41. […] The general rule under discussion is well established in international law and is based on the sovereign equality of States (par in parem non habet imperium). The few exceptions relate to one particular consequence of the rule. These exceptions arise from the norms of international criminal law prohibiting war crimes, crimes against humanity and genocide. Under these norms, those responsible for such crimes cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity. […]

See also para. 38.

26. […] [I]t is self-evident that the International Tribunal, in order to bring to trial persons living under the jurisdiction of sovereign States, not being endowed with enforcement agents of its own, must rely upon the cooperation of States. The International Tribunal must turn to States if it is effectively to investigate crimes, collect evidence, summon witnesses and have indictees arrested and surrendered to the International Tribunal. The drafters of the Statute realistically took account of this in imposing upon all States the obligation to lend cooperation and judicial assistance to the International Tribunal. This obligation is laid down in Article 29[1] and restated in paragraph 4 of Security Council resolution 827 (1993)[2]. Its binding force derives from the provisions of Chapter VII and Article 25 of the United Nations Charter and from the Security Council resolution adopted pursuant to those provisions. The exceptional legal basis of Article 29 accounts for the novel and indeed unique power granted to the International Tribunal to issue orders to sovereign States (under customary international law, States, as a matter of principle, cannot be “ordered” either by other States or by international bodies). Furthermore, the obligation set out - in the clearest of terms - in Article 29 is an obligation which is incumbent on every Member State of the United Nations vis-à-vis all other Member States. The Security Council, the body entrusted with primary responsibility for the maintenance of international peace and security, has solemnly enjoined all Member States to comply with orders and requests of the International Tribunal. The nature and content of this obligation, as well as the source from which it originates, make it clear that Article 29 does not create bilateral relations. Article 29 imposes an obligation on Member States towards all other Members or, in other words, an “obligation erga omnes partes”[3]. By the same token, Article 29 posits a community interest in its observance. In other words, every Member State of the United Nations has a legal interest in the fulfilment of the obligation laid down in Article 29[4] (on the manner in which this legal interest can be exercised, see below, paragraph 36).

As for States which are not Members of the United Nations, in accordance with the general principle embodied in Article 35 of the Vienna Convention on the Law of Treaties[5], they may undertake to comply with the obligation laid down in Article 29 by expressly accepting the obligation in writing. […]

See also paras 27-29.

25. The Appeals Chamber holds the view that the term “subpoena” (in the sense of injunction accompanied by threat of penalty) cannot be applied or addressed to States. This finding rests on two grounds.

First of all, the International Tribunal does not possess any power to take enforcement measures against States. Had the drafters of the Statute intended to vest the International Tribunal with such a power, they would have expressly provided for it. In the case of an international judicial body, this is not a power that can be regarded as inherent in its functions[1]. Under current international law States can only be the subject of countermeasures taken by other States or of sanctions visited upon them by the organized international community, i.e., the United Nations or other intergovernmental organizations.

Secondly, both the Trial Chamber^[] and the Prosecutor^[] have stressed that, with regard to States, the ‘penalty’ attached to a subpoena would not be penal in nature. Under present international law it is clear that States, by definition, cannot be the subject of criminal sanctions akin to those provided for in national criminal systems.

With regard to States, the Appeals Chamber therefore holds that the term “subpoena” is not applicable and that only binding “orders” or “requests” can be addressed to them.

58. The Appeals Chamber holds the view that, normally, the International Tribunal should turn to the relevant national authorities to seek remedies or sanctions for non-compliance by an individual with a subpoena or order issued by a Judge or a Trial Chamber. Legal remedies or sanctions put in place by the national authorities themselves are more likely to work effectively and expeditiously. However, allowance should be made for cases where resort to national remedies or sanctions would not prove workable. This holds true for those cases where, from the outset, the International Tribunal decides to enter into direct contact with individuals, at the request of either the Prosecutor or the defence, on the assumption that the authorities of the State or Entity would either prevent the International Tribunal from fulfilling its mission (see above, paragraph 55) or be unable to compel a State official to comply with an order issued under Article 29 (see above, the case mentioned in paragraph 51). […]

59. The remedies available to the International Tribunal range from a general power to hold individuals in contempt of the International Tribunal (utilising the inherent contempt power […]) to the specific contempt power provided for in Rule 77. […] [I]n absentia proceedings may be exceptionally warranted in cases involving contempt of the International Tribunal, where the person charged fails to appear in court, thus obstructing the administration of justice. These cases fall within the ancillary or incidental jurisdiction of the International Tribunal.

