1 Wednesday, 14th January 1998

2 (2.45 pm)

3 JUDGE MUMBA: Good afternoon, ladies and

4 gentlemen. I would like to check first of all if the

5 interpreters are all ready? Yes, they are.

6 THE INTERPRETER: Yes, thank you.

7 JUDGE MUMBA: Can they hear me? Can

8 everybody in the court hear me?

9 THE INTERPRETER: Yes, your Honours.

10 JUDGE MUMBA: Do my colleagues hear me, the

11 Prosecutor and the Defence? Does the accused hear me

12 in a language which he understands? Does he hear me

13 now in a language he understands?

14 MR. ERDEMOVIC: Yes, your Honour.

15 JUDGE MUMBA: Can I ask the Registrar to call

16 out the number and the name of the case?

17 THE REGISTRAR: Case number IT-96-22, the

18 Prosecutor versus Drazen Erdemovic.

19 JUDGE MUMBA: Thank you. We can now commence

20 with this hearing. Further to the decision of the

21 Appeals Chamber on 7th October 1997 and the order of

22 the President on 20th November 1997, the case of Drazen

23 Erdemovic has been remitted to this Trial Chamber.

24 Today we will be taking the reply of the accused to the

25 charges made by the Prosecutor against him in the

1 indictment dated 22nd May 1996. Could the accused

2 please rise and state for the Trial Chamber his name,

3 date and place of birth, and the name of his attorney?

4 MR. ERDEMOVIC: My name is Drazen Erdemovic,

5 I was born on 25th November in Tuzla, and my lawyers

6 are Mr. Babic and Mr. Kostic.

7 JUDGE MUMBA: Thank you. Could you confirm

8 to the court, Mr. Erdemovic, that you have had time to

9 confer with your lawyer on the various issues

10 concerning this case and that you are satisfied with

11 the legal advice that you have been receiving so far.

12 MR. ERDEMOVIC: Yes, I am satisfied with the

13 legal advice I have been receiving from my lawyers.

14 JUDGE MUMBA: Thank you. You may be seated.

15 Can we have appearances for the Prosecution,

16 please?

17 MR. NIEMANN: If your Honours please, my name

18 is Niemann and I appear with my colleagues

19 Mr. McCloskey and Ms. Sutherland for the Prosecution.

20 JUDGE MUMBA: Thank you. Can I have

21 appearances for the Defence, please?

22 MR. BABIC: Your Honours, my name is Jovan

23 Babic, attorney, member of the bar of Vojvodina, which

24 is within the Serbian bar of attorneys, and an advisor

25 in the bar of Yugoslavia.

1 MR. KOSTIC: Good afternoon, your Honours, my

2 name is Nikola Kostic, I am an attorney from the

3 United States licensed to practise in that country.

4 JUDGE MUMBA: Thank you. For these

5 proceedings, the accused is charged with one count of a

6 crime against humanity and an alternative count of a

7 violation of laws and customs of war. Can I ask the

8 Registrar to read the indictment against Mr. Drazen

9 Erdemovic, please?

10 THE REGISTRAR: The Prosecutor of the

11 International Criminal Tribunal for the former

12 Yugoslavia, pursuant to his authority under Article 18

13 of the Statute of the Tribunal, charges Drazen

14 Erdemovic with a crime against humanity or

15 alternatively a violation of the laws and customs of

16 war, as set forth below:

17 1. On 16th April 1993, the Security Council

18 of the United Nations, acting pursuant to Chapter VII

19 of the United Nations Charter, adopted Resolution 819,

20 in which it demanded that all parties to the conflict

21 in the Republic of Bosnia and Herzegovina treat

22 Srebrenica and its surroundings as a safe area which

23 would be free from any armed attack or any other

24 hostile act. Resolution 819 was reaffirmed by

25 Resolution 824 on 6th May 1993 and by Resolution 836 on

1 4th June 1993.

2 2. On or about 6th July 1995, the Bosnian

3 Serb army commenced an attack on the UN 'safe area' of

4 Srebrenica. This attack continued through until

5 11th July 1995, when the first units of the Bosnian

6 Serb army entered Srebrenica.

7 3. Thousands of Bosnian Muslim civilians who

8 remained in Srebrenica during this attack fled to the

9 UN compound in Potocari and sought refuge in and around

10 the compound.

11 4. Between 11th and 13th July 1995, Bosnian

12 Serb military personnel summarily executed an unknown

13 number of Bosnian Muslims in Potocari and in

14 Srebrenica.

15 5. Between 12th and 13th July 1995, Bosnian

16 Muslim men, women and children who had sought refuge in

17 and around the UN compound in Potocari were placed on

18 buses and trucks under the control of Bosnian Serb

19 military personnel and police and transported out of

20 the Srebrenica enclave. Before boarding these buses

21 and trucks, Bosnian Muslim men were separated from

22 Bosnian Muslim women and children and were transported

23 to various collection centres around Srebrenica.

24 6. A second group of approximately 15,000

25 Bosnian Muslim men, with some women and children, fled

1 Srebrenica on 11th July 1995 through the woods in a

2 large column in the direction of Tuzla. A large number

3 of the Bosnian Muslim men who fled in this column were

4 captured by or surrendered to Bosnian Serb army or

5 police personnel.

6 7. Thousands of Bosnian Muslim men who had

7 been either separated from women and children in

8 Potocari or who had been captured by or surrendered to

9 Bosnian Serb military or police personnel were sent to

10 various collection sites outside of Srebrenica

11 including, but not limited to, a hangar in Bratunac, a

12 soccer field in Nova Kasaba, a warehouse in Kravica,

13 the primary school and gymnasium of 'Velko

14 Lukic-Kurjak' in Grbavci, Zvornik municipality and

15 diverse fields and meadows along the Bratunac-Milici

16 road.

17 8. Between 13th July 1995 and approximately

18 22nd July 1995, thousands of Bosnian Muslim men were

19 summarily executed by members of the Bosnian Serb army

20 and Bosnian Serb police at diverse locations including,

21 but not limited to, a warehouse at Kravica, a meadow

22 and a dam near Lazete and diverse other locations.

23 9. On or about 16th July 1995, Drazen

24 Erdemovic and other members of the 10th sabotage

25 detachment of the Bosnian Serb army were ordered to a

1 collective farm near Pilica. This farm is located

2 north west of Zvornik in the Zvornik municipality.

3 10. On or about 16th July 1995, Drazen

4 Erdemovic and other members of his unit were informed

5 that busloads of Bosnian Muslim civilian men from

6 Srebrenica, who had surrendered to Bosnian Serb

7 military or police personnel, would be arriving

8 throughout the day at this collective farm.

9 11. On or about 16th July 1995, buses

10 containing Bosnian Muslim men arrived at the collective

11 farm in Pilica. Each bus was full of Bosnian Muslim

12 men; ranging from approximately 17-60 years of age.

13 After each bus arrived at the farm, the Bosnian Muslim

14 men were removed in groups of about ten, escorted by

15 members of the 10th sabotage detachment to a field

16 adjacent to farm buildings and lined up in a row with

17 their backs facing Drazen Erdemovic and members of his

18 unit.

19 12. On or about 16th July 1995, Drazen

20 Erdemovic did shoot and kill and did participate with

21 other members of his unit and soldiers from another

22 brigade in the shooting and killing of unarmed Bosnian

23 Muslim men at the Pilica collective farm. These

24 summary executions resulted in the deaths of hundreds

25 of Bosnian Muslim male civilians.

1 The accused.

2 13. Drazen Erdemovic was born on

3 25th November 1971 in the municipality of Tuzla. He

4 was a soldier in the 10th sabotage detachment of the

5 Bosnian Serb army. He is currently in custody in the

6 UN detention facility in The Hague.

7 General allegations.

8 14. At all relevant times to this

9 indictment, a state of armed conflict and partial

10 occupation existed in the Republic of

11 Bosnia-Herzegovina in the territory of the former

12 Yugoslavia.

13 15. Drazen Erdemovic is individually

14 responsible for the crime alleged against him in this

15 indictment pursuant to Article 7(1) of the Statute of

16 the Tribunal. Individual criminal responsibility

17 including committing, planning, instigating, ordering

18 or otherwise aiding and abetting in the planning,

19 preparation or execution of any crimes referred to in

20 Articles 3 and 5 of the Statute of the Tribunal.

21 Charges. Counts 1-2 (crime against humanity)

22 (violation of the laws or customs of war).

23 16. By his acts in relation to the events

24 described in paragraph 12, Drazen Erdemovic committed:

25 Count 1: A crime against humanity punishable

1 under Article 5(a) (murder) of the Statute of the

2 Tribunal.

3 Alternatively

4 Count 2: A violation of the laws or customs

5 of war punishable under Article 3 of the Statute of the

6 Tribunal and recognised by Article 3(1)(a) (murder) of

7 the Geneva Conventions.

8 Signed Richard J Goldstone, Prosecutor,

9 22nd May 1996, in The Hague, the Netherlands.

10 JUDGE MUMBA: Thank you very much. As there

11 are two alternative charges to which the accused has to

12 plead, my colleagues and I have decided that an

13 explanation of the differences of the charges is

14 required.

15 Briefly, a war crime is a violation of the

16 laws and customs of war. A crime against humanity can

17 also be constituted by similar conduct as a war crime.

18 But it is an attack of a widespread or systematic

19 nature on the civilian population. The Appeals Chamber

20 in dealing with the appeal by the accused determined

21 that a crime against humanity is more serious than a

22 war crime and therefore carries a heavier penalty.

23 Will you please rise, Mr. Erdemovic? In the

24 charges against you, there are alternative charges, and

25 you have options as follows. You may plead not guilty

1 to both charges; or as these charges are in the

2 alternative, you may plead guilty to either one or the

3 other, and not guilty to the other charge. Do you

4 understand the content of the indictment and the

5 charges against you?

6 MR. ERDEMOVIC: Yes, I do.

7 JUDGE MUMBA: Have you discussed these

8 charges with your lawyer?

9 MR. ERDEMOVIC: Yes.

10 JUDGE MUMBA: Has he explained them to you?

11 MR. ERDEMOVIC: Yes, he did.

12 JUDGE MUMBA: Is there anything about which

13 you are not clear concerning these charges against

14 you?

15 MR. ERDEMOVIC: There is nothing that is not

16 clear to me.

17 JUDGE MUMBA: Thank you very much. I would

18 still emphasise that it is very important for you to

19 understand the legal position and the choices available

20 to you and the consequences of whatever decision you

21 may take in making your pleas, but before proceeding

22 further, can you please sit down, Mr. Erdemovic? Can

23 you just sit down?

24 Before proceeding further, I would like to

25 discuss the question of motions. The Trial Chamber has

1 seen the motion raised by Defence counsel in his letter

2 of 3rd December and is aware of other developments.

