SUMMARY OF THE JUDGEMENTDELIVERED ON 29 NOVEMBER 1996 INTHE CASE OF DRAZEN ERDEMOVIC
In determining the appropriate sentence forDrazen Erdemovic, the Trial Chamber has based its judgement ona line of reasoning in law and in fact which it will now summarisein broad terms, recalling that the judgement in its entirety willbe available to the public, in the authentic version (i.e. inFrench), immediately after this hearing.
The operative provisions of the judgement,including the sentence pronounced, will be read at the end ofthis summary, the accused being present in accordance with Rule101(D) of the Rules of Procedure and Evidence.*
The Judgement delivered by the Trial Chamberis structured as follows.
After setting out the historical backgroundof the procedure, but before entering into its reasoning, theTrial Chamber believed it necessary in this case to consider thevalidity of the accused's plea of guilty.
It then outlined the legal framework of itsjurisdiction, identifying the law and principles it deems applicableregarding crimes against humanity.
Lastly, it analyses the acts with which theaccused is charged, in particular from the angle of the mitigatingcircumstances he invoked in his defence.*
Given the circumstances surrounding the guiltyplea by Drazen Erdemovic, the Trial Chamber felt it incumbentfor it, before proceeding to any consideration of substance, toreview the validity of that plea.
It first ensured that, as of his initialappearance before the Trial Chamber, Drazen Erdemovic pleadedguilty voluntarily and fully cognisant of the nature of the chargeand its implications. The Trial Chamber considered in particularthe psychological examinations it had itself ordered carried out.
As justification for his conduct, however,the accused invoked the urgent necessity for him to obey his militarysuperior and the physical and moral duress stemming from threatsto his own life and the lives of his wife and child.
The Trial Chamber could legitimately considerwhether the elements put forward, which in themselves are suchas to mitigate the penalty, might also, in the light of the probativevalue attributed to them, be regarded as factors justifying thecriminal conduct and thereby affecting the very existence of thecrime itself.
The Trial Chamber would point out first thatfor an accused the choice of pleading guilty is part of a defencestrategy he is formally recognised as having within the procedurein force at the International Tribunal. That strategy has beenfully and consciously adopted by the defence.
In respect of superior orders, the only caseenvisaged in the Statute, it does not relieve the accused of hiscriminal responsibility. At most, it may justify a mitigationof sentence if the Tribunal deems it consistent with justice.
As regards the physical and moral duressresulting from the superior order, and in the absence of any referencein the Statute, the Trial Chamber has examined how the InternationalMilitary Tribunal at Nuremberg and the international militarycourts delivering judgements after the Second World War had distinguishedbetween exculpatory duress which justified the crime, and duressas a grounds for a mitigation of sentence.
While justification on account of moral duressand the state of necessity pursuant to an order from a superiormay not be excluded absolutely, its conditions of applicationare especially strict. The acts invoked, if proven, must be assessedaccording to very rigorous criteria and appreciated in concreto,and involve in particular the lack of moral choice by the accusedwhen placed in a situation where he could not resist.
Exercising its unfettered discretion, theTrial Chamber has not hesitated to be particularly demanding,since the ambit of the International Tribunal is the prosecutionof the most serious crimes of international humanitarian law.
However, the elements drawn from the factsof the case and the hearing have not enabled the Judges to considerthat evidence warranting a full exculpation of the accused's responsibilityexists. The elements invoked by the defence will accordinglybe taken into account as mitigating circumstances. On this basis,the Trial Chamber confirmed the validity of the guilty plea.
1. APPLICABLE LAW AND PRINCIPLES
The sentence delivered in this case is thefirst sentence to be delivered by the International Tribunal andrelates to a crime against humanity.
The Trial Chamber was therefore confrontedwith legal issues which it had to resolve before proceeding tothe actual consideration of the gravity of the acts and the circumstancesof the accused.
