Hostname: page-component-7b7567c8c-mnklg Total loading time: 0 Render date: 2026-11-12T09:19:27.659Z Has data issue: false hasContentIssue false
  • English
  • Français

Compulsion and Necessity in African Criminal Law

Published online by Cambridge University Press:  23 March 2009

Stanley Yeo
Rights & Permissions [Opens in a new window]

Abstract

This article sets out a comparative study of the defences of compulsion and necessity in selected African nations and under the Statute of the International Criminal Court. The aim is to produce the best formulations of these defences for possible adoption by the African nations concerned.

Information

Type
Research Article
Information
Journal of African Law , Volume 53 , Issue 1 , April 2009, pp. 90 - 110
Copyright
Copyright © School of Oriental and African Studies 2009

INTRODUCTION

The London Conference on “The Future of Law in Africa” agreed 47 years ago that there should be a general set of criminal laws to be universally applied to all African nations.Footnote 1 Unfortunately, no progress whatsoever has been made towards achieving this long-term objective. Recently, a fresh impetus for doing so has come from another quarter, namely the enactment in 2002 of the Statute of the International Criminal Court (the ICC Statute)Footnote 2 which was the culmination of the Rome Conference convened to establish that court.

As a result of the ICC Statute, a permanent international criminal court, composed of judges who are independent of their home states, was created for the first time, to try perpetrators of crimes against humanity, genocide, war crimes and aggression. The ICC Statute contains provisions spelling out some of the general principles of criminal responsibility. This development is of special significance to African nations because many of them have ratified the statute. Moreover, at the time of writing, all the cases before the International Criminal Court (ICC) involve African nationals. Consequently, the ICC Statute is an important source of law which African lawmakers (both legislators and judges) should consider in evaluating the current state of their criminal laws.

Among the general principles of criminal responsibility embodied in the ICC Statute is a provision rendering not criminally liable a person who performed the incriminating conduct under a threat caused by a human agent or by natural circumstances. The first of these is conventionally described as the defence of compulsion (or “duress by threats”) and the second as the defence of necessity (or “duress of circumstances” or “sudden or extraordinary emergency”).

This article will examine the defences of compulsion and necessity found in selected African nations. By engaging in a comparative evaluation of the defences of these nations, an attempt will be made to produce the best possible formulations of these defences. The ICC Statute provision will serve as a useful reference point when undertaking this comparative exercise. This is not at all to say that the ICC Statute provision constitutes the ideal model for the defences under consideration. Indeed, as we shall see, some features of that provision are unsatisfactory or have resulted from compromise in order to expedite its acceptance at the Rome Conference. Nevertheless, the general statement remains true that the ICC Statute, being a body of law agreed upon by a large numberFootnote 3 of nations, forms a respected and valuable source for comparison.

A preliminary observation may be made that, while all the criminal laws of the nations selected for this study recognize a defence of compulsion, only some recognize the defence of necessity. This is consistent with the development of these defences in other parts of the world as well as under international criminal law.Footnote 4 The primary reason as to why the defence of compulsion is recognized much more readily than that of necessity is because the former has developed in ways which render the scope of its operation quite specific and narrow. In contrast, until recently, the concept of necessity had been viewed as being too vague and broad to serve as a defence in its own right, as opposed to being an underlying principle of well-established defences such as compulsion and self-defence. The current trend is for the law to recognize a defence of necessity, the basic argument being that, insofar as criminal responsibility is concerned, there is no distinction between a person who committed an offence as a result of a threat by a human agent, and one who did so under a threat caused by natural circumstances. Agreeing with this view, this article advocates the recognition of a defence of necessity which is distinct from that of compulsion. The article concludes by considering whether these two defences should appear as separate provisions or can be readily compressed into one provision.

AFRICAN AND ICC STATUTE FORMULATIONS OF COMPULSION AND NECESSITY

It would not be feasible for a study of this nature to cover each one of the formulations of the defences of compulsion and necessity of all 53 African nations. Instead, certain nations have been selected for study because their laws are representative of those of many other African nations, and as their varied legal histories add to the diversity of the formulations to be examined.

South Africa is among the nations selected because its defences are not statutorily prescribed but have been developed through the common law. The Gambian Penal Code provisions have been chosen because they are part of the “Colonial Office model code” which was drafted for the East African colonies of the British Empire.Footnote 5 It is also noteworthy that the Gambian provision on necessity has been borrowed directly from James Stephen's formulation of the defence in his Digest of Criminal Law.Footnote 6 The Southern Nigerian Criminal Code provisions form part of this study because they are derived from the Queensland Code 1899. Finally, the Sudanese Penal Code provisions have been included because they are based on the Indian Penal Code.Footnote 7 Collectively, the laws of these selected nations, together with the ICC Statute provision, constitute a sizable body of thinking concerning how society should regard a person who has been compelled by threats or circumstances into committing a crime.

The formulations of compulsion and necessity of the above mentioned African nations and the ICC Statute are reproduced below for ease of reference.

Formulations of compulsion

Gambian Criminal Code, section 14

“A person is not criminally responsible for an offence if it is committed by two or more offenders and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or to do him grievous bodily harm if he refuses; but threats of future injury do not excuse any offence.”

Southern Nigerian Criminal Code, section 32(4)

“A person is not criminally responsible for an act or omission when he does or omits to do the act in order to save himself from immediate death or grievous harm threatened to be inflicted upon him by some person actually present and in a position to execute the threats, and believing himself to be unable otherwise to escape the carrying of the threats into execution; but this protection does not extend to an act or omission which would constitute an offence punishable with death, or an offence of which grievous harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him.”

Sudanese Penal Code, section 53

“Except for murder and offences against the State punishable with death, no act is an offence which is done by a person who is compelled to do it by threats which at the time of doing it reasonably cause the apprehension that instant death to that person will otherwise be the consequence; provided that the person doing the act did not, of his own accord or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint.”

