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New Zealand Yearbook of International Law

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Myers, B --- "The Right to Kill or the Obligation to Die: The Status of the Defence of Duress Following New Zealand s Implementation of the Rome Statute of the International Criminal Court" [2005] NZYbkIntLaw 5; (2005) 2 New Zealand Yearbook of International Law 127


Brian Myers[*]

I. Introduction

On 1 October 2000, the International Crimes and Criminal Court Act 2000 (“ICCA”) entered into effect in New Zealand. The statute is designed to bring New Zealand domestic law into accord with the Rome Statute of the International Criminal Court (“ICC”). The ICCA establishes the universal jurisdiction of New Zealand courts to try individuals accused of the three core crimes defined in the Rome Statute: war crimes, genocide and crimes against humanity. Nevertheless, the ICCA is not the first New Zealand statute to confer extraterritorial jurisdiction and several other pre-existing statutes provide for a similar jurisdictional reach. This creates the possibility of a jurisdictional overlap between the ICCA and pre-existing New Zealand statutes - especially in cases involving New Zealand military and police personnel serving overseas. In the event of an incident triggering the jurisdiction of New Zealand courts, an individual could face prosecution under several different statutes. However, the applicable law under each statute is in many cases substantially different and with respect to available defences, entirely divergent. The prosecutor’s choice to proceed under one statute or another - far from being within the acceptable ambit of prosecutorial discretion - instead raises substantive issues of fairness and due process insofar as the accused may enjoy significantly different rights depending on the applicable law.

This article focuses on the availability of the defence of duress to an accused facing a prosecution for an international crime in a New Zealand court. The duress defence has been described as both the most important criminal defence, as well as the most vexing.[1] While the Rome Statute took the unprecedented step of recognising duress as a complete defence to all crimes, the scope of the defence in New Zealand is far more limited. In particular, New Zealand law follows the established common law rule of not recognising duress as a defence to murder. This creates a potential conflict between domestic New Zealand law and the Rome Statute. This article argues that such a conflict is untenable and Parliament should amend the ICCA to clarify the availability and elements of the duress defence to an accused facing an international criminal charge in a New Zealand court. Furthermore, it is argued that where a prosecution might proceed under the ICCA but is instead pursued under another statute, the accused should still have recourse to defences recognised in international law.

The choice to focus on duress stems not only from the importance of the defence, but also from the likelihood - especially in situations of armed conflict - that duress will arise in practice. Further, it should be noted that the scope of the duress defence is by no means the only example of uncertainty in the law arising from New Zealand’s implementation of the Rome Statute. This is perhaps an unavoidable consequence whenever complex international agreements are implemented into domestic law. Aside from presenting a starting point for the clarification of the duress defence, it is also hoped this article will stimulate further analysis into other areas where the implementation of the Rome Statute has significant consequences for New Zealand law.

Section II begins with an introduction to the jurisdictional framework of the ICC with an emphasis on how the complementarity principle of the Rome Statute creates the potential for conflict between international and domestic law. Sections III focuses on New Zealand’s implementing legislation and argues that the ICCA creates ambiguities concerning the availability of the duress defence to an accused facing charges for an international crime. Section IV highlights approaches taken by other countries and explores how conflicts between domestic law and the Rome Statute impact the principle of complementarity. Section V posits a hypothetical situation and outlines how a potential conflict might arise in practice. Section VI examines the law of duress and the substantial variations between New Zealand and international law. Finally, Section VII poses an argument for amending New Zealand law to ensure an accused facing international criminal charges has recourse to all applicable defences in both New Zealand and international law.

II. Framework of the ICC’S Jurisdiction

On 1 July 2002, the Rome Statute creating the International Criminal Court entered into effect.[2] The ICC has jurisdiction over three core crimes: genocide, crimes against humanity and war crimes. A particularly novel aspect of the Rome Statute concerns the triggering mechanisms that allow the court to exercise its jurisdiction. The ICC may exercise jurisdiction if a situation is referred to the Prosecutor: (1) by the Security Council acting pursuant to its Chapter VII powers under the UN Charter; (2) by a state party to the statute; or (3) by the Prosecutor acting on their own initiative following an independent investigation.[3] Nevertheless, it was a non-negotiable position of most states at the Rome Conference that the ICC should not have primary jurisdiction; that is, the ICC should only have jurisdiction if the state or states that also have jurisdiction are unable or unwilling to exercise their jurisdiction.[4] This gave rise to the “complementarity principle” embodied in article 17 of the Rome Statute. The complementarity principle limits the jurisdiction of the ICC in two fundamental ways. First, if a case is already being investigated or prosecuted by a state that has jurisdiction over it, the ICC may not exercise its jurisdiction ‘unless the State is unwilling or unable genuinely to carry out the investigation or prosecution’.[5] Second, assuming the state with jurisdiction has investigated the case and opted not to prosecute the person concerned, the ICC may not assert jurisdiction unless the ‘decision resulted from the unwillingness or inability of the State genuinely to prosecute’.[6] Given the weariness on the part of most states to consent to an international court that possessed primary jurisdiction, the principle of complementarity proved the key to allaying such concerns and to the successful creation of the ICC.[7] However, as many commentators have pointed out, the paradoxical consequence of complementarity is that States Parties have eagerly gone about implementing domestic legislation designed to prevent the ICC from ever asserting its jurisdiction.[8] This is not necessarily a bad result if one considers the ultimate goal is to punish those responsible for the core crimes contained in the Rome Statute. Whether such prosecutions take place in domestic courts or at the ICC should not in theory matter.

That being said, it should immediately be apparent that the key to the successful operation of complementarity lies with the domestic implementing legislation of the States Parties. The Preamble to the Rome Statute recalls ‘the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. Interestingly, however, there is no explicit requirement in the Rome Statute that mandates domestic implementing legislation.[9] Nevertheless, States Parties are undoubtedly guided by article 17 that allows the ICC to assert jurisdiction if a state is “unable” to assert jurisdiction. This clearly calls for domestic legislation in situations where domestic law does not contain the core crimes in the Rome Statute. In New Zealand, for example, implementing legislation was deemed necessary, as there was no specific provision in New Zealand law for crimes against humanity and genocide.[10] Without implementing legislation, it is unlikely that New Zealand’s jurisdiction would take precedence over the ICC.[11]

While simple enough in theory, the complementarity principle means that an accused facing charges for a crime codified in the Rome Statute may in fact be tried before a domestic court. Assuming an accused raises the defence of duress, a domestic court would need to consider the status of duress in international law as well as the defence as it exists in the domestic law of that jurisdiction. To the extent they differ, the court may be in the unenviable position of having to reconcile the two.

III. The New Zealand Implementing Legislation

To bring New Zealand law into accord with the Rome Statute, Parliament enacted the International Crimes and International Criminal Court Act 2000. The incorporation of the core crimes in the Rome Statute proved relatively straightforward as Parliament simply adopted the definitions in the Rome Statute into New Zealand law. However with respect to the available defences to the core crimes, the situation is less clear. ICCA s 12(1)(c) provides that a person charged with any of the three core crimes may ‘rely on any justification, excuse, or defence available under the laws of New Zealand or under international law’. With respect to New Zealand law, s 20 of the Crimes Act 1961 preserves all common law defences as part of the New Zealand criminal law. Thus, we may assume that in addition to defences codified in the Crimes Act 1961, an accused may also rely on any common law defence. Moreover, the ICCA’s use of the term “international law” creates some confusion. If we assume that “international law” refers to the Rome Statute, then an accused may rely on any defence specifically codified in the Rome Statute. However, if “international law” refers to international law generally, then presumably an accused might rely on defences codified in the Rome Statute as well as any other defence recognised in international law. As such, a person accused of war crimes, genocide, or crimes against humanity, over whom New Zealand has jurisdiction, has perhaps four sources of potential defences: New Zealand statutory defences, common law defences, defences contained in the Rome Statute and defences recognised elsewhere in international law.[12] This becomes quite important with respect to duress, for example, because the defence of duress is defined differently under each source. These differences will be discussed in more detail subsequently.

While s 12(1) of the ICCA may accurately be summarised as allowing an accused to draw from a wide number of legal sources when crafting a defence, the section must be read in conjunction with ICCA s 12(3) that provides:

If there is any inconsistency between the provisions specified in subsection 1(a) [which incorporates the core crimes and defences of the Rome Statute] and the provisions and principles specified in subsections 1(b) [which refer to New Zealand principles of criminal law] and 1(c) [which preserves the right of the accused to rely on any defences available under New Zealand or international law], the provisions specified in subsection 1(a) prevail.

Immediately apparent from a reading of s 12(3) is the triggering phrase ‘if there is any inconsistency’. Drawing on maxims of statutory interpretation, there is a general preference, whenever possible, to interpret conflicting provisions in a manner that avoids conflict.[13] A similar presumption against finding conflicts exists in international law.[14] We must further assume that the choice of the word “inconsistency” was deliberate and any analysis must take account of the plain and ordinary meaning of that term. The Oxford Dictionary defines inconsistent as ‘not agreeing in substance, spirit, or form… incompatible’. As will be discussed in more detail subsequently, there are certainly salient differences between duress in New Zealand law, the common law, the Rome Statute and other sources of international law. However, simply noting the differences does not entirely resolve the issue, as it remains unclear to what extent the provisions must be dissimilar to render them “inconsistent” within the meaning of s 12(3). Only if the versions of duress are so different as to be “inconsistent” or “incompatible” will s 12(3) be triggered - thereby establishing the primacy of the Rome Statute version of duress over the others.

IV. Conflict and Complementarity

New Zealand’s approach to incorporating the Rome Statute defences is somewhat novel. While the implementing legislation preserves domestic defences, the inclusion of the conflict clause means the Rome Statute trumps domestic law in the event of an inconsistency or incompatibility. By contrast, under Australian law it is presumed that domestic defences to criminal prosecutions will continue to apply; however, Australia has opted not to include a broad conflict clause akin to the ICCA.[15] While it appears settled that an accused may always opt for a domestic defence in Australia, it is not clear whether they may choose a Rome Statute defence - especially if that defence is more generous or conflicts with Australian law (as with the defence of duress).[16] Nevertheless, it should be noted that with respect to the defence of superior orders, Australia has amended its implementing legislation to bring domestic law into accord with the broader version of the defence in the Rome Statute.[17] Some have argued this is indicative of a general legislative intent to mirror defences in Australian law that would otherwise be available to an accused before the ICC.[18] However, as Australia’s legislation is silent on the defence of duress, it remains unclear whether an accused could use the Rome Statute version of duress in a domestic court.

