The Criminal Defense of Duress: A Justification, Not an Excuse—And Why It Matters

Westen, Peter; Mangiafico, James

doi:10.1525/nclr.2003.6.2.833

Cited by 46 publications

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“…99 See Green 2008 kill many innocent victims in order to protect himself or herself from an aggressor's coercive order to kill them all or to be killed, while the civil law systems in principle admit duress as a complete defence to all crimes. 100 During the last two decades, the statutes and jurisprudence of the international criminal tribunals have greatly contributed to the development of international criminal law. 101 In the Erdemović case, the majority of the ICTY Appeals Chamber accepted the Prosecutor's argument that duress cannot afford a complete defence to a charge of crimes against humanity and war crimes involving the killing of innocent human beings.…”

Section: Necessity and Duress As Criminal Defencesmentioning

confidence: 99%

Necessity in the Law of Armed Conflict and in International Criminal Law

Venturini

2011

Netherlands Yearbook of International Law Volume 41, 2010

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Necessity performs two distinct functions in the Law of Armed Conflict. In a wider sense, it stands as a restraining principle of LOAC, permitting the use of legally regulated violence only to the extent necessary to achieve the aims of war. In a narrower sense, it operates as a circumstance precluding wrongfulness, enabling a belligerent to perform some acts that, as a rule, would be prohibited. As far as the general principle of restraint is concerned, the main debate presently regards the definition of military objective and the requirement of definite military advantage, while the permissive function of necessity in armed conflict mainly displays its effects with regard to obligations related to the protection of (public, private, cultural) property. In International Criminal Law, the plea of military necessity (or of 'the necessities of the conflict') should only justify actions undertaken by a responsible actor after a wary evaluation of the situation in the battlefield. The plea of duress, where the accused argues that in committing the acts complained of, he/she acted under an immediate threat, should be accepted with more flexibility. As concerns State Responsibility, a critical issue is represented by the relationship between military necessity and the use of force. While jus in bello must always be applied equally by belligerents, states must respect the requirements of self-defence in order to be regarded as acting lawfully under jus ad bellum. However, the legality of the use of force is irrelevant in the area of individual criminal responsibility. Those who are engaged in an armed conflict are not concerned with its legality and therefore their behaviour must be exclusively judged on the basis of the standard prescribed by LOAC.

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Section: Necessity and Duress As Criminal Defencesmentioning

confidence: 99%

Necessity in the Law of Armed Conflict and in International Criminal Law

Venturini

2011

Netherlands Yearbook of International Law Volume 41, 2010

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“…46 Fletcher (1978, p. 830ff); Dressler (1989). For an argument to the contrary see Westen and Mangiafico (2003). 47 Horder (1998).…”

Section: Characteristics and Differences Of Defences Of Necessitymentioning

confidence: 99%

“…87 Brooke LJ did not of course have this kind of case in mind. 88 Westen and Mangiafico (2003) describe such a plea as 'morally untenable' (p. 892). Brudner (1987) advocates an 'agency' theory of necessity based on a hierarchy of qualitative values which would justify the taking of blood from an unwilling donor if the battery were objectively necessary to the saving of life and imposed no real risk to the capacity for action of the victim.…”

Section: Necessity Justification and Excusementioning

confidence: 99%

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On Necessity as a Defence to Crime: Possibilities, Problems and the Limits of Justification and Excuse

Dennis

2008

Criminal Law, Philosophy

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The article reviews recent developments in England in the law of necessity as a defence to crime and calls for its further extension. It argues that the defence of necessity presents the criminal law with difficult questions of competing values and the ordering of harms. English law has taken a nuanced position on the respective roles of the courts and the legislature in the ordering of harms, although the development of the law has been pragmatic rather than coherently theorised. The law has granted necessity some scope as an exculpatory principle in the law of general defences, but it has also respected the primacy of the legislature as the legitimate arbiter of many of the competitions of value that necessity throws up. The recognition of necessity has not been in the form of a single unified defence of that name. Rather it has taken the form of a number of defences, based on a principle of necessity, but with different nomenclature and different rationales. This approach to necessity is defended as right in terms of principle and policy. Any further development of necessity as a general defence should be restricted to two contexts, namely those of emergencies, and of conflicts of duty, where a danger of death or serious injury is present.

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“…But seeWeston and Mangiafico (2003) (arguing that duress so conceived constitutes a justification defense).Crim Law and Philos (2009) 3:1-17 7…”

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confidence: 99%

Dealing with Wayward Desire

Garvey

2008

Criminal Law, Philosophy

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The exercise of synchronic self-control is the way in which an actor can attempt to bring a desire into alignment with his better judgement at the moment and during the interval of time over which, but for the exercise of such self-control, the desire would become the actor's preponderant desire, which the actor would then translate into an act contrary to his better judgment. The moral psychology of an actor who fails to achieve such self-control can be analyzed in two ways. One way is meant to be consistent with compatibilist metaphysics; the other with libertarian metaphysics. The implications of these analyses for the criminal law are complicated, but perhaps the most important is this: the criminal law should in principle recognize a partial excuse for an actor who exercises synchronic self-control but who gives up his effort because he believes that he can no longer continue to resist. His effort to achieve self-control thus fails, and he ends up translating into action the very desire he set out to control.

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The Criminal Defense of Duress: A Justification, Not an Excuse—And Why It Matters

Cited by 46 publications

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Necessity in the Law of Armed Conflict and in International Criminal Law

Necessity in the Law of Armed Conflict and in International Criminal Law

On Necessity as a Defence to Crime: Possibilities, Problems and the Limits of Justification and Excuse

Dealing with Wayward Desire

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