For example, in Prosecutor v Erdemovic--the leading case on duress in international criminal law--the International Criminal Tribunal for the Former Yugoslavia found unanimously that where coercion is not available as a complete defence, it will still function as a significant mitigating factor that is applicable even where the most serious crimes have been committed.
Duress was claimed in twenty out of the twenty-three cases where defences were raised (with some cases raising multiple defences).
In Ramirez, the Federal Court of Appeal relied heavily on academic sources interpreting international criminal law to define the doctrinal contours of the defence of duress, (65) while in Equizabal it relied on a combination of academic sources and the SCC's decision in R v Finta to define superior orders.
Traditionally, the doctrine of duress applied only when the contract was signed under physical coercion or threat.
Given that economic duress is a court-made concept, courts could also loosen or even suspend the wrongful-act requirement in the forced-arbitration context, where the equities so strongly favor the claimant.
Although the economic-duress defenses outlined above are colorable under existing law, these defenses would be nearly foolproof under the broader theories of duress that have been advanced by some feminist scholars.
Before proceeding to analyze "duress" under Article 31 of the Rome Statute in Part II, this Part will trace the historical development of duress jurisprudence through five major categories: (i) common law systems; (ii) civil law systems; (iii) World War II/IMT case law; (iv) the Model Penal Code; and (v) the Erdemovic decision of the ICTY Appeals Chamber.
The general consensus among the common law legal systems of the world is that duress cannot be used to excuse murder.
Anglo-American common law has consistently rejected the acceptance of duress as a valid murder defense.
In recent years, an increasing number of courts and legal scholars have argued for the allowance of duress as a defense to a broader range of crimes, including murder.
In addition to the evolution of duress from a contract law standpoint, the law of duress has also developed from a criminal law basis.
The law of criminal duress has become even more complicated in Canada with the advent of the Canadian Charter of Rights and Freedoms in 1982 (Charter).