In the logical order in which they are addressed,these issues are:
1. The scale of penalties applicable whenan accused is found guilty of a crime against humanity;
2. The principles governing sentencing;
3. Enforcement of the sentence.
1. The scale of penalties applicablewhen an accused is found guilty of a crime against humanity
Under the Statute and the Rules, the InternationalTribunal may sentence an accused who has pleaded guilty or isfound guilty, to imprisonment only, which may be up to for theremainder of his life.
In addition to the reference to the generalpractice regarding prison sentences in the courts of the formerYugoslavia, which will be addressed below, the texts provide noindication as to the term of imprisonment incurred for a crimeagainst humanity. The Trial Chamber has therefore identifiedthe characteristics specific to such crimes and to the penaltiesattached thereto under international as well as national law.
As stated at Nuremberg and recalled by theSecurity Council in its resolution establishing the InternationalTribunal, "crimes against humanity" refer to inhumaneacts of "extreme gravity". These crimes violate humanbeings in what is most essential to them. They transcend theindividual, since, through the assault on the latter, humanityis negated. And, whether at Nuremberg, where the most severesentences (going as far as the death penalty) were pronouncedand executed, or within the domestic legislation of States thathave introduced crimes against humanity therein, or within therelevant legislation of the former Yugoslavia, the harshest penaltieshave been laid down for crimes against humanity. It is the expressionof a general principle of law recognised by all nations.
As to recourse to the general practice regardingprison sentences in the courts of the former Yugoslavia, as referredto in the Statute, the Trial Chamber notes that crimes againsthumanity are not strictly speaking found in the provisions ofthe Yugoslavian code, which provides for "genocide and warcrimes against the civilian population". The case-law ofthe courts of the former Yugoslavia is hardly significant, inparticular on account of the small number of judgements. Accordinglythe Trial Chamber considers that the general practice regardingprison sentences in the courts of the former Yugoslavia is notbinding on it. The Judges consider even that making recourseto that practice the sole standard for determining the scale ofpenalties would, owing to the principle nullum crimen nullapoena sine lege sometimes invoked, be tantamount to disregardingthe criminal character that is universally attached to crimesagainst humanity, as such crimes have for a long time been partof the international legal order, and the harshest penalties attachedto them. Consequently, the Judges merely "consulted"that practice.
2. Principles governing sentencing
The Trial Chamber identified in turn thefactors enabling the penalty to be fitted to the case in point,and the purposes and functions of the penalty.
a) Factors enabling the penalty to befitted to the case in point
According to the terms of the applicabletexts, these factors are primarily the gravity of the offence,the personal circumstances of the accused, and the existence ofaggravating or mitigating circumstances, including substantialco-operation of the accused with the Prosecutor.
The Trial Chamber has rejected the existenceof any aggravating circumstances. Besides the fact that theyare not defined in the Rules, the Trial Chamber's position isthat circumstances that might characterise the gravity of thecrime may only cancel out any leniency based on mitigating circumstances.
The situation is wholly different as regardsany mitigating circumstances. The Statute and the Rules providenon-restrictively for situations which, if proven, are such tolessen the degree of guilt of the accused and warrant a mitigatedsentence. In this respect, the Trial Chamber takes account, interalia, of remorse.
As stated above, mitigation on account ofsuperior orders alone is expressly enshrined in the Statute, replicatingon this point the Statute of the Nuremberg Tribunal.
The fact that an accused acted pursuant tosuperior orders was often raised before the international andnational military courts established after the second world war.
The Nuremberg Tribunal did not question theadmissibility of superior orders for a mitigation of sentence,pointing out however that the order received by a soldier to killor torture in violation of international law of war had neverbeen regarded as justifying such acts of violence; a soldier couldrely on it only to obtain a mitigation of punishment; the realtest of criminal responsibility being by no means a question ofthe order received, but of the moral choice of the perpetratorof the act charged.
Nonetheless, the Trial Chamber believes thatdismissing the defence of superior orders, as was the practiceof the Nuremberg Tribunal, was due to the high position of authorityof the accused, and that, as a result, the precedent-setting valueof the judgement in this regard is reduced in the case of an accusedof low rank.