3 Mr. Babic, can you confirm your position? Are

4 you maintaining your motion as raised in your letter

5 and would you like us to consider it now or later?

6 MR. BABIC: Your Honours, I suggest that both

7 my motions, the one of 3rd December and the one that

8 I submitted yesterday, regarding the goals and elements

9 of the sentence and the annex of the motions -- to the

10 motion which I also submitted yesterday, that they

11 should both be discussed today and if I can speak to --

12 if I can argue those, I would do that, provided you do

13 not have other preliminary questions; in other words,

14 my suggestion is that we discuss the motions now.

15 JUDGE MUMBA: What you mean is that we

16 discuss these motions before the plea is taken?

17 MR. BABIC: Yes, it is. I would also like to

18 make a statement. During the drafting of the motions

19 and my preparation for the complete defence of my

20 client, that is the accused Erdemovic, and my efforts

21 to contribute to the Trial Chamber's gaining the full

22 picture of the full scope of the guilt and

23 responsibility of Erdemovic, I studied the issue of

24 reformatio in peius, and I also submitted yesterday as

25 part of the annex to the motion a study of the Supreme

1 Court of Yugoslavia, as well as other High Courts in

2 the Republics of the former Yugoslavia, which support

3 the thesis that I have set out, and I have also filed a

4 motion on aims and elements for the determination of

5 sentence.

6 Based on my work on these two motions and the

7 annex, together with my learned colleague Kostic,

8 I co-operated with the Prosecution, especially as

9 relating to the Article 11 of the US federal law, and

10 I have determined that it would be reasonable and that

11 it would be very important that I withdraw both my

12 motions today, and have it replaced by the agreement

13 which we have drafted together with the Prosecution,

14 and this is my initial statement. Thank you.

15 JUDGE MUMBA: Thank you very much: the Trial

16 Chamber confirms that you have withdrawn both motions

17 and you are relying on the joint motion with the

18 Prosecution.

19 MR. BABIC: That is correct.

20 JUDGE MUMBA: Prosecution, any comments?

21 MR. NIEMANN: No, your Honour. We note what

22 has been said by counsel and we affirm there is an

23 agreement which has been entered into between the

24 parties which we have filed for your Honours'

25 consideration.

1 MR. BABIC: Your Honours, I would just like to

2 add one thing. I would like to explain why this was

3 done by the Defence. It was done because the Defence

4 was not clear which procedure and which system we were

5 going to follow before this Trial Chamber, and when we

6 concluded that so far the common law practice was the

7 guiding system, this is when we decided on this which

8 we have just presented.

9 JUDGE MUMBA: Thank you very much. The Trial

10 Chamber does take note of the plea agreement as

11 confirmed by both parties, and as the parties

12 themselves acknowledge, we are not bound by the terms

13 of this agreement, but we will, of course, take it into

14 very careful consideration, the issues raised by both

15 parties. We do however wish to have confirmation from

16 the accused as to whether he understood the agreement,

17 that he entered into it voluntarily.

18 Mr. Erdemovic, will you please stand? I am

19 sure you have understood what your counsel has just

20 stated to the Trial Chamber, that he has withdrawn his

21 two motions and that he confirms the agreement entered

22 into with the Prosecution just now. I would like to

23 ask you whether you are aware of this agreement

24 yourself.

25 MR. ERDEMOVIC: Your Honours, I am aware of

1 the agreement and I have signed it and I am aware of

2 everything that is written down in it.

3 JUDGE MUMBA: Thank you very much. I am

4 going to put to you the charges against you. As I have

5 already explained, there is count 1 and then in the

6 alternative count 2. Count 1, a crime against

7 humanity, punishable under Article 5(A), murder, of the

8 Statute of the Tribunal. How do you plead? In

9 pleading I wish to have the words, "I plead not

10 guilty", or "I plead guilty". So to count 1, crime

11 against humanity, how do you plead?

12 MR. ERDEMOVIC: On count 1, I plead not

13 guilty.

14 JUDGE MUMBA: Thank you. The alternative

15 count, which is count 2, a violation of the laws or

16 customs of war, punishable under Article 3 of the

17 Statute of the Tribunal and recognised by Article

18 3(1)(a), murder, of the Geneva Conventions, how do you

19 plead?

20 MR. ERDEMOVIC: I plead guilty.

21 JUDGE MUMBA: Thank you very much,

22 Mr. Erdemovic. Before the plea of guilty is recorded,

23 I would like to find out from you whether you had

24 sufficient time to discuss your plea with your counsel,

25 with your lawyer.

1 MR. ERDEMOVIC: Yes, your Honours.

2 JUDGE MUMBA: Do you agree that the manner in

3 which you have pleaded to the alternative count which

4 is count 2 is in accordance with the instructions of

5 your lawyer?

6 MR. ERDEMOVIC: Yes, your Honour.

7 JUDGE MUMBA: I would also like to be sure

8 whether any pressure was put on you, either by the

9 Prosecution or indeed your own counsel to plead guilty

10 to count 2.

11 MR. ERDEMOVIC: No, your Honour.

12 JUDGE MUMBA: Any other outside sources, any

13 pressure from anybody else besides the Prosecution and

14 the Defence counsel?

15 MR. ERDEMOVIC: No, your Honour.

16 JUDGE MUMBA: Do you realise the consequences

17 of pleading guilty under our Statute? We take into

18 account the sentencing practices of the courts of the

19 former Yugoslavia and our own Statute. In that regard,

20 we can impose a sentence of life imprisonment on you.

21 Are you aware of this?

22 MR. ERDEMOVIC: Yes, your Honour.

23 JUDGE MUMBA: Thank you very much. You may

24 sit down, Mr. Erdemovic.

25 I would now like to hear the Prosecutor's

1 reaction to the plea of guilty to count 2, and also

2 hear submissions on the requirements imposed by Rule 62

3 bis (C). Is there a sufficient factual basis for the

4 crime and the accused's participation in it and if so,

5 what are the facts, Mr. Prosecutor?

6 MR. NIEMANN: Your Honours, as was contained

7 in the agreement that we submitted for your Honours'

8 consideration, the Prosecution accepts that a plea of

9 guilty to the charge of a war crime is in accordance

10 with the agreement that was entered into between the

11 parties. Your Honours, the Prosecution submits that

12 there is ample evidence in support of the plea and in

13 support of the charges, and in that regard, we have

14 filed with your Honours some material which was

15 previously tendered in this matter, which facts do not

16 in any way differ from what we would put forward at

17 this stage, so if your Honours please, there is a

18 motion that we filed on 8th January 1998, and contained

19 within that there is the transcript of the sentencing

20 hearing that took place before Trial Chamber I on

21 19th to 20th November 1996, and we submit that for

22 your Honours' consideration as facts that may be taken

23 into account in a consideration of this plea.

24 In addition to that, your Honours, there is

25 transcript of the guilty plea itself before the Chamber

1 on 31st May 1996, which we have also filed before the

2 Chamber and we respectfully submit that for

3 your Honours' consideration, having regard to the facts

4 of this matter.

5 There is also submitted for your Honours'

6 consideration two psychological evaluations, one of

7 24th June 1996 and one of 14th October 1996, and we

8 respectfully submit that all of this material, taken

9 into consideration, form an adequate basis for the

10 allegations in the Prosecutor's indictment and form the

11 facts on the plea that we would submit to you for

12 consideration in this matter.

13 JUDGE MUMBA: Thank you very much,

14 Mr. Niemann, but because this is a replea, these are

15 fresh proceedings, the Trial Chamber would still

16 appreciate a brief statement of the facts which support

17 the indictment to which the accused has pleaded guilty.

18 MR. NIEMANN: There are the facts that are set

19 out in the indictment, in particular paragraphs 2

20 through to 12 of the indictment, which we rely upon.

21 Would your Honour excuse me a moment? (Pause).

22 There is also the facts contained or referred

23 to in paragraph 11 of the agreement that was entered

24 into by the parties.

25 To briefly go over the factual basis of this

1 matter, your Honours, I take your Honours to the

2 initial decision of the Chamber which heard this

3 matter, and where it decided upon certain of the facts

4 of the case. It was found there, your Honour, and

5 these facts we rely upon and there is no dispute by the

6 Prosecution and I understand by the Defence as to them,

7 that on 16th July 1995, when the accused, as a member

8 of the 10th sabotage detachment of the army of

9 Republika Srpska, participated in the shooting of

10 approximately 1200 unarmed Muslim civilians at the

11 Branjevo farm near the village of Pilica.

12 The Pilica farm is near a building in

13 Zvornik. These are the facts which, in addition to

14 those that we have referred to, we rely upon in this

15 plea. As I have said earlier, it has been agreed

16 between the parties that those will represent the facts

17 for the purposes of this agreement, so unless there is

18 any other matters that I can assist your Honours with,

19 I do not think that I can take you to anything other

20 than -- other than read material out to you which has

21 already been submitted, but I am happy to do that if

22 your Honours would like me to read out the material.

23 JUDGE MUMBA: Thank you very much. I think

24 that is sufficient. The references to the materials

25 and the paragraphs in question are sufficient.

1 The Defence, do you agree to what the

2 Prosecution has stated before the court, the facts in

3 this case?

4 MR. KOSTIC: Your Honours, we are prepared and

5 do stipulate and agree to the facts that were outlined

6 by Mr. Niemann. We also know the contents of the

7 documents that he referred to, as does our client, so

8 we would agree to all of those submissions, including

9 Mr. Niemann's oral presentation.

10 JUDGE MUMBA: Thank you very much. Yes,

11 Mr. Babic?

12 MR. BABIC: The first Trial Chamber, when

13 passing its judgement, in the text of its decision,

14 there was a vague reference which actually brought

15 about suspicion that the 10th sabotage unit of the

16 Bosnian Serb army was also involved in the execution of

17 500 Muslims in the social hall in Pilica. This part of

18 the judgement was brought into question by the Defence

19 during the appeal, because the 10th sabotage detachment

20 did not take part in these killings. We would just

21 like to hear from the Prosecutor whether they still

22 insist that Drazen Erdemovic had anything to do with

23 this act of the 10th sabotage detachment, which was not

24 involved in the massacre in Pilica.

25 JUDGE MUMBA: Thank you. Prosecution,

1 please?

2 MR. McCLOSKEY: Yes, your Honours. My name is

3 Peter McCloskey. Mr. Babic is correct, there was some

4 confusion in the record regarding the two incidents of

5 massacres that occurred on this day. The one that

6 Mr. Erdemovic was involved in occurred at Pilica farm

7 during the entire day, and then after that was through,

8 a detachment of people from another brigade went into

9 the town of Pilica and participated in the murdering of

10 500 individuals. It is our understanding and belief

11 that the facts do not show that Mr. Erdemovic was

12 involved in that in any way. I believe the confusion

13 was not in the factual record from the testimony but

14 perhaps how it was interpreted. There was some

15 confusion, he is correct, but to make it clear today,

16 those are the facts, Mr. Erdemovic was not involved in

17 that second massacre.

