Under pressure: A study of the inclusion of the concept of a defence, specifically duress, in the Rome Statute

This thesis examines the way in which the concept of criminal law defences for individuals has been imported to international law and the consequences of doing so. The idea of defending one’s criminal act with a legally defined reason which removes criminal responsibility originates in national law. Self-defence is a good example of the ‘best’ kind of defence to plead: acquittal will result where serious assault, for example, was only committed against an attacker in order to save one’s life. Domestic law places restrictions on the availability of such defences, particularly where serious offences such as murder are concerned and more flexible defences, such as duress, tend to be limited in their application to more serious crimes against the person. For example, self-defence is accepted as a full defence for murder in most jurisdictions, but there is a far greater reluctance to allow duress as a full defence for murder. In some jurisdictions, duress is not even recognised as a defence in the first place. At the international level, the Rome Statute of the International Criminal Court has codified defences, directly importing a number of recognisable defences from domestic legal systems. However, the way in which this has been done is problematic: the Rome Statute was drafted to prosecute genocide, war crimes and crimes against humanity, yet it does not restrict or limit the application of any of the defences for the most serious crimes, as domestic systems tend to do. The first part to this thesis demonstrates the way in which national law has been used as a source of principles for the concept of defences, leading to the conclusion that the defences have been imported in part from domestic law. This part to the argument looks at the influence of domestic law at the international level, acknowledging it as a source of and influence on international law and demonstrates the close connection between both. It then turns to the use of domestic defences before internationalised military tribunals and the International Military Tribunals at Tokyo and Nuremberg, concluding that defences have been available but were inapplicable, given the nature and seriousness of the crimes. The codification of defences in the Rome Statute is then explored, identifying the use of domestic law at the international level. However, this use is considered problematic where the crimes are so serious and the defence of duress is identified as a particularly flexible, and thus undesirable, defence for war crimes and crimes against humanity. The second part builds on this argument by undertaking a comparative study of the defence of duress at the national level to demonstrate the lack of consensus in relation to the concept for even one charge of murder, before exploring the definition and inclusion of duress in the Rome Statute. The thesis concludes by identifying ways in which the structure of defences in the Rome Statute could be improved in order to further the aim of the creation of the International Criminal Court: the avoidance of impunity