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Abstract

This Note proceeds in four Parts. Part I traces the historical development of “duress” through the common and civil law systems, World War II cases, the Model Penal Code (MPC) and, finally, through an in-depth analysis of the Erdemovic case before the ICTY Appeals Chamber discussed in the introduction. Part II then discusses “duress” under Article 31 of the Rome Statute and includes a survey of the Article’s drafting history, a statutory analysis of Article 31, and an application of the ICC definition of “duress” to the Erdemovic set of facts. This Part highlights the unjust result that inevitably occurs under the current definition. Part III proposes a revised definition of duress for the ICC to adopt that would rest on principles of moral culpability and better comport with historical understandings of what an excuse defense is under criminal law. Part III concludes with an application of the proposed revision to Article 31 to the Erdemovic facts and analyzes why the proposed revision leads to a more just result. Finally, the paper concludes briefly in Part IV with a summary of the current shortcomings of Article 31 and a restatement of why this issue is of critical importance given the ICC’s potentially vast power to handle and direct international criminal law. An organ with broad potential powers must be sincere in its efforts not only to punish and prevent the most heinous international crimes but also to ensure that fundamental justice is done for both the victims and the accused.

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