18 JUDGE MUMBA: Thank you very much.

19 Mr. Erdemovic, please stand. You have heard

20 what the Prosecution has said as to what the facts are

21 to the charges on the plea -- on the charge to which

22 you have pleaded guilty. You have also heard what your

23 counsel Mr. Babic has said and the correction he has put

24 in as regards the facts found by the previous Trial

25 Chamber. I would like you to answer the Trial Chamber,

1 whether you agree with the facts as stated by the

2 Prosecution and agreed to by your counsel, subject to

3 the correction, on the count in which you have pleaded

4 guilty, do you agree to the facts?

5 MR. ERDEMOVIC: Your Honours, I completely

6 agree with the Prosecution and with my counsel.

7 JUDGE MUMBA: Thank you very much. You may

8 be seated. (Pause). Very well then. There are no

9 questions from my colleagues. The Trial Chamber has

10 determined that the plea of Drazen Erdemovic is valid.

11 Drazen Erdemovic, this Trial Chamber now

12 formally accepts your plea of guilty and directs the

13 Registrar to record that fact. The Trial Chamber

14 convicts you on count 2 of the indictment, a violation

15 of the laws or customs of war, punishable under

16 Article 3 of the Statute of the Tribunal and recognised

17 by Article 3(1)(a), murder, of the Geneva Conventions.

18 Can the Prosecutor please confirm that he is

19 withdrawing the other charge?

20 MR. NIEMANN: Yes, your Honour, we confirm we

21 withdraw the crime against humanity count.

22 JUDGE MUMBA: Thank you very much. The

23 Registrar, please enter the conviction and note the

24 withdrawal of count 1. At this stage, it is necessary

25 to make arrangements for pre-sentencing hearing to

1 enable the parties to submit any relevant information

2 that may assist the Trial Chamber in determining an

3 appropriate sentence.

4 I understand from the Registrar that the

5 courtroom is available, should we wish to hear any

6 submissions of the parties later this afternoon or even

7 tomorrow. Are the parties in a position to proceed to

8 make their submissions on sentencing this afternoon,

9 after a short recess?

10 MR. NIEMANN: The Prosecution is ready,

11 your Honours.

12 JUDGE MUMBA: Thank you. Mr. Babic?

13 MR. BABIC: As far as the Defence is

14 concerned, the Defence is also ready to proceed.

15 JUDGE MUMBA: Thank you very much. The court

16 will adjourn for a short period, 30 minutes, before we

17 go into sentencing hearings. Thank you. The court

18 will rise.

19 (3.20 pm)

20 (A short break)

21 (3.50 pm)

22 JUDGE MUMBA: The proceedings have resumed.

23 I would like to check if the interpreters are ready.

24 THE INTERPRETER: We are, thank you.

25 JUDGE MUMBA: Do my colleagues hear me? The

1 Prosecutor and the Defence? Thank you. Does the

2 accused hear me in a language he understands?

3 MR. ERDEMOVIC: Yes, your Honour.

4 JUDGE MUMBA: Can I ask the Registrar to call

5 out the number and the name of this case again,

6 please?

7 THE REGISTRAR: Case IT-96-22-T bis, the

8 Prosecutor versus Drazen Erdemovic.

9 JUDGE MUMBA: Thank you very much. We are

10 now commencing the pre-sentencing hearing. We have

11 already recorded a plea of guilty as stated by the

12 accused. In accordance with the decision of the

13 Appeals Chamber and the Rules of Procedure and

14 Evidence, the conviction has been recorded. We are now

15 proceeding to Rule 100 of our Rules of Procedure and

16 Evidence to enable the parties to submit any relevant

17 information which may assist the Trial Chamber in

18 determining the appropriate sentence to be imposed on

19 Mr. Erdemovic. I would like to call upon the parties to indicate

20 which way they would like to go, whether they intend to

21 lead evidence for this proceeding, or whether they have

22 any documents which they would like to rely upon. May

23 I ask the Prosecution first?

24 MR. NIEMANN: Yes, your Honours. We have a

25 transcript of the evidence that Mr. Erdemovic gave at

1 the hearing pursuant to Rule 61 of the Rules of

2 Procedure and Evidence, which we would seek to tender

3 or make available to the Chamber in relation to what we

4 have to say about mitigation. We will suggest that the

5 extensive nature of the evidence he gave is a

6 mitigating factor, so I hand that to the Chamber.

7 JUDGE MUMBA: I would like to hear from the

8 Defence counsel, please. You have heard what the

9 Prosecution have said and the document they have put

10 in. Do you agree, or do you have anything else to

11 say?

12 MR. KOSTIC: Your Honour, the only thing

13 I would like to add is we anticipated that this

14 document would become a part of the record and we will

15 stipulate and agree to it and its admission for your

16 use.

17 JUDGE MUMBA: Thank you very much.

18 MR. NIEMANN: In addition your Honours, also

19 dealing with the issue of mitigation, we have available

20 today to call Mr. Jean-Rene Ruez, who is an investigator

21 for the Office of the Prosecutor, and he could attest

22 to the significant co-operation that has been provided

23 to the Office of the Prosecutor by Mr. Erdemovic, and

24 that may be a matter that would assist your Honours in

25 addressing the sentence in this matter. Should

1 your Honours feel that that would assist, we have him

2 here available and we can call him. My colleague

3 Mr. McCloskey would ask him some questions.

4 In addition to that, I can address

5 your Honours shortly on the matter of sentencing, if

6 that would be of assistance to you.

7 JUDGE MUMBA: Thank you.

8 MR. NIEMANN: I would propose doing that

9 before calling -- before we call the witness, if that

10 is an acceptable course to your Honours.

11 JUDGE MUMBA: Thank you very much,

12 Mr. Niemann. You can go ahead with your proposal. You

13 can address the Trial Chamber and then call the

14 witness.

15 MR. NIEMANN: Your Honours, I wish to address

16 you only shortly on these matters but to assist you to

17 refer to Article 24(2) and Article 7(4) of the Statute

18 of the Tribunal, and Rule 101 of the Tribunal's Rules

19 of Procedure and Evidence, all of which in our

20 submission go to the question of imposing a sentence.

21 If your Honours please, the relevant factors

22 mentioned in those provisions deal with such issues as

23 the gravity of the offence, the individual

24 circumstances of the convicted person, whether the

25 accused was following superior orders, any aggravating

1 circumstances, any mitigating circumstances, and

2 substantial co-operation with the Prosecutor by the

3 convicted person.

4 Your Honours, I do not think it is necessary

5 for me to deal with aggravating circumstances, I think

6 the facts speak for themselves, and I do not think it

7 is necessary for me to go further than just to direct

8 your Honours to those facts for that purpose.

9 Likewise, with respect to the gravity of this

10 offence, it should not be necessary for me to labour

11 that, your Honours, as it is so obvious from the facts

12 of the matter.

13 However, because it is such a serious crime,

14 and because the circumstances are so aggravating and so

15 serious, it is I think necessary for us to, as the

16 Prosecutor, to place some emphasis on the question of

17 mitigation, because that is a factor which needs to be

18 balanced against the heavy aggravating circumstances

19 that your Honours need to consider.

20 Your Honours, Mr. Erdemovic has been of

21 considerable assistance to the Office of the

22 Prosecutor. Firstly, in respect of surrendering

23 himself to the Tribunal in The Hague. It is true that

24 he was transferred to the Tribunal upon request, but it

25 should be noted that he was already in the process of

1 coming to The Hague before he was arrested by officials

2 in the Federal Republic of Yugoslavia, which ultimately

3 resulted in him being transferred here. I think what

4 is significant is that he had already made the initial

5 steps to surrender and come to The Hague, and in

6 respect of that, your Honours, we would submit that

7 that is a significant matter, having regard to the

8 historical difficulties that have confronted this

9 Tribunal in having persons arrested and brought before

10 the Chamber.

11 Your Honours, shortly after Mr. Erdemovic came

12 to the Hague, he voluntarily confessed to his crimes to

13 an investigator from the Office of the Prosecutor.

14 During the course of speaking to members of the Office

15 of the Prosecutor, he expressed his genuine remorse for

16 his actions which occurred on July 16th 1995. This

17 combination of factors, his efforts to surrender

18 himself, his confession of guilt, and his expression of

19 remorse, which has been accepted as genuine,

20 your Honours, are in our submission mitigating factors.

21 Your Honours, in addition to those mitigating

22 factors, your Honours may wish also to consider that he

23 acted pursuant to superior orders when he carried out

24 this crime, a crime in that the order he was given was

25 criminal in its nature, but he was complying with

1 superior orders. That is a factor your Honours may

2 consider is appropriate mitigation when determining any

3 sentence.

4 Your Honours, the issue of substantial

5 co-operation with the Office of the Prosecutor is a

6 matter which in our submission does justify

7 considerable mitigation. We say that because the

8 position of the Office of the Prosecutor cannot be

9 directly equated to that which occurs in national

10 jurisdictions, in the sense that in national

11 jurisdictions the prosecutor officials have access to

12 police forces who are mobile on the ground and can

13 obtain evidence and information much more readily and

14 easily than occurs with the Office of the Prosecutor

15 here in the Tribunal, which to a large extent is

16 dependent upon the co-operation of states and other

17 international and non-international bodies, before that

18 information can be collected and gathered.

19 Because of those constraints upon the

20 Prosecutor in bringing before the Chamber the evidence

21 of these cases, it is significant when an accused

22 person provides assistance and co-operation, because

23 without that assistance and co-operation, it is often

24 the case that the Office of the Prosecutor would not

25 otherwise be able to present these matters before the

1 court.

2 Indeed, your Honours, in relation to this

3 particular -- the events in this particular case, the

4 Office of the Prosecutor had no information directly in

5 relation to these, in particular the details about the

6 Branjevo farm in Pilica where these 1200 souls were

7 murdered. That information was not available to the

8 Office of the Prosecutor in any great detail prior to

9 the assistance that was given by Mr. Erdemovic. The

10 location of the site was significantly -- of

11 significant importance to the Office of the Prosecutor

12 and permitted an exhumation to be carried out at that

13 site where the victims were uncovered. Not all of the

14 victims were uncovered, but it would seem that a large

15 number of them may have been removed.

16 There is also the events that occurred in the

17 cultural hall in Pilica. The accused himself was not

18 involved in this incident at all, he was merely a

19 witness to the events, but it was again a tragic

20 circumstance where some 500 people, 500 civilians were

21 murdered, and Mr. Erdemovic witnessed this and he gave

22 evidence of this event to the Office of the

23 Prosecutor. Again, this is an incident that the Office

24 of the Prosecutor was not aware of prior to the

25 assistance that was given by Mr. Erdemovic.