If such in absentia proceedings were to be instituted, all the fundamental rights pertaining to a fair trial would need to be safeguarded. Among other things, although the individual’s absence would have to be regarded, under certain conditions, as a waiver of his “right to be tried in his presence”, he should be offered the choice of counsel. The Appeals Chamber holds the view that, in addition, other guarantees provided for in the context of the European Convention on Human Rights should also be respected[1].

32. […] Any request for an order for production of documents issued under Article 29, paragraph 2, of the Statute, whether before or after the commencement of a trial, must:

(i) identify specific documents and not broad categories. In other words, documents must be identified as far as possible and in addition be limited in number. […] [W]here the party requesting the order for the production of documents is unable to specify the title, date and author of documents, or other particulars, this party should be allowed to omit such details provided it explains the reasons therefor, and should still be required to identify the specific documents in question in some appropriate manner. The Trial Chamber may consider it appropriate, in view of the spirit of the Statute and the need to ensure a fair trial referred to in Rule 89 (B) and (D), to allow the omission of those details if it is satisfied that the party requesting the order, acting bona fide, has no means of providing those particulars;

(ii) set out succinctly the reasons why such documents are deemed relevant to the trial; if that party considers that setting forth the reasons for the request might jeopardise its prosecutorial or defence strategy it should say so and at least indicate the general grounds on which its request rests;

(iii) not be unduly onerous. As already referred to above, a party cannot request hundreds of documents, particularly when it is evident that the identification, location and scrutiny of such documents by the relevant national authorities would be overly taxing and not strictly justified by the exigencies of the trial; and

(iv) give the requested State sufficient time for compliance; this of course would not authorise any unwarranted delays by that State. Reasonable and workable deadlines could be set by the Trial Chamber after consulting the requested State.

[ON 17 NOVEMBER 1999, RULE 54BIS WAS ADOPTED.]

40. […] It is known omnibus lippis et tonsoribus that the international community lacks any central government with the attendant separation of powers and checks and balances. In particular, international courts, including the International Tribunal, do not make up a judicial branch of a central government. The international community primarily consists of sovereign States; each jealous of its own sovereign attributes and prerogatives, each insisting on its right to equality and demanding full respect, by all other States, for its domestic jurisdiction. Any international body must therefore take into account this basic structure of the international community. It follows from these various factors that international courts do not necessarily possess, vis-à-vis organs of sovereign States, the same powers which accrue to national courts in respect of the administrative, legislative and political organs of the State. Hence, the transposition onto the international community of legal institutions, constructs or approaches prevailing in national law may be a source of great confusion and misapprehension. In addition to causing opposition among States, it could end up blurring the distinctive features of international courts.

19. For the reasons set out in the Joint Separate Opinion of Judge McDonald and Judge Vohrah and in the Separate and Dissenting Opinion of Judge Li, the majority of the Appeals Chamber finds that duress does not afford a complete defence to a soldier charged with a crime against humanity and/or a war crime involving the killing of innocent human beings. 

The Joint Separate Opinion of Judge McDonald and Judge Vohrah sets out the reasons as follows:

34. Superior orders and duress are conceptually distinct and separate issues and often the same factual circumstances engage both notions, particularly in armed conflict situations.  We subscribe to the view that obedience to superior orders does not amount to a defence per se but is a factual element which may be taken into consideration in conjunction with other circumstances of the case in assessing whether the defences of duress or mistake of fact are made out.

35. […] As obedience to superior orders may be considered merely as a factual element in determining whether duress is made out on the facts, the absence of a superior order does not mean that duress as a defence must fail.

36. […] [W]e would like to reiterate our view that obedience to superior orders is merely a factual circumstance to be considered when determining whether the defence of duress is made out on the merits.  The fact that the Appellant obeyed an order of a superior does not go to the preceding legal question of whether duress may at all be pleaded as a defence.

In order to decide on the international customary law nature of duress as a defence to the killing of innocent persons, the Joint Separate Opinion of Judge McDonald and Judge Vohrah carried out a review of the case-law, state practice and opinio juris in paragraphs 41 to 49 of their Joint Opinion and concluded:

50. Not only is State practice on the question as to whether duress is a defence to murder far from consistent, this practice of States is not, in our view, underpinned by opinio juris.  Again to the extent that state practice on the question of duress as a defence to murder may be evidenced by the opinions on this question in decisions of national military tribunals and national laws, we find quite unacceptable any proposition that States adopt this practice because they “feel that they are conforming to what amounts to a legal obligation” at an international level[1].

