From a Mitigating Factor to a Complete Defense: Duress and Erdemović’s Haunting Shadow over the Rome Statute
Keywords:
Duress, Erdemović case, defences for international crimes, ICTY, ICCAbstract
This paper examines the trajectory of duress within international criminal law, with a particular focus on the role of the International Criminal Tribunal of the former Yugoslavia’s (ICTY) Erdemović case, having crystallised the international rules governing this issue. The focus is on the practical legal effect of duress: whether it should act as a complete defence, or a mere mitigating factor at the sentencing stage. However, the paper also touches upon theoretical debates on the dual legal nature of excuses and justifications as exculpatory grounds in criminal law, and the underpinning deontological and consequentialist stances on morality intertwined within the decisions and judicial opinions. The first section explores the conflicting conceptual basis of duress as set by the International Military Tribunal (IMT) and post-war jurisprudence. The second section focuses on the Erdemović case and analyses the contradictory approaches of both the concurring and dissenting judges. The last section sheds light on the impact of the Erdemović debate on the Rome Statute’s provision on duress. It concludes that the Rome Statute’s approach is implicitly informed by the debate on the Erdemović case and adopts the approach of the dissenting judge Cassese; highlighting points of criticism directed at the provision in its current format.
References
1. See Matthew Jones, ‘Overcoming the Myth of Free Will in Criminal Law: The True Impact of the Genetic Revolution’ (2003) 52 Duke Law Journal, 1031, 1034-1037.
2. Charter of the IMT (Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis) ("London Agreement") (8 August 1945), art. 7 and art. 8; UNSC, Statute of the International Criminal Tribunal for the Former Yugoslavia (25 May 1993), as amended 17 May 2002, art. 7; UNSC, Statute of the International Criminal Tribunal for Rwanda (8 November 1994), as last amended 13 October 2006, art. 6.
3. Prosecutor v. Erdemović (Sentencing Judgment) IT-96-22-T (ICTY, 29 November 1996) [17]; Prosecutor v. Erdemović (Appeal Judgment) IT-96-22-A (ICTY, 7 October 1997) Separate and Dissenting Opinion of Judge Cassese [16].
4. U.N. War Crimes Commission, Law Reports of Trials of War Criminals, (vol.XV, 1949) 174.
5. Although the length of time between the threat being made and the action materialising is to be determined on a case-by-case basis.
6. Kai Ambos, ‘Defences in International Criminal Law’, in Bertram S. Brown (ed) Research Handbook on International Criminal Law (Edward Elgar 2011) 311.
7. Gerhard Werle, Principles of International Criminal Law (2nd edition, TMC Asser Press 2009) 206. Similarly, the ICC has interpreted the Rome Statute’s provision on duress to require the existence of a concrete and objective threat that is about to materialise. See Prosecutor v Dominic Ongwen (Judgment on the Appeal against the Trial Judgment) ICC-02/04-01/15 A (ICC Appeals Chamber, 15 December 2022) [1419]-[1424] and Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Trial Judgment) ICC-01/12-01/18 (ICC Trial Chamber X, 26 June 2024) [1743]-[1748]. For the debate in contemporary national law see Emma Charlene Lubaale, ‘The Defence of Duress: Inconsistent International Criminal Court Rulings and National Law Guidance’ (2025) 36 Criminal Law Forum, 419, 435-441.
8. ‘Trial of Alfried Felix Alwyn Krupp von Bohlen und Halbach and Eleven Others’ [1947-1948], US Military Tribunal, Nuremberg Case No 58 in UN War Crimes Commission LRTWC (vol. XV, 1949) 148. Similarly, Lubaale outlines the importance of the subjective stance of the accused towards the threat, see Lubaale (n 7) 441-442.
9. Kai Ambos, Treatise on International Criminal Law, Volume 1: Foundations and General Part (OUP 2013) 349.
10. Ambos (n 6) 312.
11. Judgment of 1 October 1946, [1946] International Military Tribunal, 447; United States v. Ohlendorf, (‘The Einsatzgruppen case’) [1948] US Military Tribunal, Case No 9 in UN War Crimes Commission, LRTWC (vol.VII, 1949) 471.
12. The Einsatzgruppen case (n 11) 174; The German High Command Trial: Trial of Wilhem von Leeb and thirteen others [1947-1948], US Military Tribunal, Nuremberg Case No 72 in UN War Crimes Commission, LRTWC (vol. XII, 1949), 72; Krauch et al., (‘Farben case’) [1997] US GPO, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law no 10 (vol. VIII, 1952) 1179.