If Australian law contains some uncertainty on this point, the UK implementing legislation is far worse. The UK legislation fails to make any provision for defences to crimes in the Rome Statute. It has therefore been suggested that UK courts will apply domestic defences even if they conflict with those in the Rome Statute.[19] This approach has been severely criticised for failing to make any effort to reconcile conflicts between domestic and international law.[20]

Perhaps the most promising approach to the problem of conflicting defences is found in Canada’s implementing legislation. An accused in Canada may rely on any justification, excuse or defence under Canadian law as well as any defence in international law.[21] This broad inclusion of available defences is similar to the New Zealand approach, but without the conflict clause giving priority to the Rome Statute. So, under Canadian law the accused may opt for the defence of their choice regardless of any conflict. Canadian courts need not engage in any inquiry into whether the defences are inconsistent or incompatible as required in New Zealand.

A. Might a Conflict Lead to the ICC Asserting its Jurisdiction?

Under normal circumstances states will exercise their primary jurisdiction under the principle of complementarity. However, Rome Statute article 17 allows the ICC to assert jurisdiction in the event of the “unwillingness” or “inability” of the state to genuinely carry out an investigation or prosecution. With respect to domestic defences to international crimes, this residual jurisdiction of the ICC becomes relevant in two ways. First, if the state’s domestic defences are narrower than the Rome Statute, may a state deny the broader international law defence to the accused? Second, if a state’s domestic defences are broader than those in the Rome Statute, might it be said that the state is unwilling or unable to prosecute? While a full discussion of these questions is beyond the scope of this article, it is suggested - at least with respect to the duress defence - that states enjoy significant latitude with respect to both issues.

1. Whether a State May Deny a Rome Statute Defence to the Accused

The issue arises when the accused is forced to rely on a domestic defence even where a broader defence is available in the Rome Statute. This might occur in the UK, for example, where domestic defences appear to be the only recourse for an accused. It is unlikely to occur in New Zealand, however, given the conflict clause in favour of the Rome Statute. Likewise, it is irrelevant in Canada because the accused may use any defence regardless of a conflict.

The general issue of how closely domestic law must mirror the Rome Statute is the subject of ongoing debate. Certainly a wide divergence raises the possibility that the state might be deemed unable to prosecute (e.g., where core Rome Statute crimes have no equivalent in domestic law).[22] However, it might reasonably be concluded that states have more flexibility with respect to the use of narrower defences than those in the Rome Statute. The general purpose of the Rome Statute is recalled in the Preamble: ‘the most serious crimes of concern to the international community as a whole must not go unpunished.’ Given the basic objective of preventing impunity for serious criminals it would seem odd if a state choosing to restrict available defences was found “unable” to prosecute.

Moreover, it is clear that achieving absolute uniformity among States Parties was never the objective of the Rome Statute. The drafting process involved inevitable compromises in order to ensure the final result was marketable to the majority of states.[23] As such, some States Parties used their implementing legislation to criminalise activity beyond what was required. For example, the Dutch implementing legislation contains definitions of several war crimes derived from other international treaties.[24] Likewise, domestic legal norms limiting vicarious liability for commanders prompted Canada to fashion a new crime called “breach of responsibility by a military commander”.[25] States may also restrict the scope of criminality by recognising defences not contained in the Rome Statute. Germany, for example, preserves the domestic defence of Notwehrexzess - according to which an accused using excessive force in self-defence will not be punished if the excessive force was the result of confusion, fear or fright.[26] It seems unlikely, therefore, that merely restricting the scope of an available defence will defeat a state’s right to invoke complementarity.

2. Unwilling to Carry Out the Investigation or Prosecution

The second issue raised at the outset of this discussion occurs when a state allows the accused a broader defence than available in the Rome Statute. This raises the possibility that a state might be deemed unwilling or unable to prosecute. The term “unwilling” was a source of considerable controversy during the drafting process.[27] Delegates expressed concern that the ICC might become too zealous in passing judgment on national legal systems - declaring them “unwilling” to prosecute. As such, article 17 attaches the term “genuinely” to both concepts of unwillingness and inability. The use of this term stemmed from a desire to add an additional threshold to further limit the situations where the ICC might assert its own jurisdiction. Thus, if doubts are raised about a state’s unwillingness to prosecute, it must first be established that the investigation or prosecution was not genuine.[28] Once this standard is met, article 17(2) lists three additional criteria that the ICC must assess when making a determination of a state’s unwillingness including: (1) shielding the person from criminal responsibility; (2) unjustifiable delay in the proceedings; and (3) proceedings not conducted independently or impartially. In the event a broader defence is available to an accused in domestic law and the domestic authorities opt not to prosecute (or the accused is acquitted based on the broader defence), this alone would not appear to meet the criteria of unwillingness. Instead, the three criteria in article 17(2) suggest some form of “bad faith” is required on the part of the prosecuting authorities.[29] As such, a domestic legal outcome flowing from a faithful application of domestic law (though perhaps undesirable) does not appear to meet the purposely strict criteria for unwillingness set by article 17.

3. Unable to Carry Out the Investigation or Prosecution

A more probable (though still unlikely) argument is that a broader defence under domestic law renders the state unable to carry out the prosecution. Inability is primarily an objective criterion. It is designed to encompass situations where the domestic authorities are willing to investigate and prosecute, but some objective factor prevents them from doing so. Similar to unwillingness, in making an assessment of inability the ICC must consider specific criteria. Article 17(3) requires the court to consider whether the inability is ‘due to a total and substantial collapse or unavailability of the national judicial system’. Examples such as Rwanda and Somalia were cited during negotiations as situations involving the inability of local authorities to prosecute.[30] While it might be argued that the availability of a broader domestic defence constitutes a defect rendering the state unable to prosecute, such a scenario does not appear within the type of catastrophic situations contemplated by the drafters. This appears especially true where the domestic legal system is otherwise functional and the broader defence is well established and followed by other jurisdictions.[31] Regardless, for purposes of this article the common law version of duress is generally more restrictive than its Rome Statute counterpart making it unlikely to run afoul of article 17.

In sum, while a state may continue to rely on complementarity, this says nothing of which version of a defence ought to apply in domestic trials for crimes falling under the Rome Statute. This issue is the focus of the remainder of this article.

V. How the Problem Might Arise

Consider the following hypothetical situation. In response to a breakdown of order in a small South Pacific island nation, a request for assistance is made to the New Zealand government. In response, New Zealand dispatches both Defence Force personnel as well as a specially trained police unit to help restore order and assist in the creation of a democratic government. Several months into the deployment, the mission to restore order has gone poorly; whole sections of the island remain under the control of local militias who are violently opposed to the New Zealand presence. In a particular incident, a private in the New Zealand army is ordered to participate in a roving patrol of an area known to harbour hostile militia forces. While on patrol, the platoon comes under heavy fire. The gunmen appear to be ensconced in a small village that is also home to dozens of civilians. The commanding officer of the platoon believes he can accurately pinpoint the location of the gunmen and further believes that a well-placed mortar round will hit the gunmen with little risk to the surrounding villagers. Under heavy fire and with the situation becoming increasingly desperate, the commanding officer orders the private to prepare to fire his mortar. The private objects that the target is far too close to the village. At that moment, a well placed-shot from one of the gunmen strikes another member of the platoon through the head - killing him instantly. In the ensuing panic, the commanding officer pulls out his gun and orders the private to ‘shoot your damn mortar or I’ll shoot you’. The private complies with the order. Unfortunately, the mortar round misses the gunmen and kills two villagers. Following the incident, the private is charged and returned to New Zealand to face trial. At trial, the private admits to killing the two villagers, but raises the defence of duress.

A. The Applicable New Zealand Statutes

There are several pieces of New Zealand legislation that might be relevant to the above situation and each will be considered in turn. As will become apparent, the conduct referred to in the hypothetical could be prosecuted under several different New Zealand statutes.

1. The Crimes Act 1961

The Crimes Act 1961 is New Zealand’s domestic criminal law legislation. The conduct referred to above could certainly be prosecuted under the Crimes Act 1961 - in particular under s 167 et seq relating to murder. Nevertheless, with limited exceptions for terrorism related activity and other crimes of a trans-national nature, the Crimes Act has no extraterritorial jurisdiction. However, s 6 provides that ‘no act done or omitted outside New Zealand is an offence, unless it is an offence by virtue of any provision of this Act or of any other enactment.’ Thus, while s 6 provides for no inherent extraterritorial reach, consistent with the proviso, other subsequent enactments have indeed extended the extraterritorial reach of the Crimes Act. Some of these enactments will be discussed below.

2. Geneva Conventions Act 1958

The Geneva Conventions Act 1958 (“Geneva Conventions Act”) incorporates the provisions of the First Protocol of the Geneva Conventions of 1949 as well as Additional Protocols I and II into New Zealand law.[32] By virtue of s 3(1), the Geneva Conventions Act applies extraterritorially to ‘any person in New Zealand or elsewhere’ who commits or aids and abets the commission of any breach of the First Protocol. Furthermore, Additional Protocols I and II extend the scope of coverage beyond traditional “international armed conflicts” and might conceivably encompass the conduct referred to in the hypothetical.[3]

3. United Nations (Police) Act 1964

The United Nations (Police) Act 1964 (“Police Act’) extends extraterritorial jurisdiction over members of the New Zealand police who serve overseas as part of a UN force. First, it must be noted that the Police Act only applies to New Zealand police and does not apply to Defence Force personnel. Second, it only applies if the police are serving as part of a UN force. Police Act s 4(1) provides that a person who commits any act that would constitute a crime in New Zealand, regardless of where the act was actually committed, may be proceeded against as if the crime had occurred in New Zealand. This effectively extends the jurisdictional reach of the Crimes Act 1961 extraterritorially - at least with respect to New Zealand Police serving as part of a UN mission.[ ]

4. The Armed Forces Discipline Act 1971

The Armed Forces Discipline Act 1971 (“Armed Forces Act”) provides for extraterritorial jurisdiction over members of the New Zealand armed forces deployed overseas. The Armed Forces Act specifies offences primarily relating to activity that threatens the efficiency and discipline of fighting forces. Such offences include, for example, “aiding the enemy” (s 23), “cowardly behaviour” (s 28), and “desertion” (s 47). Additionally, s 74(1) of the Armed Forces Act provides for the extraterritorial application of New Zealand domestic law through the following provision:

Every person subject to this Act commits an offence against this section who, whether in New Zealand or elsewhere, does or omits any act which would, if done or omitted in New Zealand, be an offence against any Act other than this Act.

