Tribunal Criminal Tribunal for the Former Yugoslavia

Page 88

1 Thursday, 5 March 1998

2 (9.00am)

3 JUDGE MUMBA: Good morning. Madam

4 Registrar, please call the case.

5 THE REGISTRAR: Case number IT-96-22-Tbis,

6 the Tribunal Prosecutor versus Drazen Erdemovic.

7 JUDGE MUMBA: Mr. Erdemovic, do you hear me

8 in a language you understand?


10 JUDGE MUMBA: And, counsel, do you hear

11 me? Can I have the appearances?

12 MR. NIEMANN: My name is Niemann and

13 I appear with my colleague, Ms. Sutherland, for the

14 Prosecution.

15 MR. BABIC: Good morning, your Honour, I am

16 Mr. Babic, attorney from Yugoslavia, Defence counsel for

17 the accused, Drazen Erdemovic.

18 MR. KOSTIC: Kostic, appearing for

19 Mr. Erdemovic.

20 JUDGE MUMBA: The Trial Chamber is today

21 pronouncing its sentence on Drazen Erdemovic further to

22 his guilty plea to count 2 of the indictment issued

23 against him on 22 May 1996, and confirmed on 29 May

24 1996, namely, "a violation of the laws or customs of

25 war punishable under Article 3 of the Statute of the

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

2 the Geneva Conventions". The formal judgement of the

3 Trial Chamber is separately handed down to be available

4 before the end of today. I will however summarise its

5 main elements.

6 The Trial Chamber was satisfied with the

7 guilty plea made on 14 January 1998 and, therefore,

8 convicted the accused accordingly on the same day.

9 A pre-sentencing hearing was held on the same

10 day and the Trial Chamber heard the submissions of the

11 parties. Drazen Erdemovic was granted leave to have

12 his previous testimony before the International

13 Tribunal admitted as evidence. With the consent of

14 both sides, the Trial Chamber admitted in evidence

15 several transcripts and documents which were tendered

16 in lieu of oral testimony and heard oral evidence from

17 Mr. Jean-Rene Ruez, the Investigating Officer in charge

18 of the Office of the Prosecutor's Investigations into

19 the fall of the enclave of Srebrenica.

20 The Trial Chamber has accepted as fact the

21 version of events which the parties have submitted. In

22 particular, it has accepted that Drazen Erdemovic

23 committed the offences in question under threat of

24 death.

25 In determining the sentence to be imposed

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1 upon Drazen Erdemovic, the Trial Chamber has duly

2 considered the relevant provisions of the Statute and

3 the Rules of Procedure and Evidence setting out

4 sentencing guidelines, namely Articles 7 and 24 of the

5 Statute and Rule 101 of the Rules of Procedure and

6 Evidence. The Trial Chamber has also applied the

7 various criteria and rulings of the Appeals Chamber in

8 its judgement rendered on 7 October 1997.


10 The Trial Chamber considers that the

11 magnitude of the massacre in which Drazen Erdemovic

12 participated and the scale of his involvement are

13 aggravating circumstances to be taken into account in

14 accordance with Article 24(2) of the Statute.


16 The following factors have been considered by

17 the Trial Chamber as worthy of being considered in

18 mitigation of the sentence:

19 Age: At the time of the killings, the

20 accused was 23 years old. He is now 26 years old and

21 evidence has been provided that he is "not a dangerous

22 person for his environment". The Trial Chamber

23 believes that, on account of his circumstances and

24 character, he is reformable. He should therefore be

25 given a second chance to start his life afresh, whilst

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1 still young enough to do so.

2 Family: The accused has a wife, who is of a

3 different ethnic origin, and the couple have a young

4 child, who was born on 21 October 1994.

5 Background: The accused is a locksmith by

6 training. In July 1995 he was a private in the 10th

7 Sabotage Detachment where he was not in a position of

8 command. He was, apart for a two-month period as a

9 sergeant in that unit, a mere foot soldier, whose lack

10 of commitment to any ethnic group in the conflict is

11 demonstrated by the fact that he was, by turns, a

12 reluctant participant in the Army of the Republic of

13 Bosnia Herzegovina, the Croatian Defence Council and

14 the Bosnian Serb Army. The possibility of his being a

15 soldier of fortune has not been suggested by any of the

16 parties.