1 In addition to that, your Honours, he has

2 given us names and identities of other perpetrators to

3 a number of crimes, the details of which I cannot go

4 into for obvious reasons, but your Honours, that has

5 led to active investigation by the Office of the

6 Prosecutor which continues to this moment.

7 I tendered, your Honours, the information,

8 I should say the transcript of the evidence that

9 Mr. Erdemovic gave in the course of the Rule 61 hearing

10 into the indictments of Radovan Karadzic and Ratko

11 Mladic. Mr. Erdemovic very courageously gave evidence

12 in relation to these very significant persons who have

13 been indicted by the Tribunal and he gave that evidence

14 freely and voluntarily and at some personal risk in so

15 doing, and in our submission, your Honours, that is

16 another factor that we would suggest to you may

17 appropriately be considered in mitigation of any

18 sentence that may be imposed upon him.

19 Your Honours, Rule 101(B)(iii) states that

20 the Trial Chamber should take into account the general

21 practice regarding prison sentences in the courts of

22 the former Yugoslavia. We previously provided an

23 analysis of this and addressed it previously, if

24 your Honours please, and indeed probably, having regard

25 to the agreement that has been reached between the

1 parties in relation to the view that the Office of the

2 Prosecutor takes on sentencing, which I emphasise is

3 merely a matter for your Honours to consider or reject

4 as you please, but it probably has little significance,

5 but it is worth noting that in the former Yugoslavia,

6 this type of crime would be punishable by a term of

7 imprisonment between 5 and 20 years, so 5 being the

8 minimum and 20 years being the maximum.

9 Your Honours, the only matter that I would

10 finally wish to address to you is the fact that having

11 regard to the fact that Mr. Erdemovic now faces sentence

12 in relation to a war crime, as opposed to the more

13 serious crime of a crime against humanity, which is a

14 more serious crime, the Office of the Prosecutor wishes

15 to indicate for your Honours' consideration that so far

16 as our view was concerned, an appropriate sentence

17 would be seven years' imprisonment. As I say,

18 I emphasise, that is a matter for your Honours to

19 consider.

20 Unless I can be of any further assistance,

21 I would seek the assistance of my friend, Mr. McCloskey,

22 to call the witness, Mr. Ruez, who has spoken to

23 Mr. Erdemovic on numerous occasions and who has been

24 provided with considerable assistance as an

25 investigator of the Tribunal. If your Honours please?

1 JUDGE MUMBA: Thank you very much. We shall

2 proceed to hear the witness as stated by Mr. Niemann.

3 Mr. McCloskey, please.

4 MR. McCLOSKEY: Thank you, your Honours.

5 I would refer you to the lengthy testimony of

6 investigator Jean-Rene Ruez at the sentencing hearing

7 when he covered the length and breadth of this case,

8 but for the purposes of this proceeding, we wish to

9 concentrate on Mr. Ruez's testimony on the three most

10 significant mitigating factors to give you some

11 understanding what the factual basis is for those three

12 factors that were just gone over by Mr. Niemann. Those

13 are, just for your knowledge, they are in the plea

14 agreement between the parties in paragraph 13, 14 and

15 16(c), and I will just briefly refer to those.

16 There is the voluntary appearance by Mr. Erdemovic,

17 before we even knew Mr. Erdemovic existed or Branjevo

18 farm existed; then the value of his co-operation to the

19 Prosecution and lastly that the Prosecution feels

20 that he was acting under superior orders and under

21 duress and that should be taken into account in

22 mitigation. Mr. Ruez can give you some of the

23 background facts and is open, of course, for your

24 questions on that and anything else you wish to talk to

25 him about. Without further ado, I would call Jean-Rene

1 Ruez.

2 JUDGE MUMBA: Thank you very much. The

3 Registrar will administer the oath.

4 (Witness entered court)

5 JUDGE MUMBA: You may take the oath.

6 JEAN-RENE RUEZ (sworn)

7 JUDGE MUMBA: Thank you. Counsel?

8 Examined by MR. McCLOSKEY

9 Q. Could you please state your name and spell

10 it?

11 A. My name is Jean-Rene Ruez.

12 Q. You may sit down. Could you tell the court

13 your position?

14 A. I am a French judicial police superintendent

15 working at the Office of the Prosecutor since April

16 1995 as an investigation team leader now for the

17 Srebrenica investigation, which started in July 1995.

18 Q. Have you been the team leader for that

19 investigation since the inception of that

20 investigation?

21 A. This is correct.

22 Q. The court has just been prepared to hear your

23 responses on three basic issues that go to mitigation

24 regarding the conduct of Mr. Erdemovic. You also will

25 be questioned perhaps on any other issues regarding the

1 case, but the first issue that I want to ask you about,

2 and we will just go directly to it, is: did the

3 Prosecution know anything about Mr. Erdemovic prior to

4 Mr. Erdemovic's surfacing in the former Yugoslavia?

5 A. No, before his first contact with a French

6 journalist, we did not know about him and most

7 certainly if he had not come to The Hague, we would

8 never have heard about him.

9 Q. Can you explain to the judges the

10 circumstances, how he happened to come forward and what

11 you have learned about that?

12 A. What we know about it is mostly coming from

13 Mr. Erdemovic himself, but also from the people he was

14 in contact with when he made several attempts to get in

15 touch with the Tribunal at that time. When he was in

16 Belgrade, he used a colleague of his as an intermediary

17 with several people in an effort to gain access to the

18 Tribunal and come and explain the situation in which he

19 has been put during the events at Branjevo farm.

20 Q. Was he finally able to get an audience with

21 some press people through this intermediary?

22 A. He did. Unfortunately for him, these events

23 led to his arrest by the authorities of the Federal

24 Republic of Yugoslavia and so he has been arrested and

25 later on, we have requested him to be transferred to

1 the Tribunal.

2 Q. Can you explain to the court how his contact

3 with the press resulted in his arrest?

4 A. He had to make several attempts. At that

5 time there was no office of ICTY in Belgrade, therefore

6 he had to contact several of our organisations and

7 press people. The multiplication of his attempts have

8 raised attention on him and this is why at one point he

9 got arrested before we could gain direct access to him

10 in that place.

11 Q. To your knowledge, was he interviewed by the

12 press?

13 A. He was interviewed by the press, he gave a

14 full story about the situation he wanted to report to

15 the Tribunal. He slipped some things we went on to

16 correct, he did that on purpose at that time because he

17 wanted to be sure everyone would respect that part of

18 the deal and once he had told the story to these

19 people, their part of the contract would also be

20 fulfilled and they would arrange transportation for him

21 to go to The Hague and explain that directly to us.

22 Later on we sorted out all these little differences

23 between the statements he gave to the press and to us

24 and on all these points he gave very clear and direct

25 decisions.

1 Q. Shortly after his contact with the press,

2 were ICTY able to interview the press person that had

3 interviewed him?

4 A. Yes, we took a statement from one of these

5 press persons and we have it in the records.

6 Q. Was the information provided by the press

7 person consistent with what Mr. Erdemovic has been

8 saying all along in his other statements?

9 A. Yes, it is, the story is nearly equivalent to

10 the one that he told us, there is no major difference,

11 and he was also requested several times if he was aware

12 of the fact that he might be held responsible for the

13 actions he was communicating with us, and he told to

14 these people that he knew that he may be held

15 responsible, but he was accepting this responsibility

16 and insisted on his will to come to The Hague and

17 testify about it.

18 Q. Shortly after his arrest in the former

19 Yugoslavia and the Prosecution became aware of his

20 existence, did the Prosecution and Mr. Erdemovic --

21 excuse me. Did Mr. Erdemovic then agree to come to

22 The Hague from the former Yugoslavia?

23 A. Yes, he did and as soon as he arrived here,

24 he reproduced the story he had to tell and then we

25 entered in a lot of details and he was never reluctant

1 to enter into these details.

2 Q. He was represented by Mr. Babic during that

3 statement?

4 A. Absolutely, during the first main statement,

5 if we can call it so, Mr. Babic was present, but we had

6 also several contacts without the presence of his

7 counsel, but with the agreement of Mr. Babic, who gave

8 us a waiver so that we could communicate with Drazen

9 Erdemovic for the needs of the investigation at any

10 moment and this is what we did on several occasions.

11 MR. McCLOSKEY: Unless the court has any

12 particular questions about that first of three elements

13 of mitigation, I would go on to the next one.

14 JUDGE SHAHABUDDEEN: I should find it more

15 agreeable, counsel, if you would conclude your

16 examination and then leave it to the judges to consider

17 whether they wish to put any questions. I would not

18 personally wish to segment the matter.

19 MR. McCLOSKEY: Thank you, your Honour.

20 Mr. Ruez, can you briefly describe to the

21 court what kind of co-operation Mr. Erdemovic has

22 provided the investigation and how valuable that has

23 been to the investigation?

24 A. The collaboration of Drazen Erdemovic has

25 been absolutely excellent. He has repeated the things

1 that he told previously to others before his arrival at

2 the Tribunal, he has always entered in all the details

3 we wanted him to enter. At the beginning it was

4 extremely painful for him, because now he is in a much

5 better physical and mental condition than he was at his

6 arrival. At the beginning entering again all these

7 details was extremely painful for him, but he did it

8 and even went sometimes above the collaboration that we

9 were expecting from him.

10 As an example, when he was watching the

11 television in his cell and he pinpointed some events or

12 individuals he knew and knew about the crimes that they

13 had committed in the context of the Srebrenica

14 operation, he let us know about it and we could

15 interview him on the subject and deepen the subject and

16 he was always very willing to collaborate with us on

17 these points.

18 Q. He also testified at the Rule 61 hearing?

19 A. Sure, he testified also during the Rule 61

20 hearing.

21 Q. Was that testimony consistent with what you

22 had learned from him in previous statements?

23 A. Absolutely. In addition also to this, to

24 make clear the points on which he has assisted this

25 investigation and some points which we would probably

1 have not known about it without his assistance is of a

2 massacre which was committed at the Pilica house of

3 culture. It is a situation about which we had no other

4 sources except his testimony, and this enabled us to

5 find the location and to conduct a crime scene analysis

6 of the location, and it was a totally new event for

7 those who are conducting this investigation.

8 Q. Has Mr. Erdemovic also promised to continue

9 his co-operation in the future, including testifying

10 and providing any other information he knows?

11 A. Yes, he did. His obvious motivation is not

12 to please the Office of the Prosecutor to get some

13 weakening of his possible punishment, he was very clear

14 on that point since the beginning. He wants the truth

15 to be known about these events and he wants the people

16 who are responsible for these events to face justice

17 one day, and there is no doubt that if that day

18 happens, he will confirm the information that he has

19 given to us until now.

20 Q. Based on his conduct thus far and his

21 co-operation, do you have any reason to believe he will

22 fail to live up to that proposition?