Formulations of necessity

Gambian Criminal Code, section 15

“An act or omission which would otherwise be an offence shall be excused if the person accused can show that it was done or omitted to be done only in order to avoid consequences which could not otherwise be avoided, and which if they had followed would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided.”

Southern Nigerian Criminal Code, section 26

“Subject to the express provisions of this code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act done or omission made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary powers of self-control could not reasonably be expected to act otherwise.”

The Sudanese Penal Code does not contain a provision on necessity.Footnote 8

Formulations of compulsion and necessity combined

The South African courts have held that the law is the same whether a person has been threatened by a human agent into committing a crime (ie compulsion) or on account of natural circumstances (ie necessity).Footnote 9 The definition of the combined defence has been judicially approved (the South African definition); its elements are:

  1. “(1) the endangering of a legal interest of the accused;

  2. (2) by a threat which has already commenced or is imminent;

  3. (3) which threat is not caused by the accused's fault;

  4. (4) making it necessary for the accused to avert the danger; and

  5. (5) the means used to avert it are reasonable in the circumstances.

”Footnote 10

The ICC Statute combines the defences of compulsion and necessity under one provision. This was the result of the Rome Conference regarding the two defences as substantially similar.Footnote 11 Article 31(1)(d) reads:

“[A] person shall not be criminally responsible if, at the time of that person's conduct … [t]he conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be:

  1. (i) made by other persons; or

  2. (ii) constituted by other circumstances beyond that person's control.

”

As maintained in this study, cases involving threats “made by other persons” give rise to the defence of compulsion and those involving threats “constituted by other circumstances” to the defence of necessity.

The requirements of compulsion and necessity will now be discussed according to whether they are concerned with the nature of the threat or the response to it. The discussion commences with an examination of the ICC Statute provision, followed by the South African common law and finally by the statutory provisions of the other selected African nations.

THE NATURE OF THE THREAT

The existence of the threat

On a strict reading of article 31(1)(c) of the ICC Statute, the threat must have been real, that is, it must have existed as an objectively demonstrable fact. The reason for this stance is that, were the law to rely instead on the accused's subjective belief, it would allow compulsion and necessity to succeed where the accused had mistakenly believed that he or she was being threatened. The threatening circumstances which warrant exculpation would thereby be placed in the mind of the accused, rather than in the real world. There is therefore much force in the argument for an objective appraisal of the threat before the plea of compulsion or necessity can be allowed to succeed.Footnote 12 The question, however, is whether the ICC Statute's stance of requiring the threat to be real, ignoring altogether the accused's belief, is conceptually supportable and practically just, when seen in the light of article 32 of the ICC Statute which deals with mistake of fact. That article states that “[a] mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime”. As for what constitutes such a mental element, article 30 provides that “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge”. Accordingly, the subject-matter of the mistake envisaged by article 32 is strictly concerned with an offence element (specifically, the mens rea of the offence) and has nothing to do with a defence element such as an accused's belief that circumstances exist which support a plea of compulsion or necessity.Footnote 13 Consequently, the ICC Statute does not provide at all for cases of putative compulsion or necessity: a gap that needs to be filled.

Like the ICC Statute, the South African courts have insisted on the threat being real for the purposes of the defences of compulsion and necessity.Footnote 14 Cases of mistaken belief as to the existence of the threat are dealt with separately from these defences by applying the concept of “lack of culpability”. This concept requires that “there must, in the eyes of the law, be grounds for blaming the accused personally for his unlawful conduct”.Footnote 15 On this basis, a person who held a genuine but mistaken belief that he or she was being threatened by a human agent or by natural circumstances will lack the culpability required to convict him or her of the crime committed as a result of that belief. This outcome has been explained on the ground that such a person “would lack mens rea in the form of intention (including knowledge of unlawfulness)”.Footnote 16

In contrast to the ICC Statute and South African formulations, the provisions of all the other African nations studied do not insist on the threat having to be real. Instead, the existence of the threat is based on the accused's belief, with the proviso that such belief must have been reasonable. The clearest statement of this position appears in the Sudanese provision on compulsion, which states that the accused must have been compelled to commit the crime charged due to a “reasonable apprehension” that he or she would be killed. As for the Gambian and Southern Nigerian provisions on compulsion and necessity, the wording found there assumes that the threat was real. However, this is because cases of putative compulsion and necessity will attract the provision on mistake of fact found in the Gambian and Southern Nigerian codes. The respective provisions in both codes are identical and read: “A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.”Footnote 17

There is much to commend placing cases of mistaken belief within the defences of compulsion and necessity as the Sudanese, Gambian and Southern Nigerian codes have done. This is preferable to the South African approach to putative compulsion and necessity which, as noted previously, relies on the concept of lack of culpability to acquit the accused, rather than the defences of compulsion and necessity. While the outcome might be the same, the South African approach is less attractive as it is much more complicated, requiring the courts to engage with the notions of culpability, intention and unlawfulness.

Taking stock of the analysis thus far, it has been contended that the stance taken by the ICC Statute is too draconian in insisting on the factual reality of the threat and ignoring altogether the belief of the accused. On the other hand, it is submitted that permitting an accused's subjective belief, however unreasonable, to support a plea of compulsion or necessity is too favourable to the accused. As suggested by George Fletcher, “[a]n unreasonable or faultful mistake is itself culpable and therefore it cannot negate the actor's culpability”.Footnote 18 The best approach is to require a hybrid test of an accused's reasonable belief as to the existence of the threat. When applying this test, the court will be required to take into account the accused's personal characteristics such as his or her age, gender, physical disabilities, religious beliefs, ethnicity and such of the accused's characteristics as might affect the gravity of the threat to him or her. By recognizing these personal characteristics, society is acknowledging that it cannot realistically expect more of a person than to act in conformity with circumstances as they reasonably appear to him or her. This is precisely the approach that has been taken in the Sudanese, Gambian and Southern Nigerian provisions. Reverting to the ICC Statute provision, it is hoped that the review commission, which will convene in 2009 to evaluate the ICC Statute,Footnote 19 will revise the provision to incorporate this approach. Doing so will avoid the injustice of convicting a person who could do no more than base his or her conduct on a reasonable belief in the existence of a threatened danger.