As such, s 74(1) extends the Crimes Act 1961 (and the defences codified therein) extraterritorially to New Zealand Defence Force personnel serving overseas.

5. Crimes and Misconduct (Overseas Operations) Act 2004

The Crimes and Misconduct (Overseas Operations) Act 2004 (“Overseas Act”) is a “gap filling” statute designed to fix a loophole left by the Police Act whereby New Zealand Police were only covered if they were acting as part of a UN mission. The legislation became necessary following a request by the Solomon Islands to New Zealand for military and police assistance. The subsequent deployment of New Zealand personnel - although authorised by the Solomon Islands - was not at the behest of the UN. As discussed above, the Armed Forces Act provides for extraterritorial jurisdiction over Defence Force personnel. Likewise, the Police Act provides for extraterritorial jurisdiction over members of the police, but only if they are serving under the auspices of a UN mission. The prospect of a gap in the law that failed to establish extraterritorial jurisdiction for members of the police provided the impetus for the new legislation. Overseas Act s 5(2) states:

If any person to whom this section applies does, or omits to do, any act outside New Zealand (whether or not the act or omission concerned constitutes an offence under the laws in force in the place where it took place) that if done or omitted within New Zealand would constitute an offence, that act or omission is deemed to have taken place within New Zealand…

As such, the Overseas Act closely mirrors the approach of the Police Act insofar as it represents an extraterritorial extension of New Zealand domestic law (including the Crimes Act 1961) to members of the New Zealand Police serving overseas.

6. International Crimes and Criminal Court Act 2000

As discussed previously, the ICCA is New Zealand’s domestic implementing legislation of the Rome Statute. In accordance with the concept of complimentarity, ICCA s 8(1)(c) asserts the extraterritorial jurisdiction of New Zealand courts over any person regardless of their nationality or citizenship, and whether or not any act forming part of the offence occurred in New Zealand. ICCA s 11 implements article 8 of the Rome Statute dealing with war crimes. Of particular importance is the fact that s 11(2) of the ICCA defines a “war crime” solely through reference to Rome Statute article 8(2).[33] This omits the key limitation to the definition of war crimes contained in Rome Statute article 8(1). Article 8(1) provides that the ICC shall have jurisdiction in respect of war crimes ‘in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’. During the Rome Conference there was significant debate as to whether the definition of war crimes ought to include this threshold level of gravity.[34] Commentators point out that the inclusion of the term “in particular” still allows for the possibility that the ICC may exercise its jurisdiction in respect of a single act constituting a war crime.[35] Nevertheless, the complete omission of this requirement from the ICCA clearly suggests that a New Zealand court could exercise its jurisdiction without any preliminary inquiry into the threshold requirement of Rome Statute article 8(1).[36] As such, the ICCA clearly provides for New Zealand jurisdiction over single isolated war crimes such as those posited in the hypothetical.

B. Conflict and Choice of Law

With respect to the above hypothetical, a potential conflict exists between, on the one hand, those statutes that extend the Crimes Act 1961 extraterritorially and, on the other hand, the Geneva Conventions Act and ICCA that incorporate international law into the New Zealand legal system. With respect to available defences, this pits defences available in domestic New Zealand law against those that exist in the Rome Statute and international law. While the ICCA clearly encompasses the conduct described in the hypothetical, there is no guarantee that a prosecutor would necessarily proceed under the ICCA. Rather, a prosecution might proceed just as easily under the Armed Forces Act, Overseas Act or Geneva Conventions Act. As such, it is entirely possible that two separate crimes of substantially identical character might be prosecuted under different statutes, resulting in different available defences that could, ultimately, result in a different verdict. Such a possibility raises important questions of fairness and due process under the law. Even assuming these concerns are addressed, the jurisdictional patchwork creates the possibility that international law defences, incorporated into New Zealand through the ICCA, might fundamentally conflict with New Zealand law. Nowhere is this more apparent than with the defence of duress.

VI. The Defence of Duress

In criminal law, it has long been a basic tenet that no conviction should occur unless there is culpability on the part of the accused in the commission of a crime. However, the defence of duress applies in situations where the accused is subject to some degree of “coercion” or “compulsion” and commits a crime against his or her normal wishes. The law recognises such a defence because although the accused commits a prohibited act (the actus reus) and fully intends to commit the prohibited act (the mens rea) the accused is nonetheless not responsible if no other course of action was available.[37]

At the outset it is useful to define the relationship between duress and the defence of superior orders. The two defences are frequently raised together, although there is no necessary relationship between the two.[38] It is well established that the defence of superior orders is not available to an accused who obeys a manifestly unlawful order.[39] However, if the unlawful order is accompanied by a threat of death or serious bodily harm, then the accused may raise the defence of duress.[40] Likewise, the defence of duress may exist entirely independent of superior orders. A threat that issues from someone of equal or lower rank may still give rise to the duress defence.[41] The gravamen of the duress defence is whether the accused was under some compulsion to act illegally as a result of a threat of death or serious bodily harm - regardless of the existence or non-existence of any superior order.

While the defence of duress has a long and established pedigree in most legal systems, its application in international law is fraught with difficulty and debate.[42] While most would agree that duress should exist in some form, numerous scholars have advocated a highly circumscribed notion of the defence to international crimes. Moreover, several international tribunals have rejected the defence where the underlying offence involves murder.[43] This occurred most recently in the ICTY Erdemovic case in which the accused was told by his commanding officer that he would be killed if he did not participate in various war crimes and crimes against humanity involving murder.[44] In a controversial 3-2 decision, the majority acknowledged the accused acted under duress, but rejected the defence because the underlying offence involved killing. Nonetheless, Judge Cassese argued in his dissent that the duress defence should be available to the accused assuming certain strict criteria are met. Subsequently, the Rome Statute took the significant step of codifying duress as a complete defence to all crimes - largely following Cassese’s dissenting opinion. This has led to a substantial divergence in the law of duress between many common law jurisdictions and the Rome Statute. These differences are discussed below.

A. The Elements of Duress and Their Application

The elements of duress in New Zealand law are found in s 24(1) of the Crimes Act 1961:

Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he believes that the threats will be carried out and if he is not a party to any association or conspiracy whereby he is subject to compulsion.

Likewise, the defence of duress in the Rome Statute is codified in article 31(1)(d):

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:

Made by other persons; or
Constituted by other circumstances beyond that person’s control.

These two versions of duress contain some similarities, yet there are numerous differences both in the substantive requirements for the invocation of the defence as well as the tests applied to meet the substantive requirements. These requirements and their differences will be discussed in turn.

1. The Nature of the Threat

Every codification of duress - whether in common law, civil law or international law - requires that there be some significant threat directed at the accused. The existence of a threat is a key component as it is the threat that produces the compulsion to act illegally. In New Zealand, the accused must face a threat of “immediate death or grievous bodily harm”. In R v Raroa, the New Zealand Court of Appeal embraced a broad notion of what constitutes a threat, noting that the threat need not necessarily be spoken.[45] This approach was further reinforced in R v Teichelman in which the Court of Appeal held that the relevant inquiry is whether the accused believed in the inevitability of immediate and violent retribution, rather than the particular form of the threat.[46] While a threat of death will usually be obvious on its face, a more difficult issue arises with respect to what constitutes a threat of “grievous bodily harm”. Although not involving duress, in R v Mwai the Court of Appeal interpreted the phrase “grievous bodily harm” to include serious psychiatric injury.[47] Therefore, it has been suggested by New Zealand commentators that a duress defence might be available if the accused genuinely believed that the threatener had the power to inflict psychological devastation upon them unless they complied with the demand.[48]

With respect to the Rome Statute, Article 31(1)(d) requires that the accused face a threat of 'imminent death or continuing or imminent serious bodily harm'. It is worth noting that with respect to bodily harm, the Rome Statute only requires that the harm be “serious” as opposed to “grievous”. The use of the term “serious bodily harm” is not novel in international law as it was previously used in the 1948 Genocide Convention.[49] Interestingly, however, the Genocide Convention includes the infliction of ‘serious bodily or mental harm to members of the group’ within the acts constituting genocide [emphasis added]. The failure of the Rome Statute to include “serious mental harm” within the type of threat required for duress must be interpreted as a deliberate intent to only allow duress where the threat is of serious physical harm. In this respect, the nature of the requisite threat differs markedly from New Zealand law. As mentioned before, in New Zealand it is quite possible that the requisite threat may extend to threats of grievous emotional or mental harm.

If the foregoing suggests a greater variety of threats will be recognised in New Zealand law, the opposite appears true as to the timing of the requisite threat. The drafters of the Rome statute opted for a novel phrasing; the threat must be one of ‘imminent death or continuing or imminent serious bodily harm’ [emphasis added]. In particular, the use of the word “imminent” as opposed to “immediate” under New Zealand law suggests a broader version of the defence under the Rome Statute. Whereas the “immediate” requirement has been interpreted by New Zealand courts to require a nearly instantaneous infliction of retribution for refusal to comply, the use of the term “imminent” suggests that some temporal period is permissible between the threat and the threatener’s ability to carry out the threat.[50] Thus, a threat made by a commanding officer to a subordinate: “Do this by the time I get back or I’ll have you shot”, might arguably qualify as a threat of “imminent death” under the Rome Statute. On the other hand, the same threat would likely be barred under New Zealand law requiring the threatener to immediately carry out the threat in the event of non-compliance.[51]

2. The Presence of the Threatener When the Threat is Made

The presence of the threatener provides another salient point of difference between New Zealand law and the Rome Statute. New Zealand courts consistently interpret the “presence requirement” in s 24(1) as requiring the actual physical presence of the threatener at the scene of the crime. In R v Teichelman the court held:[52]

There must be evidence of a continuing threat of immediate death or grievous bodily harm made by a person who is present while the offence is being committed and so is in a position to carry out the threat or have it carried out then and there [emphasis added].