13. Yoram Dinstein, ‘International Criminal Courts and Tribunals, Defences’ in Max Planck Encyclopedias of International Law (Oxford Public International Law 2015), [6]; Farben case (n 12) 1179.
14. Dinstein (n 13) [7]; High Command case (n 12) 509.
15. Noam Wiener, ‘Excuses, Justifications, and Duress at the International Criminal Tribunals’ (2014) 26(2) Pace International Law Review, 88, 91-94.
16. Ibid.
17. Ambos (n 9) 348.
18. For example, the Einsatzgruppen Case (n 11) 480.
19. For example, see Lynch v. DPP for Northern Ireland [1975] AC 653, 680.
20. Opinion of Judge Cassese (n 3) [42]; For an explanation of this view, see Ambos (n 9) 365.
21. Opinion of Judge Cassese (n 3) [16]; Farben case (n 12) 1179.
22. Einsatzgruppen case (n 11) 91; Trial of Field Erhard Milch, [1947] U.S. Military Tribunal, Nuremberg, Case No 39 in UN War Crimes Commission, LRTWC (vol.VII, 1949) 40.
23. Luis E. Chiesa, ‘Duress, Demanding Heroism and Proportionality’ (2008) 41(3) Vanderbilt Journal of Transnational Law, 741, 764-766.
24. Ibid.
25. Ambos (n 9) 358.
26. IMT Judgment [447].
27. For example, see High Command case (n 12) 509 and Farben case (n 12) 1179.
28. Sentencing Judgment [15]-[19]; Prosecutor v. Erdemović (Appeal Judgment) IT-96-22-A (ICTY, 7 October 1997) Separate and Dissenting Opinion of Judge Stephen [13]; Prosecutor v. Erdemović (Appeal Judgment) IT-96-22-A (ICTY, 7 October 1997), Separate and Dissenting Opinion of Judge McDonald and Judge Vohrah [34]-[36]; Opinion of Judge Cassese (n 3) [15].
29. Marcus Joyce, ‘Duress: From Nuremberg to the International Criminal Court, Finding the Balance Between Justification and Excuse’ (2015) 28 Leiden Journal of International Law, 623, 625.
30. Ibid.
31. Antonio Cassese, International Criminal Law, (2nd edition Oxford University Press 2003) 246.
32. For a complete examination of the various approaches to duress offered by the post Second World War tribunals, see Mahmoud Cherif Bassiouni, Crimes against Humanity: Historical Evolution and Contemporary Application (CUP 2011) 620-621.
33. Jonathan Witmer-Rich, ‘The Defence of Duress to Killing Innocents: Assessing the Mixed Legacy of the ICTY and the ICTR’ in Milena Sterio and Michael Scharf (eds) The Legacy of Ad Hoc Tribunals in International Criminal Law: Assessing the ICTY's and the ICTR's Most Significant Legal Accomplishments (Cambridge University Press, 2019) 225-226; Opinion of Judge McDonald and Judge Vohrah, (n 28) [49]-[72]; Benjamin J. Risacher, ‘No Excuse: The Failure of the ICC’s Article 31 “Duress” Definition’ (2014) 89(3) Notre Dame Law Review, 1403, 1406.
34. Risacher (n 33) 1408.
35. Ibid.
36. Ibid 1419-1421; Ambos (n 9) 363-364.
37. The Einsatzgruppen Case (n 11) 480. For a list of all cases of post-war tribunals that apply this approach, see Opinion of Judge McDonald and Judge Vohrah (n 28) [47].
38. Risacher (n 33) 1408.
39. See for example: R v Tyler [1838] 8 C & P 616; Arp v State [1893] 97 Alabama Supreme Court 5, 12 So. 301; US v Holmes [1842] 26 Fed Case 360; ‘Trial of Fuerstein and others’, [1948] British Military Court, Nuremberg in UN War Crimes Commission, LRTWC, (vol. XV, 1949) 173; ‘Trial of Holzer and Others’ [1946] Canadian Military Court in UN War Crimes Commission in UN War Crimes Commission, LRTWC, (vol. XV, 1949) 193.