55. In light of the above discussion, it is our considered view that no rule may be found in customary international law regarding the availability or the non-availability of duress as a defence to a charge of killing innocent human beings.  The post-World War Two military tribunals did not establish such a rule.  We do not think that the decisions of these tribunals or those of other national courts and military tribunals constitute consistent and uniform state practice underpinned by opinio juris sive necessitatis.

The Joint Separate Opinion of Judge McDonald and Judge Vohrah then analysed the general principles of law recognised by civilised nations in order to shed light to the issue of duress in paragraphs 56 to 65 and concluded that:

66.        Having regard to the above survey relating to the treatment of duress in the various legal systems, it is, in our view, a general principle of law recognised by civilised nations that an accused person is less blameworthy and less deserving of the full punishment when he performs a certain prohibited act under duress.  We would use the term “duress” in this context to mean “imminent threats to the life of an accused if he refuses to commit a crime” and do not refer to the legal terms of art which have the equivalent meaning of the English word “duress” in the languages of most civil law systems.  This alleviation of blameworthiness is manifest in the different rules with differing content in the principal legal systems of the world as the above survey reveals.  On the one hand, a large number of jurisdictions recognise duress as a complete defence absolving the accused from all criminal responsibility. On the other hand, in other jurisdictions, duress does not afford a complete defence to offences generally but serves merely as a factor which would mitigate the punishment to be imposed on a convicted person.  Mitigation is also relevant in two other respects.  Firstly, punishment may be mitigated in respect of offences which have been specifically excepted from the operation of the defence of duress by the legislatures of some jurisdictions.  Secondly, courts have the power to mitigate sentences where the strict elements of a defence of duress are not made out on the facts.

It is only when national legislatures have prescribed a mandatory life sentence or death penalty for particular offences that no consideration is given in national legal systems to the general principle that a person who commits a crime under duress is less blameworthy and less deserving of the full punishment in respect of that particular offence.

67.        The rules of the various legal systems of the world are, however, largely inconsistent regarding the specific question whether duress affords a complete defence to a combatant charged with a war crime or a crime against humanity involving the killing of innocent persons.  As the general provisions of the numerous penal codes set out above show, the civil law systems in general would theoretically allow duress as a complete defence to all crimes including murder and unlawful killing.  On the other hand, there are laws of other legal systems which categorically reject duress as a defence to murder.   Firstly, specific laws relating to war crimes in Norway and Poland do not allow duress to operate as a complete defence but permit it to be taken into account only in mitigation of punishment.  Secondly, the Ethiopian Penal Code of 1957 provides in Article 67 that only “absolute physical coercion” may constitute a complete defence to crimes in general.  Where the coercion is “moral”, which we would interpret as referring to duress by threats, the accused is only entitled to a reduction of penalty.  This reduction of penalty may extend, where appropriate, even to a complete discharge of the offender from punishment.  Thirdly,  the common law systems throughout the world, with the exception of a small minority of jurisdictions of the United States which have adopted without reservation Section 2.09 of the United States Model Penal Code, reject duress as a defence to the killing of innocent persons. 

72. It is clear from the differing positions of the principal legal systems of the world that there is no consistent concrete rule which answers the question whether or not duress is a defence to the killing of innocent persons.  It is not possible to reconcile the opposing positions and, indeed, we do not believe that the issue should be reduced to a contest between common law and civil law. We would therefore approach this problem bearing in mind the specific context in which the International Tribunal was established, the types of crimes over which it has jurisdiction, and the fact that the International Tribunal’s mandate is expressed in the Statute as being in relation to “serious violations of international humanitarian law”.

See also paragraphs 68–71.

After concluding that it is not possible to reconcile the opposing positions of the principal legal systems of the world on the question whether or not duress is a defence to the killing of innocent persons, Judge McDonald and Judge Vohrah held:

72. […] We would therefore approach this problem bearing in mind the specific context in which the International Tribunal was established, the types of crimes over which it has jurisdiction, and the fact that the International Tribunal’s mandate is expressed in the Statute as being in relation to “serious violations of international humanitarian law”.

