Duress and Duty

ROUGH DRAFT

Victor Tadros[1]

Around 16th July 1995, DrazenErdemovic acted as part of a firing squad, killing around 70 unarmed Bosnian Muslim men from Srebrenica, Bosnia Herzegovina. These killings were part of the mass execution of Bosnian Muslims at the military run Pilica Farm in Easter Bosnia where hundreds of men were executed.

The International Criminal Tribunal for the former Yugoslavia (ICTY) indicted Erdemovic for murder as a crime against humanity. He was indicted after admitting to a journalist what he had done: ‘because of everything that happened I feel terribly sorry,’ he said, ‘but I could not do anything. When I could do something, I did it.’ The reason he could do nothing else, he claimed, was that he was threatened with being executed along with the victims if he did not participate in their executions.

The judgement inProsecutor v DrazenErdemovic was full of controversy. Erdemovic was convicted and eventually sentenced to a prison sentence of five years. The issue of duress was only one of the controversial issues in the case. It is our sole focus here. The majority held that duress was never a defence to a charge of crimes against humanity. Two of the five judges, Cassese (presiding) and Li, dissented on the issue of duress, each holding that duress should sometimes be available as a defence to crimes against humanity.

Cassese, drawing on the law of a range of jurisdictions, outlined four strict conditions that he thought had to be met for the defence of duress to be available:[2]

1)The act charged was done under an immediate threat of severe and irreparable harm to life and limb.

2)There was no adequate means of averting such evil.

3)The crime was not disproportionate to the evil threatened (this would, for example, occur in case of killing in order to avert an assault). In other words, in order not to be disproportionate, the crime committed under duress must be, on balance, the lesser of two evils.

4)The situation leading to duress must not have been voluntarily brought about by the person coerced.

The majority, though, followed the common law view that duress is never a defence to murder.

The moral significance of duressis very important in the context of war. It is very important in part because in many cases those who participate in the killing of innocent people during war claim duress. Following WWII, for example, duress was a common defence to the killing of innocents by members of the Axis powers. Whilst attempts to use the defence of duress were typically unsuccessful – mainly because there was often insufficient evidence of a threat having been made – duress was recognised as providing a defence in principle.

Duress is also important because it has been argued that the fact that soldiers typically act under duress provides a powerful reason against extending international criminal liability to all of those who participate in a war on the unjust side. Given that those who participate on the unjust side cannot point to the cause of the war as a reason in favour of killing, other reasons must be offered why all of those on the unjust side ought not to be made criminally liable for their conduct. The fact that many soldiers are subject to duress is one of the reasons that have been offered.[3]

My primary aim is to investigate when duress justifies killing in the context of war. I aim to investigate the moral rather than the legal question. The question is not whether duress should be available as a defence, in law, to a charge of murder or crimes against humanity. The question is rather whether and when a person who kills under duress is morally justified in what she has done. Obviously, the answer to this question will be very important in evaluating the law. But as always, there may be good reason for the law to depart from the best moral view. Evaluating the strength of these reasons is beyond the scope of this paper. Furthermore, my central interest is not in whether duress can excuse killing. I am interested primarily with duress as a justification. For reasons outlined below, this analysis will also be important in determining whether and when duress can excuse killing.

Here is a roadmap. In Section I, I conceptualize duress as a justification. Section II outlines two objections to duress as a justification to killing. Section III evaluates one kind of case where these objections are not decisive – where the killing is a side-effect of the action that the person is instructed to perform. Section IV evaluates another kind of case where they are not decisive – where the person killed was doomed to die whatever the defendant did. It also considers a less familiar variation on this case. Section V considers more standard cases of duress, suggesting that deontological restrictions on responding to threats are not as clearly decisive as appears to be the case. This offers some support to the view implicit in Cassese’s judgement that duress should sometimes be available even when the victims are intentionally killed and are not doomed to die.

Duress as a Justification

A person who acts in a way that is pro tanto wrong is not always blameworthy for what she has done. One reason for this is that the person is a responsible agent - for example if she is a small child or suffers from a serious cognitive disability. Another reason is that the person’s conduct is excused - for example if the terrifying threat that she was faced with undermined her decision-making powers were. A third reason, which is my focus here, is that the person’s action, although pro tanto wrongful, is justified all things considered.