23 A. I do not believe so.

24 Q. All right. On the third point, can you give

25 the judges some of the background into the actual

1 incident that leads you to believe that there was

2 duress present when he committed these crimes and that

3 this duress should be used as mitigation?

4 A. I have a personal belief that indeed he was

5 under duress at that time, but the reason for that

6 would need to re-explain a certain number of facts,

7 which have probably for some of them not been raised in

8 front of a court until now. He knew about the

9 behaviour of some of the members of the unit he was

10 part of, the unit was split into two locations, one was

11 in Bijeljina and one was in Vlasenica.

12 The rumour he was aware of was that members

13 of the unit in Vlasenica had committed numerous crimes

14 since the beginning of the war. It was public

15 knowledge inside the unit. He also witnessed occasions

16 where under the order of a commander, people were

17 killed only because the order was given. He was

18 himself in a very difficult situation at that time

19 because of his ethnic background he was not fully

20 trusted by his comrades.

21 Also he already had some strong arguments

22 with his commanders, because he did not fulfil the

23 assignments he was given. The reason why he did not

24 fulfil them was that for especially one of them, there

25 was a big risk of civilian casualties and he did not

1 fulfil the assignment, which led that he was stripped

2 from his rank, so he was already at that moment in a

3 very weak position in front of his superiors and also

4 in front of his comrades.

5 Q. Let me interrupt you for one second. Could

6 you describe just factually, briefly, how he found

7 himself when he first came to the Zvornik area and with

8 his squad and where they went and just the factual

9 circumstances of this situation?

10 A. The factual circumstances of the situation,

11 we know them also only through his testimony, was that

12 on the morning of 16th July, he was designated to go

13 with a few men to Zvornik, he did not know about the

14 assignment at that moment. The fact is that the team

15 leader of the group was a member of Vlasenica platoon

16 which is not normally his own chain of command. The

17 reason is that the man who was designated team leader

18 had a close relationship with the commander of the unit

19 and was part of these people who committed allegedly

20 and according to the rumour bad actions since a couple

21 of years.

22 When he arrived in Zvornik, a lieutenant

23 colonel came out of a building which is currently the

24 Zvornik brigade headquarters. He was accompanied by

25 two military policemen and led the team of the

1 10th diversion unit to the Branjevo farm where the

2 civilians arrived and the assignment was given to

3 execute all of them.

4 Q. Have you been to that farm?

5 A. Yes.

6 Q. Was it as described by Drazen Erdemovic?

7 A. Yes, the location is as described by Drazen

8 Erdemovic. Even before his arrival in The Hague, the

9 first information which he gave to the press enabled us

10 to collect additional intelligence and pinpoint the

11 location of this farm and also gain access to some

12 photographic evidence which was presented during the

13 public hearing of July 1996, which confirmed already at

14 that time the version of the facts as it was explained

15 by Drazen Erdemovic.

16 Q. I interrupted you as you were explaining

17 other factors that you felt led to duress. I do not

18 know if you can recall back where you were, but is

19 there anything else you recall from the facts that you

20 have learned that would lead you to believe he was

21 really under duress when this happened?

22 A. Yes, it is more or less also the whole

23 context of the situation at that time. He participated

24 in the military operation, of the takenover of the safe

25 haven of Srebrenica, and also knew from his colleagues

1 when he came back from a funeral in Trebinje, where he

2 went for the funeral of one of his comrades who had

3 been killed in an accident during that operation, he

4 learned at that time that a lot of events had happened

5 during his absence. He knew that when he was at the

6 farm and all these buses were arriving, understood very

7 quickly that all this was part of a quite huge

8 operation and it would be out of the question for him

9 to rage against it. Most certainly he would get in

10 very deep trouble if he had done so, so he made a few

11 attempts, but very quickly found out that it was

12 absolutely unuseful and even received the command that

13 if he was sorry for these people, he could line up with

14 them. At that point, he made the choice to participate

15 in this, not to be killed either on the spot, either

16 very shortly afterwards and also had in mind the will

17 to protect his wife and his kid, who were both in

18 Bijeljina at that time.

19 MR. McCLOSKEY: Unless you have anything

20 further to add to this issue, I would have no further

21 questions.

22 JUDGE MUMBA: Thank you. That is the end of

23 the evidence from this witness?

24 MR. McCLOSKEY: Yes, your Honour.

25 JUDGE MUMBA: Thank you. Defence counsel?

1 Cross-examined by MR. KOSTIC

2 Q. Thank you, your Honour.

3 Mr. Ruez, you have been a police officer for

4 a long time, is that not right?

5 A. For ten years.

6 Q. A part of your job and your training has to

7 do with interrogating, interviewing and working with

8 witnesses and accused, correct?

9 A. This has happened on many occasions, indeed.

10 Q. So when you began to work with Mr. Erdemovic,

11 it was something that you had done before and you were

12 quite familiar with it and quite good at it, I would

13 imagine?

14 A. I do not know if I was good at it, but I was

15 quite familiar at it, indeed.

16 Q. Can you tell me as a general figure, how many

17 times did you speak with Mr. Erdemovic and perhaps tell

18 us the number of hours, just roughly?

19 A. I do not have my records with me so it is

20 difficult to answer very precisely, but I would say

21 that we had maybe ten contacts. Some of them were

22 fairly long, nearly one day, others were one

23 afternoon. Some were very formal because it was

24 interviews, video interviews, interviews which were

25 recorded, other situations were a presentation of

1 videotapes, attempts of recognition of people,

2 situations, and some even more informal circumstances

3 where it was only aimed to clarify some points or some

4 discrepancies between the way the story had been

5 reported by the press people he was in contact with and

6 the way he was explaining the situation to us. All

7 these points have always been clarified in a very

8 straight way and without any hesitation, which makes me

9 believe that the man is indeed very credible.

10 Q. Not only credible, but he has been very

11 co-operative with you, correct?

12 A. Very co-operative with us, absolutely.

13 Q. Both Mr. Erdemovic and Mr. Babic feel

14 comfortable with the process so that you had access to

15 Mr. Erdemovic whether Mr. Babic was present or not?

16 A. Absolutely, for the reason of the

17 investigation, we could have access to him at any

18 moment. We were for sure always informing Mr. Babic

19 that we would have these contacts, but there was never

20 any problem with that. As I said, even on some

21 occasions he came straightforward to us to provide us

22 with information that we did not even pinpoint.

23 Q. So is it your opinion that Mr. Erdemovic did

24 not hold back any information when he was co-operating

25 with you in regard to the events in Srebrenica and

1 thereafter?

2 A. No, I do not think so.

3 Q. Let me just ask you, just to clarify one

4 thing, you testified about the fact that Mr. Erdemovic

5 had some contacts with journalists.

6 A. Yes.

7 Q. Subsequently, it is my understanding that one

8 of them, a Vanesa Vasic Janekovic, wrote a letter to

9 the Tribunal, is that right?

10 A. This is right. She is the person who gave an

11 interview also to the Tribunal about the context of

12 this first meeting with Drazen Erdemovic, and also

13 wrote this letter very recently about it. That was

14 confirmed to us in March 1996.

15 Q. Would you agree with me that the gist or the

16 highlight of that letter was the fact that before

17 Mr. Erdemovic made his statements to the journalists,

18 this person, Vanesa Vasic, told him on a couple of

19 occasions that if he made the statements that he did,

20 he could end up being responsible as a participant in

21 these crimes, and somehow if arrested to be taken to

22 The Hague to the International Criminal Tribunal.

23 A. Sure. More than that, she told him that he

24 would be most probably held responsible and would face

25 trial. It is indeed what happened, and he was very

1 aware of this since the beginning and also in the

2 course of our communication with him, he has never

3 tried to bargain anything, he has never asked if his

4 collaboration would be of help for him in judicial

5 terms, all the judicial process has also had no

6 influence on his behaviour. Whenever the moment we

7 chose to have an interview of him or a contact with

8 him, the fact that there was an appeal ongoing or any

9 trial situation had never any interference, so his

10 behaviour has always been the same and he always

11 collaborated with us in the same spirit, whatever

12 happened around the situation.

13 Q. That co-operation was important to you, was

14 it not, because you could then use his statements to

15 collaborate and really make sure that some of the

16 events that he testified about actually happened. He

17 gave you such detailed information, is that right?

18 A. Yes, he did. He enabled us to corroborate

19 other witness testimonies that we had. As we explained

20 to the court during the first sentencing, there were

21 some survivors from the massacre at the Branjevo farm,

22 so we already had some information about it and this

23 enabled us to check what Mr. Erdemovic was telling us,

24 and the situations were described more or less in the

25 same way, and also enabled us to find things that we

1 would most probably not have found without him.

2 Anyhow, at this stage of the investigation, we would

3 not have found about it. I am thinking especially

4 about the house of culture in Pilica, in which he did

5 not participate but witnessed the event from a cafe

6 where this same lieutenant colonel took them after the

7 massacre at the Branjevo farm. He refused to

8 participate in this next killing. He was followed in

9 that by the members of the killing squad, but other

10 individuals who were coming from Bratunac volunteered

11 for that assignment and committed these killings.

12 Mr. Erdemovic was witnessing this event from a distance

13 of about 100 metres, and could give us a certain number

14 of details about the location which enabled us to find

15 the place and the crime scene was perfectly preserved

16 even one year after the events happened.

17 Q. So it is true that his statement then was

18 corroborated by in fact scientific evidence that you

19 gathered in regard to that house of culture?

20 A. Definitely the crime scene analysis, some of

21 them are still on process, are confirming the story

22 that he told us about it.

23 Q. I am going to ask you a little more difficult

24 question, I think. As you spent all the time that you

25 did with Mr. Erdemovic, you must have at some point

1 discussed other things with him, such as his feelings

2 about what he did, feelings about his family, feelings

3 about the war, feelings about the position that he was

4 in. Did you not get to that point with him?

5 A. We did not talk too much about feelings. His

6 feelings were extremely obvious when he arrived here.

7 He was in a very heavy state of stress and each time he

8 was talking about details, he was again in a state of

9 shock and we never entered too much about feelings, we

10 stick more or less on facts.

11 Q. Like a good policeman, right? But if I can

12 just move it a bit along, he did express to you at

13 times feelings of remorse, sorrow for what happened to

14 the people at Srebrenica, did he not?

15 A. Sure he did.

16 Q. More than once?

17 A. More than once.

18 Q. Those feelings of sorrow and remorse, do you

19 feel they were genuine, real, that he really was going

20 through that process?

21 A. I have personally no doubt on that. He is

22 extremely angry against the people who have put him in

23 that situation and his own motivation at this moment,

24 I think it is still the same one, it is to designate

25 these individuals and ensure that we will have enough

1 material to bring them to trial.

2 Q. It is your belief that Mr. Erdemovic will

3 continue to co-operate with you and with the

4 Prosecutor's Office as these cases go on?

5 A. I believe that, yes.

6 Q. Whether or not he signed an agreement which

7 is in front of me does not matter, he will continue to

8 co-operate with you and give you information?

