Justifiable Homicide - Common Excusing Conditions

Common Excusing Conditions

Potentially excusing conditions common to most jurisdictions include the following.

1. Where a state is engaged in a war with a legitimate casus belli, a soldier from one of the combatant states may lawfully kill a soldier in the army of the opposing state so long as that soldier has not surrendered. This principle is embedded in public international law and has been respected by most states around the world. Thus, if there is no formal declaration of war or the casus belli is not legitimate, all those who engage in the fighting and kill combatants could theoretically be prosecuted. Otherwise, protecting the national interest against external aggressors will be considered an excuse on utilitarian grounds, i.e. the greatest public good will be derived from the defeat of the enemy.
2. Where a state operates a system of capital punishment, all those who may be involved are excused from liability. This usually includes the judge who passes sentence, the prison guards who deliver the condemned person to the place of execution and those who carry out the sentence.
3. Many countries agree that it may be lawful for a citizen to repel violence with violence to protect his or her own or another's life and limb, or to prevent sexual assault. However, there is less agreement on the extent to which it is ever justifiable to kill the attacker. There are usually tests based on the proportionality of the response to the attack. Thus, there may be exculpation if the level of force used in defense matches the force threatened and the "winner" of the conflict first retreated or showed a clear intention not to fight (assuming this was possible in the time available).
4. Some countries agree that it may be lawful for a citizen to resort to violence to protect valuable property, usually defined as one's own.
5. The "heat of the moment" defense, in which death results from a situation where the defendant is deemed to have reasonably lost control, is often considered a part of the defense of provocation against a charge of murder. This is based on the idea that all individuals may suddenly and unexpectedly lose control when words are spoken or events occur but, again, jurisdictions differ on the extent to which this should be allowed to excuse liability or merely mitigate to a lesser offense such as manslaughter, and under which circumstances this defense can be used.
6. The doctrine of necessity allows, for example, a surgeon to separate conjoined twins, killing the weaker twin to save the other.
7. In the United States, the 2005 Unborn Victims of Violence Act changed the legal definition of human fetuses to "unborn children", formally defining feticide as murder (under USC §1111). However, the law retained explicit exceptions which prohibit the prosecution "of any person for conduct relating to an abortion," "of any person for any medical treatment," or "of any woman with respect to her unborn child," thereby preserving the abortion rights in the United States required under Roe v. Wade.
8. Several countries, such as the Netherlands, Belgium, Switzerland, Japan, and the US states of Oregon and Washington allow both active and passive euthanasia by law, if justified.
9. There is a strand of authority that potentially permits police or other law enforcement officers to use force to protect others from harm. This is another example of utilitarianism in that it may be necessary to prejudice the few to benefit the many. But, in many states, there is a presumption of innocence before the criminal case comes to trial. In South Africa, §49 Criminal Procedure Act used to provide:

(2) Where the person concerned is to be arrested for an offense referred to in Schedule 1 or is to be arrested on the ground of having committed such an offense, and the person authorized under this Act to arrest or to assist in arresting him cannot arrest him or prevent him from fleeing by other means than killing him, the killing shall be deemed to be justifiable homicide.

This has now been amended by §7 Judicial Matters Second Amendment Act 122 of 1998:

(2) If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome resistance or to prevent the suspect from fleeing: Provided that the arrestor is justified in terms of this section in using deadly force that is intended or is likely to cause death or grievous bodily harm to a suspect, only if he or she believes on reasonable grounds-

(a) that the force is immediately necessary for the purpose of protecting the arrestor, any person lawfully assisting the arrestor or any other person from imminent or future death or grievous bodily harm;

(b) that there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed; or

(c) that the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life threatening violence or a strong likelihood that it will cause grievous bodily harm.