By literally interpreting the presence requirement, New Zealand law differs markedly from both the common law and the Rome Statute. Commentators have criticised this approach arguing that such a strict application is likely to lead to incongruous results.[53] It has instead been argued that a more appropriate test is one of “constructive presence”; that is, whether the threatener is in such a position that the accused believes they are capable of carrying out the threat.[54]

For its part, Rome Statute article 31(1)(d) contains no presence requirement. This is preferable insofar as any presence test - especially one involving physical presence - will likely prove problematic in the context of crimes defined in the Rome Statute. Such crimes are often committed in the context of armed conflict and within an organised military command structure. The very purpose of a military command structure is to expedite the carrying out of superior orders by those lower in the chain of command. For example, an order given by a commanding officer to a subordinate - say via radio or telephone - to perform an illegal activity accompanied by a threat of death in the event of disobedience would meet the requirements of the Rome Statute. The same threat would not qualify under New Zealand law because the threatener is not physically present. An even clearer example might involve the same order being given along with a second order to another person present at the scene to summarily execute anyone who disobeys. In such a situation the threat technically originates from a person who is not physically present, but the threat is nonetheless fully capable of being carried out through the direct control that the commanding officer exercises over the other person. Again, such a scenario would not be barred by the Rome Statute but would be precluded under New Zealand law.

On a related point, New Zealand law and the Rome Statute also differ with respect to whether the threat of death or bodily harm may be directed at someone other than the accused. For example, a commanding officer may give an order to a subordinate to carry out an illegal act accompanied by a threat to kill the family of the subordinate if they do not comply. Such a threat is specifically recognised in Rome Statute article 31(1)(d) which states that the threat may be directed at the accused or ‘another person’. Yet, by requiring the physical presence of the threatener at the scene of the crime, New Zealand law would deny the defence in such circumstances.[55] Similarly, the “immediacy” requirement under New Zealand law would appear to prevent the defence where the threatener promises to kill the family of the accused at some unspecified future time.

3. The Accused Cannot be Party to an Association or Conspiracy (or the Duty to Avoid the Threat)

A third component of the law of duress requires that the accused not be party to any conspiracy or criminal organisation whereby it is predictable that they might later become subject to duress. In New Zealand, this requirement is contained in Crimes Act 1961 s 24(1) requiring that the accused not be ‘part to an association or conspiracy whereby he is subject to compulsion’. This requirement has a strong public policy rationale as it is designed to prevent criminal masterminds from conferring immunity on their cohorts by threatening them with death if they refuse to obey. In R v Joyce, the New Zealand Court of Appeal noted:[56]

…the very nature of the association was such that the offender, as a reasonable man, should have been able to foresee that the association was of a kind which at least rendered it possible that at a later stage he might be made subject to compulsion [emphasis added].

From the foregoing, it is clear that the mere fact that the accused is part of a criminal organisation or conspiracy does not, in itself, preclude the duress defence. Rather, participation in the association or conspiracy must be of such a nature that a reasonable person would be able to foresee the possibility of later becoming subject to compulsion. Notwithstanding the reference in R v Joyce to foreseeability, commentators note that no New Zealand case has directly addressed the issue of whether the accused must have actual knowledge of the future compulsion, or whether the future compulsion need only be reasonably foreseeable.[57]

The requirement that the accused not be part of an association or conspiracy has a roughly similar counterpart in the Rome Statute. Article 31(1)(d) requires that the accused must act ‘necessarily and reasonably’ to avoid the threat. The precise legal test contemplated by this provision is uncertain. Uncontroversially, it can at least be assumed that once an accused becomes aware of the threat they must act necessarily and reasonably to avoid it. However, consistent with R v Joyce, New Zealand courts will also engage in a secondary inquiry as to whether the threat was reasonably foreseeable and avoidance was possible at some earlier time. It is not clear whether such an inquiry is contemplated by Rome Statute article 31(1)(d). Nevertheless, Cassese, speaking before the adoption of the Rome Statute, hints at the importance of this secondary inquiry:[58]

When [a member chooses] to acquire membership in such a unit he knew or should have known that its primary purpose was to perpetrate criminal offences and consequently any member refusing to join in those offences would be under strong pressure or irresistible threats [emphasis added].

If we assume this additional analysis into the Rome Statute, then the similarities between the Rome Statute and New Zealand law become clearer. In particular, both appear focused on the extent to which a reasonable person should have foreseen the consequences of joining a criminal organisation. However, even assuming the Rome Statute and New Zealand law can be reconciled on this point, it still bears mentioning that both formulations leave several issues unaddressed - particularly with respect to the objective “should have known” requirement. For example, if an accused bears witness to a single criminal act in their unit, is that sufficient to put the accused on notice that they are part of a military unit bent on disregarding the law? How many offences must be committed before a reasonable person might draw such a conclusion? If an accused willingly joins a unit - especially if it is a regular unit of a national army - it is unlikely that they will initially believe they are joining a criminal organisation. Finally, both formulations neglect to consider the ramifications of an accused who is a member of a criminal unit wholly against their wishes, as may be the case of military conscripts or people who have been enslaved into an army.[59] A New Zealand court exercising jurisdiction under the ICCA would need to resolve these and other difficulties.

4. The Opportunity to Escape

The requirement in Rome Statute article 31(1)(d) that the accused act ‘necessarily and reasonably to avoid [the] threat’ might also be dubbed - in common law terms - the “opportunity to escape”. Although related to the association and conspiracy limitation, the opportunity to escape is more general in scope. Essentially, if the accused has an opportunity to escape the threat - regardless of whether the threat was foreseeable - the accused must take the opportunity. Crimes Act 1961 s 24(1) makes no explicit reference to escape opportunities, however, courts of common law jurisdictions have frequently interpreted this limitation into the law. In DPP for Northern Ireland v Lynch, the accused assisted three members of the IRA in killing a police constable.[60] The accused claimed he was acting under duress as a result of a threat made by a well-known IRA gunman that he would be killed if he did not assist the others in committing the crime.[61] Lord Morrison described the opportunity to escape in the following terms:[6]

It is always open to the Crown to prove that the accused failed to avail himself of some opportunity which was reasonably open to him to render the threat ineffective, and that on this being established the threat in question can no longer be relied on by the defence [emphasis added].

Notwithstanding the reference to reasonableness in DPP v Lynch, New Zealand courts have embraced a different analysis. Rather than focusing on whether there was a reasonable escape opportunity, the focus is instead on s 24(1) requiring that the accused ‘believe that the threats will be carried out’.[6] This clearly shifts the focus of analysis to the subjective belief of the accused. As opposed to delving into whether a reasonable opportunity for escape presented itself, the inquiry under New Zealand law is whether the accused believed they could escape.[63]

With respect to the Rome Statute, the opportunity to escape can be implied from the general obligation to act “necessarily and reasonably” to avoid the threat. In his dissenting opinion in the Erdemovic case, Cassese put the opportunity to escape in terms of the accused having ‘no adequate means of averting the evil’.[64] Cassese’s formulation aside, Rome Statute article 31(1)(d) clearly contemplates an inquiry into whether the accused had some reasonable opportunity to escape from the threat. Without belabouring the myriad difficulties of applying a reasonableness test, the inclusion of the test seems unnecessary. The additional article 31(1)(d) requirement of an “imminent” threat will naturally function to limit the instances in which an accused can rely on antecedent threats to establish a duress defence.[65] The word “imminent” entails inevitability.[66] As such, if the chance to escape presents itself to the accused at any time, the threatened harm cannot be said to have been imminent. In effect, at the moment an escape becomes possible, the accused has the ability to thwart the inevitability of the threatened harm by availing themselves of the escape opportunity.

Unless amended to clarify the issue, this divergence in approach would need to be reconciled by a New Zealand court exercising jurisdiction under the ICCA. It is submitted that in the context of international criminal law the current New Zealand approach is actually preferable because it accords more fully with the theoretical justification for the duress defence. Duress, in effect, amounts to a forceful overcoming of free will - it causes people to engage in activity in which they would not otherwise engage. The focus should therefore be on whether the will of the accused was in fact overcome by threats. If the reasonableness test in the common law or Rome Statute is applied, it is possible that an objectively reasonable opportunity for escape might exist, but the accused was unable to take advantage of it for other reasons. For example, it might be that the free will of the accused was so broken that an opportunity to escape - although appearing ex post facto to have been reasonable - was for all purposes an impossible course of action for the accused. This view also accords with Cassese’s formulation in the Erdemovic case insofar as he only requires there be ‘no adequate means’ of escape and omits any reasonableness component.[67]

5. The Proportionality Principle

The final component of the law of duress - and the most troublesome - is commonly referred to as the “proportionality principle”. Roughly stated, the principle disallows the defence where the accused succumbs to a threat and commits a crime with greater consequences than those embodied in the threat. Most common law jurisdictions attempt to incorporate the proportionality principle by specifically excluding the defence for certain crimes.[68] Presumably, by excluding certain “heinous” crimes such as murder, the proportionality principle is honoured by, for example, not allowing an accused to kill an innocent person to avoid some lesser threatened harm.

Rather than providing a blanket exclusion for certain crimes, article 31 of the Rome Statute simply states the defence is only available ‘provided that the person does not intend to cause a greater harm than the one sought to be avoided’. In the Erdemovic case, Cassese similarly required that: ‘The crime committed not [be] disproportionate to the evil threatened… In other words… the crime committed under duress must be, on balance, the lesser of two evils.’[69]

While every codification of duress employs the proportionality principle in some form, the principle has been severely criticised - especially when applied to murder. Its detractors point out that the principle is based on classic utilitarian thinking - an assumption that it is possible to weigh the value of one human life against another.[70] Thus, if an accused kills two people under a threat of death, a strict application of the proportionality principle would deny the defence. The applicable logic is simply that the loss of two lives is greater than one, so the accused should instead opt for their own death. One commentator asks whether it matters that the two people being killed are old and infirm while the person saved is young and has a family to support?[71] Moreover, should we care whether the people involved are “good” or “bad” people?[72] Cassese acknowledges these difficulties when he states in Erdemovic:[73]

Proportionality will, in practice, be the hardest to satisfy where the underlying offence involves the killing of innocents. There are enormous, perhaps insurmountable, philosophical, moral and legal difficulties in putting one life in the balance against that of others… how can a judge satisfy himself that the death of one person is a lesser evil than the death of another?