9 A. I have no doubt of that.

10 MR. KOSTIC: Thank you very much.

11 JUDGE MUMBA: Any clarification by the

12 Prosecution?

13 MR. McCLOSKEY: No, your Honour, though I do

14 believe we have a copy of the letter from the

15 journalist, perhaps Defence counsel has it and we will

16 make that an exhibit for your reference.

17 JUDGE MUMBA: Thank you.

18 MR. KOSTIC: I have one copy, so I would be

19 happy to tender it to the court, if there is no

20 objection. Apparently there is not.

21 JUDGE MUMBA: Yes, we would be pleased to

22 receive it.

23 MR. KOSTIC: It is not in such good shape,

24 your Honour, I apologise. We will tender it

25 nevertheless.

1 JUDGE MUMBA: I hope it will be numbered

2 appropriately. Thank you.

3 JUDGE SHAHABUDDEEN: Mr. Ruez, I have only one

4 or two small questions to put to you. One concerns the

5 arrest of Mr. Erdemovic in Serbia. He was, to your

6 knowledge, a Croat?

7 A. Bosnian Croat, yes.

8 Q. Bosnian Croat. Yes, that is an important

9 distinction and I must not forget it. Thank you. You

10 have been engaged in investigative work for some number

11 of years now, connected with the functioning of the

12 Tribunal, is that correct?

13 A. A member of the Office of the Prosecutor

14 since April 1995.

15 Q. Can you just enlighten me on one thing?

16 Would I be right in supposing that the Serbian

17 authorities arrested other persons in connection with

18 allegations of the commission of war crimes of one kind

19 or another in the Bosnia-Herzegovina area?

20 A. I have no knowledge of any arrest which is

21 connected with the investigation I am in charge of and

22 which has happened in Federal Republic of Yugoslavia,

23 with the exception of Mr. Kremenovic, who was arrested

24 at the same time as Mr. Erdemovic for sheltering a

25 criminal and Mr. Kremenovic was in possession of weapons

1 at that time and has been charged for that as well, but

2 these are the only two individuals I am aware of, and

3 we are aware of, which have been arrested in connection

4 with the Srebrenica events.

5 Q. Mr. Kostic complimented you, I am sure

6 correctly, on the efficiency with which you have been

7 performing your functions. Would I be in order in

8 supposing that had the Serbian authorities made any

9 other arrests of the kind to which I am alluding, that

10 fact would in the normal course have come to your

11 attention?

12 A. It is hard for me to answer this question.

13 I am not part of the Belgrade authorities, so I do not

14 know --

15 Q. No, but you are an investigative officer.

16 A. I am not sure I understand very well the

17 question, but on that topic, there is something quite

18 significant that you might be willing to learn. That

19 is that we could have corroborated a little bit more

20 the events as they have been explained by

21 Mr. Erdemovic. Unfortunately, we have requested the

22 authorities of the Federal Republic of Yugoslavia to

23 hand over to the Tribunal the videotape which was

24 stolen from the journalist who gave an interview to the

25 Tribunal --

1 JUDGE SHAHABUDDEEN: I think you are going

2 into an area that is foreign to the purpose of my

3 question, so I would suggest that we might shift to

4 another matter.

5 May I at this stage enquire from counsel on

6 both sides about one matter? We have had put in

7 evidence the record of the Rule 61 proceedings, mm?

8 Have we had put in evidence the record of the previous

9 proceedings on 19th and 20th November 1996 relating to

10 this matter?

11 MR. NIEMANN: Yes, your Honour, I submitted

12 those at the opening.

13 JUDGE SHAHABUDDEEN: You would regard them as

14 forming part of the record of these proceedings, and

15 the Defence counsel as well?

16 MR. BABIC: Yes, your Honour.

17 JUDGE SHAHABUDDEEN: You would have given

18 evidence on 19th November before Trial Chamber I.

19 A. Yes, I did.

20 Q. In the course of your evidence, you would

21 have referred then as you refer now, to the statement

22 by the accused that he, in effect, acted under duress.

23 A. Yes.

24 Q. On 16th July 1995, there were, as

25 I understand it, two main events. One was the shooting

1 at Branjevo farm which lasted from around 9.00 or 10.00

2 in the morning until 3.00 or 4.00 in the afternoon.

3 A. This is correct.

4 Q. Then when that ended, there was a request

5 that the accused should participate in another shooting

6 of people who had assembled or had been made to

7 assemble in a public building at Pilica.

8 A. Yes.

9 Q. So there were two main events.

10 A. Absolutely.

11 Q. We have heard the correction by Mr. Babic

12 concerning the question whether you were not present,

13 but I can tell you this, Mr. Babic, with the consent of

14 Prosecutor counsel, corrected the record by making it

15 clear that the accused did not participate in the

16 second event, he only participated in the first event.

17 You were testifying on 19th November about

18 these matters, and I am reading the transcript, and

19 I observe, tell me if this is correct, that in relation

20 to the first event, you said he, meaning the accused:

21 " ... had understood then what the purpose of the

22 operation was and that he would be involved in the

23 execution of these people."

24 That is in relation to the Branjevo farm

25 shooting.

1 A. Yes, it is.

2 Q. Then I observe you did not mention his

3 statement that he then acted under duress. Am I right

4 or wrong in so reading the transcript of your evidence?

5 A. You are right. At that time I was just

6 explaining the facts as they were reported by Drazen

7 Erdemovic and also the level of corroboration that we

8 had reached at that time.

9 Q. Now I shift to the second event which

10 lamentably occurred on that date. I am reading again

11 from the transcript of your evidence. It is in

12 connection with that second event that you then say:

13 "Drazen Erdemovic states that he refused to

14 participate in the second execution and his colleagues

15 did likewise."

16 Do you recall saying that?

17 A. Absolutely.

18 Q. So on that occasion, you mentioned his

19 statement that he acted under duress, but you mentioned

20 it in connection with his refusal to participate in the

21 second round of shootings.

22 A. Yes, and I could say in addition on this, but

23 this is an information that I got from Drazen

24 Erdemovic, the reason why he dared oppose to

25 participate in the second killing was that they already

1 had spent five hours on this killing field, killing all

2 the people who were arriving on the spot, and having

3 fulfilled this part of the assignment, they felt secure

4 enough to oppose the order of the lieutenant colonel,

5 since they had the feeling that they had already done

6 far enough that day, so they had a feeling that this

7 man could not take action against them at that moment,

8 and also the fact that other comrades of him

9 immediately stepped behind him, saying "no, we are not

10 willing to do that". He felt that the lieutenant

11 colonel could not take the risk at that moment to have

12 a kind of rebellion among this execution squad, which

13 was also in -- the confrontation was unuseful, since

14 this officer also had at his disposal a few members of

15 soldiers coming from Bratunac who were obviously

16 volunteered for the task.

17 Q. Let me give you an opportunity to help the

18 Tribunal by supplementing the transcript a little. We

19 have established, I think, that on 19th November when

20 you were testifying, you did not mention his statement

21 about the duress when speaking of the first set of

22 executions. Was it the case that he might have told

23 you so but you did not remember to tell the Tribunal

24 that on 19th November?

25 A. No, the reason why I did not mention any

1 duress at that time was simply because I was not asked

2 about that. I was just requested to explain what had

3 been the -- what was our knowledge of the events, from

4 where we got that knowledge and what was the

5 corroboration that we could provide the court about

6 these events. That was the situation at that time, but

7 at that moment I was not asked what was my feelings, my

8 personal feelings, which are only of my

9 responsibility. Maybe others would have other

10 feelings, but I was not asked about what was my opinion

11 about the duress at that time in November 1996.

12 JUDGE SHAHABUDDEEN: I appreciate the answers

13 which you have given me and I thank you.

14 JUDGE WANG: Mr. Ruez, I have only one

15 question to you. That is at the very first contact

16 with the accused, Mr. Erdemovic, did he explain to you

17 why he exposed such a serious offence to society and

18 intending to go to The Hague to be tried? Did he

19 explain that to you at this point and did you report

20 that you talked to the Office of the Prosecutor and put

21 it in writing, that is afterwards?

22 A. Yes, he did. He did not explain it in one

23 occasion, in fact the explanation came little bit by

24 little bit through the multiplication of the contacts

25 that we had together. He never made an issue of that

1 at the beginning and we did not also. The first -- the

2 first aim was to get access to the facts that he had

3 the knowledge of and only at a later stage did we

4 deepen the reasons why he made all these efforts to

5 come and testify. The reasons were already quite

6 obvious since the beginning, because he explained how

7 responsible he thought these people were to have put

8 him, who was a soldier, he was doing only sabotage

9 operations and suddenly he was stuck in a huge criminal

10 operation and he was extremely angry about these people

11 who have put him in this situation and explain also the

12 relationship that he had with his commander which was

13 getting worse and worse after some time, and all these

14 explanations came in fact slowly.

15 And the fact is also that if ever they did

16 not have decided to kill him, maybe he would not have

17 made all these efforts to come, so all these situations

18 are a bit melted together, because the fact that he got

19 shot was most probably due to his obvious attitude, not

20 only on the spot when the execution was carried out,

21 but also when he told us bit by bit, he explained to us

22 also what was his behaviour after the massacre when he

23 came back to Bijeljina, he started to drink, did not

24 communicate much more with his wife and had more or

25 less on any occasion arguments with other

1 members of his unit. Some of them were kind of proud

2 of what they had done and instead of staying quiet, he

3 was a bit verbally aggressive to them, so he quickly

4 not only raised suspicion, but he raised the anger of

5 the others against him. This is most probably the

6 reason why at one point they decided to get rid of

7 him. This is the event that triggered the necessity

8 that at this point he had to escape and the best escape

9 he could have at that time was to come and testify to

10 the Tribunal. It was helping his situation and on top

11 of it was providing him with the tools to take a kind

12 of revenge on his commanders and explain exactly what

13 had happened at that time, because he is clearly

14 strongly against this kind of criminal behaviours.

15 JUDGE WANG: Thank you.

16 JUDGE MUMBA: Thank you very much. As

17 a result of the questions put to the witness by the

18 judges and the witness's answers, is there anything the

19 Prosecution would like to clarify?

20 MR. McCLOSKEY: No, your Honours.

21 JUDGE MUMBA: Thank you. The Defence

22 counsel?

23 MR. KOSTIC: No, your Honour.

24 JUDGE MUMBA: Thank you. Thank you very

25 much, Mr. Ruez. You may leave the witness box.

1 (The witness withdrew)

2 JUDGE MUMBA: That is the only witness the

3 Prosecution was going to call?

4 MR. NIEMANN: Yes, your Honour. They are the

5 matters that we wish to put to you.

