The Prosecutor v. Dražen Erdemović

Court	International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber, The Netherlands
Case number	IT-96-22-A
Decision title	Judgment (in Appeal)
Decision date	7 October 1997
Parties	The Prosecutor Dražen Erdemović
Categories	Crimes against humanity
Keywords	crimes against humanity, duress, guilty plea, Murder, new Trial Chamber, rejection, Srebrenica
Links	Judgment (in Appeal)
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 the count of murder as a crime against humanity. Trial Chamber I sentenced him to 10 years of imprisonment.

The Appeals Chamber rejected Erdemović’s grounds in which he asked for his acquittal or in the alternative, for the revision of his sentence.

The Appeals Chamber, acting on its own initiative, found that duress does not afford a complete defence to a soldier who is charged with a crime against humanity and/or a war crime. Therefore, the guilty plea of Erdemović was not equivocal. Furthermore, the Appeals Chamber found that the guilty plea was also not informed. For these reasons, the Appeals Chamber decided that the case must be remitted to a Trial Chamber and Erdemović be allowed to replead in full awareness of the nature of the charges against him and the consequences of such a plea.

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 The Prosecutor of the Tribunal v. Dražen Erdemović, ICTY, Trial Chamber I, 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.

Related developments

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

Neither party appealed the second sentencing judgment. On 26 August1998, 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. 1 et seq.)

Core legal questions

Did Trial Chamber I err in its findings with respect to the sentence of Dražen Erdemović?
Can the Appeals Chamber uphold any of the grounds of appeal adduced by the Applicant?

Specific legal rules and provisions

Article 25 of the ICTY Statute.
Rule 115 of the ICTY Rules of Procedure and Evidence.

Court's holding and analysis

The Appeals Chamber, acting proprio motu, raised certain preliminary issues, including whether duress can afford a complete defence to a charge of crimes against humanity and/or war crimes (para. 16). The Appeals Chamber held that “duress does not afford a complete defence to a soldier charged with a crime against humanity and/or a war crime involving the killing of innocent human beings. Consequently, the majority of the Appeals Chamber finds that the guilty plea of the Appellant was not equivocal” (para. 19).

Furthermore, the Appeals Chamber found that “the guilty plea of the Appellant was not informed and accordingly remit[ted] the case to a Trial Chamber other than the one which sentenced the Appellant in order that he be given an opportunity to replead” (para. 20).

Subsequently, Erdemović’s “application for the Appeals Chamber to revise his sentence is rejected by the majority [of the Appeals Chamber]. The Appeals Chamber also unanimously rejects the Appellant’s application for acquittal” (para. 21).