Cassese attempts to deal with this difficulty by suggesting a new requirement that is novel to the law of duress. Assuming an accused opts to take the lives of innocents to save himself, an inquiry must then be made into whether the accused was in any position to save the lives of the victims through a refusal to obey. In Erdemovic, for example, the accused was told that if he did not join a firing squad and shoot innocents, he would be shot. Under such circumstances, a judge might reasonably conclude that even had the accused nobly refused to participate in the killing, the victims would have been killed anyway. Applying the utilitarian balancing test, the defence should be allowed - even if the accused participated in a mass killing - on the grounds that a refusal to cooperate would have yielded the same number of innocent deaths, in addition to the life of the accused. Cassese accepts the logic of such an approach:[74]

Were he [the accused] to comply with his legal duty not to shoot innocent persons, he would forfeit his life for no benefit to anyone and no effect whatsoever apart from setting a heroic example for mankind (which the law cannot demand him to set). His sacrifice of his own life would be to no avail [emphasis in original].

It is submitted that this secondary inquiry into the ability of the accused to save the victims is an essential addition to the proportionality principle. Yet, no such inquiry exists in New Zealand or common law. Common law jurisdictions would deny the defence purely on the grounds that whenever the accused kills an innocent person they always perpetrate a greater evil than they prevent. The wisdom of this is questionable, however, especially where the accused only kills one person under duress. In this situation, presumably the two evils are equal; that is, regardless of the choice made by the accused, one life will be lost. Of course, the law might attempt to go further and justify one life as inherently more valuable than the other, but this would violate a basic principle of any just legal system - that all people are equal before the law. Commentators argue the only viable approach in this situation is for the law to essentially be indifferent.[75] From the standpoint of punishment, assuming the accused opts to kill rather than be killed, the law should refrain from punishment because the harm to society would have been identical either way. This line of reasoning at least suggests that where the accused commits a single killing and otherwise meets the requirements of the duress defence, the accused should be exonerated.

On a final note regarding proportionality, the Rome Statute introduces a novel innovation in the law. Article 31 requires that the accused ‘not intend to cause a greater harm than the one sought to be avoided’ [emphasis added]. Thus, whether the accused actually prevents the greater harm is irrelevant; the test only requires that the accused not intend to cause any greater harm through their choice of action.[76] How a court will apply this provision remains unclear. Presumably, most human beings value their own life above the life of others. It might reasonably be argued that an accused that chooses to kill innocents to preserve their own life is nevertheless not intending to cause greater harm than the harm avoided.[77] The analysis becomes even less certain given that the innocent victims may very well be people who, in the mind of the accused, are “bad” people. Assuming the victims are members of a rival ethnic group, or a different race, religion, etc., the accused may honestly believe that killing them is a lesser harm than opting for their own death. Such an honest belief would appear to qualify the accused to invoke the duress defence under the subjective intent test of article 31. Regardless, for purposes of this argument, suffice it to say that the proportionality test under the Rome Statute is far more generous to the accused than either New Zealand or the common law.

B. Is Duress a Defence to the Crime of Murder?

The dissimilarities in the formulation and application of duress between New Zealand law and the Rome Statute are significant and worthy of consideration. However, there is one final point of divergence that presents an irreconcilable difference - whether duress can ever be a defence to the crime of murder.

The law has, from a very early period, endorsed the view that a person is entitled to preserve their life and limb.[78] At least in English common law, however, the defence of duress is not available to an accused facing a charge of murder. The justifications for excluding duress in such circumstances can roughly be divided between: (1) philosophical arguments regarding the inherent obligations one human being owes to another and; (2) practical concerns regarding the impact of extending immunity to those who act under duress.

1. Philosophical Arguments Regarding Duress as a Complete Defence

With respect to the philosophical arguments, the argument dates back several centuries to the celebrated words of Lord Hale:[7]

If a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant’s fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact; for he ought rather to die himself, than kill an innocent…

This basic line of reasoning has been praised by some for recognising the inherent dignity of innocent human life and for setting a standard of human behaviour that calls for heroic self-sacrifice.[7] This approach is embodied in the famous English criminal case of R v Dudley & Stephens in which several shipwrecked sailors who were cast adrift in a small lifeboat decided to kill and eat the cabin boy in order to avoid starvation.[80] The court found the sailors guilty of murder - apparently unpersuaded by the fact that the sailors would have otherwise died and the cabin boy was very ill and likely to die anyway. Drawing on the words of Lord Hale as well as Greek and Latin philosophers including Horace, Cicero and Euripides, the court referred to the ‘duty of dying for others’ and the ‘plainest and highest duty’ to sacrifice one’s own life rather than commit an unlawful killing.[81]

Nevertheless, this argument has also been roundly criticised for being hypocritical and for requiring impossible acts of heroism.[82] According to critics, it is patently unfair and hypocritical to punish a person for behaviour that is the result of pressure to which their very judges are likely to have succumbed.[83] Indeed, the trend among some jurisdictions is to recognise duress as a defence to murder. In the United States, for example, the Model Penal Code recommends removing existing limitations preventing duress as a defence to murder, though the recommendations have only been enacted in a small minority of states.[84] As one commentator notes, ‘The [existing] rule asks us to be virtuous; more accurately, it demands our virtual saintliness, which the law has no right to require [emphasis in original].’[85]

2. Practical Concerns Regarding Duress as a Complete Defence

In addition to the philosophical debates, the rule barring duress as a defence to murder has been justified in practical terms. Sir James Stephen aptly summarised this reasoning in the following observation:[8]

It is of course a misfortune for a man that he be placed between two fires but it would be a much greater misfortune for society at large if criminals confer immunity upon their agents by threatening them with death or violence if they refuse to execute their commands. If immunity could be so secured a wide door would be open to collusion and encouragement would be given to malefactors secret or otherwise.

Such an approach was explicitly endorsed in the English case of R v Howe involving members of a criminal gang who killed two victims who were scheduled to testify against them in court.[8] Several of the accused raised the defence of duress arguing that they only killed the victims because they were afraid the leader of their gang would kill them. The House of Lords rejected the defence over concern that any relaxation of the rule prohibiting duress as a defence to murder would lead to an increase in killings committed by criminal organisations. Interestingly, their Lordships explicitly rejected arguments by defence counsel to widen the ambit of duress to bring the law “up to date” with the times. Lord Griffiths noted: ‘This is surely not the moment to make any such change, when acts of terrorism are commonplace and opportunities for mass murder have never been more readily to hand.’[88] While one can sympathise with this argument, as will be discussed, little is actually achieved through such an approach.

VII. Why New Zealand Should Allow Duress as a Complete Defence to all International Crimes

A. The Problems with the Common Law Approach
in the International System: The Example of the Erdemovic Case

The most recent international tribunal to consider the duress defence was the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) in the case of Prosecutor v Drazen Erdemovic.[89] The case was tried according to the Statute of the ICTY that contains no mention of the duress defence.[90] Nevertheless, the tribunal followed the common law approach of only recognising duress as a mitigating circumstance and not a complete defence. The case is a useful starting point to assess the validity of such an approach and why the Rome Statute approach is preferable.

In Erdemovic, the accused (Drazen Erdemovic) was a low-ranking member of the Bosnian-Serb Army who initially enlisted because he needed to earn money to support his growing family.[91] On 16 July 1995, Edemovic and seven other members of his unit were ordered to Branjevo Farm at Pilica in Eastern Bosnia for an unknown mission. Prior to this, following the fall of the UN safe zone of Srebrenica, the Bosnian-Serb Army had rounded up thousands of Muslim civilians and separated the men from the women. Several thousand of the men were transported by bus to Branjevo Farm where Erdemovic and members of his unit had been ordered.[92] As the buses arrived, the men were escorted out approximately ten at a time and taken to a nearby meadow where they were lined up and executed by firing squad.[93] Erdemovic was ordered to join one of these firing squads but initially refused. His commanding officer threatened him with the following statement: ‘If you are sorry for them, stand up, line up with them and we will kill you too.’[94] Fearing for his life and the well-being of his family, Erdemovic complied with the order. By his own admission he killed at least seventy unarmed civilians.[95]

Later the same day Erdemovic was again ordered to kill unarmed Muslim men being held captive at the nearby Pilica Cultural Hall. He again refused the order. This time three other members of his unit also refused and the order was rescinded.[96] Unfortunately, the massacre of 500 people at the Pilica Cultural Hall was later carried out by other members of the Bosnian-Serb Army. Erdemovic was eventually arrested and arrived at the Hague on 30 March 1996. Once there, he willingly provided detailed information on all the events at Branjevo and Pilica as well as providing valuable testimony against Radovan Karadzic and Ratko Mladic.[97] The ICTY Prosecutor described Erdemovic’s cooperation with the tribunal as ‘absolutely excellent’.[98]

Nevertheless, on 29 May 1996, Erdemovic was charged with crimes against humanity and for violations of the laws and customs of war. In November 1996, he pleaded guilty to one count of a crime against humanity and was sentenced to ten years in prison. On appeal, his sentence was reduced to five years in prison with time deducted for the period already spent in custody.[99] While the sentence reflects the view that duress may be a mitigating circumstance with respect to sentencing, both the ICTY Trial Chamber and Appeals Chamber rejected the notion that duress may constitute a complete defence to murder. Writing for the majority, Judges McDonald and Vorah established, in their view, ‘an absolute moral postulate…for the implementation of international humanitarian law’.[100] Clearly concerned with the policy implications of allowing duress as a defence to murder, the Judges stated:[101]

[W]e give notice in no uncertain terms that those who kill innocent persons will not be able to take advantage of duress as a defence and thus get away with impunity for their criminal acts in the taking of innocent lives.

