The Prosecutor v. Dražen Erdemović

Court	International Criminal Tribunal for the former Yugoslavia (ICTY) Trial Chamber I, The Netherlands
Case number	IT-96-22-T
Decision title	Sentencing Judgement
Decision date	29 November 1996
Parties	The Prosecutor Dražen Erdemović
Categories	Crimes against humanity
Keywords	crimes against humanity, duress, guilty plea, mitigating circumstances, Murder, Srebrenica
Links	Sentencing Judgement
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, as a crime against humanity.

In order to determine the appropriate sentence for Erdemović, Trial Chamber I balanced the relevant sentencing factors.

With respect to duress, Trial Chamber I found that duress may serve as a complete defence under strict conditions, including whether the accused did not have the duty to disobey and whether he had the moral choice to do so or to try to do so. In the present case, these conditions were not met.

Trial Chamber I considered that the crimes committed by Erdemović were of intrinsic gravity. However, it took into consideration a large number of mitigating circumstances, including Erdemović’s age, expression of remorse, guilty plea, co-operation with the Prosecution and the fact that he no longer constitutes a danger.

Trial Chamber I sentenced Erdemović to 10 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).

Related developments

On 23 December 1996, Dražen Erdemović launched an appeal against the Sentencing Judgement.

On 7 October 1997, the Appeals Chamber rendered its judgement, 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 murder as 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). He was sentenced to five years in prison.

Neither party appealed the second sentencing judgement.

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. 76 et seq.)

Core legal questions

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

Specific legal rules and provisions

Articles 23(1), 24, 27, and 28 of the ICTY Statute.
Rules 100, 101, 103, and 104 of the ICTY Rules of Procedure and Evidence.

Court's holding and analysis

Trial Chamber I held that “while the complete defence based on moral duress and/or a state of necessity stemming from superior orders is not ruled out absolutely, its conditions of application are particularly strict … [and] it is incumbent on the Trial Chamber to examine whether the accused in his situation did not have the duty to disobey, whether he had the moral choice to do so or to try to do so” (para. 19). Trial Chamber I concluded that these “specific circumstances … [have] not been provided. Thus, the defence of duress … [was] taken into account at the same time as other factors in the consideration of mitigating circumstances.” (para. 20)

Trial Chamber I concluded that “in view of the intrinsic gravity of his crime and the individual circumstances which surrounded its commission, it is appropriate to grant to Drazen Erdemovic the benefit of mitigating circumstances based on the following elements:

his age at the time of the events and his subordinate level in the military hierarchy;
the remorse he has shown, his desire to surrender to the International Tribunal, his guilty plea and his co-operation with the Office of the Prosecutor;
the fact that he now does not constitute a danger and the corrigible character of his personality; and the fact that the sentence pronounced will be served in a prison far from his own country.” (para. 111)

Trial Chamber I sentenced Erdemović to 10 years’ imprisonment.