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Journal of International Criminal Justice Advance Access originally published online on January 10, 2006
Journal of International Criminal Justice 2006 4(4):724-744; doi:10.1093/jicj/mqk001
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© Oxford University Press, 2006, All rights reserved. For permissions please email: journals.permissions@oxfordjournals.org

Duress, International Criminal Law and Literature

Illan Rua Wall*

* BCL (University College Cork), LLM in International Human Rights Law (National University of Ireland, Galway), currently teaching Human Rights and reading for a Ph.D. in legal philosophy at Birkbeck College, University of London. [ i.wall{at}law.bbk.ac.uk]

This paper uses parallels between Sophocles’ Theban Plays and the House of Lords decision in Dudley and Stephens, to question the decision in the Erdemovic case before the International Criminal Tribunal for the former Yugoslavia. One should distinguish between causal, moral and criminal responsibility. If a man who commits a crime, not by the action of his free will, is to be found guilty, we are essentially equating causal responsibility with criminal guilt. This logic clearly does not correspond with that of the rest of international criminal law. The stories of Erdemovic, Oedipus, Dudley and Stephens are tragedies. Each of the victims/perpetrators felt an overwhelming sense of remorse. Whether they should be considered morally guilty of murder is a matter of individual conscience. The International Criminal Tribunal for the Former Yugoslavia majority erred in using an absolute moral position in Erdemovic. The majority's moral condemnation of the killing of innocents was confused with the question of whether Erdemovic should have been criminally punished. The content of the majority opinion is largely of an irreproachably moralistic nature, though shrouded and mystified by the discussion of precedent. More generally, the decision to try Erdemovic at the International Criminal Tribunal for the Former Yugoslavia was itself self-defeating. Erdemovic should never have stood trial at The Hague. The international community should not aid in self-flagellation. While his actions cannot be approved of, they should not be punished internationally. He could have been helped, supported and reintegrated with far greater benefit to all.

        ‘Heroes are hard to find in an atmosphere of total terror.’1


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