Law of War Workshop Deskbook - Higgins Counterterrorism ...

inevitable. No Court will punish a man who, with a loaded pistol athis head, is compelled to pull a lethal lever.”(2) ICTY, Prosecutor v. Erdemovic. Duress does not afford a completedefense to a soldier charged with a crime against humanity and/or awar crime involving the killing of innocent human beings. (See alsoR.C.M. 916(h)).(a) With war crimes and crimes against humanity, large numbers ofvictims not unusual.(b) Will be considered in mitigation.(c) Even though it often coexists with the defense of superior orders, itis not the same defense.(d) It is irrelevant that the victims will die anyway.(3) International Criminal Court. Duress is a defense where:(a) Crime caused by threat of imminent death or of continuing orimminent serious bodily harm against that person or another,(b) The person acts necessarily and reasonably to avoid the treat,(c) Provided the person does not intend to cause a greater harm thanthe one sought to be avoided.e. Reprisals. Otherwise illegal acts done in response to a prior illegal act bythe enemy. Requirements must be met, and it must be properlyauthorized. See FM 27-10, & 497.f. Alibi.g. Superior Orders. See generally R.C.M. 916(d); FM 27-10, & 509; Dep’tof Navy, NWP 1-14M, Annotated Supplement to The Commander’sHandbook on the Law of Naval Operations, & 6.1.4. See Military JudgeBenchbook, Instruction, 5-8-1, Obedience to Orders - Unlawful Order.(1) This is a very limited defense:(2) The accused did not know the order was unlawful; and211Chapter 8War Crimes and Command Responsibility