Duress as a defense to war crimes and crimes against humanity - Prosecutor v. Drazen Erdemovic

Military Law Review

Volumn , Issue 166, 2000, Pages 158-169

  Newman, Stephen C ^a  

^a NONE

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EID: 0040782615     PISSN: 00264040     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (20)

1. U.S. Marine Corps. Presently assigned as the Operational Law Attorney, United Nations Command (UNC), Combined Forces Command (CFC), United States Forces, Korea (USFK), and as Staff Judge Advocate, U.S. Marine Corps Forces, Korea. B.A. 1986, Taylor University, Upland, Indiana; J.D. 1990, Capital University Law School, Columbus, Ohio; 1996, Marine Corps Amphibious Warfare School, Marine Corps Base, Quantico, Virginia; LL.M. 2000, The Judge Advocate General's School, United States Army, Charlottesville, Virginia. Previous assignments include Staff Judge Advocate, 13th Marine Expeditionary Unit (Special Operations Capable), Deputy Staff Judge Advocate, 1st Force Service Support Group, I Marine Expeditionary Force, Camp Pendleton, California, Trial Counsel, Defense Counsel, and Legal Assistance Officer, Marine Corps Logistics Base, Barstow, California. This article was submitted in partial completion of the Master of Laws degree requirements for the 48th Judge Advocate Officer Graduate Course, The Judge Advocate General's School, U.S. Army, Charlottesville, Virginia.
2. Prosecutor v. Erdemovic, No. IT-96-22-Y (March 5, 1998) (Sentencing Judgment, Trial Chamber II), available at http://www.un.org/icty/erdemovic/trialc/judgment/erdtsj980305e.htm.
3. Erdemovic, No. IT-96-22-Y, at 32 (Oct. 7, 1997) (Appeals Chamber, Cassese, J., dissenting in the findings but concurring in the result) [hereinafter Minority Opinion], available at http://www.un.org/icty/erdemovic/appeal/judgment/erd-adojcas971007e.htm.
4. All five Judges concurred in refusing to acquit the accused, but their reasons were so divergent that four opinions were issued. These were: (1) the dissenting opinion of Judge Cassese; (2) the joint separate opinion of Judges McDonald and Vohrah; (3) the dissenting opinion of Judge Stephen; and (4) the dissenting opinion of Judge Li. While Judge Li concurred with Judges McDonald and Vohrah that duress should not be a defense, this was not the focus of his opinion. Nonetheless they best reflect the "majority" opinion. The author therefore refers to the McDonald/Vohrah opinion as the majority.
5. Erdemovic, No. IT-96-22-Y, at 38 (Nov. 29, 1996) (Sentencing Judgment, Trial Chamber I) [hereinafter Sentencing Judgment I], available at http://www.un.org/icty/erdemovic/trialc/judgment/erd-tsj961129e.htm.
6. Id. at 22, 28. The 10th Sabotage Unit was mostly made up of Serbs, but did include some Croats, one Slovene and one Muslim. Id.
7. Id. at 23. Erdemovic claimed to have the rank of "lieutenant or sergeant," and that he had previously commanded a small group within the 10th Sabotage Unit. Part of his claim of duress is related to this loss, in that he claimed to no longer have the authority to refuse the orders of his superiors. Id.
8. Id.
9. Id. In total, approximately 1200 men were killed. Id. at 21.
10. Id. Other soldiers did massacre these men. Id. at 27. Shortly after these events, another member of the 10th Sabotage Unit tried to kill Erdemovic and two of his friends. Severely wounded, he ended up in a Belgrade military hospital where he met and confided in a member of the press. Two days later he was arrested by the State Security Services of the Republic of Serbia. Arriving in The Hague on 30 March 1996, he immediately confessed to the murders and provided key evidence against other war criminals. Id. at 24.
11. Sentencing Judgement I, supra note 5, at 25, 29.
12. Id. at 45.
13. Id. at 42. In reaching their decision, the majority rejected out of hand significant case law to the contrary on which Presiding Judge Cassese relied heavily. They rejected this case law because of its relative value as precedent. Id. at 19. Judge Cassese takes this issue head on in his opinion, which is discussed infra at Part IV.
14. Id. (emphasis in original text).
15. Id. at 7.
16. Id. at 8, 9.
17. Id. at 9.
18. Id. at 29. Judge Cassese stated that: Perhaps - although that will be a matter for the Trial Chamber or a Judge to decide - it will never be satisfied where the accused is saving his own life at the expense of his victim, since there are enormous, perhaps insurmountable, philosophical, moral and legal difficulties in putting one life in the balance against that of others . . . . Id.
19. Id. at 32. Judge Cassese asked the reader to consider the following: An inmate of a concentration camp, starved and beaten for months, is then told after a savage beating, that if he does not kill another inmate, who has already been beaten with metal bars and will certainly be beaten to death before long, then his eyes will, then and there, be gouged out. He kills the other inmate as a result. Perhaps a hero could accept a swift bullet in his skull to avoid having to kill, but it would require an extraordinary - and perhaps impossible - act of courage to accept one's eyes being plucked out. Can one truly say that the man in this example should have allowed his eyes to be gouged out and that he is a criminal for not having done so? Id. (emphasis in original text).
20. Id.