The issue was hardly settled, however, as the majority opinion drew a scathing dissent from Judges Cassese and Stephen. Cassese argued forcefully that duress should be a complete defence to any crime assuming certain strict criteria are met. He further criticised the majority for relying too heavily on legal precedent from common law jurisdictions while ignoring basic principles of international law.[102] After a thorough review of international precedent, Cassese concluded that there is no exception in international law that precludes duress as a defence to murder.[103] According to Cassese, ‘if no exception to a general rule can be proved, in logic the general rule prevails’.[104] In other words, because duress is universally recognised as a defence, and no specific exception exists in international law precluding duress as a defence to murder, the general rule permitting duress as a defence to all crimes should prevail. Cassese’s powerful dissent was vindicated most obviously in the subsequent adoption of the Rome Statute that recognised duress as a complete criminal defence - even to the killing of innocents.

B. Duress should be Available as a Complete Defence to all Persons
Tried in New Zealand for International Crimes

As discussed previously, the current legislative framework in New Zealand creates the possibility that a member of the Defence Force or New Zealand Police accused of an international crime could be tried under either the Crimes Act 1961 (as it extends extraterritorially by virtue of other statutes) or under the Rome Statute. Additionally, a national of any country could be tried under the universal jurisdiction of the ICCA. Assuming a prosecution proceeds according to the Crimes Act 1961, the accused is strictly barred from relying on any international law defence. If the prosecution proceeds under the Rome Statute (by virtue of the ICCA), the ambiguity concerning when an “inconsistency” exists creates confusion regarding the source of available defences. Assuming there is no inconsistency, the accused would enjoy the widest range of options - New Zealand law, common law, the Rome Statute and any other defences in international law. However, assuming an inconsistency does exist (as is likely), the sources of available defences are pared down to the Rome Statute and international law. Given the generally better formulation of the duress defence in the Rome Statute, this result is preferable. However, as discussed before, there may be certain instances in which the accused might prefer to rely on New Zealand defences. This might occur in situations not involving murder (i.e., for certain war crimes or crimes against humanity) and where the opportunity to escape and/or the severity and nature of the threat are at issue. The subjective test regarding the opportunity to escape under New Zealand law may actually be more generous toward the accused than the Rome Statute. Likewise, the possibility that New Zealand law may recognise the infliction of severe mental harm as a sufficient threat also suggests New Zealand law is more generous in this respect. However, in the event of an inconsistency, the accused, though appearing in a New Zealand court, would be denied access to New Zealand and common law defences through the operation of ICCA s 12(3).

On the face of it, such an approach seems neither fair nor logically consistent. The basic impetus of ICCA s 12(1)(c) is undoubtedly correct. An accused facing charges for an international crime should have recourse to all available defences - either in domestic or international law. However, the application of the inconsistency requirement in s 12(3) has the potential to thwart this basic objective. It is submitted here that regardless of any inconsistency, the accused should have recourse to the criminal defences of their choice - whether or not they comport with New Zealand domestic law. This is the natural consequence of implementing international law into the domestic legal system.

The argument in favour of such an approach can be divided into two basic categories: (1) whether the current codification of duress in New Zealand serves the objectives of international criminal law; and (2) whether the Rome Statute version of duress can be made to comport with basic common law principles. Each argument will be discussed in turn.

1. Whether the Current Codification of Duress Serves the Basic Objectives of International Criminal Law

In assessing whether to allow duress as a complete defence, it is worth considering the fundamental rationales and objectives of international criminal law and whether a denial of the defence furthers those objectives.

(a) The argument against treating duress only as a mitigating circumstance

Although it is clear that duress is not a defence to murder at common law, this is not to suggest that duress is of no use to an accused facing a murder charge. Rather, most common law jurisdictions (and several international tribunals) have recognised duress as a mitigating circumstance when establishing a sentence. The distinction between a complete defence and a mitigating circumstance is not immaterial. While it can be argued that treating duress as a mitigating circumstance is a reasonable compromise, it is submitted here that such an approach lacks merit. The fundamental issue lies with whether we believe that an accused that acts under duress is morally blameworthy. If we accept the logic that duress eliminates free choice and therefore negates the ability of the accused to behave correctly, then it must follow that the accused is not deserving of any criminal conviction, regardless of whether the conviction is only accompanied by a token sentence. Conversely, if we subscribe to the theory that an accused should rise to the occasion and heroically sacrifice their own life rather than kill another, we are assuming implicitly that any failure to do so is morally blameworthy and deserving of punishment. Cassese summarizes this implicit assumption when he states:[105]

No matter how much mitigation a court allows an accused, the fundamental fact remains that if it convicts him, it regards his behaviour as criminal, and considers that he should have behaved differently.

In the context of international criminal law, the “half-way solution” of only allowing duress as a mitigating circumstance becomes even less acceptable considering the heinous nature of the crimes with which international criminal law is concerned. A conviction for genocide, war crimes or crimes against humanity carries a significant stigma - perhaps more so than for any conviction in the domestic context. Indeed, the very rationale for international criminal law has frequently been expressed in terms of the need for international society to voice its moral outrage at the commission of such crimes. To convict an accused of such morally blameworthy crimes, only to mitigate their sentence as a result of duress seems to contradict the very purpose of international criminal law. The only consistent choice is between disallowing duress altogether or elevating it to the status of a complete defence. As no scholar has advocated abandoning the notion of duress in its entirety, the best option is to recognise its status as a complete defence. Of course, recognising duress as a defence should not be construed as condoning genocide, war crimes or crimes against humanity; rather, it simply recognises the difficult fact that not everyone involved in the commission of such crimes is morally (and thus legally) responsible for them.

(b) The deterrence and prevention function of international criminal law

From the standpoint of deterrence and prevention, it is also difficult to understand how denying the duress defence serves these objectives. Tallgren provides a useful theoretical overview of how deterrence and prevention are supposed to operate in international criminal law. She breaks down the conditions necessary for successful deterrence and prevention into three categories: (1) cognitive conditions; (2) systemic conditions; and (3) behavioural conditions.[106]

(i) Cognitive conditions

Tallgren explains that the first requirement for successful deterrence - cognitive conditions - requires that the object of the prevention (the “would-be-criminal”) be aware of the norms of the international community, of the likelihood of negative consequences of breaking them and of the severity of the punishment that may be imposed.[107]

With respect to this set of conditions, consider the Erdemovic case in which the accused was offered the option of participating in a firing squad or facing the firing squad himself. Would a future Erdemovic facing the same situation be likely to refuse to participate in the firing squad; in other words, will denying an accused the duress defence prevent the situation from occurring again? The answer is unfortunately no. First, any future Erdemovic would need to be aware of the norms that international law seeks to enforce. Erdemovic was in fact aware that killing innocents on Branjevo Farm was a violation of accepted norms - that is, he understood it to be wrong and perhaps even illegal. The crux of Tallgren’s test, however, lies in the fulfilment of the second two conditions - did the accused understand the likelihood of punishment and the severity of the consequences?

There is nothing to suggest that Erdemovic had any knowledge of these conditions. After all, Erdemovic was prosecuted by an ad-hoc tribunal that did not exist at the time of his conduct. In the context of the intense ethnic warfare and chaos following the disintegration of Yugoslavia, Erdemovic might be excused for believing that the only authority with which he need be concerned is that which emanated from his military superiors. While his testimony suggests he was acutely aware that he was committing a terrible act, he most likely had no idea that he might someday be punished. Even assuming he did have some vague idea, the severity of his eventual punishment was entirely unbeknownst to him. This reality, perhaps more than any other, compellingly suggests the need for a permanent international criminal court. However, the legally inconsistent treatment of accused (one aspect of which this article is concerned with) undermines this very principle. Unless all States Parties to the Rome Statute (including New Zealand) take proper measures to ensure that all accused are treated similarly, the cognitive requirement for successful prevention and deterrence will go largely unfulfilled.[108]

(ii) Systemic conditions

With respect to systemic conditions, prevention and deterrence are supposed to occur through the internalisation of the moral values that the international legal system is aiming to promote. As Tallgren explains, ‘The systemic conditions are fulfilled when... the punishment is understood as censure and when the criminalized acts are, over time, felt to deserve condemnation.’[109]

Undoubtedly, the crimes that the Rome Statute seeks to prevent are all deserving of universal condemnation. Nevertheless, punishing an accused who commits one of these crimes while under duress is an altogether different issue. The defence of duress has enjoyed a long tradition in both civil and common law jurisdictions in part because it accords with our basic understandings of justice and fairness. If the reaction among scholars and commentators to the Erdemovic verdict is any indication, there is no universal agreement that a person in Erdemovic’s situation is deserving of either moral or legal condemnation. Accordingly, it is difficult to see how denying the defence of duress contributes to the internalisation of moral values that are the prerequisite to systemic prevention.

(iii) Behavioural conditions

Tallgren’s third condition - behavioural conditions - is the most problematic. Behavioural conditions concern the potential for affecting the behaviour of possible offenders. As Tallgren explains, ‘[I]t depends on the personal characteristics of the offenders, such as their values, background, personal circumstances, mental capacity, position and previous encounters with criminal law.’[110] Inherent in this form of prevention is the idea that through the existence of the law, potential offenders will alter their otherwise deviant behaviour in order to conform with the law. In many respects, the behavioural condition appears to be the culmination of the successful functioning of the previous two conditions. The problem, however, is that assuming our would-be-criminal is a rational human being, they will quickly conclude that risking the possibility of a future sanction under the law is still a better option than immediate death. Likewise, they may not even be aware of their likely punishment under international law and, in any event, they may (possibly quite correctly) conclude that they will not be caught. In other words, faced with a situation of “kill or be killed”, a rational human being will generally opt to kill regardless of any legal sanction they might later face. Of course we can hope that the accused is a person of deep moral conviction and will not succumb to this sort of primitive Hobbesian analysis. Perhaps such an individual will instead rise to the occasion and heroically forfeit their own life rather than participate in the killing of innocents. While we all may agree that such a brave display of humanity is the ideal outcome, it is unlikely we can accomplish such an outcome through the use of international criminal law. An individual prone to such heroism is likely to make their decision based on their own moral convictions. An abstract knowledge that they will face legal sanctions if they do not opt for their own death is unlikely to be of much persuasiveness.

