Maximilian Keiner

Duress as a defence in case of murder

This essay defends the claim that duress should be a complete defence in specific cases of murder. I will defend this claim alongside a discussion of the case of Erdemovic, who was convicted by the International Tribunal for the Former Yugoslavia (ICTY) after having killed several innocent people during the Bosnian War in order to save his own life. In this essay, I will present a bipartite argument. In Part One, I will challenge the judgment in the case Erdemovic with regards to what has been considered rather safe grounds for a judgment in cases of duress: values which criminal law is considered to be committed to and, hence, needs to provide a voice for. In the case at hand, the judges expressed commitment to values with reference to an “absolute moral postulate” against killing innocent people. I will argue that that the absolute application of such a “postulate” in form of convicting/punishing Erdemovic leads to criminals receiving influence over the law which they should not have. I will generalise this objection to any form of conviction/punishment of someone like Erdemovic. In Part Two, I will address what I consider the strongest objection against an acquittal of Erdemovic and develop the arguments against convicting/punishing from Part One into the positive claim for acquitting a person like Erdemovic. I will here distinguish between three senses in which acquitting Erdemovic could be seen to betray the values of criminal law resp. loyalty to the victims and argue that none of them is convincing. Therefore, I conclude, duress should be a complete defence in a restricted number of cases of duress.