1 THE INTERNATIONAL CRIMINAL TRIBUNAL

2 CASE NO. IT-96-22-T

3 FOR THE FORMER YUGOSLAVIA IN THE TRIAL CHAMBER

4 Wednesday, 20th November 1996

5 Before: JUDGE JORDA (The Presiding Judge)

6 JUDGE ODIO BENITO JUDGE RIAD

7 THE PROSECUTOR OF THE TRIBUNAL -v- DRAZEN ERDEMOVIC

8 MR. ERIC OSTBERG and MR. MARK HARMON appeared on behalf of the Office

9 of the Prosecutor

10 MR. JOVAN BABIC appeared on behalf of the Defence (Open Session)

11 Wednesday, 20th November 1996. (10.10 a.m.)

12 THE PRESIDING JUDGE [In translation]: The Court is back in session.

13 Please be seated. Registrar, will you have the accused brought in,

14 please? Before proceeding, let us make sure everyone can hear me. Can

15 you hear me, Mr. Erdemovic? Mr. Babic? Mr. Erdemovic, is that

16 working? Is that all settled? Can you hear me, sir? Mr. Erdemovic,

17 you can hear me?

18 THE ACCUSED [In translation]: No translation, there is no

19 translation.

20 THE PRESIDING JUDGE: Can the Office of the Prosecutor hear me?

21 MR. OSTBERG: Yes.

22 THE PRESIDING JUDGE: Mr. Babic, can you hear me?

23 THE ACCUSED: Yes, yes, I can hear you now.

24 THE PRESIDING JUDGE: Fine. So the Court is back in session. Before

25 hearing the Defence, which will be calling its witnesses, the

1 Tribunal believes that it has not been fully informed as regards a

2 certain number of points. These relate, in particular, to any

3 mitigating or aggravating circumstances relative to the accused and,

4 as things now stand, the Tribunal cannot fulfil its mission which is

5 to hand down an appropriate sentence. So, under these circumstances,

6 the Judges of this Trial Chamber believe it is necessary to put some

7 additional questions to Mr. Drazen Erdemovic under oath. So, would

8 you kindly step up to the table? Would you take the solemn oath and

9 answer the questions we will be putting to you?

10 MR. DRAZEN ERDEMOVIC, recalled. Examined by the Court, continued.

11 THE PRESIDING JUDGE: Please take the solemn declaration, sir.

12 THE WITNESS: I solemnly declare that I will speak the truth, the

13 whole truth and nothing but the truth. (The witness was sworn)

14 THE PRESIDING JUDGE: Thank you. Please be seated. In your testimony

15 yesterday, Mr. Erdemovic, you said that you had served in the army of

16 Bosnia-Herzegovina, you had served in the Croatian army of Bosnia-

17 Herzegovina and you had served in the Serb Army. The point is that

18 before joining the HVO, the Croatian army of Bosnia-Herzegovina, you

19 were in the Bosnia-Herzegovina army. Can you please give us some

20 further information about this, that is to say, more specifically,

21 when did you join the army of Bosnia-Herzegovina? When did you leave

22 that army and why did you leave it?

23 THE WITNESS: I do not know the exact date when I joined the army. I

24 joined that army when I received call up papers from the military

25 department in Tuzla. I went to the Local Commune building, to the

1 Territorial Defence building at that time, and I was first there and

2 then later on I was with the Mortar Unit. The army of Bosnia and

3 Herzegovina, I left it somewhere in 1992, in November, I believe. I

4 left the army of Bosnia and Herzegovina because, as I told you

5 yesterday, I wanted to avoid any possible participation in combat

6 operations because I did not care about fighting. I just wanted to

7 have some lighter tasks and I carried out tasks that were normally

8 carried out by the military police. I was securing the headquarters

9 and some checkpoints.

10 Q. So, you joined the army of Bosnia-Herzegovina exactly when, the

11 army of Bosnia-Herzegovina?

12 A. When I received call up papers by the government.

13 Q. What month, what year, not necessarily the date, what month, what

14 year?

15 A. Well, sometime in the end of May when the conflict between the

16 former JNA and members of the MUP in Tuzla broke out, at the end of

17 May 1992.

18 Q. Yesterday, Mr. Erdemovic, you said that you were not a member of

19 the army of the Serbs of Bosnia-Herzegovina, but that you were

20 obliged to serve therein. Does that mean that military service was

21 obligatory there?

