The Prosecutor v. Dražen Erdemović

Court	International Criminal Tribunal for the Former Yugoslavia (ICTY) Trial Chamber II, The Netherlands
Case number	IT-96-22-Tbis
Decision title	Sentencing Judgment (after Referral)
Decision date	5 March 1998
Parties	Prosecutor Dražen Erdemović
Categories	War crimes
Keywords	aggravating and mitigating circumstances, guilty plea, Murder, Srebrenica, violation of the laws or customs of war
Links	Sentencing Judgment (after Referral)
Other countries involved	Bosnia and Herzegovina

Summary

On 6 July 1995, the Srebrenica enclave (Bosnia and Herzegovina) was attacked by the Bosnian Serb Army. Bosnian Muslim men were separated from the women and children and, subsequently, taken to various sites where they were executed. Erdemović was a member of a unit of the Bosnian Serb Army, and participated in the killing of Bosnian Muslim men who were taken to the Pilica farm, situated near Zvornik (Bosnia and Herzegovina). Erdemović pleaded guilty to murder, first as a crime against humanity. Later, the Appeals Chamber ordered that he be allowed to replead before a new Trial Chamber, during which he pleaded guilty to murder as a war crime.

In order to determine the appropriate sentence, Trial Chamber II assessed the aggravating and mitigating factors.

The magnitude of the crimes at the Pilica farm (Bosnia and Herzegovina), and Erdemović’s role in them were considered as aggravating circumstances. Turning to the mitigating circumstances, Trial Chamber II took into consideration Erdemović’s personal circumstances, his admission of guilt, his expression of remorse, and his cooperation with the Prosecution. Trial Chamber II found that Erdemović committed the crimes under duress, that is, in fear that he would be killed should he disobey the orders to kill the Bosnian Muslims. Accordingly, Trial Chamber II considered this as a mitigating factor.

Erdemović was sentenced to 5 years’ imprisonment.

Procedural history

Dražen Erdemović was indicted on 22 May 1996 on one count of murder as a crime against humanity and on an alternative count of murder as a violation of the laws or customs of war.

On 31 May 1996, Dražen Erdemović pleaded guilty to the count of murder, as a crime against humanity. Trial Chamber I accepted the guilty plea and dismissed the alternative count of violation of the laws or customs of war (see ICTY, Trial Chamber I, The Prosecutor of the Tribunal v. Dražen Erdemović, Case No. IT-96-22-PT, Hearing Motion, Transcript, 31 May 1996).

On 29 November 1996, Trial Chamber I sentenced Dražen Erdemović to 10 years of imprisonment.

On 23 December 1996, Dražen Erdemović launched an appeal against the Sentencing judgment. On 7 October 1997, the Appeals Chamber rendered its judgment, remitting the case to a new Trial Chamber and holding that in the circumstances of the case, Dražen Erdemović’s guilty plea was not informed and duress does not afford a complete defence to a soldier charged with crimes against humanity or war crimes. The Appeals Chamber ordered that Dražen Erdemović be allowed to replead before another Trial Chamber.

On 14 January 1998, Trial Chamber II heard the fresh plea of Dražen Erdemović, when he pleaded guilty to the count of a violation of the laws or customs of war (see Prosecutor v. Dražen Erdemović, ICTY, Trial Chamber II,Case No. IT-96-22, Motion Hearing, Transcripts, 14 January 1998).

Related developments

Neither party appealed the second sentencing judgment. On 26 August 1998, Erdemović was transferred to Norway to serve his sentence.

On 13 August 1999, he was granted early release.

Legally relevant facts

The events giving rise to the case have occurred in Srebrenica (Bosnia and Herzegovina) in July 1995. On 6 July 1995, the Srebrenica enclave was attacked by the Bosnian Serb Army. The attacks continued until 11 July 1995, when Srebrenica fell. As a result, thousands of Bosnian Muslims fled their homes. Bosnian Muslim women and children were separated from the Bosnian Muslim men. The men were taken to various sites where they were executed. Erdemović was a member of the 10^th Sabotage Detachment of the Bosnian Serb Army. On the morning of 16 July 1995, Erdemović and seven other members of the 10^th Sabotage Detachment were ordered to go to the Pilica farm, located near Zvornik (Bosnia and Herzegovina), where the Bosnian Muslim men were taken. Upon arrival, the Bosnian Muslim men were escorted to a field near the farm buildings, where they were lined up and killed. Erdemović was participating in the killings of the Bosnian Muslim men throughout the day. In his guilty plea, he recalled killing about 70 people. (para. 13)

Core legal questions

Taking into consideration the relevant sentencing factors, what is the appropriate sentence for Dražen Erdemović?

Specific legal rules and provisions

Articles 7, 20(3) and 24 of the ICTY Statute.
Rules 62bis and 101 of the ICTY Rules of Procedure and Evidence.

Court's holding and analysis

With respect to the aggravating factors, Trial Chamber II considered that “the magnitude of the crime and the scale of the accused’s role in it are aggravating circumstances to be taken into account.” (para. 15)

Turning to the mitigating factors, Trial Chamber II considered that Erdemović’s “circumstances and character … indicate that he is reformable and should be given a second chance to start his life afresh upon release, whilst still young enough to do so.” (para. 16). Accordingly, Trial Chamber II took into consideration his personal circumstances as mitigating factors. Furthermore, his admission of guilt (para. 6, p. 15); his expression of remorse (para. 6, p. 16) and his cooperation with the Prosecutions (para. 6, p. 17) were also taken into account.

Trial Chamber II considered that duress “may be taken into account only by way of mitigation … [and] that there was duress in this case” (para. 17, p. 18). Trial Chamber II found that “there was a real risk that the accused would have been killed had he disobeyed the order. He voiced his feelings, but realised that he had no choice in the matter: he had to kill or be killed.” (para. 17, p. 19)

Dražen Erdemović was sentenced to 5 years of imprisonment.