In his report the Secretary-General of theUnited Nations addressed the issue of superior orders in connectionwith duress, considering that the order of a government or superiormay be considered "in connection with other defences suchas coercion or lack of moral choice". The Trial Chamberwill content itself with that position provided the elements proneto characterise a state of necessity or duress as argued by theaccused are proven by him.
Lastly, given the Tribunal's situation whichis exceptional because it does not have its own facility for imprisonment,the Trial Chamber takes note of the unavoidable isolation in whichconvicted persons serving their sentences in institutions oftenfar removed from their place of origin will find themselves.
b) Purposes and functions of the penaltyfor a crime against humanity
Given the unique nature of the InternationalTribunal, the Trial Chamber shall consider the purposes and functionsof the penalty for crimes against humanity, and more particularlya term of imprisonment.
Neither the Statute, nor the Report of theSecretary-General, nor the Rules elaborate on the objectives soughtby imposing such a sentence. Accordingly, to identify them, thefocus must be on the very object and purpose of the InternationalTribunal.
The Trial Chamber thereupon examined thepurposes and functions of the penalty for a crime against humanityin the light of international criminal law and of national criminalsystems, including that of the former Yugoslavia.
As they emerge from the texts at the originof the International Tribunal, the objectives as envisaged bythe Security Council, i.e. deterrence, reprobation, retributionas well as collective reconciliation, are part of a broader aimof the Security Council to maintain peace and security in theformer Yugoslavia.
The only precedents in international criminallaw, the Nuremberg and Tokyo Tribunals, do not expressly statethe purposes sought in imposing penalties for war crimes or crimesagainst humanity, but a review of the declarations by the signatoriesof the London Charter would indicate that the penalties seemedto be aimed at general deterrence and retribution.
The purposes and functions of national criminalsystems are often hard to identify precisely; they are multipleand have moreover been written to a large extent into the CriminalCode of the Federal Republic of Yugoslavia. The competence ofthe International Tribunal differs fundamentally from that ofa national court which punishes all sorts of offences, usuallyordinary crimes.
In the light of the above review, the TrialChamber deems most important the concepts of deterrence and retribution.But it would insist especially on reprobation as an appropriatepurpose of punishment for a crime against humanity and the stigmatisationof the underlying criminal conduct.
3. Enforcement of the sentence
One of the major difficulties with whichthe International Tribunal has to contend relates to the placeand form of execution of the sentence. In the light of the pertinenttexts, the Trial Chamber notes that enforcement relies on thedesignation of a State and on the Tribunal's supervision of theconditions of imprisonment enforced on that State's territory.
The Trial Chamber accordingly considers thatit is for the Registrar, upon consultation with the Presidentof the International Tribunal and with the approval of the PresidingJudge of the Trial Chamber which delivered the sentence, to designatethe State where the imprisonment will be served.
The Trial Chamber intends, however, to takeaccount of the matter of place and conditions of execution ofthe sentence, in an effort to ensure due process, the proper administrationof justice, and equal treatment for convicted persons.
Every accused should in fact know the possibleconsequences of a conviction for an international crime. A certainlevel of uniformity must be upheld in the enforcement of sentences,irrespective of the State in which the sentence is served. Lastly,the Trial Chamber feels it incumbent to provide some guidancein respect of the enforcement of international judgements.
In this regard, the Trial Chamber considersthat, pursuant to the principle of equality before the law, theremust not be any major disparities from one State to another inthe enforcement of sentences. It therefore recommends a certaindegree of uniformity and consistency in the enforcement of internationalcriminal sentences. There are two concerns it believes are essentialin the light of the international character of the penalty: respectfor the duration of the sentence and respect for internationalstandards relative to the treatment of prisoners.
As regards duration, no measure shall betaken by a State which might terminate the sentence or alter itby reducing it.
As regards the treatment of prisoners, underthe Statute and the Rules the Tribunal has some powers regardingthe treatment of convicted persons. The Trial Chamber considersthat the penalty imposed and its execution must always complywith the principles of humanity and dignity at the heart of theinternational standards for the protection of the rights of prisoners.