22 A. Bosnian Serbs, yes, of course, there was an obligation to serve;

23 only those who had enough money and who were able to buy up their

24 lives and avoid the military obligation, they were free, and those

25 people were well off. They had private cafes, petrol stations, small

1 companies and all kinds of property. I had no means to pay, so I had

2 to join the army. I simply did not have any means to feed my family;

3 I had to. Nobody asked me whether I wanted to join the army. If I did

4 not do it of my own will, they would have taken me. They would have

5 beaten me, and they used to do it, they used to beat you. They used

6 to give you a uniform and simply take you to the front and the

7 punishment was to stay one month at one of the worst front lines.

8 That is how it was. Everybody knows that, not only me, everybody

9 here, all the detainees here know how it happened. I did not want

10 that war, but nobody asked me, "Drazen Erdemovic, did you vote for

11 the SDS, HDZ, SDA?" No, nobody. I voted for the reform forces in

12 Tuzla who won only in Tuzla. Tuzla was not in favour of a war option,

13 but nobody asked me whom I voted for, because I was against the war

14 and I proved it by voting for that party. I was not - I did not want

15 a war. I had no motives. I had no motivation to go to war. Is there

16 anyone here who can understand me? My wife is a Serb. It is not her

17 fault that she is a Serb and I am a Croat, and it is not her fault

18 that Serbs and Croats were waging war. Was I supposed to hate her

19 because she is a Serbian or to hate a Muslim?

20 Q. Mr. Drazen Erdemovic, please listen to me just for a second.

21 Listen to me closely. I want you to be sure - I am now speaking. I am

22 the Presiding Judge here, sir, just to be perfectly clear.

23 A. I apologise.

24 Q. We are putting these questions to you because you are before a

25 Tribunal, that is to say, an impartial and independent body. Why are

1 we putting these questions to you? It is because we need this

2 information to judge you in the most impartial and independent way

3 possible. Please let that be clear to you. Then you will understand

4 what the point is.

5 A. I apologise, but let me explain this to you. I do understand this,

6 but this is the twelfth time that I am repeating my story, the story

7 of how my life has been destroyed. Please try to understand me. This

8 is the twelfth time I am doing this. When I testified during Rule 61

9 hearing against Mladic and Karadzic, when I went back to my cell, I

10 just could not get up for three days. I got an ulcer. It was

11 diagnosed by doctors. It was so detrimental for my health. Then I had

12 to undergo this operation here in Holland and everything became

13 stable again, but then yesterday again you saw me, you saw how I

14 testified. I do apologise for my behaviour when I took off my shirt

15 when I showed my injuries. I appeal to your understanding, please.

16 Q. Mr. Drazen Erdemovic, it is precisely because we are trying to

17 understand, but we do not only want to understand Mr. Drazen

18 Erdemovic, we want also to understand the people that died. That is

19 what we are trying to understand because we have to hand down a

20 decision. We want it to be fair and impartial, taking account of you

21 and taking account of the victims. So I shall pursue these questions,

22 even if it is the twelfth time you have to answer them. I am sorry

23 for that but, from what you said yesterday, there are some things

24 that are lacking. I cannot help that, nor can my colleagues here if

25 both in what was put forward by the Prosecution and the Defence we

1 find that there are still some lacunas. So I am sorry if it is the

2 twelfth time, but for us, Judges, it is the second time. I am sorry

3 if prior to that you talked to journalists and you had other people

4 you had to talk to, but we are now going to put seven or eight

5 further questions to you, because in this kind of setting when you

6 talk about mitigating or aggravating circumstances, you need

7 something to substantiate them. This is why I suggest we deal with

8 this very calmly. Please make this effort for the International

9 Criminal Tribunal. That is your assurance. It is an assurance for you

10 that we are providing you with. Now, with regard to mitigating

11 circumstances and, in particular, with regard to the duress that you

12 have mentioned - you have touched on that point several times - the

13 Tribunal is wondering what your level of information was, because it

14 is not quite clear to us how in this territory of Republika Srpska

15 with all these events going on that you were not more informed as to

16 what was going on through the media etc.. Yesterday you did not fully

17 answer that question, so let me reword it for you more clearly.

18 Please try calmly and serenely to answer this question for the

19 Judges, not for the Prosecution, not for the Defence but for the

20 Judges, because at the end of day it is the Judges who are going to

21 decide as to your fate. So, please, sir, remain calm and try to

22 respond to these questions. When you went to Republika Srpska, what

23 kind of information did you have as to the policies being pursued by

24 the political and military leaders there? As a soldier, did you have

25 access to any information, in particular as regards the policies and

1 the practices of the Serbian Army and, in particular, the notion of a

2 greater Serbia and the issue of ethnic cleansing? So please make an

3 effort. This is very important to us.