17 Character: In his submissions the Defence

18 counsel portrayed the accused as an easy-going young

19 man showing no signs of bigotry or intolerance. He had

20 a desire to help others in difficulty. The accused's

21 upbringing was steeped in values of tolerance for

22 others and this is reflected in the fact that he chose

23 to marry a woman from another ethic group. It had

24 nothing to do with the fact that love is blind.

25 The Trial Chamber has noted that the accused

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1 has no criminal record and that he has said that, prior

2 to the mass murder in Srebrenica, he had never killed.

3 Admission of guilt:

4 The Trial Chamber notes the submission of

5 Defence counsel that the accused's statements as to

6 guilt should "above all, be taken as his moral attitude

7 towards the truth on the one hand, and as a plea for

8 understanding of how far the limits of the abuse of man

9 in this region were stretched, not only in his local

10 environment but also in the wider scope".

11 An admission of guilt demonstrates honesty

12 and it is important for the International Tribunal to

13 encourage people to come forth, whether already

14 indicted, or other unknown perpetrators. Furthermore,

15 this voluntary admission of guilt, which has saved the

16 International Tribunal the time and effort of a lengthy

17 investigation and trial is to be commended.

18 Remorse:

19 The accused has said that he feels sorry for

20 all the victims, not only for the ones who were killed

21 at the farm, but also for all the victims in Bosnia and

22 Herzegovina, regardless of their nationality. The

23 post-traumatic stress which the accused suffered from

24 in the aftermath of the Srebrenica atrocities

25 demonstrates how he himself suffered, after having been

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1 forced to commit the killings.

2 Cooperation with the Office of the

3 Prosecutor:

4 "The collaboration of Drazen Erdemovic has

5 been absolutely excellent." These are words rarely

6 spoken by the Prosecution of an accused. The Trial

7 Chamber, remembering its obligation to consider such

8 cooperation under Rule 101 of the Rules of Procedure

9 and Evidence, has taken note accordingly.

10 It has also noted the submission of the

11 Prosecution, supported by the testimony of Mr. Ruez,

12 that the accused cooperated without asking for anything

13 in return and that the extent and value of his

14 cooperation has been such as to justify considerable

15 mitigation.

16 Whilst the Office of the Prosecutor knew in

17 general terms of the killings committed in Srebrenica,

18 the testimony of the accused has particularly been

19 valuable for providing them with details of four

20 incidents of which they did not previously know. The

21 accused also provided substantial details in connection

22 with the identification of his commanders and fellow

23 executioners, as well as information on the Drina

24 Corps, the structure of the Bosnian Serb Army, and the

25 units that were involved in the take-over of Srebrenica,

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1 such as the 10th Sabotage Detachment and the Bratunac

2 Brigade.

3 On 5 July 1996, the accused gave evidence in

4 the Rule 61 hearing of the case brought against Radovan

5 Karadzic and Ratko Mladic. His testimony was

6 significant in two respects. It contributed to the

7 decision to issue international arrest warrants for the

8 two and, secondly, his testimony, as far as that of an

9 insider in the Bosnian Serb Army, is evidence of what

10 happened in Srebrenica.


12 The Trial Chamber has applied the ruling of

13 the Appeals Chamber decision that:

14 "Duress does not afford a complete defence

15 to a soldier charged with a crime against humanity

16 and/or a war crime involving the killing of innocent

17 human beings."

18 It may be taken into account only by way of

19 mitigation.

20 It has been accepted by the parties and the

21 Trial Chamber that there was duress in this case. The

22 evidence reveals the extremity of the situation faced

23 by the accused. The Trial Chamber finds that there was

24 a real risk that the accused would have been killed had

25 he disobeyed the orders. He voiced his feelings, but

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1 realised that he had no choice in the matter -- he had

2 to kill or get killed.


4 On 8 January 1998, both sides filed with the

5 Registry a Joint Motion for Consideration of Plea

6 Agreement between Drazen Erdemovic and the Office of

7 the Prosecutor. Attached thereto was a plea agreement

8 between the parties, the purpose of which was expressed

9 to be to clarify the understanding of the parties as to

10 the nature and consequences of the accused's plea of

11 guilty, and to assist the parties and the Trial Chamber

12 in ensuring that the plea entered into by the accused

13 was valid, according to the Rules of the International

14 Tribunal. There is no provision for such agreements in

15 the Statute and the Rules of the International

16 Tribunal. Whilst in no way bound by this agreement,

17 the Trial Chamber has taken it into careful

18 consideration in determining the sentence to be imposed

19 upon the accused.


