Written by Noam Wiener.
Noam Wiener has recently defended his doctoral dissertation at the University of Michigan Law School and is a legal officer at the United Nations Office of Legal Affairs. In the past, Noam has worked for the firm of Allen & Overy LLP in New York, clerked at the International Court of Justice at the Hague, and practiced at a human rights litigation boutique in his native Israel.
Noam’s article on Excuses, Justifications, and Duress in International Criminal Law focuses on the role of choice and free will in the application of duress as a defense in international criminal tribunals. The article explores various methods for approaching the defense of duress, from retributivist and consequentialist perspectives, and as an excuse or a justification. After concluding that duress is best applied as an excuse, the article criticizes the application of duress by the appeals chamber of the International Criminal Tribunal for the Former Yugoslavia in the Erdemović case. The article argues that the judges did not sufficiently investigate Erdemović’s ability to freely exercise his will when he was threatened with immediate death should he refuse to murder innocent civilians. Thus, the judges’ decision to convict Erdemović was not based on Erdemović’s guilt (or lack thereof), but on the deterrent effect of their judgment.
This article is part of a larger project in which Noam advocates approaching international criminal law from a retributive perspective, and provides a deliberative deontological framework for resolving dilemmas at different junctures of the international criminal process.