6 JUDGE MUMBA: Thank you very much. Mr. Babic,

7 any evidence you would wish to call in mitigation,

8 whether you wish to call the accused himself or any

9 other witness? We are aware of the witnesses that were

10 called in the previous hearing, Witness X and

11 Witness Y, who were under the Tribunal's protection.

12 We are also aware of the evidence Mr. Erdemovic gave

13 during that hearing, but it is up to you really to

14 decide what to do before this trial.

15 MR. BABIC: Your Honours, I will not call any

16 witnesses. I suggest that we use the transcript of the

17 testimonies of the witnesses X and Y and they be used

18 in evidence, upon which the determination will be

19 made. Also together with my learned colleague Kostic,

20 I have spoken with the accused Erdemovic, whether he

21 had the strength to testify one more time before this

22 Trial Chamber on his own behalf. He requested, and

23 I am passing on his request to you, if it is not

24 necessary for the Trial Chamber, he would also like to

25 rely on the testimony he gave to the previous Trial

1 Chamber.

2 JUDGE MUMBA: Mr. Babic, we just want to be

3 clear with what you have just said, particularly the

4 last part, that you would rely on the transcripts of

5 evidence which particularly the accused himself gave in

6 the previous Chamber. Is that your decision?

7 MR. BABIC: Yes, it is.

8 JUDGE MUMBA: In which case, besides the

9 transcripts of evidence of Witness X and Y in defence

10 and also the evidence which the accused gave in the

11 previous Trial Chamber, you have no other witnesses to

12 call; that is your position?

13 MR. BABIC: We do not have another witness to

14 call.

15 JUDGE MUMBA: Mr. Erdemovic, will you please

16 stand? You have heard what your Defence counsel has

17 said, that in mitigation, the evidence of the witnesses

18 which were called before the previous Trial Chamber

19 gave, that is Witness X and Y for the Defence, and also

20 the evidence that you gave during the hearing before

21 the previous Chamber. The transcripts of that

22 evidence, of the witnesses and yourself, will be used

23 by this Trial Chamber and that you do not wish to give

24 any more evidence yourself in person; is that correct?

25 MR. ERDEMOVIC: Your Honour, if you wish to

1 ask any question, I will do so, but honestly speaking,

2 I would prefer not to talk about it any more.

3 JUDGE MUMBA: Thank you. Yes, Mr. Babic?

4 MR. BABIC: My understanding was that the

5 representative of the Prosecution has also moved that

6 the two reports that we have by the medical commission

7 also be introduced into evidence, and I would just like

8 to make this absolutely clear, and I would like to

9 support that. Also, as stated by my colleague

10 Mr. Kostic, I would like to also move into evidence the

11 statement of the journalist Vasic Janekovic and that

12 would be all the documents we would like to tender into

13 evidence. This would be one issue and as the Defence,

14 we would also like to make some comments before the

15 sentence itself is passed, which regard the sentence

16 itself and the Article 11 of the federal law of the

17 United States.

18 JUDGE MUMBA: Yes, I understand that you

19 would like to make such submissions. I will return to

20 you later. Can you please sit down?

21 JUDGE SHAHABUDDEEN: Mr. Babic, I would just

22 like to be clear in my own mind as to the status of the

23 question and the making of any decision relating to the

24 question whether your client should or should not

25 testify. I understood you to mean that so far as the

1 Defence is concerned, the Defence does not wish

2 Mr. Erdemovic to testify, but that he is available to

3 testify if the Chamber wishes him to testify; is that

4 the position?

5 MR. BABIC: Your Honour, we have spoken to

6 Mr. Erdemovic, both myself and my learned colleague

7 Mr. Kostic, on this very topic. It is the eighth time

8 that Mr. Erdemovic is speaking to the matter of his

9 guilt. It is the eighth time that he is reliving the

10 events that he had lived. We have seen some dramatic

11 scenes before this Tribunal, and so we thought that if

12 it is not absolutely necessary we would like whatever

13 he stated on the first through the seventh occasion in

14 evidence. We just wanted to spare him, but he is

15 available for any questions you may have.

16 JUDGE SHAHABUDDEEN: I understand, and

17 I think I appreciate the humanities which are involved

18 in this aspect of the matter and I would leave it

19 there.

20 JUDGE MUMBA: Thank you very much. We shall

21 now hear any submissions that the parties wish to make and

22 will begin with the Prosecution first.

23 MR. NIEMANN: I rely on what I said earlier,

24 your Honour.

25 JUDGE MUMBA: Thank you very much.

1 Mr. Babic or Mr. Kostic?

2 MR. KOSTIC: Thank you, your Honour. Mr. Babic

3 and I have split up some of our duties, so I will try

4 to be a bit more brief in regard to my submission.

5 What I wanted to do, because it is my understanding

6 that this may be the first case in front of this

7 Tribunal which first of all is back for a replea, but

8 then in addition to that, that we have an agreement

9 that we have submitted to the court. I want to talk

10 about that just briefly. One I think initial remark is

11 this: the rules and regulations, the Statute of the

12 Tribunal, I have been told by academics is a hybrid of

13 all legal systems. A lawyer from the United States, of

14 course, should not come here and tell you that one

15 system or another is better, but he should tell you

16 that maybe if we take the best of all systems, this

17 system will be much better.

18 Mr. McCloskey and Mr. Niemann and Mr. Babic and

19 I have worked very hard to put together an agreement

20 for your consideration and whereas Mr. Babic, you may

21 want to know, really had no familiarity with such a

22 document, it just is not used in his system,

23 Mr. McCloskey and I, of course, became fast friends,

24 because we are from the same system -- fast friends

25 I mean in the adversarial way, and worked on this

1 agreement because we understood what it meant because

2 we would use it weekly, monthly, daily, for many years

3 of our practice.

4 What is probably more important about that is

5 the fact that we told Mr. Erdemovic that we were working

6 on this, and when he entered the plea in front of you

7 earlier this afternoon, he considered this agreement.

8 I think the agreement has really all of the, I should

9 say, aspects of this case and it also serves the

10 purpose, I think, of everyone involved in this matter:

11 the judges, your Honours, the Prosecution, the Defence

12 and let us not forget one other thing; we also have

13 victims in this case, and I think it serves the needs

14 of the victims.

15 What does it do? There is no need for a long

16 and lengthy trial. Mr. Erdemovic has come in and

17 entered a plea, said he had committed the crimes, and

18 I think that -- he has done that quite speedily. If

19 you know from the record in this case, he entered a

20 plea of guilty at the arraignment. The very first time

21 he appeared in court, he entered the plea. I recall

22 sitting in my living room back in the United States and

23 watching a very dramatic presentation of Mr. Erdemovic

24 pleading guilty. He has been consistent, as you know,

25 seven or eight times. That, of course, I think helps

1 the victims in this case, because they do not have to

2 worry about certain things. That part of the case has

3 been done, has been concluded in a very speedy fashion.

4 I think it unfortunately, obviously the

5 horror of this whole situation is such that I do not

6 want to go much further with it, but I think it does

7 add to some finality in a small piece of this process.

8 The Prosecution was spared a lengthy trial, lots of

9 witnesses, a lot of expenses. You know, when you are

10 sitting in a courtroom like this, with some of the

11 finest minds, with some of the highest ideals, we do

12 not want to talk about finances, because we cannot

13 measure justice in finances, but then I am told when

14 I come here that there are such pressures and it does

15 help the Prosecution, it helps the Tribunal.

16 As far as your Honours are concerned, I think

17 it allows you, if this is done as it was done in this

18 case, it allows you to go on and use your time for

19 other cases, where maybe there are genuine issues.

20 Judicial economy is what we call it in the

21 United States, but I think that is a part of it, and

22 that is important.

23 For the Defence, likewise, we have an

24 agreement. Mr. Babic talks about Rule 11 in the

25 United States. I am not sure if we need to go into

1 that, that is a very specialised rule, where in fact we

2 occasionally get a prior consent on the agreement,

3 including the amount of time to be served. Obviously

4 if the judge does not like it he tells us to go away

5 and do something else, but that is what Rule 11 stands

6 for.

7 Nevertheless for the Defence, we do have some

8 things that are favourable to us, we know what we are

9 pleading guilty to, and then finally, Mr. Erdemovic gets

10 a peace of mind in this situation. He knows what he is

11 going to plead guilty to, he knows what the

12 recommendation is going to be. I think he feels

13 comfortable. You have seen the process this afternoon,

14 his comfort with having entered that plea because he

15 has a man of Mr. Niemann's stature, a seasoned

16 Prosecutor in his country, here in the Tribunal, he

17 knows what a case is worth. He has fought the wars

18 here for three years, he knows that his recommendations

19 are good, they are sound, and, of course, we all hope

20 that you would follow the Prosecutor's recommendation.

21 That is our hope, that is our recommendation. Also by

22 the way, pursuant to the agreement, we also feel that

23 the seven year sentence is an appropriate one.

24 So those are my remarks about this plea

25 agreement. I think it is a good instrument, it is a

1 good document, I hope that the Tribunal, the other

2 Chambers would use it if there are appropriate

3 circumstances. In this particular case, I think it is

4 a very fair resolution of this particular case and it

5 is fair to everyone who is concerned in this case, so

6 again I apologise for maybe trying to be a little

7 preachy about what this stands for, but I hope that you

8 understand my position, that I do want to see

9 Mr. Erdemovic receive a sentence that is consistent with

10 the plea agreement. Thank you very much.

11 JUDGE MUMBA: Thank you very much.

12 Mr. Babic?

13 MR. BABIC: Your Honours, on this occasion,

14 I would like to express my special satisfaction that in

15 a procedure that has raised many legal and moral

16 issues, we as a Defence and the learned colleagues of

17 the Prosecution have reached very similar or I should

18 say literally similar positions and legal arguments.

19 I think that until now, the proceedings have confirmed

20 this, before this Trial Chamber.

21 In this phase of the proceedings, before the

22 passing of the sentence, I would just like to make

23 several comments which the Trial Chamber I hope may

24 find useful when determining whether to accept the

25 agreement and what punishment it should pass.

1 Today, the accused Erdemovic pleaded, and

2 I have counted these pleas, because I was present at

3 all of them, it is the eighth time, and this time he

4 pleaded guilty for the war crime. In this situation,

5 that is just before the punishment has been determined,

6 the Defence would like to point out that the issue

7 before us is not just a legal one, it is equally, if

8 not more, a moral issue. So someone's plea of guilty

9 and admission of his guilt and the severity of

10 punishment is not only a legal issue but also a moral

11 issue.

12 This is the case not only in the case of

13 particular country but also for the international

14 community which is a community of all the nations. It

15 also affects the victims of the crimes, as well as the

16 perpetrator. The Defence believes that this complex

17 approach is the only one that is possible and I am

18 grateful that the Prosecution adopted this position and

19 I am hopeful that the Trial Chamber would do so as

20 well.

