From a Mitigating Factor to a Complete Defense: Duress and Erdemović’s Haunting Shadow over the Rome Statute

This paper examines the trajectory of duress within international criminal law, with a particular focus on the role of the International Criminal Tribunal of the former Yugoslavia’s (ICTY) Erdemović case, having crystallised the international rules governing this issue. The focus is on the practical legal effect of duress: whether it should act as a complete defence, or a mere mitigating factor at the sentencing stage. However, the paper also touches upon theoretical debates on the dual legal nature of excuses and justifications as exculpatory grounds in criminal law, and the underpinning deontological and consequentialist stances on morality intertwined within the decisions and judicial opinions. The first section explores the conflicting conceptual basis of duress as set by the International Military Tribunal (IMT) and post-war jurisprudence. The second section focuses on the Erdemović case and analyses the contradictory approaches of both the concurring and dissenting judges. The last section sheds light on the impact of the Erdemović debate on the Rome Statute’s provision on duress. It concludes that the Rome Statute’s approach is implicitly informed by the debate on the Erdemović case and adopts the approach of the dissenting judge Cassese; highlighting points of criticism directed at the provision in its current format.