Liberal values in international criminal law: A critique of Erdemović

Journal of International Criminal Justice

Volumn 6, Issue 1, 2008, Pages 3-19

  Fichtelberg, Aaron ^a  

^a UNIVERSITY OF DELAWARE   (United States)

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[No Author keywords available]

Indexed keywords

EID: 41349101782     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqm026     Document Type: Article

References (36)

1. Judgment, Erdemović (IT-96-22-A), Appeals Chamber (Judges Antonio Cassese, presiding, Gabrielle Kirk McDonald, Haopei Li, Ninian Stephen, Lal Chand Vohrah), 7 October 1997.
2. I will use the terms 'the Chamber, 'the Tribunal' and 'the court' to refer primarily to the views expressed in the opinion of Judges McDonald and Vohrah, as these were endorsed by the judgment of the Appeals Chamber; see Joint Separate Opinion of Judge McDonald and Judge Vohrah, Erdemović (IT-96-22-A), Appeals Chamber, 7 October 1997 and an additional Corrigendum, 19 November 1997 (henceforth 'McDonald and Vohrah joint separate opinion').
3. This formulation is taken from Judge McDonalds Waldemar A. Solf Lecture: 'An international tribunal has an obligation to recognize the highest standards of international humanitarian law and develop a normative framework that reflects the purposes of Geneva law and incorporates the moral essence of humane and just society.'G. Kirk McDonald,'The Changing Nature of the Laws of War', 156 Military Law Review (1998) 30-51.
4. Sentencing Judgment, Erdemović (IT-96-22-Tbis), Trial Chamber II-ter, 5 March 1998.
5. McDonald and Vohrah joint separate opinion, §43. There is something puzzling about the use of the opinion of a legal publicist to trump the custom established by an actual, working military tribunal, as it seems to denote a conflation of the relative sources of international law - as does the court's appeal to US Courts-Martial Manual.
6. Ibid., §55.
7. Ibid., §72. One should note that the judges asked a very narrow question. It is clear that a majority of systems accept duress as a defence generally. It is only when the Chamber asked narrower question of killing innocents that the ambiguity arises. (This raises the suspicion that they could have tailored the question in such a fashion that the answer was foreseen by the judges. For a critique of this kind see: S.C. Newman,'Duress as a Defence to War Crimes and Crimes Against Humanity', 158 Military Law Review (2000) 158-171.)
8. R. Higgins, Problems & Process: International Law and How We Use It (Oxford: Oxford University Press, 1994), esp. 5-7.
9. R.M. Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977).
10. H.L.A. Hart, The Concept of Law (2nd rev. edn., Oxford: Oxford University Press, 1994), 252.
11. Dworkin, supra note 8, at 22.
12. See J. Rawls, A Theory of Justice (Cambridge: Belknap Press, Harvard University, 1972).
13. R. Alexy, The Argument from Injustice: A Reply to Legal Positivism (Oxford: Oxford University Press, 2002).
14. Alexy, supra note 12, at 70.
15. Ibid.
16. Alexy has argued that the principles invoked by jurists have a special claim to being correct moral principles and not just legal ones ( ibid., at 74-81). However, intuitively appealing Alexy's views may be from the standpoint of ethical philosophy, from the standpoint of legal practitioners, it is unclear why legal decisions refer 'to the correctness of the decision in terms of a justifiable and therefore correct morality'. (Ibid., at 78). The concern of professional jurists is not with the validity of principles as much as with their relevance for a case. A serious judge may disagree with a principle, but recognize its applicability. Regardless, my arguments against the Erdemović decision have nothing to do with the moral validity of the principles applied, but rather their legal relevance for the Chamber.
17. As Alexy notes, any legal system (even the worst among them) may claim to have some set principles underlying it. See Alexy, supra note 12, at 77-78.
18. Dworkin, supra note 8, at xi.
19. For reasons of space, I will not elaborate too deeply on the foundations of liberal political philosophy in this article. Suffice it to describe a liberal system as one that puts individual rights at the forefront of the political order. This can be contrasted with a consequentialist view where rights are only respected because they achieve some desired end.
20. United States v. Ohlendorf (1948).
21. See Trial of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. IV (Washington DC: US Government Printing Office, 1950) 3-596.
22. Separate and Dissenting Opinion of Judge Cassese, Judgment, Erdemović (IT-96-22-A), Appeals Chamber, 7 November 1997, §11 (henceforth 'Cassese dissenting opinion').
23. At the end of my article, I will suggest that, in part at least, Cassese's views on the content of international law are not the only concern he holds and that a second dimension of his dissenting opinion, hinted at only briefly, points towards broader matters of principle - such as the ones that I will argue for here.
24. See Security Council resolutions 808 (1993) and 827 (1993).
25. In Hobbes' Leviathan, for example, the central motive for entering the social compact was the preservation of one's life. This right of self-preservation stands at the core of a liberal theory and individual rights. See T Hobbes, Leviathan (Cambridge: Cambridge University Press, 1991).
26. While it is true that many domestic legal systems mentioned by McDonald and Vohrah in their opinion, systems that we might accurately describe as liberal, do not allow the offence of duress in cases of murder, we should not let this fact disturb us for several reasons. First, if McDonald and Vohrah are right, that there is no determinate rule in domestic legal systems on this point, then we can conclude that this matter ought not be decided by looking at the ambiguous empirical evidence. Second, my argument for the acceptance of duress is a normative one (that liberals, regardless of the empirical laws of this or that state ought to accept the notion of duress on principle). Finally, my argument is about international criminal law as a liberal political system, and not variants of liberal political philosophy assumed by Australia, England and the other common law states. While this third point, the nature and scope of the rights granted to accused criminals in international criminal law and its relation to liberal political philosophy would be a much longer project than the one that concerns this article, I nonetheless am confident that I have, in the previous section, captured the essence of the liberal rights granted to accused criminals in international criminal law.
27. Trial of the Major War Criminals Before the International Military Tribunal - Nuremberg 14 November 1945-1 October 1946, Vol. I (Nuremberg, 1947), at 224.
28. Cassese dissenting opinion, §16.
29. Y. Dinstein,'The Distinctions between War Crimes and Crimes against Peace', in Y. Dinstein and M. Tabory (eds), War Crimes and International Law (The Hague, Boston, London: Martinus Nijhoff, 1996), at 10. While it is true that Dinstein argues that '[i]t can be scarcely contested today that atrocities, and even plain murder, cannot be exonerated on the ground of duress previously cited under international criminal law', he relies solely on British Law (Abbott v. The Queen) and the previously cited views of Oppenheim to make his argument.
30. This undermines the primary concern'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'. (§80.) Any defendant who met these three liberal criteria would, by definition, not be a criminal actor.
31. Dworkin, supra note 8, at 28.
32. Cassese dissenting opinion, §49.
33. Ibid., §47.
34. I should note, however, that McDonald and Vohrah reject the issue of reasonability in duress when they determine it to merely be a mitigating factor in punishment. (See McDonald and Vohrah joint separate opinion, §83.)
35. Cassese dissenting opinion, §47.
36. For a brief, interesting discussion of the larger political context surrounding the Erdemović decisions see D. Turns, 'The International Criminal Tribunal for the Former Yugoslavia: The Erdemović Case', 47 International and Comparative Law Quarterly (1998) 461-474.