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Our faith in the law is rarely tested, since in America, at least, few of us ordinary people ever find ourselves at the extremes, confronting violence and terror. But the extremes have a way of creeping up on us, and the unimaginable can quickly and imperceptibly begin to seem routine. Millions of ordinary Europeans discovered this in the middle of the last century, and thousands of ordinary Americans discovered it in Vietnam. Some Americans are discovering it again today in the mountains and deserts of Afghanistan and Iraq. Experientially, there is often no sharp dividing line between "ordinary" life and "ordinary" law, on the one hand, and the extremes, on the other. After Stalin, after Pol Pot, after the Balkan Wars and the Rwandan genocide, as well as the countless other smaller-scale conflicts around the globe, this truth should be apparent to us, but most of the time we prefer to forget or deny it.

What the author wants to do in this essay is look closely at one example of law operating at the extreme edge of human behavior and emotion, and see whether it has anything particularly satisfying to offer those people who do find themselves caught in the dark places of the earth--or any lessons for those of us who have not so far been tested.

The example she has in mind involves the first judgment handed down by the International Criminal Tribunal for the Former Yugoslavia (better know as "the Hague Tribunal"). It is the story of an ordinary man who found one day that the moral terrain around him had changed beyond recognition. It is also, of course, a story about law. The case, Prosecutor v. Erdemovic, was decided in 1997, but it has received only minimal attention in English-language journals. This is probably because, to many observers of the Tribunal, it seemed an unimportant and even disappointing case. It involved the wrongs of an obscure young Croatian soldier, not those of a general or a president, and its outcome, to many critics, was hardly a resounding or satisfying victory over the forces of evil.

Nonetheless, it is a fascinating case. It addresses a particularly troublesome issue in criminal law: the scope of duress as a defense. This issue in turn leads to difficult questions about what law in general can offer us, what it is fair and reasonable to expect of ordinary human beings caught in terrible times, and whether we it is wise to assume a sharp discontinuity between the ordinary and the extreme in life or in law. The Erdemovic case can be seen as a parable about the failure of law to live up to its optimistic promise (to protect humans from atrocity or provide guidance to those who wish to prevent atrocity). Alternatively, it can be seen as a parable about law's expressive and redemptive possibilities, even in the face of evil. It is these ambiguities that the author wants to explore here.

Publication Citation

43 Va. J. Intl. L. 861-888 (2003)