4 A. Yes, I will give you an answer right away. Your Honours, I will

5 try to speak, to tell you, to explain to you the best I can. I was

6 not involved in politics, but I will do my best. Of course I used to

7 watch TV. I listened to the news. To be frank, ethnic cleansing was

8 not publicly discussed that much. I do not believe that any TV of any

9 country would do that, that they would show their own government,

10 their own army who is in charge of the country, that they show them

11 ethnically cleansing a particular territory. Whether they really

12 planned to do so, whether that was their objective, I do not know. I

13 had a very low rank. I had a very low, unimportant position. I could

14 not know anything about their plans, but I used to watch TV, for

15 example, at the moment a conflict between Croats and Muslims broke

16 out and then I asked myself, why, why such a conflict between Muslims

17 and Croats because they were together at the beginning of the war,

18 fighting against the Serbs? I kept asking myself, but I did not know

19 the answer and I still do not know the answer, but probably Croatian

20 and Muslim authorities do know the answer. Then I used to watch

21 Fikret Abdic, for example, and his Muslims fighting against other

22 Muslims, Muslims from Bihac, the Fifth Corps of Bosnia-Herzegovina.

23 Why? I do not know why. That is what I used to watch on the TV of

24 Republika Srpska. They just showed at that time when I was there,

25 they just showed the conflict between Croats and Muslims and Croats

1 between Muslims and Muslims. Muslims calling Fikret Abdic to help

2 them fighting Serbs - fighting Muslims from the Fifth Corps of Bosnia

3 and Herzegovina in their fight against the Serbs. So I kept asking

4 myself, why are they fighting each other if the war is between Croats

5 and Serbs, Muslims and Serbs? I kept asking myself, how come all of a

6 sudden there is a conflict between Muslims and Croats? I do not know

7 the answer.

8 Q. In your division and your Unit there, when these events at

9 Srebrenica were happening, were there any racist comments? Were

10 fellow soldiers saying, "We are going to kill them all. We are going

11 to exterminate them. We are going to wipe them out"? It is the

12 general feeling we want to have. You have told us -

13 A. What more, what better example than the one that I just told you

14 about, that the events that happened, and even the Prosecution

15 admitted that they were not aware of that, of that crime which took

16 place at that spot I told you about? What more can I say? A thousand

17 people perished there and I heard that in Nova Kasaba many people

18 were killed, Nova Kasaba and elsewhere. What else can I tell you? It

19 is a crime. First of all, I would like to say that I chose Mr. Babic.

20 It is true that some Serbs have destroyed my life but not all of them

21 and I will try to explain this to you. I chose Mr. Babic for my

22 counsel because I had told my story to a journalist and I was

23 arrested in Yugoslavia, and the media in Yugoslavia said that I was a

24 Croatian spy and that I was crazy. I chose Mr. Babic because he is an

25 honest man.

1 Q. Mr. Erdemovic, I would like to put another question. Go right

2 ahead. Yes, I suppose you have had recourse to Mr. Babic because you

3 think he is the best counsel for you, but that is not within our

4 camp, but you have not fully answered my question. I am sorry.

5 A. I will. I wish to explain. I told you the media in the Republika

6 Srpska started manipulating my case and manipulating me as an

7 individual. They publicly said that I was a Croatian spy. So that is

8 how the media in the Republika Srpska started spreading stories about

9 my being a Croatian spy. I do not know whether you understand what I

10 just wanted to explain to you.

11 Q. Let me put another question to you, just to see what kind of

12 knowledge you had about the general environment. There are some

13 things that are not clear to us with regards to how you were spending

14 your time. You said yesterday, for instance, that on the morning of

15 14th July when you were, if I have this right, at Vlasenica, you had

16 received a new order. There was a task, a mission, that was to be

17 carried out and you were told that you were to go to Zvornik. Is that

18 right? That is what you said yesterday? That is right?

19 A. No, no, I did not say it was on 14th. I said it was on 16th when I

20 came back from the funeral of my colleague from Trebinje. So I came

21 back in the evening of 15th, me and the colleagues who went with me

22 to the funeral. So in the morning of 16th I got up and Gojkovic,

23 Brano, who at the time was the Commander of the Unit, he told us to

24 get into a vehicle to carry out an assignment and I learned at that

25 time that he was going to headquarters in Zvornik and that is what I

1 said yesterday. If I did not explain it properly, thank you. I thank

2 you for asking this question again because I would like everything to

3 be perfectly clear.

4 Q. Yes, you said it was 16th, but we have had a look at this. We have

5 cross-checked. We have looked at the transcript of your statements at

6 the hearing against Messrs. Karadzic and Mladic. That is something

7 else we have taken into account. We are looking at what you said

8 yesterday, but we are also looking at what you have said in the past.