The type of harm threatened

The ICC Statute provision limits the types of threats recognized under the defences of compulsion and necessity to threats of “imminent death or of continuing or imminent serious bodily harm”. The Rome Conference had considered including threats to property, but ultimately decided against doing so. The restriction of threats to death or serious bodily harm before the defences will operate is understandable given the very serious nature of the crimes falling within the jurisdiction of the ICC. However, it would be entirely in keeping with this sentiment to extend the defence to persons who were confronted with the destruction of property which was essential to their survival. This type of threat is recognized by the ICC Statute provision on self-defenceFootnote 20 and has as much to do with the protection of human life as with property.

The South African definition states that the defences of compulsion and necessity are available where “a legal interest of the accused” was endangered. It has been held that a threat of “death or serious personal injury” will support a plea of compulsion,Footnote 21 and so too would the threat of “a beating”Footnote 22 which impliedly includes lesser forms of bodily injury. There is also case authority that a threat of solitary confinement with its connotations of mental harm will be recognized.Footnote 23 However, the courts have stopped short of extending the defence of compulsion to cases involving a threat against property.Footnote 24 This limitation does not apply to cases of necessity where, besides the types of threats which have been recognized for compulsion, the defence of necessity has also succeeded where the threats were against property.Footnote 25 From this brief examination of the case authorities, the expression “legal interest of the accused”, with its potential for recognizing a very wide range of threatened harm, applies more to the defence of necessity than to compulsion.

The smaller range of types of threats for compulsion compared to necessity is also evident in the criminal codes of Gambia and Southern Nigeria. In respect of compulsion, the only types of threats that are recognized are of death and grievous bodily harm. In contrast, the provisions on necessity in these codes describe the threat in very broad terms. Under the Gambian provision, the description used is “inevitable and irreparable evil”, while the Southern Nigerian provision refers to “circumstances of sudden or extraordinary emergency”.

The likely explanation for this difference between the defences of compulsion and necessity is that the former is more advanced in its development and is ex hypothesi confined to cases where the accused had been ordered by a human agent on pain of injury into committing the crime charged. Consequently, the elements of the defence have been more carefully worked out and circumscribed. In contrast, as noted previously, recognition of the principle of necessity as a defence in its own right has been comparatively recent, with some jurisdictions such as the Sudan still not according it such recognition. For those jurisdictions which have done so, such as South Africa, Gambia and Southern Nigeria, the formulation of the defence has been deliberately expressed in wide terms to enable the courts to deal justly with the multifarious cases where circumstances of necessity can arise.

However, there appears to be no good reason why the approach towards the defence of necessity should not also be taken in respect of the defence of compulsion. Just because the source of the threat was a human agent as opposed to natural circumstances should make no material difference to the pressure mounted on the accused. Accordingly, it is submitted that a model formulation of the defence of compulsion should leave the types of threats open-ended, as has been done in relation to formulations of necessity.

The imminence of the threat

The ICC Statute provision expressly requires the threat to have been imminent or continuing. This requirement highlights the fact that the accused was operating under intense pressure to avoid harm that could happen at any time. All the formulations of compulsion in the laws of the African nations studied also impose this requirement. In South Africa for example, the judicially approved definition of the defence requires that the threat “has already commenced or is imminent”.Footnote 26 Under the Gambian, Southern Nigerian and Sudanese provisions on compulsion, the threat must have been even more pressing, as denoted by describing the threatened harm as “instant” and “immediate”. The Gambian provision reinforces this by stating that threats of future injury do not excuse any offence.Footnote 27

On the other hand, this requirement does not form part of the Gambian and Southern Nigerian provisions on necessity. The Gambian provision concentrates instead on the accused's response to the threat which is described as an “inevitable and irreparable evil”, without also stating that the threat was about to happen. In relation to the Southern Nigerian provision, the threat is described in terms of circumstances of “sudden or extraordinary” emergency. Neither of these adjectives necessarily requires the threat to have been imminent, with “suddenness” denoting that the circumstances had come upon the accused unexpectedly and “extraordinary” denoting the immensity of the threat. The Gambian and Southern Nigerian codes do not give any indication as to why imminence is a requirement of the threat for compulsion but not for necessity. Once again, the most likely explanation for this difference is that, while compulsion is confined to cases involving a human agent threatening the accused into committing the offence charged, necessity is not so limited and is intended to cover an infinite variety of circumstances where the threatened danger may or may not have been imminent.

Whether imminence is crucial to the defence of compulsion is questionable. One can readily imagine cases where a person could experience the same sort of intense pressure to take avoiding action without the threat having to be imminent. For example, the threat may be to kill a hostage in a month's time if the accused refuses to comply with the threatener's order to commit the crime charged. Furthermore, the time frame dictated by the concept of imminence is not at all certain. Is it limited to a few minutes, hours or days? Instead of relying on this nebulous concept of imminence to restrict the scope of the defence of compulsion, it would be preferable to leave it to the other defence requirements to do so. This is precisely what the Gambian and Southern Nigerian provisions on necessity have done. These other defence elements are that there was no other reasonable way of avoiding the threat and that committing the crime charged was a reasonable response in the circumstances.Footnote 28 These other requirements correctly emphasize the need for the accused to take urgent avoiding action, which may or may not be affected by the imminence of the threat. It is therefore suggested that imminence of the threat should not form part of any formulation of the defences of compulsion and necessity.

The person threatened

The ICC Statute provision states that the threat may have been against the accused “or any other person”. In contrast, the South African definition states that the threat must have been directed at the legal interests “of the accused”. However, in one case, the defence was successfully pleaded by a person who had committed the alleged crime in order to protect another person's child.Footnote 29 The Gambian, Southern Nigerian and Sudanese provisions on compulsion expressly restrict the operation of the defence to cases involving threats to the accused alone. On the other hand, the Gambian and Southern Nigerian provisions on necessity do not impose this restriction.