Having specified its legal framework, theTrial Chamber will now analyse the criminal acts as submittedto it in the indictment against Drazen Erdemovic and the circumstancesleading to their commission, with a view to determining the mostappropriate sentence.
II. THE CASE IN POINT
The Trial Chamber first set outs the relevantfacts of the case and then considers their probative value, inparticular from the angle of the mitigating circumstances invokedby the accused.
1. The relevant acts
The Trial Chamber would recall that the actswith which Drazen Erdemovic is charged occurred in the contextof the events which followed the fall of the enclave of Srebrenica. Those events were attested to publicly during the hearing pursuantto Rule 61 in the Prosecutor's cases against Radovan Karad`icand Ratko Mladic. The acts involved would implicate those indicteesin the commission of crimes against humanity, and have been corroboratedby many statements, including the testimony of the accused. Theywere further corroborated by him during his guilty plea. Theyare outlined below.
According to the public testimony of theinvestigator of the Prosecutor's office, the sites of the massacreswith which the accused is charged have been identified, thus corroboratingthe accused's own statements. First, there is the Branjevo farmat Pilica where approximately 1,200 Muslims were executed by soldiersof the unit of which Drazen Erdemovic was a member, an involvementto which he admitted. Then there is the public building in Pilicawhere, according to the public testimony of the accused, approximately500 Muslims were executed by members of the 10th Sabotage Unit.
As regards the acts with which Drazen Erdemovicis charged, the Trial Chamber has reviewed them as they were setforth in the indictment and formally recognised by the accusedwhen he entered his plea of guilty and subsequently elaboratedon at the hearing. They will not be addressed in this summary.
The Trial Chamber has endeavoured in particularto address these acts from the angle of the gravity of the crimecommitted and the mitigating circumstances invoked by the accused. In the sentencing procedure, that discussion will be the primesupport of the line of reasoning behind the sentence.
2. Gravity of the acts and mitigatingcircumstances
The Trial Chamber considers that the crime'sextreme gravity has been demonstrated: participation in the murderof 1,200 unarmed civilians over a five-hour period on 16 July1995. According to his many affirmations, Drazen Erdemovic isresponsible for the murder of from ten to 100 people.
As regards mitigating circumstances, theTrial Chamber has distinguished two categories: one, those whichwere contemporary with the perpetration of the criminal act, thatis, the mental incapacity of the accused, the urgent necessityhe was allegedly in at the time he committed those acts, as wellas his low military rank;
and two, those relating to the accused'sattitude after the commission of the acts, that is, the contritionhe showed, his willingness to surrender to the International Tribunal,and his co-operation with the Office of the Prosecutor.
Lastly, the Trial Chamber discussed certainaspects of the personality of Drazen Erdemovic as elucidated byhis testimony, the public testimony of witnesses X and Y, andthe closing arguments of his defence counsel.
a) Mitigating circumstances contemporarywith the perpetration
of the criminal act
i) TheTrial Chamber has not accepted the line of argument of the defenceregarding the mental condition of the accused at the timeof the acts. There is nothing in the case-file or in the experts'reports which enables conclusions to be drawn in respect of theaccused's psychological state at the time of the crime.
ii) Urgent necessity stemming from duressand a superior order
To assess its probative value, the TrialChamber identified a number of questions:
- Could the accused have avoided the situationhe was in?
- Was the accused confronted with an insurmountableorder he had no way of eluding?
- Were the accused or close members of hisfamily exposed to the danger of immediate or short-term death?
- Did the accused have no moral choice tooppose the orders he received or, if he had, did he attempt tooppose those orders?
The Trial Chamber noted that the overallaccount of events by the accused could be considered quite likelyto have happened. It is also aware of the general atmosphereprevailing at Srebrenica at the time the enclave fell and whenthe ensuing events occurred. However, in respect of the actsinvolving the person of the accused which might be a basis forallowing mitigating circumstances, the defence has provided notestimony, expertise or other element to corroborate what DrazenErdemovic said.