40. Sir Hersch Lauterpacht (ed) Oppenheim’s International Law: A Treatise, vol.II, (7th edition, Longmans 1952) 571-572.
41. Lynch case (n 19) 680. Similarly, see Chiesa (n 23) 760-761.
42. Opinion of Judge McDonald and Judge Vohrah (n 28) [82]-[87].
43. Opinion of Judge Cassese (n 3) [48].
44. Cassese (n 31) 250.
45. Opinion of Judge Cassese (n 3) [42].
46. Ambos (n 9) 304; Cassese (n 31) 255.
47. George P. Fletcher, Rethinking Criminal Law, (repr. OUP, 2000, Little Brown, 1978) 769; Ambos (n 9) 305; Cassese (n 31) 219.
48. Johnatan Herring, Criminal Law—Text, Cases, and Materials (4th edition, Oxford University Press 2010) 703; Geert-Jan Knoops, Defenses in Contemporary International Criminal Law (2nd edition, Martinus Nijhoff Publishers 2008) 22; Joyce (n 29), 636-637; Cassese (n 31) 219.
49. Cassese (n 31) 220.
50. Ambos (n 9) 305; Albin Eser, ‘Grounds for Excluding Criminal Responsibility (Article 31 of the Rome Statute)’ in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (2nd Edition, C.H. Beck/Munchen, HartiVolkach, Nomos/Baden-Baden 2008) 878.
51. Ibid 333-334.
52. Chiesa (n 23) 747, 748, 751; Ambos (n 9) 304; Elies van Sliedregt, Individual Criminal Responsibility in International Law (OUP 2012) 216; Joyce (n 29), 636-637.
53. Ambos (n 9) 305; Ilias Bantekas and Susan Nash, International Criminal Law (3rd edition, Routledge 2007) 53.
54. Ambos (n 9) 305.
55. Ambos (n 9) 306; Fletcher (n 47) 810.
56. Cassese (n 31) 242; Chiesa (n 23) 753.
57. For example, Chiesa (n 23), Wiener (n 15), and Risacher (n 33). For an opposite view see Peter Westen and James Mangiafico, ‘The Criminal Defense of Duress: A Justification, Not an Excuse – And Why it Matters’ (2003) 6 Buffalo Criminal Law Review, 833.
58. Risacher (n 33) 1412-1414.
59. Some of the authors that support the concurring majority include: Dinstein (n 13), [7],[25]-[26]; Rosa Ehrenreich Brooks, ‘Law in the Heart of Darkness: Atrocity & Duress’ [2003] Virginia Journal of International Law, 861, 880; Some of the authors that support the dissenting minority include: Chiesa (n 23) 773; Illan Rua Wall, ‘Duress, International Criminal Law and Literature’ (2006) 4(4) Journal of International Criminal Justice, 724, 724-744.
60. Sentencing Judgment [79].
61. Ibid.
62. Ibid.
63. Ibid.
64. Ibid [80].
65. Ibid.
66. Ibid.
67. Ibid [87].
68. Dražen Erdemović (ICTY), available at <https://www.icty.org/en/content/dra%C5%BEen-erdemovi%C4%87> accessed 10 May 2026.
69. Guilty plea of Dražen Erdemović available at ibid.
70. Sentencing Judgment [14].
71. Sentencing Judgment [15]-[19].
72. Sentencing Judgment [17].
73. Ibid [18].
74. Ibid.
75. Ibid [20].
76. Ibid [19].
77. Ibid.
78. Ibid [20]. It was determined there was insufficient evidence in the present case that would warrant the application of duress as a mitigating factor. See [89]-[91].
79. Prosecutor v. Erdemović (Appeal Judgment) IT-96-22-A (ICTY, 7 October 1997) [19].
80. See Opinion of Judge Cassese (n 3) [20]-[46]; Opinion of Judge McDonald and Judge Vohrah (n 28) [48]-[72]. Although the judges reach different conclusions regarding the “force and precedential value” of the previous, post-Nuremberg jurisprudence, these differences are mainly theoretical and irrelevant to the core of the issue, as all of the judges agree that the previous jurisprudence is divergent and does not amount to a crystalized customary rule. For this, see Witmer-Rich (n 33) 235-236.
81. Opinion of Judge McDonald and Judge Vohrah (n 28) [48]-[72]; Opinion of Judge Stephen (n 28) [24]; Opinion of Judge Cassese (n 3) [12]; Prosecutor v. Erdemović (Appeal Judgment) IT-96-22-A (ICTY, 7 October 1997) Separate and Dissenting Opinion of Judge Li [8].