It is submitted that permitting the defences of compulsion and necessity to be pleaded where the threat was directed at a third party's interests is a sound position to take. This is because it correctly recognizes that there may be circumstances where such a threat, even if against a complete stranger, can move ordinary people to commit a crime in order to avoid the threatened harm. Whether ordinary people could be so moved under a given set of circumstances will be determined by those elements of the defence dealing with the response to the threat. To these, we now turn.

THE RESPONSE TO THE THREAT

This requirement of the defences of compulsion and necessity is conventionally expressed through the concepts of a “necessary”, “reasonable” and “proportionate” response. These concepts are well-known in national criminal legal systems including those of the ICC and the African nations studied but are very difficult to define conclusively. Essentially, “necessary” is concerned with the preliminary question of whether there was some other viable means of avoiding the threat available to the accused besides committing the crime charged. If there was, the defence fails. Only if there was not will the court go on to inquire whether the means which the accused applied was “reasonable” in the circumstances. Doubtless, a response which was unnecessary would also be unreasonable, and would explain the conclusion in a South African case on compulsion that “[if] the accused omits to try a reasonable avenue of escape … then his conduct would be unreasonable”.Footnote 30 However, given that the concepts of “necessary” and “reasonable” raise distinguishable lines of inquiry, it would be better to keep them distinct.

In relation to the reasonableness of the accused's response to the threat, this invariably involves comparing the nature of the threat with the accused's response to it. This is where the concept of proportionality fits in and not, as is sometimes thought, with the concept of “necessary” response. Quoting George Fletcher once more: “Necessity speaks to the question whether some less costly means of defense … might be sufficient to ward off the [threat]. The requirement of proportionality addresses the ratio of interest threatened both on the side of the [human threatener or threatening circumstances] and of the defender. The harm done in disabling the [threat] must not be excessive or disproportionate relative to the harm threatened and likely to result from the [threat].”Footnote 31

In the light of the above, it would be helpful to divide the response component of the defences of compulsion and necessity into: (1) the need for the accused to respond in the way he or she did; and (2) the reasonableness of that response, with the notion of proportionality forming part of this latter inquiry. Following a discussion of these two issues, this article examines whether the defences of compulsion or necessity are available to someone whose response involved the killing of a human being.

The need to respond in the way the accused did

The ICC Statute provision on compulsion and necessity expressly requires the accused to have acted “necessarily” to avoid the threat. The South African definition likewise states that the threat must have made it “necessary for the accused to avert the danger”. While the word “necessary” or its derivatives does not appear in the Gambian, Southern Nigerian or Sudanese provisions on compulsion, the very nature of the threat itself (of instant death or grievous bodily harm should the accused refuse to obey the threatener's order) makes it implicit that compliance by the accused was necessary in the circumstances. This is supported by the Gambian provision expressly denying the defence to persons who were subjected only to threats of future injury, arguably implying that the accused in such a situation would have been able to escape from the threatener.Footnote 32 The Southern Nigerian provision achieves the same effect by requiring the threatener to have been physically present and in a position to carry out the threat, and also for the accused to have believed that he or she was unable otherwise to escape.

The necessity of the accused's response is also clearly featured in the Gambian and Southern Nigerian provisions on necessity. The Gambian provision requires the accused to have committed the crime charged “only in order to avoid consequences which could not otherwise be avoided”. The Southern Nigerian provision stipulates that “an ordinary person possessing ordinary powers of self-control could not reasonably be expected to act otherwise”.Footnote 33

The reasonableness of the accused's response

This requirement concerning the response to the threat involves comparing the harm caused by the accused in committing the alleged crime with the harm which the threat would otherwise have occasioned. The requirement under the ICC Statute provision stipulates that the accused must have acted “reasonably to avoid the threat, provided that [he or she did] not intend to cause a greater harm than the one sought to be avoided”. While the opening words of this quoted part of the provision clearly prescribe this requirement of reasonable response, the function served by the accompanying proviso is controversial. The reason for having it was to serve as a compromise to have the provision on duress and necessity accepted by the Rome Conference.Footnote 34

Unfortunately, the proviso appears to be rife with difficulty in terms of both comprehensibility and application. Its lack of comprehensibility lies in its uneasy relationship with the other requirement of the provision concerning response, namely, that the accused must have acted reasonably to avoid the threat. Presumably, it is for the court to determine whether or not the accused had acted reasonably in the circumstances, thereby making it an objective appraisal. How then does the accompanying proviso, with its reference to the subjective intention of the accused, fit in? What would the outcome of a case be were the court to decide that the accused's act was unreasonable, but at the same time found that he or she had not intended to cause a greater harm than the one sought to be avoided? Or conversely, what would the outcome be if it was determined that the accused's act was reasonable but that he or she intended a greater harm than that sought to be avoided?

Moreover, at a practical level, the proviso will be very difficult to apply since it involves having to prove not only that the accused intended the harm but also that he or she believed that the harm intended was less than that sought to be avoided. All told, it is submitted that the ICC Statute provision on compulsion and necessity would work much better without the accompanying proviso. The requirement found in the ICC Statute provision that the accused must have “act[ed] necessarily and reasonably to avoid” the threat should be sufficient to ensure that the defence will operate neither too restrictively nor too broadly.

As for the handling of this requirement by the African laws studied, the South African definition clearly subscribes to it by stating that “the means used to avert [the threat] are reasonable in the circumstances”. Some of the cases have preferred to express the concept of reasonable response in terms of “proportionality”.Footnote 35 This is understandable since the inquiry into the reasonableness of the accused's response to the threat incorporates a comparison of the threat and his or her response to it. However, it is submitted that it would be preferable to regard proportionality not as a distinct legal requirement but as a factor, albeit often a significant one, in deciding whether the response was reasonable.Footnote 36 A court would be distinctly more at ease with handling the broad-based inquiry of whether the accused's response was “reasonable” than with the specific one of whether the response was “proportionate” to the threat. This approach also circumvents the conceptual as well as practical difficulty of having to decide whether the infringed interest was proportionate to the protected interest when they are of a different nature, as where property is damaged in protection of one's bodily integrity.