Duress might be understood as a justification defence or as an excuse defence. It is controversial that it should ever be recognised as a justification. Some people think that duress is best understood only as an excuse.[4] But these people don’t deny that it is sometimes permissible, all things considered, to respond to a credible threat by acting in a way that is pro tantowrong. For example, if X threatens D that X will shoot D’s child if D does not illegally park his car, it is permissible, all things considered, for D to illegally park. Those who deny that duress can be a defence to pro tanto wrongdoing do not deny that this is permissible. They rather deny that this is best understood as a case of duress. They use a different defence-label, such as ‘lesser evil’, to refer to this case.[5]I will use the label ‘duress’ to refer to it.

Standard cases where D acts under duress, as I will understand it, have the following features:

1)X threatens D that if D does not do some act v, X will do some act w.

2)D vs in order that X does not w.

3)It is pro tanto wrong for D to v.

4)Were it not for X’s threat it would be wrong for D to v.

If duress is only available as an excuse, in standard cases of duress, not only is it pro tanto wrong for D to v, it is wrong for D to v all things considered. The reason for this is that one does not need an excuse for doing what is all things considered permissible. Hence, duress qua excuse applies only to cases of all things considered wrongdoing.

As I will understand duress, D may act under duress and yet act permissibly all things considered in some cases. This will be true in cases where the threat of w is sufficiently grave to justify X in ving even though ving is pro tanto wrong. These are the only cases of duress that I am interested in. If duress is to be available as an excuse, what is needed is an account of how it can be true that the threat of w is insufficiently grave to justify D in ving, and yet D is not blameworthy for ving. This might be true, for example, if D’s reasoning is undermined by being placed in a state of terror as a result of X threatening w.

We should consider duress as a justification prior to evaluating duress as an excuse. This is because evaluating when duress justifies is important in evaluating when it excuses. And this is becausewhether duress is available as an excuse depends on whether duress is available as a justification. Why should the availability of duress as an excuse depend on whether duress is available as a justification? The reason is that the closer D is to being justified for ving, the stronger the reason we will have to excuse D for ving. We are entitled to an excuse only if our reasoning has been interfered with in a way that has led us to act wrongly. But we are likely to be excused only if our reasoning did not dramatically depart from that which was required. And that will be so only if our conduct was reasonably close to being justified.

For example, suppose that X threatens D that X will break D’s foot if D does not kill an innocent person. The defence of duress would not normally be available in this case. It is not available as a justification – averting the breaking of a foot is insufficient reason to kill a person. It is also not available as an excuse. The reason for this is not that having one’s foot broken is insufficiently bad to terrify a reasonable person. A threat of having one’s foot broken might be terrifying. It is rather that averting a broken foot is nowhere near important enough to justify killing a person. If X had threatened D that X would break D’s foot if D did not break the foot of an innocent person, we would be more inclined to excuse D. That is so even though the threat that X makes to D is no more terrifying in this case than in the previous case. The reason is that D’s act is closer to being justified in that case. For this reason, we are better focusing at first on when threats justify a person in acting in a way that would be wrong were it not for the threat. This will be important in determining when duress is available as an excuse.

Evaluating when duress should be available as an excuse is, I believe, a much harder task overall than evaluating when it should be evaluated as a justification. Evaluating when it should be available as an excuse requires us to imagine the psychological impact of duress. Duress in the context of war is often multifaceted and systematic – many threats may be imposed on a person over a period of time, reducing her ability to resist any one of them. Her moral psyche may become corrupted by being subject to constant threats, and by being placed in an environment where a thin line needs to be walked in order to avoid death, perhaps not only to oneself but also to those one loves.

In saying this, from the quiet comfort of my desk, I am influenced by Primo Levi’s words, writing about collaboration in Nazi concentration camps:

Before discussing separately the motives that impelled some prisoners to collaborate to a varying extent with the Lager authorities, it is necessary however to declare that before such human cases it is imprudent to hasten to issue a moral judgement. It must be clear that the greatest responsibility lies with the system, the very structure of the totalitarian state, the concurrent guilt on the part of the individual big and small collaborators (never likeable, never transparent!) is always difficult to evaluate. It is a judgement that we would like to entrust only to those who found themselves in similar circumstances, and had the possibility to test on themselves what it means to act in a state of coercion…The condition of the offended does not exclude culpability, and this is often objectively serious, but I know of no human tribunal to which one could delegate the judgement.[6]

Whether collaboration is justified is, I think, easier to evaluate from the armchair than whether collaboration is excused. It requires less empathy with those who might collaborate – less understanding of the psychological impact of duress.

