Book

Thèse

To the defence of duress : Erdemovic and the common law exception for unlawful killings revisited

Saklaine Hedaraly

[S. l.] : [s. n.], October 2006

57 f. ; 30 cm

English

Master's thesis, Centre Universitaire de Droit International Humanitaire, Geneva, 2006. Bibliographie : p. 53-57.

This thesis critically analyzes the defence of duress in international criminal law. It first provides a comprehensive framework for the defence of duress by delineating its scope of application, and carefully distinguishing it from related defences such as necessity, superior orders, and self-defence. For example, although necessity and duress are historically and theoretically different (particularly in civil law traditions), it will be shown that for all intents and purposes this difference doesn't really exist in common law, and that it shouldn't necessarily survive in international criminal law either. This thesis also discusses the applicability of duress in cases of unlawful killings, with detailed analysis of common law domestic cases where the defence si inapplicable, as well as a in-depth look at the ICTY's Erdemovic judgment. Both the majority's dogmatic and absolute approach and the minority's emphasis on whether the fate of the victim was sealed before the conduct occurred is misplaced, and a new approach providing enhanced requirements will be presented.