Accordingly, the Judges considered themselvesunable to accept the defence of urgent necessity.
iii) Low military rank
According to him, Drazen Erdemovic was asergeant and as such was in command of a small unit. He was allegedlydemoted before committing the crimes with which he is charged. But no document clearly establishes his military rank. The indictment,in which the accused pleaded guilty, describes him as a soldierin the 10th Sabotage Unit.
The Trial Chamber considers that Drazen Erdemovic,described by the Prosecutor as a low-ranking member of the BosnianSerb Army, did not hold a position of authority at the time ofthe said crimes.
b) Mitigating circumstances relating tothe attitude of the accused after the commission of theacts
i) Remorse and the willingness to surrender
Drazen Erdemovic's remorse for the crimeshe committed is evident through his statements, his conduct andthe report of the medical experts.
The Trial Chamber notes the constancy withwhich the accused has unequivocally and spontaneously expressedhis responsibility in the massacre at Branjevo farm and his contritiontherefor. The desire to clear his conscience was expressed byhis willingness to surrender to the International Tribunal toanswer for his crimes and in his plea of guilty. The medicalexperts noted the state of depression in which he arrived at TheHague, accompanied by a feeling of guilt.
In determining the penalty, the Trial Chamberaccepts the remorse expressed by the accused.
ii) Co-operation with the Office of theProsecutor
The Prosecutor has referred repeatedly tothe co-operation of the accused, which he characterised as substantial,full, and unconditional. The Prosecutor revealed that withoutthe accused's statements he would not have been cognisant of fourevents, including the massacres at the Branjevo farm and in thepublic building at Pilica.
Other information provided by Drazen Erdemovichas permitted the Prosecution to gain a better understanding ofthe geographic area where the massacres occurred, the logisticresources deployed, and the names and identity of a number ofthe individuals responsible for these acts. The accused gaveessential testimony in the hearings against Radovan Karad`ic andRatko Mladic.
The Trial Chamber considers that the accused'sco-operation with the Office of the Prosecutor must be accordedconsiderable significance in mitigating the penalty.
c) Aspects of the accused's personality
The Trial Chamber heard the accused on thesubject of his childhood, schooling and professional training,and present family situation. It noted the statements of defencewitnesses X and Y and acquainted itself with the findings of themedical experts.
On the basis of these elements taken as awhole, the Trial Chamber deems it appropriate to give specialconsideration to the relative youth of the accused at the timeof the crimes, his present family situation, the fact that hedoes not pose a threat, his gesture in rescuing witness X, anda series of features characterising a corrigible personality.
Having considered all of the facts of thecase submitted for its attention, the Trial Chamber is of theconviction that, given the inherent gravity of his crime, it isappropriate to grant Drazen Erdemovic the benefit of the followingmitigating circumstances:
- His age at the time the crimes were committedand his low military rank;
- the remorse he expressed, his willingnessto surrender, and the co-operation he has provided to the Officeof the Prosecutor;
- the fact that he does not pose a threat,and has a corrigible personality.
TRIAL CHAMBER I
FOR THESE REASONS
Delivering its judgement publicly, in thepresence of the parties and in first instance,
Pursuantto Articles 23, 24 and 27 of the Statute and Rules 100, 101 and103 of the Rules of Procedure and Evidence,
Noting theindictment as confirmed on 29 May 1996,
Noting theplea of guilty by Drazen Erdemovic on 31 May 1996 to the countof crime against humanity, as provided under Article 5(a) of theStatute
Noting thebriefs of the parties,
Having heardthe Closing Arguments of the Prosecution and of the Defence,
IN PUNISHMENTof said crime,
born on 25 November 1971 at Tuzla,
to years' imprisonment; and
RULES thatfrom the total duration of this sentence shall be deducted theperiods during which the convicted person was in custody and provisionaldetention pending his transfer to the International Tribunal andhis judgement by this Trial Chamber, that is from 3 March 1996until today;
RULESthat the Registry shall, upon consultation with the Presidentof the International Tribunal and with the approval of the PresidingJudge of this Trial Chamber, designate the State where the sentencewill be served; and
RULESthat this judgement shall be enforceable immediately.