75. […] The purview of the International Tribunal relates to war crimes and crimes against humanity committed in armed conflicts of extreme violence with egregious dimensions.  We are not concerned with the actions of domestic terrorists, gang-leaders and kidnappers.  We are concerned that, in relation to the most heinous crimes known to humankind, the principles of law to which we give credence have the appropriate normative effect upon soldiers bearing weapons of destruction and upon the commanders who control them in armed conflict situations.  The facts of this particular case, for example, involved the cold-blooded slaughter of 1200 men and boys by soldiers using automatic weapons.  We must bear in mind that we are operating in the realm of international humanitarian law which has, as one of its prime objectives, the protection of the weak and vulnerable in such a situation where their lives and security are endangered. Concerns about the harm which could arise from admitting duress as a defence to murder were sufficient to persuade a majority of the House of Lords and the Privy Council to categorically deny the defence in the national context to prevent the growth of domestic crime and the impunity of miscreants.  Are they now insufficient to persuade us to similarly reject duress as a complete defence in our application of laws designed to take account of humanitarian concerns in the  arena of brutal war, to punish perpetrators of crimes against humanity and war crimes, and to deter the commission of such crimes in the future?   If national law denies recognition of duress as a defence in respect of the killing of innocent persons, international criminal law can do no less than match that policy since it deals with murders often of far greater magnitude.  If national law denies duress as a defence even in a case in which a single innocent life is extinguished due to action under duress, international law, in our view, cannot admit duress in cases which involve the slaugher of innocent human beings on a large scale.  It must be our concern to facilitate the development and effectiveness of international humanitarian law and to promote its aims and application by recognising the normative effect which criminal law should have upon those subject to them.  Indeed, Security Council resolution 827 (1993) establishes the International Tribunal expressly as a measure to “halt and effectively redress” the widespread and flagrant violations of international humanitarian law occurring in the territory of the former Yugoslavia and to contribute thereby to the restoration and maintenance of peace.

80. […] The approach we take does not involve a balancing of harms for and against killing but rests upon an application in the context of international humanitarian law of the rule that duress does not justify or excuse the killing of an innocent person.  Our view is based upon a recognition that international humanitarian law should guide the conduct of combatants and their commanders.  There must be legal limits as to the conduct of combatants and their commanders in armed conflict.  In accordance with the spirit of international humanitarian law, we deny the availability of duress as a complete defence to combatants who have killed innocent persons.  In so doing, we give notice in no uncertain terms that those who kill innocent persons will not be able to take advantage of duress as a defence and thus get away with impunity for their criminal acts in the taking of innocent lives.

88. After the above survey of authorities in the different systems of law and exploration of the various policy considerations which we must bear in mind, we take the view that duress cannot afford a complete defence to a soldier charged with crimes against humanity or war crimes in international law involving the taking of innocent lives.  We do so having regard to our mandated obligation under the Statute to ensure that international humanitarian law, which is concerned with the protection of humankind, is not in any way undermined.

See also paras. 73-74, 75 (part not cited above), 76-79, 80 (part not cited above), 81-87.

In his Separate and Dissenting Opinion Judge Li stated the following:

5. From a study of decisions [of the United States Military Tribunals at Nürnberg in proceedings under the Control Council Law No. 10 and those of Military Tribunals and/or Courts set up by various other allied countries for the same purpose for the same purpose] the following principles can be obtained:  as a general rule, duress can be a complete defence if the following requirements are met, (a) the act was done to avoid an immediate danger both serious and irreparable, (b) there was no other adequate means to escape, and (c) the remedy was not disproportionate to evil.  To this general rule there is an important exception:  if the act was a heinous crime, for instance, the killing of innocent civilians or prisoners of war, duress cannot be a complete defence, but can only be a ground of mitigation of punishment if justice requires.

8. In my view, both the rule and the exception are reasonable and sound, and should be applied by this International Tribunal. However, as this appeal case is concerned with the applicability of the exception, a few more words should be said about it.

In the first place, the main aim of international humanitarian law is the protection of innocent civilians, prisoners of war and other persons hors de combat.  As the life of an innocent human being is the sine qua non of his existence, so international humanitarian law must strive to ensure its protection and to deter its destruction.  Admission of duress as a complete defence or justification in the massacre of innocent persons is tantamount to both encouraging the subordinate under duress to kill such persons with impunity instead of deterring him from committing such a horrendous crime, and also helping the superior in his attempt to kill them.  Such an anti-human policy of law the international community can never tolerate, and this International Tribunal can never adopt.

Second, the present municipal laws of various countries regarding the propriety or necessity of recognising the exception to the rule, as shown above, are divergent.  On the one hand, the legal systems of the British Commonwealth and some civil-law systems admit the exception.  On the other hand, some other civil-law systems do not provide for it.  In such circumstances, this International Tribunal cannot but opt for the solution best suited for the protection of innocent persons.

See also paras. 3-4, 6-7 and 9-10 of the Separate and Dissenting Opinion of Judge Li.

18. The Appeals Chamber, for the reasons set out in the Joint Separate Opinion of Judge McDonald and Judge Vohrah, unanimously finds that the Appellant’s plea was voluntary.

