杀抑或被杀:胁迫是否是国际刑法的抗辩事由——以著名的Erdemovi案为分析视角

Kill or Be Killed: Another Look at Erdemovic Case

Drazen Erdemovi案引发了一个问题:一个士兵射杀了大量的平民,因为如果他不执行非法的命令,他的上司就威胁要杀了他,他是否能够凭借受到胁迫为自己抗辩?这个问题已经在国际刑事法庭及以外引起了很大争议,前南斯拉夫法官Antonio Cassese参与了最前沿的辩论。笔者结论是:受胁迫是否成立正当的抗辩事由或者宽恕事由取决于情节,但这也同时取决于Drazen Erdemovi主张的事实。

The case of Draz en Erdemovi6 raises the question whether a soldier may rely on the defence of duress if he shoots a large number of civilians because his superior has threatened to kill him if he does not carry out that unlawful command. This problem has engendered much controversy within the International Criminal Tribunal for the former Yugoslavia and beyond, with Judge Antonio Cassese at the forefront of the debate. The author comes to the conclusion that duress may, depen ding on the circumstances, provide a justification as well as an excuse, but that it depends on issues of fact whether Draz en Erdemovi6 could have claimed either.