions:
- What is the extent of duress defense in the international criminal law?
- To what extent is duress defense acceptable in the U.S law?
It is believed that through addressing these particular questions, the paper was able to help in adding more value to the already existing literature. The paper is segmented into four key sections, the first of which is the introduction section which gives an overview of the expectations from the study. The other sections include the literature review which encompasses the sub-sections such as history of duress defense, the applicability of duress defense in international law and the U.S application of duress defense; discussion section and the conclusion to the paper. In each of these sections, the paper was developed to create a better understanding of the extent of duress defense and as such to achieve the objective of the study. The study was carried out using a secondary approach during which only selected literatures on the subject were reviewed. The key criteria for literature selection were relevance to study objectives and validity of the source.
History of Duress Defense
The use of duress as a form of defense was first observed in the pre World War II trial of soldiers engaged in committing various human crimes during the war period. It would be necessary to understand that soldiers are always under obligation to obey orders from their superiors. However, many studies explaining the origin of duress defense refer to the trial of Drazen Erdemovic, a Bosnian Serb Army soldier. According to a study by Benjamin (2014), Erdemovic had joined the Serb army due to his financial difficulties to enable him take care of himself and his wife. From his explanation, the soldier chose the Serb faction over other army categories since it was ethnically diverse and he believed he would get opportunity to integrate with others. The history of duress defense comes from the accusation of murdering approximately 100 Muslim men during the war, an accusation to which Erdemovic pleaded guilty but which he explained to have been the result of being coerced and threatened with imminent death should he fail to follow the commands of his superiors (Heim, 2013).
During the trial of the accused, the accused mentioned that he had not been aware of the mission intentions prior to joining the group and was surprised by the orders. His efforts to resist were met with threats of death. During the judgment, three of the five judges considered the guilty plea without regard to the concept of coercion. Benjamin (2014) describes the procedural reactions of the judges. For instance, it is stated that the two judges who opposed the guilty sentence did so calling for a consideration of the moral culpability of the offender in committing the offense (Heim, 2013). The historical description is also highlighted by various other authors such as Shankland (2009) and Mulroy (2006). From the reports of these authors, the defense for Erdemovic stated that it would have been more advisable to consider the proportionality of the case consequences i.e. consideration of the potential harm from Erdemovic’s self-sacrifice. In their regard, Erdemovic could have died together with the Muslim men who were killed. On the contrary, his coerced participation led to his salvation (Mulroy, 2006). The threat of death can be said to have been serious in this case following the events that ensued after the accused refused to participate in further killings. Attacks directed at him and efforts to take his life that only ended after his capture by the international criminal law enforcement all indicate the severity of the threat against him (Benjamin, 2014).
From the discussions provided by Benjamin, the judges against consideration of duress defense based their arguments on excuse theory of duress defense claiming that many offenders used the defense to justify crimes that have no rationale for justification (Benjamin, 2014).Based on the arguments of the other judges, the law should not be subject to logic. At the time of the case, there were no explicit conditions for the application of duress defense in the determination of a case. As such, basing the final judgment on the subject of duress defense would have been tantamount to making logical rather than lawful decisions. The three judges appealed to the normative purpose of the law was to achieve political, economic and social roles in nations and should not be used as tools (Heim, 2013). They further argued that assenting to duress defense would raise multiple problems that would lead to many philosophical discussions which the international community was not yet ready to engage in (Benjamin, 2014). The use of duress defense in this case was thus denied.
While the case of Drazen Erdemovic did not apply duress defense, it acted as a catapult for the international community to initiate a process that would give conditions under which such a law would be applied. The observations of the international community on how the case was handled led to the realization that there was need for greater considerations to be done on the subject. The discussions ensuing from the case of Erdemovic led to the amendment of the Rome Statute through the inclusion of Article 31 of the statute (Mulroy, 2006).
