Case No. UKUT-00376-(IAC)

Erdemovic (IT-96-22) 7 June 1997” 43. It seems to us that there is an obvious contradiction between the statement in the ICC Statute that criminal responsibility shall not attach to an individual who acts under duress, and the respondent’s proposition that duress is not a complete defence in international criminal law but only constitutes mitigation. It would have been helpful had the Secretary of State provided us with the analysis , or reasoning which led to her conclusion on this matter. No further amplification is provided in the letter giving reasons for refusal and Ms Isherwood was not able to advance the matter either. We offer no criticism of her in this respect, the effect of duress is something which has troubled many domestic courts throughout the world, as can be seen from the comprehensive review conducted by the Appeal Chamber in Erdemovic of the way duress is treated in other jurisdictions. As Judges McDonald and Vohrah observed in their joint opinion at paragraph 66: “On the one hand, a large number of jur isdictions recognise duress as a complete defence absolving the accused from all criminal responsibility. On the other hand, in ot her jurisdictions, duress does not afford a complete defence to offenc es generally but serves merely as a factor which would mitigate the punishment to be imposed on a convicted person.” In the end, the majority judges seem to have been influenced by the prevailing view in the common-law jurisdictions that duress operated as a defence to any crime except that of murder. 44. Nevertheless, if it is the Secretary of State’s view that the case of Erdemovic supplies the governing jurisprudence in circumstances concerning the application of a rticle 1F(a) of the Refugee Convention where duress arises, then this is a matter of some importance. We shall require to consider it unaided. 45. Any consideration of the import of the Appeal Chamber decision in Erdemovic has to begin by acknowledging the extent of the differences in reasoning and conclusion as between the five judges. The court decided by a majority of three to two that duress does not afford a complete defence to a soldier charged with a crime against humanity and/or a war crime involving the killing of innocent human beings. At page 662 of the Oxford Companion to International Criminal Justice , published in 2009 , the case is described as one which: “Stands out for the sincere, transparent and therefore most stimulating attempt of five app ellate judges to cope with the fundamental methodological p roblem of how to determine the applicable law where the sources of int ernational law do not in their entirety provided for a clear cut answer.” 46. The extent of the differing conclusions which the appellate judges arrived at is striking and a flavour of this can be seen from the dissenting judgement of the President, Judge Cassese, when he stated at paragraph 11 of his opinion: “On the strength of interna tional principles and rules my conclusions on duress different widely fro m those of the majority of the Appeals Chamber”. Judge Cassese went on to explain that in hi s opinion duress was capable of providing a defence in international criminal law for crimes involving the killing of innocent persons, but that the defen ce was subject to the stringent requirements which he itemised. Unlike the majorit y, he seems to have been influenced by the thinking reflected in the civil la w jurisdictions in which duress was accepted as a defence to any crime. 47. If the majority view was to be taken as reflecting the applicable law two questions would immediately arise. The first concerns whether the case has general application, or whether it only applies to a restricted category of individuals. The majority judges who ruled that duress did not constitute a defence expressly narrowed the issue for their decision to the specific one of a serving soldier who killed innocent civilians – see paragraph numbers 41 and 88 of the Joint Separate Opinion of Judges McDonald and Vohrah . The reason why the judges looked at the matter through such a narrow prism is set out in paragraph 84 of the opinion , which is in the following terms: “84. Secondly, as we have confined the scope of our inquiry to the question whether duress affords a complete defence to a soldier charged with killing innocent persons, we are of the view that soldiers or combatants are expected to exercise fortitude and a greater degree of resistance to a threat than civilians, at least when it is their own lives which are being threatened. Soldi ers, by the very nature of the ir occupation, must have envisaged the p ossibility of violent death in pursuance of the cause for which the y fig ht. The relevant question must therefore be framed in terms of what may be expected from the ordinary soldier in the situation of the Appellant. What is to be expected of such an ordinary soldier is not, by our approach, analysed in terms of a utilitarian approach invol ving the weighing up of harms. Rather, it is based on the proposition tha t it is un acceptable to allow a trained fighter, whose job necess arily entails the occupational hazard of dying, to avail himself of a complete defence to a crime in which he killed one or more innocent persons.” 