GENERAL PART

CHAPTER TWO
THE OFFENCE

FOURTH TITLE
SELF-DEFENCE, NECESSITY AND DURESS

Section 35
Duress

(1) A person who, faced with an imminent danger to life, limb or freedom which cannot otherwise be averted, commits an unlawful act to avert the danger from himself, a relative or person close to him, acts without guilt. This shall not apply if and to the extent that the offender could be expected under the circumstances to accept the danger, in particular, because he himself had caused the danger, or was under a special legal obligation to do so; the sentence may be mitigated pursuant to section 49(1) unless the offender was required to accept the danger because of a special legal obligation to do so.

(2) If at the time of the commission of the act a person mistakenly assumes that circumstances exist which would excuse him under subsection (1) above, he will only be liable if the mistake was avoidable. The sentence shall be mitigated pursuant to section 49(1).

This provision is wider than the ICC Statute.

German criminal law distinguishes between duress as justification (StGB Section 34) and duress as excuse (StGB Section 35). A threat to life, limb or freedom without further qualifications is sufficient as an excuse of guilt. For duress to constitute a justification the protected interest must substantially outweigh the one interfered with (Matthias Neuner, General principles of International Criminal Law in Germany, pp. 105-136 in Matthias Neuner (ed.), National legislation implementing international crimes, Berlin: Berliner Wissenschafts-Verlag, 2003 - pp. 115-119).