Duress Defense in International Law
According to a research by Heim (2013), the Rome Statute clearly articulates certain conditions under which duress defense can be allowed in criminal cases. The international criminal law is effectively represented through the International Criminal Court (ICC) which addresses crimes committed against humanity whether in or out of war seasons. Benjamin (2014) asserts that the ICC has statutes that consider two key points in determining the applicability of duress defense in criminal cases. The first consideration is the moral culpability of the offender in the situation of the offense. The second consideration as stipulated by Article 31 of the Rome Statute is the fear of abuse to result in accountability loss among offenders. Benjamin posits that the court should be capable of balancing between these two considerations to enable reasonable and justified application of duress defense. However, the author also suggests that in most cases where the court is expected to refer to duress defense, the fear of accountability loss contributes to the decisions of the court to avoid duress defense. Asa result, there has been minimum application of duress defense in the international criminal court (Benjamin, 2014).
While Heim does not clearly mention the court’s failure to balance between fear and moral culpability considerations, he suggests that the court uses duress defense in cases, subject to certain establishments. From the arguments of Heim (2013), the international criminal law defines duress defense as being acceptable where threats to one’s life, for loss of lives of others or limbs should be considered to establish the existence of duress during crime commitment. Heim (2013) further says that the law is such that other ways of establishing the acceptability of duress defense is through confirmation of absence of other ways of avoiding harm and confirmation that the offender committed the crime unwillingly. For those who possess a duty of care towards the victims of the crimes, additional requirements are needed to establish that there was indeed duress during the criminal activity (Benjamin, 2014).In case these conditions are satisfied, the use of duress defense could be applicable in international criminal law. Both Benjamin and Heim do not discuss the extent to which duress defense is applicable in the international law. However, this is mentioned by Heller and Dubber (2010).
In the book by Heller and Dubber, the application of duress defense is combined with application of necessity defense in the ICC. This brings out the perception that the same conditions under which necessity defense can be referred toalso apply in duress defense. In addition to this, mental diseases are also exempted from liability in the ICC. All the articles reviewed on the international application of duress defense fail to mention murder and felony murder as part of the crimes under consideration in the international law. However, Heim and Benjamin do mention that soldiers acting on the orders of their superiors cannot use duress defense in crimes committed against humanity. None of the articles discuss the application of the same in cases where civilians are involved in the murder of civilians although this is one of the most commonly contested subjects in the applicability of duress defense (Heller & Dubber, 2010).
Duress Defense in the U.S Law
In many of the world’s states, the application of duress defense is limited to felonies in which no murders are committed. According to Heim, the applicability of duress defense is different across states on consideration of common law versus civil law states. Heim claims that in most Common Law states, the use of duress defense, particularly in murder cases is prohibited. On the other hand, most of the civil law states argue that the use of duress defense should be allowed subject to consideration of certain conditions. In these states, it is recommended that no one should be punished for acting in a way in which many people would act if in their situations (Heim, 2013). The states which allow the application of duress defense also require that the offender should not have placed himself/ herself in a situation that made them vulnerable to coercion. For instance, the State of Maryland requires that duress defense be established only after consideration of the moral culpability of the offenders. Shankland (2009) gives an example of a case of McMillan v. State in which the state had accused McMillan for murder after being coerced by a gang. The judgment made against McMillan was that since the plaintiff had initially made himself vulnerable to coercion, duress could not be used as a defense in his murder case.
Many other states across the U.S have put in place establishments for confirming duress defense applicability. Shankland describes the key establishments as including: the presence of an immediate threat of death should the offender fail to commit the offense required; a well substantiated fear that the threat issued would be carried out; unavailability of reasonable escape opportunities. In addition to this, Shankland also presents the rationale that the states that support duress defense give for their support. The rationales include fairness, deterrence and the choice of evils. In fairness, the argument is that punishing someone for acting in a way anyone would act naturally is unfair, Deterrence refers to the inability to prevent the crime from happening while choice of evils refers to the proportionality as historically described i.e. choosing the least harmful option. Most states also allow the applicability of duress defense in conditions of felony but prohibit it in murder cases.
According to a study by Mulroy (2006), no federal court has ever ruled on the applicability of duress defense in murder cases. However, this does not imply that its application does not occur. On the contrary, some of the states which prohibit its use in murder and felony murder cases allow its use in killing of innocent citizens by their fellow citizens. Based on Mulroy’s argument, it can be said that this application is however limited by the two cases where there are no other lawful alternatives to the murder. In such as case, it would be considered whether more harm could result from the offender’s personal sacrifice (Heim, 2013). This argument supports the findings of other authors such as Heller and Dubber who say that application of duress defense in the national context is limited to the provisions of the nation’s laws. From this, it is clear that duress application is a subject that will still draw many studies in the future.