Before examining the question of justification further, let me say something about two features of the standard cases of duress that I am considering.First, duress is concerned with threats. A threat is sincere if X forms a conditional intention to w if D does not v. It is credible if X will succeed in executing this intention if D does not v. In many cases of duress, there will be doubts about both the sincerity and credibility of the threat. For example, in Erdemovic itself, it is not completely clear whether those threatening Erdemovic really intended to shoot him if he disobeyed orders, or if those threatening him would have been able to execute the threat. Perhaps Erdemovic had some opportunity to escape rather than participating in mass executions. If so, his claim to a duress defence would be weaker.

Where the threat is less likely to be sincere or credible, we are concerned with risk. To what extent may D v in virtue of the fact that there is a risk, if he does not do so, that X will w? Evaluating risks is a tricky business. I leave this question aside here. I assume that X is completely sincere and credible.

Secondly, we should distinguish between whether some sincere and credible threat is made and whether the person responded to the threat. The person responded to the threat if the threat provided the reason for which he acted. There is a question about whether the duress defence ought to be available in cases where X threatens D that X will w if D does not v, D vsbut he does not do so to avoid X wing. For example, D might v simply because he wishes to v. Cassese’s criteria for duress, outlined above, do not include a condition that D is motivated by the threat. But his judgement does point to the importance of this consideration.

Whether D was motivated by the threat, some might claim, cannot be relevantto whether D’s act is permissible all things considered. Some might claim this because they think that intentions are irrelevant to permissibility. If D would be justified in ving in order to avert the threat of w, these people might claim, D is also permitted to v for any other reason, including simply his desire to v.

The better view is that duress justifies where it doesonly if D acts in order to avert the threat of w. Intentions, in this case, are relevant to permissibility. D cannot claim that X’s threat to w justified D in ving if D was not motivated by X’s threat to w.To see the intuitive force of this view, consider the penalty for disobeying orders in Nazi Germany known as Sippenhaft(kin liability). Sippenhaftwarranted not only killing the person who disobeyed the orders, but also members of the person’s family. This practice provided the basis of a claim of duress in the StalagLuft III case following WWII. In that case, the 18 accused, who were all members of the SS, participated in the killing of 50 members of the RAF. The court did not believe that the members of the SS were acting under duress.[7] Had they been acting under duress, though, the court might have granted the defence.

But surely the defence ought not to be made available if those SS members were not influenced in any way by the threat to them and their families. If they were fully committed Nazis, the defence of duress ought to have been ruled out, even if they and their families would have been executed had they not obeyed orders. Were this not so, we would face the unacceptable spectre thatthe duress defence would be very widely available to fully committed Nazis in virtue of the fact that had any Nazi disobeyed orders other Nazis would have punished them severely.[8]

At any rate, I will assume, in all of the cases that I consider, that D is motivated to avert w, and vs only for that reason. We can thus evade the controversial question whether D’s intentions are relevant to permissibility.

Objections to Duress as a Defence to Killing

As I noted above, subject to terminological disputes, everyone accepts that duress sometimes justifies acting in a way that is pro tanto wrong. Our question is whether duress can ever be a defence to killing. English criminal law, which was followed by the majority in the Erdemovic case, answers this question in the negative. Duress cannot even provide an excuse to murder in the law of England and Wales.[9] It is unavailable even if D was an accomplice rather than a principal – if D provided P with a weapon that was used to kill V, and D’s life was threatened, D cannot escape a conviction of murder. It is also unavailable as a defence to attempted murder.[10]

This aspect ofthe law has received a great deal of criticism. It has been described as ‘too rigid’ on the grounds that ‘there will be occasions where we would expect even a person of reasonable firmness to be coerced into participating in murder’.[11] Duress ought at least to be made available as an excuse to murder, it has been claimed, even if killing under duress is never justified.[12]

In contrast, some may argue that killing under duress is normally so far away from what is permitted that it ought never to be available as an excuse to murder. Killing a person to avert the threat of a broken foot ought never to be excused, it might be argued. Similarly, killing a person to preserve one’s own life in circumstances of duress ought never to be excused.

To vindicate this view, it would need to be shown that killing a person under duress is a long way away from being justified, just as killing a person to avert the threat of a broken foot is a long way away from being justified.

i)Collaboration

One reason that might be offered for this view is that it is wrong to collaborate with evil. If D responds to X’s threat, D carries out X’s wrongful intentions. D thus collaborates with X in fulfilling X’s evil plan.Let us say that D collaborates with X if X forms an intention that D vs in order to advance X’s plan that a wrongful act will be committed, and D vs, fulfilling this intention. Why might collaboration be wrong?