19. […] [T]he majority of the Appeals Chamber finds that the guilty plea of the Appellant was not equivocal. […]

20. […] The Appeals Chamber, for the reasons set out in the Joint Separate Opinion of Judge McDonald and Judge Vohrah, finds that the guilty plea of the Appellant was not informed and accordingly remits the case to a Trial Chamber other than the one which sentenced the Appellant in order that he be given an opportunity to replead. […]

The Joint Separate Opinion of Judge McDonald and Judge Vohrah found that for a guilty plea to be entered, certain pre-conditions must be satisfied:

 8. […]  It follows, therefore, that certain pre-conditions must be satisfied before a plea of guilty can be entered. In our view, the minimum  re-conditions are as follows:

a)     The guilty plea must be voluntary.  It must be made by an accused who is mentally fit to understand the consequences of pleading guilty and who is not affected by any threats, inducements or promises.

b)     The guilty plea must be informed, that is, the accused must understand the nature of the charges against him and the consequences of pleading guilty to them.  The accused must know to what he is pleading guilty;

c)     The guilty plea must not be equivocal.  It must not be accompanied by words amounting to a defence contradicting an admission of criminal responsibility;

10. […] Voluntariness involves two elements.  Firstly, an accused person must have been mentally competent to understand the consequences of his actions when pleading guilty.  […] Secondly, the plea must not have been the result of any threat or inducement other than the expectation of receiving credit for a guilty plea by way of some reduction of sentence. 

13. […] Although it appears that the Appellant did not in his reply address the question whether he was promised anything for his plea, in the absence of any suggestion that the plea was improperly solicited, we would find that the Appellant pleaded guilty voluntarily whilst he was mentally competent to comprehend the consequences of his so pleading.

14. The fact that the Appellant was mentally competent to comprehend the consequences of pleading guilty does not necessarily mean that the plea was “informed”.  Indeed, all common law jurisdictions insist that an accused who pleads guilty must understand the nature and consequences of his plea and to what precisely he is pleading guilty[1].  […] In respect of the present case, an informed plea would require that the Appellant understand (a)   the nature of the charges against him and the consequences of pleading guilty generally; and (b) the nature and distinction between the alternative charges and the consequences of pleading guilty to one rather than the other.

15. […] We feel unable to hold with any confidence that the Appellant was adequately informed of the consequences of pleading guilty by the explanation offered during the initial hearing.  It was not clearly intimated to the Appellant that by pleading guilty, he would lose his right to a trial, to be considered innocent until proven guilty and to assert his innocence and his lack of criminal responsibility for the offences in any way.  It was explained to the Appellant that, if he pleaded not guilty he would have to contest the charges, whereas, if he pleaded guilty he would be given the opportunity of explaining the circumstances under which the offence was committed.

16.        Moreover, it appears to us that defence counsel consistently advanced arguments contradicting the admission of guilt and criminal responsibility implicit in a guilty plea.  If the defence had truly understood the nature of a guilty plea, it would not have persisted in its arguments which were obviously at odds with such a plea. […]  

19. […] With respect, the difference between a crime against humanity and a war crime was not adequately explained to the Appellant by the Trial Chamber at the initial hearing nor was there any attempt to explain the difference to him at any later occasion when the Appellant reaffirmed his plea.  […]

We have, accordingly, no doubt that the misapprehension regarding the true distinction between the two alternative charges led the Appellant to plead guilty to the more serious of the two charges, that is, the charge alleging the crime against humanity. 

26. […] There is nothing on the record to show that anyone, either defence counsel or the Trial Chamber, had explained to the Appellant that a crime against humanity is a more serious crime and that if he had pleaded guilty to the alternative charge of a war crime he could expect a correspondingly lighter punishment. […]

31. Whether a plea of guilty is equivocal must depend on a consideration, in limine, of the question whether the plea was accompanied or qualified by words describing facts which establish a defence in law.  The Appellant pleaded guilty but claimed that he acted under duress.  It follows therefore that we must now examine whether duress can constitute a complete defence to the killing of innocent persons.

70. [A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there. […]

141. It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict. Indeed, as the Prosecutor points out, customary international law may not require a connection between crimes against humanity and any conflict at all. Thus, by requiring that crimes against humanity be committed in either internal or international armed conflict, the Security Council may have defined the crime in Article 5 [of the ICTY Statute] more narrowly than necessary under customary international law. There is no question, however, that the definition of crimes against humanity adopted by the Security Council in Article 5 comports with the principle of nullum crimen sine lege.

142. We conclude, therefore, that Article 5 may be invoked as a basis of jurisdiction over crimes committed in either internal or international armed conflicts. […]