Duress defense raises pertinent questions in international and national laws. Based on the literatures that have been reviewed, there are key areas that could create heavy impacts on the consideration of duress defense. From the historical times, the key issues that surrounded the use of duress defense included its application due to the potential for abuse. It can be argued that the same reason given by the judges who upheld the guilty plea of Drazen Erdemovic are continuously being applied in the international criminal court. Although the present times have laws that guide the application of duress defense, fear has clouded its application in the modern times as it did in the historic times. The refusal to use logic still hampers the use of duress defense in the international law as it did in the case of Erdemovic. While it may be justifiable to fear with the objective of maintaining accountability, it should also be considered that continuous failure to apply this rule where it may be deemed reasonable translates to lack of fairness in the ICC justice system.
The international law has also failed to explain the extent of duress defense in the ICC. Not only is the application of duress defense marred with fear and subjectivity, it is also subject to a lot of ambiguity. For instance, various national laws describe duress defense as applicable in felonies and in civilian murder where there are no lawful escape routes. On the other hand, Article 31 only explains that duress defense is not applicable to cases of soldiers being charged with committing war crimes. This builds the perception of a limitation of the international criminal law in that through it, wrong decisions are likely to be made by courts where it is difficult to establish the application of duress defense. In addition to this, the international law is also limited in terms of its stance on the relevance of duress defense in lawful decision making. The rationale for this claim is that in the explanations given based on article 31 of the Rome Statute, the explanation of its application to felonies is not clearly articulated.
Although most of the studies reviewed explain details of duress defense in different states and the extent of its application, there is still a limitation in the state of representation of duress defense in the U.S today. For instance, many of the studies explain its lack of applicability in felony murder and in murder cases. However, the application in felonies is not described as to what extent the proof of duress should be made. This gives a loop hole for the abuse of duress defense as observed in the case of McMillan and the State. Despite this, the past cases on the use of duress defense can effectively be referred to in cases that require the same. In the present times, duress defense may also be applicable in cases such as drug trafficking and terrorism yet no studies discuss the relevance of it in such cases. In addition to this, the presented laws on the application of duress defense to soldiers at war should also be considered. Although presented by the international criminal law, the use of duress defense by soldiers should be reviewed. This is because while it may be argued that they should not be blamed for their actions, it is also clear that saving themselves by murdering others upon coercion reduces the intensity of harm as lesser people would be affected. The victims would still be murdered with or without their participation.
Duress defense gained its initiation from the case of Erdemovic. Although from the perception of state laws and common law expectations the case would have been concluded differently, the court at the time of trial upheld a guilty judgment on the offender. This judgment created the platform for the establishment of the conditions under which duress defense can be implored in modern laws both internationally and within national confines. The applications of duress defense are however still limited, with the international criminal laws barring soldiers from citing duress as a form of defense. In the national circles, the application of duress defense is limited to felonies and prohibited in murder cases and in felony murder. The available literature on duress defense do not effectively address the subject hence the need for more studies to be carried out.
The research study has satisfactorily achieved its objectives of exploring the extent of duress defense applicability in the international law as well as in the U.S through explaining what both laws incorporate as allowable in duress defense and what they do not allow. It is thus recommended that based on the limitations identified in the international law and the U.S laws on duress defense, both should be reviewed to enhance clarity in application. Such review will also help to reduce the fear of accountability loss in the application of duress defense.
Benjamin, J. R. (2014). No Excuse: The Failure of the ICC’s Article 31 “Duress” Definition. Notre Dame Law Review, 89(3).
Heim, S. J. (2013). The Applicability of the Duress Defense to the Killing of Innocent Persons by Civilians. Cornell International Law Journal, 46.
Heller, K. & Dubber, M. (2010). The Handbook of Comparative Criminal Law. Stanford University Press.
Mulroy, S. J. (2006). The Duress Defense’s Uncharted Terrain: Applying it to Murder, Felony Murder and the Mentally Retarded Defendant. San Diego Law Review, 43.
Shankland, R. (2009). Duress and the Underlying Felony. Journal of Criminal Law and Criminology, 99(4).