Deon Dylan Fernandes, Christ (Deemed to be University)
ABSTRACT
This paper focuses on the element of Duress as defined under the Rome Statute of the International Criminal Court (“ICC”). A comparative analysis of domestic legal systems such as those in England and Wales, the United States, France, and Germany paves the way for varying interpretations of the essential ingredients of imminence within the existing framework of the duress defence. Upon further analysing certain interpretations from landmark International Criminal Law precedents like Flick, Von Leeb, Priebke, and Erdemović, certain challenges can be ascertained in applying the defence of duress, simultaneously emphasizing the importance of proportionality and the individual's ability to demonstrate a lack of choice in the face of external threats. Despite differing interpretations, moral complexities often influence judicial decisions, leading to occasional inconsistencies.
By virtue of these challenges, there exists a need for a critical re-evaluation of the imminence requirement within the duress defence while also proposing a shift in focus towards the removal of freedom of choice in duress situations. A significant way to achieve the same would be a radical shift towards a more principled alignment with a special focus on individual criminal responsibility and a clearer identification of those culpable for international crimes of a grave nature. By drawing from past experiences in international criminal tribunals, it is suggested that a reformulation of the duress defence could offer greater clarity and effectiveness within any statute designed to prosecute severe violations of international law. Ultimately, adopting a pragmatic approach to the duress defence is essential for upholding the rule of law and advancing justice on the global stage.
Keywords: Duress, Crime, International Criminal Law, Imminence, Culpability