82. Opinion of Judge Li (n 81) [5]-[8]; Opinion of Judge McDonald and Judge Vohrah (n 28) [75],[76]-[81], [88]-[89].
83. Opinion of Judge McDonald and Judge Vohrah (n 28) [88]. In the same vein, Opinion of Judge Li (n 81) [8].
84. Opinion of Judge McDonald and Judge Vohrah (n 28) [42],[44].
85. Ibid [72]; Opinion of Judge Li (n 81) [8].
86. Opinion of Judge McDonald and Judge Vohrah (n 28) [75]-[81], [88]-[89]. More broadly, judge Higgins has argued that whenever the rules of ICL are unclear, the humanitarian and social aspects of IHL should prevail. See Rosalyn Higgins, Problems and Process: International Law and How We Use it, (Clarendon Press, Oxford 1994) 5-7.
87. Opinion of Judge McDonald and Judge Vohrah (n 28) [82]-[87]; Opinion of Judge Li (n 81) [12].
88. Opinion of Judge Li (n 81) [4].
89. Opinion of Judge McDonald and Judge Vohrah (n 28) [45].
90. Ibid [80].
91. Opinion of Judge Li (n 81) [8]. A similar assertion is made by Lord Simon in Lynch v DPP for Northern Ireland who follows the rationale that if duress were allowed to be invoked as a complete defence, it would allow commanders to exculpate those they command by purposely putting them under duress. See Lynch case (n 19) 687-88.
92. Opinion of Judge Li (n 81) [8].
93. Payam Akhavan, ‘Should Duress Apply to All Crimes?: A Comparative Appraisal of Moral Involuntariness and the Twenty Crimes Exception Under Section 17 of the Criminal Code’ (2009) 13 Canadian Criminal Law Review, 271, 277–78.
94. Opinion of Judge Li (n 81) [11]. Similarly, Opinion of Judges McDonald and Vohrah (n 28) [80]. While the main arguments are discussed in the dissenting opinions of the judgment and analysed below, this particular element of Judge Li’s rationale warrants closer attention. This view seeks to apply a hypothetical and idealistic scenario – that all the soldiers recognised the immorality of the murders and, more importantly, all of them could prove their unwillingness to obey the immoral order subject to the stringent requirements of duress – to a real, heterogeneous situation with diverse motivations for committing the crimes. To amplify this, the preponderant of those motivations during the Srebrenica genocide specifically seemed to be the sincere desire to exterminate the civilians. This is reflected by the fact that Judge Li fails to give due consideration to the fact that there was a rather large group of Bosnian Serb soldiers who would have willingly committed the murders of the innocent civilians, and would have gladly taken over for Erdemović. Therefore, although his theoretical point is significant, it remains tenuous to conclude that any real-world situation would bring his hypothesis to life, since a collective disobedience towards the order would have left the commander without the manpower to conduct the massacre.
95. Chiesa (n 23) 746-748; Wiener (n 15) 121-122.
96. See the previous section.
97. Opinion of Judge Stephen (n 28) [24]; Opinion of Judge Cassese (n 3) [12],[49].
98. Opinion of Judge Stephen (n 28) [61]; Opinion of Judge Cassese (n 3) [42]-[44].
99. Opinion of Judge Cassese (n 3) [49].
100. Ibid.
101. Appeal Judgment (n 79) [19].
102. Opinion of Judge Cassese (n 3) [16].
103. Ibid [43].
104. Ibid [42]; See also Cassese (n 31) 250.
105. Opinion of Judge Cassese (n 3) [42].
106. Ibid. For an explanation of this view, see Ambos (n 9) 365.
107. Opinion of Judge Cassese (n 3) [43].
108. Ibid [44]. See also [47].
109. Opinion of Judge McDonald and Judge Vohrah (n 28) [82]-[87]; Opinion of Judge Li (n 81) [3].
110. Opinion of Judge Cassese (n 3) [48].
111. Ibid [48].
112. Opinion of Judge Stephen (n 28) [62].
113. Ibid [54].
114. Ibid [19].
115. Ibid [54].
116. Ibid [54].
117. Ibid.
118. Ibid [46].
119. Ibid [46].
120. Wiener (n 15) 122-126.
121. Ibid 126-128.
122. Ibid.
123. ILC, Draft Code of Crimes against the Peace and Security of Mankind, (UN Doc. A/CN.4/SER.A/1001/Add.1 (Part 2) 1991) 95, William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) 482.