21 In addition to the aggravating and mitigating

22 circumstances already discussed, the sentence

23 determined by the Trial Chamber has taken into account

24 the circumstances of the killings, in particular the

25 degree of suffering to which the victims of the

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1 massacre were subjected before and during the killings,

2 the means used by the accused to kill, and his attitude

3 at the time. The atmosphere of terror and violence has

4 been well illustrated to the Trial Chamber and the

5 degree of suffering of the victims cannot be

6 overlooked. The accused's reluctance to participate

7 and his reaction to having to perform this gruesome

8 task have already been discussed and it is clear that

9 he took no perverse pleasure from what he did.

10 It is in the interests of international

11 criminal justice and the purposes of the International

12 Tribunal to give appropriate weight to the cooperative

13 attitude of the accused. He truthfully confessed his

14 involvement in the massacre at a time when no authority

15 was seeking to prosecute him in connection therewith,

16 knowing that he would most probably face prosecution as

17 a result. Understanding of the situation of those who

18 surrender to the jurisdiction of the International

19 Tribunal and who confess their guilt is important for

20 encouraging other suspects or unknown perpetrators to

21 come forward.

22 The International Tribunal, in addition to

23 its mandate to investigate, prosecute and punish

24 serious violations of international humanitarian law,

25 has a duty, through its judicial functions, to

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1 contribute to the settlement of the wider issues of

2 accountability, reconciliation and establishing the

3 truth behind the evils perpetrated in the former

4 Yugoslavia.

5 Discovering the truth is a cornerstone of the

6 rule of law and a fundamental step on the way to

7 reconciliation: for it is the truth that cleanses the

8 ethnic and religious hatreds and begins the healing

9 process. The International Tribunal must demonstrate

10 that those who have the honesty to confess are treated

11 fairly as part of a process underpinned by principles

12 of justice, fair trial and protection of the

13 fundamental rights of the individual.

14 On the other hand, the International Tribunal

15 is a vehicle through which the international community

16 expresses its outrage at the atrocities committed in

17 the former Yugoslavia. Upholding values of

18 international human rights means that, whilst

19 protecting the rights of the accused, the International

20 Tribunal must not lose sight of the tragedy of the

21 victims and the sufferings of their families.


23 Under Rule 101(E) of the Rules of Procedure

24 and Evidence of the International Tribunal, the Trial

25 Chamber is required to give credit to the convicted

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1 person for the period, if any, during which he was

2 detained in custody pending his surrender to the

3 Tribunal, or pending trial or appeal. In this case, an

4 order for transfer to the custody of the International

5 Tribunal was made by Judge Fouad Riad on 28 March

6 1996. The relevant period of time spent in custody

7 will therefore run from that date.

8 Drazen Erdemovic, will you please rise?

9 I shall now read out the deposition contained

10 in the sentencing judgement, which is available in

11 English, French and your language.

12 The Trial Chamber II TER unanimously, for the

13 foregoing reasons, pursuant to Articles 23, 24 and 27

14 of the Statute and Rules 100, 101, and 103 of the Rules

15 of Procedure and Evidence, noting the indictment of

16 22 May 1996, confirmed on 29 May 1996, noting your

17 guilty plea on 14 January 1998 to the count of a

18 violation of the laws or customs of war, pursuant to

19 Article 3 of the Statute, having considered the

20 evidence submitted in this matter and having heard the

21 submissions of the parties, sentences you, Drazen

22 Erdemovic, born on 25 November 1971, to five years

23 imprisonment and rules that from this sentence shall be

24 deducted the time which has been spent in custody from

25 28 March 1996.

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1 It directs that the imprisonment be served in

2 a State to be designated by the International Tribunal

3 in accordance with Rule 103(A) of the Rules of

4 Procedure and Evidence;

5 Orders that, until the expiry of 15 days from

6 the date hereof within which you may lodge an appeal

7 against this judgement pursuant to Rule 88 bis of the

8 Rules of Procedure and Evidence, and pending the

9 finalisation of arrangements for the transfer to the

10 State where your sentence will be served, you shall

11 remain in the custody of the International Tribunal;

12 Rules that in accordance with the Rule 102 of

13 the Rules of Procedure and Evidence the sentence,

14 subject to the above-mentioned deduction, shall begin

15 to run from today, 5 March 1998.

16 Judge Shahabuddeen appends a separate opinion

17 to this judgement.

18 This concludes the entry of the sentencing

19 judgement. The session of the International Tribunal is

20 therefore adjourned.

21 (9.20am)

22 (Hearing adjourned)