(c) A note on special prevention

It is also worth noting that some commentators have justified international criminal law on the basis of what Tallgren labels “special prevention”. Special prevention is primarily concerned with preventing recidivism among those guilty of crimes. Special prevention is supposed to fulfil the purpose of crime prevention by either giving a warning to the offender, rehabilitating him, or incapacitating him.[111] Because crimes under the Rome Statute are quite serious, it would logically seem that the focus should be on the latter two purposes - rehabilitation or incapacitation. Simply warning the offender does not appear appropriate in situations involving genocide, crimes against humanity or war crimes. In any event, it is unclear how denying the defence of duress is likely to further the goal of special prevention. If an accused kills innocents to avoid their own death, what action has been taken that requires rehabilitation? Even assuming one subscribes to the common law view that the accused has committed a morally blameworthy act by declining to opt for death, what form might rehabilitation take? Should rehabilitation be concerned with impressing on the accused the idea that they were cowardly and wrong to save themselves? Little would be accomplished by such an approach and, in many cases, the accused may already feel a deep guilt for the choice they made. Erdemovic, for example, told the tribunal: ‘It destroyed me. It killed me. I simply thought that my life was worthless after that.’[112] The ICTY Prosecutor admitted he had no doubt that Erdemovic was truly remorseful for his actions.[113]

(d) International criminal law as symbolism

Moving away from the future-oriented preventive justifications, much has been made of the need for international criminal law to serve as a powerful form of symbolism - a clear statement on behalf of humanity that such serious crimes are wrong and must be punished. This view, closely tied to what might be considered retributivist theories of law, is aptly summarised in the following observation:[114]

The unambiguously devastating quantity and quality of the suffering of the victims of serious international crimes calls for intuitive-moralistic answers, in the manner of ‘[c]ertain things are simply wrong and ought to be punished. And this we do believe.’

Nevertheless, it is difficult to understand how denying the defence of duress accomplishes this goal. Inherent in the logic of the symbolism argument is that the wrong committed is so abhorrent so as to be universally blameworthy and therefore deserving of condemnation and punishment. Few would disagree that the core crimes of the Rome Statute are worthy of condemnation and punishment. However, the symbolic power of prosecuting such crimes becomes less potent if there is no universal belief that the accused is truly responsible for such crimes. At this point, the power of symbolism becomes diluted with concerns and counter-arguments about the legitimacy and fairness of condemning the accused for their actions. To the extent the verdict does not “feel right” to a significant portion of people, such concerns might even extend to the legitimacy and impartiality of the tribunal trying the accused. As Tallgren astutely observes, ‘For any discussion of criminal justice as symbolism it seems that the most relevant question would have to be that of content: whose symbols standing for what?’[115]

2. Why the Rome Statute Version of Duress is Theoretically Compatible with New Zealand Law

It seems intuitive that the law should not function as a rigid system that mechanically punishes a person upon the mere finding that they are somehow implicated in a heinous international crime. At the heart of our assumptions regarding human behaviour is “free will” - human beings are capable of making choices and controlling their behaviour. Intimately connected to this assumption is the notion that individuals may make bad choices, thus causing negative consequences to society. Because the accused willingly made a “bad” choice and because harm to society resulted, the accused is morally blameworthy and deserving of punishment. At common law, this is put in terms of mens rea - the idea that the accused must have a “guilty mind”.

While this set of assumptions is true in most circumstances, the law must allow for situations in which the accused was unable to exercise their free will in a normal fashion. Both domestic and international law commentators stress that the existence of duress does not mean that the accused acted involuntarily or had no mens rea. To say that an accused is acting involuntarily implies that the will of the accused is not operating at any conscious level.[116] Thus, an accused that stabs a victim while sleepwalking is acting involuntarily because their conscious mind is entirely inoperative. Likewise, duress does not entirely negate mens rea because an accused acting under duress still intends to inflict harm. The fact that the accused has been placed in a terrible situation and faces the “lesser of two evils” does not change the fact that the accused still has a choice. In the Erdemovic case, for example, it cannot be said that Erdemovic did not intend to kill his victims or was unaware of what he was doing. To the contrary, he knowingly chose to kill his victims in order to save his own life. In the view of some, this militates against recognising duress as a complete defence. According to the argument, the accused is still guilty for having made the choice - albeit less so as a result of duress.[117]

Nevertheless, it is still possible to recognise duress as a complete defence without violating basic common law assumptions regarding mens rea and intent. While an accused acting under duress is conscious of their actions and intends to inflict harm, they do not wish or desire the harm to happen.[118] In other words, the foremost question to be asked is whether ‘by reason of threats [the accused] was so terrified that he ceased to be an independent actor’ (independence here being contingent upon the ability to exercise free will).[119] One prominent criminal law commentator put it in the following terms:[120]

The moral justification for imposing punishment and criminal liability is the presumption that the individual had the ability and appropriate possibility to choose otherwise, and therefore actors may be exonerated because of compulsion [duress]... Juridically, the mental and moral ability to refrain from acting wrongly is therefore a conditio sine qua non to impose criminal liability and thus, from both the legal-philosophical and neuro-biological perspective, the role of free moral choice is essential in attributing criminal responsibility.

According to this logic, our focus should solely be on whether the threats toward the accused were sufficient to overcome their free will. If so, then the consequences that follow from the choice made by the accused - no matter how widespread and tragic - cannot be said to be the fault of the accused.[121] It is submitted that this approach, that puts free will at the heart of the analysis, points the proper way forward. While widening the ambit of duress to include heinous crimes is likely to be troubling for some, as the forgoing has suggested, little other than our own unrealistic hopes and moralising would be served by not properly implementing this component of the Rome Statute.

VIII. Conclusion

International law is indeed international; in its truest form it represents an effort to amalgamate divergent legal traditions into a coherent structure with universal principles and aspirations. In this dynamic process, there are likely to be conflicts between international and domestic law. This is a natural and even desirable aspect of international law. However, these conflicts may become acute when nations with varying legal traditions attempt to implement international law into their domestic legal systems.

With respect to New Zealand’s implementation of the Rome Statute, a serious conflict exists concerning the availability and elements of the duress defence to international crimes. This creates an ambiguity in the law and a potential for unfairness that is neither desirable nor tenable. In order to eliminate the problem and better comport with its obligations under the Rome Statute, New Zealand should allow an accused to draw on all pertinent criminal defences regardless of the statute under which the accused is prosecuted. The range of available defences must also include the defence of duress as defined in the Rome Statute. Although the Rome Statute codification of duress is fundamentally at odds with the law of duress in New Zealand, there is nothing inherent in New Zealand legal tradition or the common law that prevents the proper recognition of the defence. Indeed, recognising the Rome Statute version of duress coincides with many of our basic understandings of justice and does not adversely affect the underlying rationales and justifications for international criminal law.

[*] BA (Berkeley, 1998), JD (San Francisco, 2001), LLM (Auckland, 2004). This article was initially written for a course in international criminal law undertaken in April 2004 as part of an LLM at the University of Auckland. The author wishes to thank Treasa Dunworth for her superb guidance throughout and visiting Prof. Tim McCormack for his insight into many of the issues covered. Prof. Warren Brookbanks also provided invaluable assistance on issues of New Zealand criminal law.

[1] Report of the International Law Commission on the Work of Its Forty-Eighth Session (1996) UN Doc A/CN 4/L 522 <> (at 20 October 2004).

[2] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 37 ILM 999 (entered into force 1 July 2002) (“Rome Statute”).

[3] Ibid, article 13. For a thorough discussion of the ICC’s jurisdiction see Timothy McCormack and Sue Robertson, ‘Jurisdictional Aspects of the Rome Statute for the International Criminal Court’ [1999] MelbULawRw 25; (1999) 23 Melbourne University Law Review 635.

[4] Gillian Triggs, ‘Implementation of the Rome Statute for the International Criminal Court: A Quiet Revolution in Australian Law’ [2003] SydLawRw 23; (2003) 25 Sydney Law Review 507, 511-512.

[5] Rome Statute, above n 2, article 17(1)(a).

[6] Ibid., article 17(1)(b).

[7] Triggs, above n 4 at 512.

[8] Ibid.

[9] Treasa Dunworth, ‘Review: Public International Law: International Crimes and the International Criminal Court Act 2000’ (2002) New Zealand Law Review 255, 263.

[10] Ibid.

[11] Ibid.

[12] Treasa Dunworth, Commentary on New Zealand’s Implementing Legislation for the Implementation of the Rome Statute (prepared for the forthcoming Commonwealth International Criminal Court Manual).

[13] Ian McKay, ‘Interpreting Statutes - A Judge’s View’ [2000] OtaLawRw 10; (2000) 9 Otago Law Review 743, 756.

[14] For a general discussion of this presumption including its foundations in national legal systems and its relationship to the principle of good faith and reasonableness, see C Wilfred Jenks, ‘The Conflict of Law-Making Treaties’ (1953) 30 British Yearbook of International Law 401, 427-430.

[15] Timothy McCormack, ‘Australia’s Legislation for the Implementation of the Rome Statute’ in Matthias Neuner (ed), National Legislation Incorporating International Crimes: Approaches of Civil and Common Law Countries (Berliner Wissenschafts-Verlag, Berlin, 2003) 65-82.

[16] Ibid. See also Triggs above n 4, 530.

[17] International Criminal Court (Consequential Amendments) Act 2002, s 268.116.

[18] Triggs, above n 4, 350. Australia’s efforts to mirror the broader defence of superior orders in the Rome Statute is criticised as a retrograde step.

[19] David Turns, ‘Aspects of National Implementation of the Rome Statute’ in Dominic McGoldrick et al (eds), The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing, Oxford, 2004) 350. See also Colin Warbrick and Dominic McGoldrick ‘Current Developments-Public International Law-Foreign Relations Law’ (2002) 51 International and Comparative Law Quarterly 723.

[20] Ibid.

[21] Crimes Against Humanity and War Crimes Act, C 2000, s 11.

[22] Jann K. Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive International Criminal Law’ (2003) 1 Journal of International Criminal Justice 86, 92.