While the Gambian, Southern Nigerian and Sudanese provisions on compulsion do not use the term “reasonable” to describe the accused's response, this is implicit on account of the threat being of instant death or grievous bodily harm. This is supported by the Southern Nigerian and Sudanese provisions excluding certain types of offences such as murder,Footnote 37 with the result that what the law regards as a reasonable response is conduct which falls within these prescribed perimeters.

As for the defence of necessity, the Gambian provision requires “that no more was done than was reasonably necessary”Footnote 38 to protect the threatened interest, and further that “the evil inflicted by it was not disproportionate to the evil avoided”. Based on the submission made earlier, it would be better for this latter requirement of proportionality to be left out, relegating it to a factor to be considered when answering the broad question of whether the accused's response to the threat was “reasonable”. The Southern Nigerian provision on necessity embodies this approach by avoiding any reference to proportionality and asking instead whether “an ordinary person possessing ordinary powers of self-control could not reasonably be expected to act otherwise.”

Killing under compulsion or necessity

Occasionally, a person may have been ordered to kill a human or be killed. There could also be circumstances of extraordinary emergency necessitating the killing of someone so that another might live. Whether compulsion or necessity should be available as a defence to a charge of murder has solicited much debate.Footnote 39 That debate need not be repeated here in any detail. Instead, this article will examine the ICC Statute and the selected African laws to see whether they support the recognition of compulsion or necessity as defences in cases of culpable homicide.

The ICC Statute provision on compulsion and necessity permits the accused to use fatal force in seeking to avoid the threat or emergency. Such recognition is all the more significant given that, only a few years earlier, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) had ruled against recognizing the defence of compulsion where a soldier had been charged with a crime against humanity or a war crime involving the killing of innocent human beings.Footnote 40

South African courts have likewise recognized compulsion and necessity as defences to persons charged with culpable homicide, including murder.Footnote 41 On its face, the Gambian provision on compulsion is likewise an answer to all charges since the only cases which it expressly excludes are those involving “threats of future injury”. Thus, the defence would be open to a person who was under a threat of being killed there and then were he or she to refuse to obey the threatener's order to kill.Footnote 42 In contrast, the Southern Nigerian and Sudanese provisions on compulsion exclude cases of murder from their scope of operation,Footnote 43 with the Southern Nigerian provision being even more restrictive by denying the defence to anyone charged with an offence of which grievous harm or an intention to cause such harm is an element.

As for the defence of necessity, the Gambian provision does not expressly exclude any offence from its operation. However, it is arguable that the requirement of proportionality stated there would cause a court to deny an accused the defence on the ground that the sanctity of human life means that it is never justifiable to kill a human being in order to save another human life.Footnote 44 In contrast, the Southern Nigerian provision does not refer at all to a requirement of proportionality, but instead stipulates that the defence will succeed where the circumstances of emergency were such that “an ordinary person possessing ordinary powers of self-control could not reasonably be expected to act otherwise”.Footnote 45 This measure of “ordinariness” of the response accords with the comment in the South African case of S v Goliath that, in general, the ordinary person views his or her life as being more valuable to him or her than that of another, and that “the criminal law should not lay down a blueprint for saintliness”.Footnote 46

This brief examination of the ICC and African laws yields mixed results with some for and others against recognizing compulsion and necessity as defences to culpable homicide. If a position had to be taken, it would be in favour of their recognition. Of course, this is not to say that the defence of compulsion or necessity will be readily accepted to acquit a person accused of culpable homicide. Quoting again the South African court in Goliath, whether an acquittal is warranted or not will depend on the particular circumstances of each case and the whole factual situation will have to be evaluated and adjudicated upon with the greatest care.Footnote 47 In terms of a statutory expression that encapsulates this position, it may be sufficient simply to require the accused's response to have been “reasonable” in the circumstances. This would provide the court with the flexibility needed to decide whether it is just to exculpate an accused for killing a human being under compulsion or necessity.

ABSENCE OF PRIOR FAULT AS A CONDITION OF THE DEFENCE

There is one other requirement of compulsion and necessity, found in many national legal systems, which does not involve the nature of the threat nor the response to it. This requirement prevents the accused from relying on either of these defences if the accused was culpable in exposing himself or herself to the conditions which led to his or her being threatened. The term “prior fault” aptly describes this form of culpability.Footnote 48 In relation to the defence of compulsion, this requirement of prior fault denies the defence to an accused who had voluntarily associated with a person or group of persons whom the accused knew could compel him or her with threats into committing a crime of the kind with which he or she was charged. These cases are excluded from the scope of the defence for the purposes of deterrence, by warning people that the law will not excuse them if they were at fault in associating with violent criminals. This stance of excluding the operation of a defence on the basis of the accused's prior fault operates equally in respect of the closely related defence of necessity. In such cases, the defence would be denied to an accused who had been culpable in knowingly exposing himself or herself to the kind of emergency which eventuates.

The compulsion component of the ICC Statute provisionFootnote 49 does not have such a requirement of prior fault despite there being a body of international case law supporting it.Footnote 50 This omission is very likely to have been an oversight rather than a deliberate decision by the Rome Conference. By comparison, the necessity component of the ICC Statute provisionFootnote 51 does allude to such a doctrine by requiring that the circumstances constituting the relevant threat must have been “beyond [the accused's] control”.Footnote 52 Arguably, this could be interpreted to mean that an accused who had control of the circumstances before they turned into an emergency (and therefore became no longer within his or her control) would be denied the defence.

