Duress, Demanding Heroism, and Proportionality
This Article discusses the Erdemovic case in order to examine whether duress should be a defense to a crime against humanity. Although the Article contends that the arguments in favor of permitting the defendant to claim duress weaken as the seriousness of the offense charged increases, the Article also argues that the duress defense should usually succeed if it can be proved that the actor could not have prevented the threatened harm by refusing to capitulate to the coercion.
After balancing the competing considerations, the Author concludes that the defendant in Erdemovic should have been able to claim duress as a defense to the killing of dozens of civilians. Because the civilians would have died anyway at the hands of other soldiers, resisting the threats would have been useless. Even though this fact does not negate the wrongfulness of the defendant’s act (i.e., justify his conduct), it should exempt him from responsibility (i.e., excuse his liability).