[23] Sharon Williams, ‘Article 17: Issues of Admissibility’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (Nomos, Baden-Baden, 1999) 394.

[24] These include, for example, crimes defined in the Second Protocol to The Hague Convention on the Protection of Cultural Property 1999. See Göran Sluiter ‘Implementation of the ICC Statute in the Dutch Legal Order’ (2004) 2 Journal of International Criminal Justice 158, 167.

[25] Crimes Against Humanity and War Crimes Act C 2000, ss 5, 7. See also Turns, above n 19, 360.

[26] German Criminal Code, s 33. See also Kleffner, above n 22, 93.

[27] Williams, above n 23, 392.

[28] John T Holmes ‘Complementarity: National Courts versus the ICC’ in Cassese et al (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford Press, 2002) 674.

[29] Ibid. It should be mentioned, however, that “genuinely” was purposely used instead of “good faith” because the former was thought to be broader in scope. See also Williams, above n 23, 392.

[30] See Williams, above n 23, 394. See also Holmes, above n 28, 677-678.

[31] Notwithstanding this conclusion, an accused tried and acquitted in a domestic court based on the availability of a broader defence raises potential “double-jeopardy” issues should the ICC seek jurisdiction. An analysis of whether the Ne bis in idem rule in Article 20 would prevent such a prosecution is beyond the scope of this article.

[32] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1979).

33[ ]The “international armed conflict” threshold has proven a major stumbling block in the development of international crimes and humanitarian law for the reason that many internal armed conflicts fail to qualify. The Rome Statute was particularly noteworthy for dropping this requirement.

[33] Dunworth, above n 12.

[34] McCormack & Robertson, above n 3, 662.

[35] Ibid.

[36] Dunworth, above n 12.

[37] Simester AP & Brookbanks WJ, Principles of Criminal Law (2nd ed, Brookers Ltd., New Zealand, 2002) 371-372.

[38] Antonio Cassese, International Criminal Law (Oxford Press, 2003) 246.

[39] Rome Statute, above n 2, article 33(1)(c). See also Albin Eser, ‘Defences in War Crimes Trials’ in Dinstein and Tabory (eds), War Crimes in International Law (Martinus Nijhoff, 1996) 254-262.

[40] Cassese, above n 40, 246.

[41] Ibid.

[42] Dominic McGoldrick et al (eds), The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing, Oxford, 2004) 274, noting that the debate greatly contributed to the difficulties in negotiating article 31(1)(d) of the Rome Statute.

[43] This includes the case of Hölzer and others, decided on 6 April 1946 by a Canadian military court sitting at Aurich Germany, and most notably the recent ICTY decision of Prosecutor v Drazen Erdemovic decided by the Appeals Chamber on 7 October 1997. For a complete discussion see Matthew Lippman ‘Conundrums of Armed Conflict: Criminal Defences to Violations of the Humanitarian Law of War’ (1996) 15 Dickinson Journal of International Law 1.

[44] Prosecutor v Drazen Erdemovic (1997) No. IT-96-22-A (Judgment in the ICTY Appeals Chamber) <> (at 20 October 2004).

[45] R v Roroa [1987] NZCA 305; [1987] 2 NZLR 486, 493 (CA).

[46] R v Teichelman [1981] 2 NZLR 64, 67 (CA).

[47] R v Mwai [1995] NZCA 306; [1995] 3 NZLR 149, 155 (CA). The court noted that “mind and body are inseparable” and was influenced by the Canadian Criminal Code and several English cases that draw no distinction between bodily and psychological harm.

[48] Simester & Brookbanks, above n 39, 380.

[49] Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 (entered into force 12 January 1951) (“Genocide Convention”), article 2(b).

[50] See, for example, Oxford English Dictionary which defines “imminent” as “close at hand in its incidence; coming on shortly”; whereas “immediate” is defined as “occurring without delay… instant”. See also Albin Eser in Triffterer (ed), above n 23, 551, noting that “imminent death” must appear to occur closely.

[51] Simester & Brookbanks, above n 39, 384-385. The authors note there is no requirement of immediate harm at common law, but this “commonsense view” has not been followed in New Zealand.

[52] Teichelman, above n 48, 67.

[53] Simester & Brookbanks, above n 39, 387-388.

[54] Ibid.

[55] Ibid. See also Kevin Dawkins & Margaret Briggs, ‘Review: Criminal Law’ [2001] 3 NZLR 317, 329-330 arguing there is no principled reason to deny the defence in such circumstances.

[56] R v Joyce [1968] NZPoliceLawRp 8; [1968] NZLR 1070 (CA).

[57] Simester & Brookbanks, above n 39, 394-395.

[58] Cassese, above n 40, 245-246.

[59] The related issue of child soldiers who cannot be said to be acting wilfully is partially resolved under the Rome Statute by Article 26 that exempts persons under eighteen from criminal liability.

[60] DPP for Northern Ireland v Lynch [1975] UKHL 5; [1975] AC 653 (Morris, J). The defence of duress was denied to the accused, in particular, because their lordships were concerned that terrorists, via human tools, could kill many innocent victims if duress were embraced as a viable defence to murder.

[61] Ibid.

[6]4 Ibid.

62 Gerald Orchard, ‘The Defence of Compulsion’ (1980) 9 New Zealand Universities Law Review 105, 117.

[63] Simester & Brookbanks, above n 39, 393. Although the test is subjective, the reasonableness of the belief may still be relevant to the question of fact as to whether the accused actually held the belief.

[64] Cassese, above n 40, 242.

[65] Andrew Bowers, ‘A Concession to Humanity in the Killing of Innocents — Validating the Defences of Duress and Superior Orders in International Law’ (2003) 15 Windsor Review of Legal and Social Issues 31, 69.

[66] See, for example, The Oxford English Dictionary which defines imminent as “about to happen”.

[67] Cassese, above n 40, 242.

[68] See, for example, New Zealand Crimes Act 1961 s 24(2) which lists thirteen excluded crimes ranging from murder to sabotage and piracy.

[69] Cassese, above n 40, 242.

[70] John Lawrence Hill, ‘A Utilitarian Theory of Duress’ (1999) 84 Iowa Law Review 275, 329-331.

[71] Bowers, above n 68, 38.

[72] Ibid.

[73] Prosecutor v Drazen Erdemovic (1997) No. IT-96-22-A (Judgment in the ICTY Appeals Chamber) (Separate and Dissenting Opinion of Judge Cassese) <

erdemovic/appeal/judgement/erd-aj971007e.htm> (at 20 October 2004) para 42.

[74] Cassese, above n 40, 250.

[75] Peter Westen & James Mangiafico, ‘The Criminal Defence of Duress: A Justification, Not an Excuse--and Why it Matters’ (2003) 6 Buffalo Criminal Law Review 833, 885.

[76] Albin Eser in Triffterer (ed), above n 23, 552.

[77] Bowers, above n 68, 64.

[78] Simester & Brookbanks, above n 39, 368.

82 Glazebrook PR (ed), Matthew Hale, the History of the Pleas of the Crown (Professional Books, London, 19[7]1) 51.

79 Cassese, above n 40, 247.

[80] R v Dudley & Stephens [1884] 14 QBD 273. This is actually a case of necessity (or duress of circumstances) because the compulsion emanates from the surrounding circumstances and not from threats made by another person.

[81] Ibid.

[82] Cassese, above n 40, 246-247.

[83] Packer H, The Limits of the Criminal Sanction (Stanford Press, USA, 1968) 118.

[84] Alan Reed, ‘Duress and Provocation as excuses to Murder: Salutory Lessons From Recent Anglo-American Jurisprudence’ (1996) 6 Journal of Transnational Law and Policy 51, 59-60.

[85] Joshua Dressler, ‘Exegesis of the Law of Duress: Justifying the Excuse and Searching for its

Proper Limits&#[8] (1989) 62 Southern California Law Review 1331, 1372-1373.

86 Stephen JF, History of the Criminal Law of England (1883) (B. Franklin, New York, 1964) 107-109.

87 R v Howe [1986] UKHL 4; [1987] 1 AC 417.

[88] Ibid.

[89] Erdemovic, above n 46.

[90] Sienho Yee, ‘The Erdemovic Sentencing Judgment: A Questionable Milestone for the International Criminal Tribunal for the Former Yugoslavia’ (1997) 26 Georgia Journal of International and Comparative Law 263, 287-288.

[91] Erdemovic, above n 46, paras 3-9.

[92] Ibid.

[93] Ibid.

[94] Ibid, para 4.

[95] Ibid, para 6.

[96] Ibid, para 8.

[97] Prosecutor v Drazen Erdemovic (1997) No. IT-96-22-Tbis (Trial Chamber Sentencing Judgment) para 16(4).

[98] Ibid.

[99] Ibid.

[100] Prosecutor v Drazen Erdemovic (1997) No. IT-96-22-A (Joint Separate Opinion of Judge McDonald and Judge Vohrah) para 83.

[101] Ibid, para 80.

[102] Erdemovic, above n 76 (Separate and Dissenting Opinion of Judge Cassese) para 11.

[103] Ibid.

[104] Ibid.

[105] Ibid, para 48.

[106] Immi Tallgren ‘The Sensibility and Sense of International Criminal Law’ (2002) 13 European Journal of International Law 561, 570.

[107] Ibid.

[108] Ibid, 582.

[109] Ibid, 571.

[110] Ibid, 571.

[111] Ibid, 576.

[112] ‘Tribunal Jails Confessed Srebrenica Killer for Ten Years’ New York Times (New York, USA) 29 November 1996.

[113] Erdemovic, above n 46, para 16(3).

[114] Andrew von Hirsch, Doing Justice: The Choice of Punishments (1976) (Report of the Committee for the Study of Incarceration) cited in Tallgren, above n 110, 564.

[115] Tallgren, above n 110, 581.

[116] Simester & Brookbanks, above n 39, 371-372.

[117] Yee, above n 94, 295-296.

[118] Simester & Brookbanks, above n 39, 373.

[119] R v Kray [1969] 53 Cr App R 569, 578.

[120] Knoops GJ, Defences in Contemporary International Criminal Law (Transnational Publishers, New York, 2001), 62-63.

[121] See, for example, Bowers, above n 68, 51.

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