The South African definition provides that the threat must not have been “caused by the accused's fault”. There is also South African case law holding that the defence of compulsion is unavailable to a person who had voluntarily joined a criminal gang knowing of its disciplinary code of vengeance and was later compelled by the gang to commit a crime.Footnote 53 However, these judicial pronouncements do not indicate whether this remains the case where the accused had been compelled to commit a type of crime falling outside the gang's usual criminal activities and which was therefore not known or foreseeable by the accused. For example, a person may have voluntarily joined a gang of petty thieves who later compelled him to commit robbery with violence. Surely, it would be too harsh for the law to deny the accused the defence of compulsion in such a case. It is therefore submitted that there should be a definite link between the accused's prior fault, the need for the defence and the accused's blameworthiness. This link is provided for by showing that the accused had knownFootnote 54 that his or her conduct could lead to him or her eventually seeking to rely on the defence of compulsion.

The Southern Nigerian and Sudanese provisions on compulsion also impose this requirement of absence of prior fault but, like the South African common law, are not fully developed. Specifically, the Southern Nigerian provision requires the accused not to have “enter[ed] into an unlawful association or conspiracy [which] rendered himself liable to have such threats made to him”. The equivalent wording in the Sudanese provision is that the accused must not have “place[d] himself in the situation by which he became subject to such constraint”. On their face, these requirements deny the defence upon mere proof that the accused had joined the criminal association, it being immaterial whether the accused knew of the risk that, by doing so, he or she may be compelled to commit the particular type of crime charged.

The Gambian provisions on compulsion and necessity, and the Southern Nigerian provision on necessity do not contain a requirement of absence of prior fault. It is submitted that this is a material oversight that ought to be rectified. A formulation of the defences of compulsion and necessity which fills this gap will be proposed in the next and concluding part of this article.

A MODEL FORMULATION

This comparative study of the defences of compulsion and necessity formulated by the ICC and selected African nations reveals that the two defences share many similarities but also have some differences. Those differences are, in the main, specific limitations on the scope of the defence of compulsion but not of the defence of necessity. The limitations pertain to the nature of the threat (eg of instant death or grievous bodily harm) and at whom it is directed (eg at the accused alone) and the exclusion of certain serious offences (eg murder) from its operation. The preceding discussion has contended that there are no strong reasons for imposing these limitations. The better course would be for the courts to be left to decide, on a case-by-case basis, whether the accused had reasonably believed that the threat was of such a nature that it was both necessary and reasonable for him or her to commit the crime charged. If so, the defence of compulsion or necessity would be allowed to succeed. Should this approach be taken, no separate provisions would be required for compulsion and necessity since there would be no material differences between them.

A good model on which to base such a formulation of compulsion and necessity is to be found in the Australian Commonwealth Criminal Code.Footnote 55 That code has provisions for compulsion and necessity which were the result of efforts by a law reform body to bring together the best features of the various formulations of the defences in the Australian states and territories.Footnote 56 These formulations have much in common with those of the African nations studied in this article. For example, as with South Africa, the defences in some Australian statesFootnote 57 are the creation of the courts which have looked to other jurisdictions such as Canada and England for elucidation. Moreover, the Southern Nigerian provisions on compulsion and necessity have been borrowed directly from the criminal codes of Queensland and Western Australia. Hence, the provisions on compulsion and necessity in the Australian Commonwealth Criminal Code are derived from sources which are mostly shared by the African nations studied and, accordingly, deserve serious consideration.

The defences of compulsion and necessity each has separate provisions under the Australian code. Compulsion, or “duress” as it is called under the code, is defined in section 10.2 as:

  1. “(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.

  2. (2) A person carries out conduct under duress if and only if he or she reasonably believes that:

    1. (a) a threat has been made that will be carried out unless an offence is committed; and

    2. (b) there is no reasonable way that the threat can be rendered ineffective; and

    3. (c) the conduct is a reasonable response to the threat.

  3. (3) This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.

”

The defence of necessity is described as “sudden and extraordinary emergency” under the Australian code. It is defined in section 10.3 as:

  1. “(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.

  2. (2) This section applies if and only if the person carrying out the conduct reasonably believes that:

    1. (a) circumstances of sudden or extraordinary emergency exist; and

    2. (b) committing the offence is the only reasonable way to deal with the emergency; and

    3. (c) the conduct is a reasonable response to the emergency.

”Footnote 58

Should there be agreement that any material differences between these defences could be removed, these two provisions could be readily collapsed into a single one. The defence could be given the name of “compulsion”Footnote 59 and the provision could read:

  1. “(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under compulsion.

  2. (2) A person carries out conduct under compulsion if he or she reasonably believes that:

    1. (a) a threat has been made that will be carried out unless an offence is committed, or circumstances of sudden or extraordinary emergency exist;

    2. (b) there is no reasonable way that the threat or emergency can be rendered ineffective; and

    3. (c) the conduct is a reasonable response to the threat or emergency.

  3. (3) This section does not apply if:

    1. (a) the threat is made by or on behalf of a person with whom the person under compulsion is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out;Footnote 60 or

    2. (b) the emergency was created by the person under compulsion who knew of the risk that he or she might have to carry out conduct of the kind actually carried out in order to render the emergency ineffective.

”Footnote 61

A salient feature of this proposed formulation of the combined defence of compulsion and necessity is the prominence given to the accused's “reasonable belief”. The courts would use this criterion to assess the existence and nature of the threat or emergency, whether there was a reasonable alternative to render it ineffective, and whether the conduct of the accused was a reasonable response to the threat or emergency. This feature achieves fairness and justice to persons who have committed crimes under immense pressure, as well as making for neatness in using the same criterion when considering each of the stated elements of the defence.Footnote 62

Another salient feature of this proposed formulation is the absence of a requirement of imminence of the threat or emergency. As contended in this paper, the proper emphasis of the defence is not so much on the imminence of the danger as on the need for the accused to take urgent avoiding action, and this is comprehensively dealt with by the requirements of necessary and reasonable response. It is also noteworthy that the formulation does not impose a separate requirement of proportionality, leaving this to be taken into consideration when determining whether the accused's conduct was reasonable in the circumstances.

Finally, the proposed formulation is attractive for incorporating the best features of the ICC Statute provision and leaving out the dubious ones. The former include the clear prescription that the accused's response be both necessary and reasonable, and making the defence available to all crimes including murder. The latter include the need for the threat to have been imminent, and restricting the threats to death or serious bodily harm.

