Drazen Erdemovic's Pointless Choice

Some of the moral dilemmas encountered in law are as raw and intense as any contemplated by any philosopher. I thought of this yesterday when I was going through the defence of necessity with a student. I've blogged about this before--the argument, essentially, that a defendant did a thing because they had to. In medical law, this has led to an increasing number of situations in which Doctors can think about killing their patients or allowing them to die. Whilst searching for material, I came across the case of Drazen Erdemovic.

Please do not assume that by noting his case I am pretending to any knowledge of the Bosnian war, nor do I wish to enter that historiographical morass.

Erdemovic's case is, unfortunately, not unique. It has happened time and again, and is as I write happening in the Congo, and in places across the earth. Ermedovic was 23. He was part of the 10th Sabotage Detachment of the Bosnian Serb Army. He was placed by his unit commander, with others, in front of some 70 civilians. He was ordered to shoot them. He refused. He was then told by his superior officer that this was a pointless refusal, and that he would be shot if he did not comply, which would simply add another toll to the tally. In some part of his mind, he seems to have thought that he would obey, and then testify in the future, and this was a way in which he could maintain his survival and sanity.

Ermedovic was brought before the International Criminal tribunal. The Appeals Chamber held that duress, or necessity, was not a full defence to the charge of a crime against humanity. Two Judges, in the minority, thought it was.

English law does not allow duress or necessity to be a defence to murder at all, though medical necessity is, in the case of conjoined twins. It asks people to be heroes, or Maximillian Kolbe type-saints. In a case where four sailors were adrift in a lifeboat, and two killed a third so that the remaining three could eat in 1884, these rules rang out and they were confirmed by Lord Hailsham amongst others in succeeding years.

Can we ask people without faith, or even those with it, to be heroes? Would you sacrifice yourself, reader? I would like to think that I would, but the easy seduction of just blaming superior officers might sway me. I do not pretend to extraordinary strength. Is it simply the idea of clinging to the cross upon which is hung my salvation that would keep a hypothetical me from doing things like the young Erdemovic did?

The answer is a complex one. Who, for instance, should be held accountable for Abu Ghraib? Why are ordinary officers held accountable and not the retiring administration? Should we let civil wars go on and these horrible dilemmas be played out, or is there any scope for potentially disastrous outside interventions of spurious legitimacy to stop people from ever being tested?

Without rules internalised by the likes of Christianity, Erdemovic's pointless choice will be asked of others time and again. How many of us would acknowledge that there was a point, and that it was worth the destruction of ourselves?


Anonymous said…
Of course, the problem is we do not know ourselves...Courageously, cowardly,coldly...I don't think we can possibly know how we might react in a real situation.If Erdemonic believed that others would die regardless, why should he sacrifice himself? Why should he die for no reason? If you are a believer who has no doubt that your personal destruction will fast-track you to a better life you might want to go for it. Why hang around when so much better awaits? On the simplest level, I have always failed to understand why people of faith dread death just as much as those who accept that the end is the end.

The men on a lifeboat are not in a comparable situation. Presumably they had to select someone to die.
That is despicable, unforgiveable and wrong. Obviously, you just sit on the boat and wait to be rescued or you all die.

Abu Ghraib is a bloody disgrace. The retards that so obviously enjoyed inflicting such humiliation should be held responsible alongside their masters who kept their hands clean.

One last thing. Times are changing so quickly. Old people languish in hopspitals and can be kept alive almost indefinitely. When my lovely father was alive this was not possible. He was a GP, and I think he recognised when a life was ending. I know he was very aware that morphine hastened death. Of course, that is still the case today but questions are asked of doctors who administer it as though they are wanton killers. Ending pain and shortening a life that had only weeks of torment left is right and brave and has always happened.When my son was 16 years old and thinking of becoming a doctor he had to spend two weeks in a hospital shadowing a hospital registrar. He came home one night and told me that he had seen a patient "killed". He was warned that the lady was in distress and had not much time left. The pain-killer was administered and death happened fifteen minutes later. As the doctor said she had "had enough". They then proceeded to the hospital canteen where the doc bought sandwiches and coffee (for both of them) from the fee for signing the death certificate.
I knew he was cut out for the job when he did not flinch at this reality.

Another of my son's is an actuary. He is hugely principled,and would probably not handle medical dilemmas with such aplomb. Still, some people have to take the hard decisions. All this life prolonging stuff plays havoc with the predictions and is hell for the mathematicians. Let's hope God knows what's going down,
Love Mary.
Martin Meenagh said…
Hi Mary. Thank you, as ever, for your comment, and I am sorry for the loss of your father. I have lost a great many people I love, many of whom died when I was young, including my own father. he died when he was 39, which no longer seems old to me. I know that one only ever adapts, not recovers.

You might be interested in the Dudley and Stephens case--the cabin boy Captain Dudley killed was almost certainly going to die anyway. If they had waited and ate the corpse, they would not of course have been committing a crime since they were on the high seas where a coroner had no jurisdiction and cannibalism is not in itself a crime.

I couldn't agree more about Abu ghraib.

As for that sad story of hospitals, we don't have the death penalty in this country, but if we had so, and if I ever practised at the bar, I suppose that I would have to ask whether I followed the law or my conscience as some of my American friends do.

Doctors have always had a very great discretion here--there is no right to an abortion, for instance, and never has been, but Doctors have always had a defence of necessity. I'd have many concerns about 'helping people along'. Most Doctors are very trustworthy people, but they are harassed and overworked and overexamined in my experience. And, of course, good as most Doctors are, Harold Shipman (who helped 200 people along, as it were) was not. I would also hope to God that the State never got the right to kill its own citizens back and that an ideology of rights adminstered by m'learned friends was never set up on stilts in these awful circumstances.

I'd like to extend best wishes for christmas and the new year to your whole family. All the very best. I'm always grateful for your comments.

Anonymous said…
Just to clarify the issue I never meant to imply that I could kill 70 people just to save my own miserable skin. I know I could not do that nor could I eat a corpse. I'm fairly sure that I would rather die than do that. Still, I understand the logic of Erdemonic's argument.

Thank you for all your kind remarks. Do have a wonderful Christmas and all the best to you for the NY.

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