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Luis E. ChiesaAssociate Professor of Law BBA, University of Puerto Rico-Río Piedras JD, University of Puerto Rico School of Law LLM, Columbia Law School JSD, Columbia Law SchoolBeing a criminal and comparative law scholar and expert, Professor Luis Chiesa regarded the question before the ICTY in Prosecutor v. Erdemovic as an opportunity to resolve "foundational problems" in establishing duress as a valid defense to a crime against humanity. According to Chiesa, "Determining whether duress should be a defense to a crime against humanity requires delving deeply into the distinction between justification and excuse in order to address three foundational problems that cut to the heart of criminal law theory: (1) Is duress a justification or an excuse? (2) Is the common law rule that disallows duress as a defense to murder sound? (3) Is it proper to condi-tion the availability of the defense on the existence of strict proportionality between the harm caused by the defendant's actions and the harm averted?"In his article "Duress, Demanding Heroism and Propor-tionality," published in the Vanderbilt Journal of Transna-tional Law, Chiesa concludes that the justices who took part in Erdemovic did not adequately address these issues. Assuming the defense that was raised was a justification, the justices ignored that the defense of duress is an excuse and not a justification. Professor Chiesa regularly publishes on criminal law theory, including "Punishing Without Free Will" (forthcoming, Utah Law Review); "Consent is Not a Defense to Bat-tery: A Reply to Professor Bergelson" (forthcoming, Ohio State Journal of Criminal Law); and "Why is it a Crime to Stomp on a Goldfish? - Harm, Victimhood and the Struc-ture of Anti-Cruelty Offenses" (Mississippi Law Journal, 2008), among others. Prior to joining the full-time faculty in 2007, he clerked for the Honorable Federico Hernández Denton, Chief Justice of the Puerto Rico Supreme Court. He has been a visiting professor at the University of Wash-ington, the Torcuato Di Tella University in Buenos Aires, Argentina, and the Sergio Arboleda University in Bogota, Colombia. Professor Chiesa serves as Associate Editor for the New Criminal Law Review.It's difficult to do international criminal law without first understanding the different systems of domestic criminal law. Similarly, it's difficult to assess whether the solutions given to problems by our system of criminal law are sound without comparing them with the solutions given to the same problems by different legal systems. That's why comparative criminal law is essential to my scholarship regardless of whether I'm writing about domestic or international issues. ""Is Duress a Valid Defense to a Crime Against Humanity?2 Pace Law School

ExcerptDuress, Demanding Heroism and Proportionality, 41 Vanderbilt Journal of Transnational Law 741 (2008). Prosecutor v. Erdemovic presents a particularly difficult case for the defense of duress. In Erdemovic, the International Criminal Tribunal for the former Yugoslavia (ICTY) tried the soldier Drazen Erdemovic for crimes against humanity. He was charged with systematically killing Muslim men and children in July 1995 as a member of the Bosnian Serb army. Initially, he refused to take part in the shootings, but his superiors threatened to kill him if he did not comply. At trial, Erdemovic confessed that he succumbed to the threats and killed nearly 70 people. Ultimately, the question before the ICTY Appeals Chamber was whether the defense of duress is available when the offense charged is a crime against humanity....it is unclear whether a defendant should be able to successfully plead duress when the harm caused was of epic proportions. It may very well be that, under certain extreme circumstances, society could legitimately require the coerced actor to do everything in her power, even sacrifice her own life, to avert the grave harm that would be inflicted if she succumbed to the threat. There-fore, it makes sense to ask whether a defendant like Erdemovic should be held responsible in view of the fact that the harm he inflicted (the deaths of dozens of people) is significantly graver than the one he averted (the loss of his own life). A satisfactory answer to this question requires an elucidation of the role of proportionality in the context of excuse defenses.Perspectives Fall 2011 3