This article began with the hope that steps will soon be taken to achieve the laudable goal, expressed nearly half a century ago, of developing a set of criminal laws that is shared by all African nations. Adoption by the African nations studied in this paper of the above formulation of compulsion and necessity would constitute a significant first step in this process.

References

1 Allott, AN (ed) The Future of Law in Africa, Record of Proceedings of the London Conference (1960) 36–37Google Scholar and cited by Read, JS “Criminal law in the Africa of today and tomorrow” (1963) 7 Journal of African Law 5 at 17.Google Scholar

2 UN doc A/CONF.183/9*, available at <http://www.un.org/icc> (last accessed 16 December 2008), reprinted in (1998) 37 International Legal Materials 999.

3 As of 17 October 2007, 105 nations had ratified the statute.

4 For the position under international criminal law, see Cryer, RProsecuting International Crimes (2005, Cambridge University Press) at 302–04.CrossRefGoogle Scholar

5 The provisions are shared by several other African nations such as Botswana, Kenya, Tanzania and Uganda.

6 Stephen, JDigest of Criminal Law (9th ed, 1950, Sweet & Maxwell) art 11 at 9–11.Google Scholar

7 They are also shared by the northern regions of Nigeria and Somalia.

8 Interestingly, the drafters of the Sudanese code chose not to adopt the provision on necessity which appears in the Indian Penal Code. That provision (sec 81) reads: “Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.” The provision is accompanied by the following explanation: “It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.”

9 S v Goliath 1972 (3) SA 1 (A) at 24. This combined defence is called “necessity” by the South African courts. For the purposes of this article, the distinction between compulsion and necessity will be invoked wherever it is necessary to do so when discussing the South African law.

10 Burchell, EM and Hunt, PMASouth African Criminal Law and Procedure Vol 1: General Principals of Criminal Law (1970, Juta) at 285Google Scholar; approved of in S v Kibi 1978 4 SA 173(E) and S v Malan 1998 (2) SASV 143.

11 Saland, P “International criminal law principles” in Lee, R (ed) The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (1999, Kluwer) 189 at 208.Google Scholar

12 See generally, Fletcher, GBasic Concepts of Criminal Law (1998, Oxford UP) at chap 9.Google Scholar

13 See Triffterer, O “Article 32. Mistake of fact and mistake of law” in Triffterer, O (ed) Commentary on the Rome Statute (2nd ed, 2008, Verlag CH Beck) 895 at paras 14 and 28Google Scholar; Ambos, K “The general principles of the Rome Statute” (1999) 10 Criminal Law Forum 1 at 29–30.Google Scholar

14 R v Mahomed 1938 AD 30 at 36; R v Damascas 1965 (4) SA 598 (SR) at 600.

15 Snyman, CRCriminal Law (4th ed, 2002, Butterworths) at 143.Google Scholar

16 Burchell, JPrinciples of Criminal Law (3rd ed, 2005, Juta) at 258 and also at 514–15 and 517Google Scholar. See also Snyman Criminal Law, above at note 15 at 143.

17 Gambian Criminal Code, sec 8; Southern Nigerian Criminal Code, sec 25. The Sudanese Penal Code also has a similar provision, namely sec 44 which states that “no act is any offence which is done by a person who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be bound by law to do it or justified by law in doing it.” Sec 37 of the code defines “good faith” as: “Nothing is said to be done or believed in good faith which is done or believed without due care and attention.” When read together, secs 44 and 37 effectively require the accused's mistaken belief to have been based on reasonable grounds.

18 Fletcher Basic Concepts, above at note 12 at 162.

19 Art 123 of the ICC Statute provides for the establishment of such a commission to consider any amendments to the statute seven years after its entry into force.

20 Art 31(1)(c), which states: “[A] person shall not be criminally responsible if, at the time of that person's conduct … [t]he person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph.”

21 S v Kibi 1978 4 SA 173 (E).

22 S v Peterson 1980 (1) SA 938 (A).

23 S v Mtewtwa 1977 (3) SA 628 (E).

24 R v Damascas 1965 (4) SA 598 (SR).

25 For example, see S v Malan 1998 (2) SASV 143 where a farmer successfully pleaded the defence of necessity to a charge of criminal damage when he shot and killed animals belonging to other farmers which had strayed onto his land and caused damage to his crop.

26 The second element in the list reproduced in the main text referenced by note 10 above. However, see R v Chipsea 1964 (4) SA 472 (SRA) at 477 per Beadle CJ who held that there was no hard and fast rule that the threat had to be imminent in every case where the defence of compulsion was raised. See also S v Mtewtwa 1977 (3) SA 628 (E) at 631 where the requirement of imminence was downplayed on the ground that the threatener had continuous control over the accused.

27 The meaning of this clause is unclear. It could refer to the absence of imminence as suggested here, or to the opportunity for the accused to take avoiding action, both of which would deny the accused the defence.

28 They are discussed in detail in the section on “The response to the threat” below.

29 S v Pretorius 1975 2 SA 85 (SWA). South African commentators have also advocated extending the defence to cases where the threat was directed at a third party's interests; see Burchell Principles of Criminal Law, above at note 16 at 279; Snyman Criminal Law, above at note 15 at 118.

30 S v Adams 1979 (4) SA 793 at 800 per King J.

31 Fletcher Basic Concepts, above at note 12 at 135, where he was discussing these concepts in relation to self-defence where the threat would be in the form of an attacker.

32 Compare with the observation in note 27.

33 As will be noted below, this requirement incorporates both the need for and reasonableness of the accused's response to the threat.

34 Ambos, K “Other grounds for excluding criminal responsibility” in Cassese, A, Gaeta, P and Jones, J (eds) The Rome Statute of the International Criminal Court: A Commentary, Vol II (2002, Oxford University Press) 1003 at 1041.Google Scholar

35 For example, see R v Chipsea 1964 (4) SA 472 (SRA) at 475 and R v Damascas 1965 (4) SA 598 (SR) at 599–600. South African commentators have also subscribed to this requirement of proportionality; see Snyman Criminal Law, above at note 15 at 119; Burchell Principles of Criminal Law, above at note 16 at 266.

