Child Soldiers and the Defence of Duress under International Criminal Law

This book investigates the use of duress as a defence in international criminal law, specifically in cases of child soldiers. The prosecution of children for international crimes often only focuses on whether children can and should be prosecuted under international law. However, it is rarely considered what would happen to these children at the trial stage. This work offers a nuanced approach towards international prosecution and considers how children could be implicated and defended in international courts. This study will be of interest to academics and practitioners working in international criminal law, transitional justice and children's rights. Windell Nortje is Associate Lecturer in the Law Faculty at the University of the Western Cape, South Africa. Noëlle Quénivet is Associate Professor in International Law at the Bristol Law School, University of the West of England, UK. Preface 5 Acknowledgements 7 Contents 8 About the Authors 9 Abbreviations 10 Chapter 1: Introduction 14 References 27 Chapter 2: Duress as a Defence Under International Criminal Law 33 1 Introduction 33 2 Defences in International Criminal Law 34 3 Duress: Justification or Excuse in National Criminal Law 36 4 Duress: Justification or Excuse in the Jurisprudence of International Criminal and Hybrid Tribunals 38 5 The Relevance of the ICC Statute in Ascertaining the Requirements of Duress Under International Criminal Law 42 6 Conclusion 46 References 53 Chapter 3: The Application of the Requirements of Duress to Child Soldiers 60 1 Introduction 60 2 Death or Serious Bodily—Physical, and Not Psychological, Harm 63 3 Immediacy of the Harm 65 4 Intention to Avert a Threat 69 5 Proportionality: Necessary and Reasonable—Greater Harm 75 6 Conclusion 80 References 88 Chapter 4: Limits of, and Exclusions from, the Defence of Duress 98 1 Introduction 98 2 Cases of Special Duty to Assume Danger 99 3 Voluntary—Free of Fault 103 4 Conclusion 108 References 113 Chapter 5: Duress as an Excuse Defence for International Crimes 120 1 Introduction 120 2 Understanding the Wrongful Conduct 121 3 Focus on the Actor 126 4 Proportionality, and Not a Balance of Harms, Test 132 5 A Full Defence 136 6 Conclusion 138 References 146 Chapter 6: Conclusion 156 References 163 Index 165 Présentation de l'éditeur : "This book investigates the use of duress as a defence in international criminal law, specifically in cases of child soldiers. The prosecution of children for international crimes often only focuses on whether children can and should be prosecuted under international law. However, it is rarely considered what would happen to these children at the trial stage. This work offers a nuanced approach towards international prosecution and considers how children could be implicated and defended in international courts. This study will be of interest to academics and practitioners working in international criminal law, transitional justice and children's rights." Front Matter ....Pages i-xvi Introduction (Windell Nortje, Noëlle Quénivet)....Pages 1-19 Duress as a Defence Under International Criminal Law (Windell Nortje, Noëlle Quénivet)....Pages 21-47 The Application of the Requirements of Duress to Child Soldiers (Windell Nortje, Noëlle Quénivet)....Pages 49-86 Limits of, and Exclusions from, the Defence of Duress (Windell Nortje, Noëlle Quénivet)....Pages 87-108 Duress as an Excuse Defence for International Crimes (Windell Nortje, Noëlle Quénivet)....Pages 109-144 Conclusion (Windell Nortje, Noëlle Quénivet)....Pages 145-153 Back Matter ....Pages 155-160