48. Since these were at least some of the considerations which weighed with the majority judges in arriving at the decision which they did , one might legitimately ask why the conclusion on the issue of duress which they arrived at ought to apply to civilians? The Secretary of State has provided us with no answer. 49. The second question which arises is this. Even if the import of the case extends beyond the narrow category of soldiers or combatants, does Erd e movic only govern cases involving crimes against humanity involving the killing of innocent human beings, or does it also govern cases where this crime is committed by the act of torture, such as is founded upon in the present case? Again we have no guidance. This question would be of importance given that the dominant common law jurisdictions influencing the majority opinion only exclude the crime of murder from the defence of duress. 50. Whilst it seems to us that the two questions we have identified would need to be answered satisfactorily before we could give effect to the submission that Erdemovic provides the governing law for our purposes , there is another even more fundamental question to be addressed concerning the applicability of this case. Since it is agreed that the ICC Statute is the governing international instrument , what relevance does the case of Erd e movic have for us in assessing the issue of duress under any circumstances? 51. The case of Erdemovic was prosecuted before the International Criminal Tribunal for the former Yugoslavia . The Tribunal was bound by the terms of its own Statute, which was adopted in May 1993. That Statute says nothing about the issue of duress. The question in Erdemovic came before the Appeal Chamber in 1997 and since the applicable statute was silent on the issue , the court sought to find an answer to whether duress would provide a complete defence by drawing on the sources of international law. 52. However matters moved on. The ICC Statute was adopted in July 1998, after many years of discussion and compromise, and it entered into force on 1 July 2002. Unlike the circumstances with which the judges had to grapple in the case of Erdemovic , a definition of the concept of duress is now given in the binding international instrument, along with a statement that an individual who acts under duress shall not be criminally responsible. As Professor Schabas observed in his 1998 article on General Principles of Criminal Law in the International Criminal Court Statute (6 EUR.J.Crime.L & Crim.J .): “The fourth and final defence enumerated in Article 31 is duress. An exhaustive judgement of the Appeals Chamber of the International Criminal Tribunal for the former Yugosl avia , in 1996, determined by a majority of three to two, that duress is not admissible as a defence to crimes against humanity. The conse quence of the provision in the Rome Statute is to set aside the judgement of the Court.” 53. A similar observation can be found in chapter 24.4 of Volume I of The Rome Statute of the International Criminal Court: A Commentary, edited by Cassese and others (published in 2002), at page 1044. There it is noted that the remaining question is no longer whether duress can be invoked in the case of the killing of innocent persons, but what the requirements of such a defence are. It is also noted that Judge Cassese’s dissenting opinion in Erdemovic in effect became the mode l for the terms of Article 31 paragraph 3 (d) of the ICC Statute. A detailed discussion of the nature and requirements of the “defence” is given in Triffterer and Ambos – The Rome Statute of the International Criminal Court: A Commentary (3rd edition 2015) at pages 1149 – 1154. 54. In light of the plain words of the ICC Statute, and the commentaries referred to above, we cannot accept that the Secretary of State’s undeveloped reference to the case of Erdemovic permits us to give weight to her submission that duress is not a complete defence in international criminal law. We therefore propose to determine this case in the following ways. First, upon the understanding that the appellant would be entitled to challenge the Secretary of State’s conclusion that she was excluded from the protection of the Refugee Convention by arguing that she was acting under duress . Secondly, upon the understanding that if the appellant was acting under duress, as properly understood, she would be entitled to succeed in her appeal. 55. The view just explained of course leads into questions of burden of proof, as presaged by the High Court’s observations in granting permission to proceed in the Judicial Review. Once again , the Secretary of Sta te’s position is somewhat stark . It is of course correct to say that it is for the court to adjudicate upon the question of whether a defence applies but we do not think it is correct to characterise the role of the ICC as inquisitorial. The ICC would adjudicate , as the domestic court does, on the basis of the information brought before it by the prosecuting authority and in the context of the burden of proof resting on the prosecutor. 56. In our own domestic criminal procedure a defence of duress (where available) is treated no differently from any other defence. There is an evidential burden resting on the accused to raise or engage the defence but if this is done the persuasive burden of satisfying the court that the defence should be rejected remains with the prosecutor –