124. Ibid 100.
125. Ibid 101; Schabas (n 123) 481-482.
126. Schabas (n 123) 482; Witmer-Rich, (n 33) 227.
127. UN, Report of the Preparatory Commission on the Establishment of an International Criminal Court, (UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Rome, 15 June - 17 July 1998, Official Records, Volume III, 2002) art. 31, 34–35.
128. Witmer-Rich (n 33) 228.
129. Schabas (n 123) 481-490.
130. UN General Assembly, Rome Statute of the International Criminal Court (17 July 1998) as last amended 2010, ISBN No. 92-9227-227-6, art 31(1)(d).
131. Ambos (n 9) 342-347; Risacher (n 33) 1417; Eser (n 50) 883.
132. Ambos, (n 9) 342. For an examination of duress and necessity in national criminal law, see 343-347.
133. Risacher (n 33) 1404-1405; Ambos (n 9) 347,365; Eser (n 50) 884.
134. Ambos (n 9) 347,356 and Eser (n 50) 884.
135. Cassese (n 31) 242.
136. Ambos (n 9) 347,356 and Eser (n 50) 884.
137. Cassese (n 31) 242.
138. Ambos (n 9) 347,356 and Eser (n 50) 884.
139. See Prosecutor v. Dominic Ongwen (Trial Judgment) ICC-02/04-01/15 (ICC Trial Chamber IX, 4 February 2021) [2582]; Prosecutor v. Dominic Ongwen (Appeal Judgment) [1419]-[1427]; Prosecutor v Ag Mahmoud (Trial Judgment) [1743]-[1748]. For an analysis of these findings, see Lubaale (n 7) 423-442.
140. For a detailed explanation of this interpretation see Ambos (n 9) 359.
141. Ambos (n 9) 359. Similarly, Eser (n 50) 886.
142. Eser (n 50) 886.
143. Lubaale (n 7) 442-443; Ambos (n 9) 359. It is worth noting that Eser holds an opposing view: that reasonableness does not “automatically connote proportionality”, especially in the case of the Rome Statute since its Article 31(1)(c), which prescribes self-defence and defence of others, prescribes “reasonable” and “proportionate” as two separate standards. Furthermore, he contends that the subjective standard posed in the third criterion of Article 31(1)(d) indicates that the proportionality should only be assessed subjectively, rather than objectively (see Eser (n 50) 886-887). However, beginning with his first argument and following an analogous interpretation, one might reach the conclusion that an action done in self-defence need not be necessary. Namely, the term “necessary” is not included in Article 31(1)(c) per se and is included in Article 31(1)(d), alongside the reasonableness standard. Yet, not only is this view contrary to the essence of self-defence, but when defining the reasonable reaction under Article 31(1)(c), Eser himself states that “The defensive reaction must be reasonable in terms of being necessary” (Eser (n 50) 882). This illustrates that a reasonable reaction can encompass different meanings in the different contexts of self-defence and duress, especially given the numerous and last-minute compromises made during the drafting of the Rome Statute, which, in Ambos’ opinion, has resulted in non-harmonized standards (Ambos (n 9) 359). Therefore, a combined textual and systematic interpretation of its articles does not always lead to an interpretation that is in line with the general state practice and the rationale behind the provisions. Regarding Eser’s second point, the subjective prescription of proportionality in the third criterion does not eliminate the possibility for a need of a double objective and subjective assessment of proportionality, if that is, somewhat paradoxically, required by the text, as is submitted by Lubaale (n 7) 447-449. Therefore, although these concerns do bear certain merit, still, it is more likely that in a future case, the ICC would adopt a standard of reasonableness that is widely accepted in national practice and international legal scholarship.
144. Prosecutor v. Dominic Ongwen (Trial Judgment) [2583].
145. Ibid.
146. Ibid [2584]; Prosecutor v Ag Mahmoud (Trial Judgment) [1750].
147. Risacher (n 33) 1417.
148. Ibid.
149. Assembly of States Parties, Rules of Procedure and Evidence of the International Criminal Court (9 September 2002) ICC-ASP/1/3 and Corr. 1, Part II-A, Rule 145(2)(a)(i). According to the ICC, duress can only mitigate, but not justify the crime when the second or the third condition for its application are not met. See Prosecutor v. Dominic Ongwen (Sentencing Judgment) ICC-02/04-01/15 (ICC Trial Chamber IX, 6 May 2021),[108]-[109].
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