21 I would like to remind the Trial Chamber of

22 the voluntary, informed and unequivocal statements of

23 the accused Erdemovic about his guilt. These

24 statements should, above all, be taken as his moral

25 attitude towards the truth on the one hand and as a

1 plea for understanding of how far the limits of the

2 abuse of man in this region were stretched, not only in

3 his local environment but also in the wider scope.

4 Also, his moral attitude towards the truth

5 must be proportionately reflected in the punishment.

6 It must be satisfactory to the victims, acceptable and

7 beneficial to the national and international

8 communities and fair towards the accused himself. With

9 all due respect, I think that this should be the

10 approach that the Trial Chamber should adopt when

11 determining the proper sentence.

12 I will now move on to the mitigating

13 circumstances, taking into account what the learned

14 colleagues from the Prosecution have already argued.

15 The proceedings so far confirm beyond any doubt that

16 there is a number of mitigating circumstances in favour

17 of Mr. Erdemovic, and I will try to enumerate them.

18 First, the accused Erdemovic found himself

19 caught up in the vortex of war which was caused by the

20 conflict of three ethnic communities, without his own

21 will. This conflict assumed the aspect of a total war,

22 including an element which played a greater role than

23 at any time in the modern history, which was this

24 element of the ethnic cleansing.

25 The criminal act in which the accused

1 Erdemovic took part as a direct perpetrator without a

2 doubt falls within the scope of the most serious

3 violations of international law, but the accused

4 Erdemovic is not creator here, or an ideologue, or

5 somebody who issued orders. He is not a religious or a

6 nationalist fanatic. Nor is he a sadistic soldier, but

7 rather a victim which begets further victims; a simple

8 instrument for killing, which had to kill lest it be

9 killed.

10 That the accused Erdemovic could in no way

11 have avoided the situation in which he unforeseeably

12 and suddenly found himself, that before the commission

13 of the crime, he at the scene made a hopeful but futile

14 attempt to resist the implacable order of the superior;

15 that the accused Erdemovic proceeded to commit the

16 crime under irresistible duress as was pointed out by

17 the learned colleagues from the Prosecution; that he

18 pleaded guilty for the crime of -- war crime rather

19 than crime against humanity, and his plea for the first

20 time has spelled out clearly that the crime against

21 humanity is a more serious crime of the two.

22 Further, that Mr. Erdemovic found himself in a

23 position of clear and present danger to his own life

24 and that of his family's, and he was in a position

25 where he either had to shoot or he would be shot; that

1 all this caused Erdemovic fear for his own life and

2 that of his family, to which he found no alternative,

3 no alternative in his local environment and anywhere in

4 the territory of the former Yugoslavia, and that

5 therefore his intent in committing the crime was

6 significantly diminished, and here I would also like to

7 respectfully refer to the findings of the medical

8 commission.

9 That during the commission of this crime, he

10 tried to save the life of one person, but he failed to

11 do so, and then that he refused, and this time it was

12 with the support of the members of this unit, this was

13 in Pilica, he refused to take part in the execution at

14 the social hall in Pilica. He found inner strength and

15 this was also supported by the comments of the learned

16 colleagues of the Prosecution, who explained why he did

17 so; that in the end, Erdemovic himself became a victim

18 of his own "fellow soldier", who gravely wounded him,

19 so that he managed to turn himself in and appear before

20 this Tribunal, thanks only to the successful efforts of

21 physicians in the former Yugoslavia and here in

22 The Hague and the Registry of this Tribunal; that the

23 accused Erdemovic held a low rank in the military units

24 in which he was. As he said, he at first held the

25 lowest rank up from the private, and only for one

1 month.

2 That the testimony of the Witness X confirms

3 without a doubt that the accused Erdemovic never before

4 committed any crimes against any members of the army;

5 in fact on the contrary, he let a man go and he saved

6 his life. He did everything he could in order to let

7 the public know the facts of this committed crime and

8 he was determined to appear to answer to them before

9 this very Tribunal. In all his statements, from the

10 first one he gave to all the ones he gave to this

11 Tribunal, he admitted his participation in the

12 commission of this crime and virtually accused himself

13 or brought himself before this Tribunal, whereby he

14 expressed his moral stance and a strong sense of

15 remorse.

16 That from the start of these proceedings, he

17 has significantly co-operated with the Prosecution, as

18 was also supported by the Prosecution today, and that

19 he also testified as part of this co-operation, he

20 testified in the hearings according to the Rule 61.

21 That throughout his stay in the detention, he behaved

22 in accordance with the rules of this institution and

23 very correctly, and based on the information that

24 I regularly received from the officials in the

25 detention unit, he clearly expressed strong remorse for

1 having taken part in the commission of the crime, as

2 was also corroborated by the witness Jean-Rene Ruez.

3 We would also like the Trial Chamber to take

4 into account several other issues. It is the personal

5 circumstances of the accused Erdemovic, that is his

6 personality, his character, his family and social

7 background. At the time of the commission of the

8 crime, the accused Erdemovic was only 23 years old. He

9 is a Croat and a Catholic. He comes from a working

10 class family, in which the children were brought up in

11 the spirit of religious and ethnic tolerance, and as

12 Yugoslavs. This he adopted in his own life without

13 reservation, and he acted accordingly. The different

14 religions and ethnic groups in his environment were his

15 true wealth, and as crowning proof of this all, he

16 married a woman from another ethnic and religious

17 group, with whom he has a three year old child.

18 His family lives in the Tuzla area, which is

19 where they lived before the war and during the war, and

20 they have fallen on hard times. Therefore his family

21 will suffer hardship due to his serving a prison

22 sentence. He did everything he could to avoid these

23 winds of war and to leave the country and go abroad

24 with his family. However, unfortunately, he did not

25 succeed.

1 So the confluence of many circumstances in

2 the territory of the former Yugoslavia, and I think

3 that the Trial Chamber is aware of this, and the

4 unavailability of other choice took him to all three

5 warring sides. This was his modus vivendi and not only

6 his, this was a fate shared by all. He never belonged

7 to any nationalist party. He resisted as much as he

8 could all propaganda advocating intolerance, just as he

9 was taught at school, by the community and family.

10 He has no criminal record, and he does not

11 even have any misdemeanour charges against him. All

12 this makes it clear that the accused Erdemovic poses no

13 danger for his environment and that his character is

14 reformable. This is also borne out by the expert

15 commission findings.

16 The Defence submits to the Trial Chamber that

17 these mitigating circumstances should be taken as real

18 and founded. They should be taken also as a basis on

19 which the accused, Erdemovic, has reached a plea

20 agreement with the Prosecution, having admitted his

21 guilt, taking into consideration that a seven year

22 sentence is adequate, bearing in mind all the

23 circumstances, and this is what he has to give back to

24 his victims.

25 I want to give you my personal view on this.

1 I believe that this is going to be a recurrent

2 nightmare for the accused, Erdemovic, for the rest of

3 his life.

4 Therefore, the Defence believes that the

5 agreement which has been reached between Erdemovic and

6 the Prosecution, all elements of punishment will be

7 satisfied, both the national and international ones.

8 In closing, I would like to add that this

9 Trial Chamber, based on Rule 101(B) of the Rules of

10 Procedure and Evidence, that the Trial Chamber will

11 take into account the time that the accused Erdemovic

12 has spent in detention, which is close to two years.

13 I would just like to add one more thing, that this

14 Trial Chamber will also consider its decision in which

15 host country the accused, Erdemovic, is going to go to

16 serve out his sentence. Thank you very much.

17 MR. KOSTIC: May I add something, just very

18 minor. I believe that we have agreed with Mr. McCloskey

19 and Mr. Niemann that Mr. Erdemovic was arrested on March

20 3rd 1996, which would give us approximately 22 months

21 and 11 days in custody. If I am off, I certainly would

22 stand to be corrected. I think I am fairly close, to

23 give you an idea as to his time in custody before his

24 sentencing.

25 MR. McCLOSKEY: Your Honours, I am sure we can

1 reach exactly what that date is. I know we have the

2 documents, but it may need closer looking into to

3 double-check the exact date. It should not be a

4 problem. It should be very close if not correct.

5 MR. KOSTIC: We may be able to make a

6 stipulation to the court.

7 JUDGE MUMBA: On this issue of taking into

8 account previous incarceration, I would like to be

9 clear with the parties. It is the time in detention

10 after the Tribunal came on the scene that matters.

11 MR. McCLOSKEY: That is correct,

12 your Honours. That is the view of the Prosecution.

13 JUDGE SHAHABUDDEEN: The understanding

14 between the parties is that that previous detention

15 time is to be deducted from whatever sentence of

16 imprisonment, if such a sentence is imposed, were to be

17 ordered; that is it?

18 MR. BABIC: That was the agreement we reached,

19 your Honour. That was our agreement.

20 JUDGE SHAHABUDDEEN: Does the Prosecution

21 confirm that?

22 MR. NIEMANN: Yes, your Honour. So if

23 your Honours were to impose a particular sentence of a

24 number of years, it would be that sentence commenced at

25 the time he started his custody in The Hague, so it

1 would date from that time.

2 JUDGE MUMBA: Thank you very much. I think

3 we have come to the end of our proceedings. Unless

4 there are any other matters that the parties would like

5 to mention at this stage? Mr. Niemann?

6 MR. NIEMANN: Yes, I just wish to confirm

7 your Honours. I have been handed a document that

8 suggests that Mr. Erdemovic was transferred to the

9 Tribunal on 30th March 1996.

10 JUDGE MUMBA: 30th March.

11 JUDGE SHAHABUDDEEN: Not 3rd March.

12 MR. NIEMANN: He was arrested earlier on

13 2nd March and transferred on 30th March.

14 JUDGE SHAHABUDDEEN: Would not the Defence be

15 suggesting that from the time of his arrest his status

16 would be one of incarceration on behalf of the

17 Tribunal?

18 MR. NIEMANN: I am not sure whether that is

19 what is being suggested by the Defence, but the

20 position that we have taken is that it should be from

21 the moment of incarceration in The Hague, which is

22 30th March. We do that based on the decision of the

23 Chamber in the Tadic case, which also commenced its

24 period of consideration as the period from

25 incarceration in The Hague. Fortunately for

1 Mr. Erdemovic in this case it is a matter of some 20

2 days, but nevertheless I would not belittle that in any

3 sense.

4 MR. BABIC: If I may add, your Honours,

5 I personally would not agree to this, but in the

6 interests of expediency, we wish to support the

7 position of the Prosecution.

8 JUDGE MUMBA: Thank you very much. This

9 brings our proceedings today to a close. The

10 sentencing judgement of this Trial Chamber will be

11 delivered in due course in open court. The parties

12 will be given advance warning of the date of delivery

13 of judgement, which will be in public. This session is

14 now adjourned.

15 (5.30 pm)

16 (Hearing adjourned)

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