36 This was the approach taken by the High Court of Australia in DPP (Victoria) v Zecevic (1987) 162 CLR 645 in relation to the closely related plea of self-defence. The court at para 18 said: “[I]t will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered. However, the whole of the circumstances should be considered, of which the degree of force used may be only part. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone.”

37 To be discussed in the next section of this article.

38 Although the word “necessary” appears alongside “reasonably” in this formulation, it is clear that this part of the provision is concerned more with the reasonableness of the response than with whether it was necessary. As noted earlier, the part of the Gambian provision which expresses this latter requirement is that which reads: “only in order to avoid consequences which could not otherwise be avoided”.

39 For a good summary, see Law Commission A New Homicide Act for England and Wales? A Consultation Paper (2006, The Stationery Office) at 177–83 and Burchell Principles of Criminal Law, above at note 16 at 267–76.

40 Prosecutor v Dražen Erdemović judgment IT-96-22-A, 7 October 1997 at para 19 and disposition (4). See further Ambos “Other grounds”, above at note 34 at 1010–14; Knoops, GDefenses in Contemporary International Criminal Law (2nd ed, 2008, Martinis Nijhoff Publishers) at 50–52.CrossRefGoogle Scholar

41 See S v Goliath 1972 (3) SA 1 (A) and S v Peterson 1980 1 SA 938 (A), both of which were murder cases.

42 Interestingly, sec 16 of the Kenyan Penal Code has the following additional words immediately following “threats of future injury do not excuse any offence”, namely: “nor do any threats excuse the causing of, or the attempt to cause, death”. Sec 15 of the Botswana Penal Code appears to be a clumsy rendition of the Kenyan provision, stating that “threats of future injury do not excuse the causing of, or the attempt to cause, death”. The Tanzanian and Ugandan provisions follow the Gambian provision in not having these additional words.

43 By virtue of the crime of murder being punishable with death under the Southern Nigerian code, and murder being expressly excluded under the Sudanese provision.

44 This was one of the main reasons given by the House of Lords in R v Howe [1987] AC 417 at 426 for refusing to recognize compulsion as an answer to a murder charge.

45 The emphasis on “ordinary” may be contrasted with the demand for heroism by the House of Lords in R v Howe id at 426–27 which caused it to deny the defence to murder cases.

46 1972 (3) SA 1 (A) at 21 per Rumpff JA.

47 Id at 25.

48 For a detailed analysis of this concept, see P Robinson “Causing the conditions of one's own defense: A study in the limits of theory in criminal law doctrine” (1985) 71 Virginia Law Review 1 and S Yeo Compulsion in the Criminal Law (1990, Law Book) at chap 5.

49 That is, art 31(d)(i) which refers to threats “made by other persons”.

50 See Cassese, AInternational Criminal Law (2003, Oxford University Press) at 245–46Google Scholar and Ambos “Other grounds”, above at note 34 at 1039, for some of these case authorities.

51 That is, art 31(d)(ii).

52 This clause may have been borrowed from the Siracusa Draft: Association Internationale de Droit Pėnal, International Institute of Higher Studies in Criminal Sciences/Max Planck Institute for Foreign and International Criminal Law et al 1994 ILC Draft Statute for an International Criminal Court with Suggested Modifications (15 March 1996, Siracusa/Freiburg/Chicago). Art 33-13 of the draft states in part that “[n]ecessity excludes punishment when circumstances beyond a person's control are likely to create an unavoidable private or public harm”.

53 S v Bradbury 1967 1 SA 387 (A); S v Lungile 1999 2 SACR 597 (SCA); S v Mandela 2001 1 SACR 156 (C).

54 Or, applying a more stringent view, “ought to have known” which imputes knowledge on the accused of the subsequent compulsion. For a detailed discussion of this issue, see Yeo Compulsion, above at note 48 at 173–84.

55 Criminal Code 1995 which applies to the federal jurisdiction of Australia. Australia comprises a federation of states and territories each having their own criminal codes which vary from one another, much like the situation in the United States of America.

56 Model Criminal Code Officers Committee Final Report. Chapter 2, General Principles of Criminal Responsibility (1992, Commonwealth Attorney General's Department). For a description of the background and work of the committee, see Goode, M “Constructing criminal law reform and the model criminal code” (2002) 26 Criminal Law Journal 152 at 155–63.Google Scholar

57 Namely, New South Wales, South Australia and Victoria.

58 It is unclear why this provision does not also contain a clause on the absence of prior fault, like the one appearing in sec 10.2(3) for the defence of compulsion.

59 The choice of names as such is unimportant. It could alternatively be called “duress” as is the case in the ICC Statute.

60 For an alternative formulation of this issue of prior fault, there is the American Law Institute's Model Penal Code Proposed Official Draft (1962), of which sec 2.09(2) states: “The defence as provided by this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defence is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offence charged.” For a detailed evaluation of this and other formulations on prior fault, see Robinson “Causing the conditions”, above at note 48 at 15–16 and Yeo Compulsion, above at note 48 at 176–84.

61 For an alternative formulation, see the American Law Institute's Model Penal Code, of which sec 3.02(2) states: “When the actor was reckless or negligent in brining about the situation requiring a choice of harms or evils or in appraising the necessity of his conduct, the justification afforded by this section is unavailable in a prosecution for any offence of which recklessness or negligence, as the case may be, suffices to establish culpability”. See further Robinson “Causing the conditions”, above at note 48 at 18–19 and Yeo Compulsion, above at note 48 at 186–93.

62 In Gambia, Southern Nigeria and the Sudan, this outcome may already be attained by reading their provisions on reasonable mistake of fact together with those on compulsion and necessity; see note 17 and the discussion in the accompanying main text.