9 That is true, you have made 12 statements. It is a good thing we only

10 have two of them because it a matter of us looking at the

11 consistency, in particular, when it comes to the information provided

12 by the Prosecution. As regards 14th to 16th, it was not clear to us

13 how you were spending that time. So what happened on 14th and 15th?

14 There is no point on dwelling on 16th, but on 14th and 15th. So there

15 was a soldier, a friend of yours, who was buried?

16 A. I will tell you right away, the interpretation I received, you

17 said there was a discrepancy, there is a hole, between the 14th and

18 16th, a void. Yes, in the morning of 13th - in the evening of 12th,

19 we came to Vlasenica from Srebrenica to the base and I learned that

20 our Commander had overturned, had had a traffic accident, in an APC

21 and a soldier, a colleague of ours, was killed in that accident and

22 who was in that APC. So on in the morning of 13th I was assigned to

23 go to the funeral together with several other colleagues, to

24 Trebinje. So we stayed, we spent one day travelling to Trebinje and

25 there were some war operations going on, so you had to take a longer

1 route from Vlasenica to Trebinje. We spent the whole day travelling.

2 We arrived in Trebinje in the morning around 4 o'clock. So on 14th we

3 buried our comrade and we came back on 15th. Do you now understand

4 those dates?

5 Q. Fine. With regard to duress which you have invoked, you said that

6 you were opposed to the orders from your superior. So maybe you could

7 give us some information. Our fellow Judges and myself have a few

8 questions on this score. You said that there was this Lieutenant

9 Colonel who was giving you orders. You did not, however, identify

10 him. You know that well. At the same time you said that you were

11 under the orders of Gojkovic, Brano. My question is, can you give us

12 some further information as to the identity of the superiors who were

13 there where the execution was taking place? You had some reluctance

14 as regards executions. Who did you address yourself to? This is the

15 key question. You said, "I was under physical and moral duress". You

16 were under orders and you had to obey them. That is what your defence

17 is built around. Who was there? Who were your superiors? What are

18 their names and who did you express your reluctance to co-operate to?

19 A. I shall begin with who the Commander of our Unit was, the Unit I

20 was a member of, a former Unit. The Commander was Lieutenant Milorad

21 Pelemis. He used to be Lieutenant First Class but then he was

22 promoted and became Lieutenant, Lieutenant Milorad Pelemis. On 16th

23 July, the Unit in which I was, the Unit which carried out the

24 executions of Muslims from Srebrenica, that Unit was commanded on

25 that day by Brano Gojkovic. He was from the Vlasenica platoon. When

1 you ask me whom I said that I did not wish to participate in the

2 killings. I said that openly in front of Brano and other soldiers,

3 but nobody gave me his support. I do not know why, but nobody did at

4 that time. Later, when this Lieutenant Colonel arrived, I mentioned

5 him yesterday, when he came back - sorry, when I said that I did not

6 wish to take part in that, Brano Gojkovic very clearly told me, "If

7 you do not wish to do it, stand in the line with the rest of them and

8 give others your rifle so that they can shoot you". That is how it

9 happened. I said that I would say the truth and that is how it

10 happened. You can believe it or not, but I know what the truth is and

11 I know what hurts me and what has destroyed my life. Later on when

12 Lieutenant Colonel arrived, Brano did not say anything, but the

13 Lieutenant Colonel said that there were 500 Muslims in the culture

14 hall who were about to escape and that we should go there. I said

15 loud and clear to the Lieutenant Colonel that I do not wish to

16 participate in this any longer and that I was nobody's robot for

17 killing, and if he had told me that I had to, I would have shot him.

18 It was at that occasion that I received support of several of my

19 colleagues, but that is how it was. I knew I would have problems

20 because of that. I knew that there would be a report against me and

21 that is what happened later on. I was shot by a man who had bragged

22 about having killed the majority of Muslims that day, and that is

23 Savanovic, Stanko.

24 Q. Thank you for that clear answer. The next question. This has to do

25 with the wounds which you showed the Tribunal yesterday. Could you

1 explain more in detail the circumstances of that incident? Could you

2 tell us who shot you? "It was because of my reaction to the Colonel".

3 This is part of your defence. So please go ahead, sir.

4 A. Yes. As I indicated yesterday, Kremenovic was with another group

5 who had refused an assignment and I did not know that. We were in

6 Vlasenica at that time, and Pelemis together with Salapura went there

7 trying to convince them to carry out the assignment, but they refused

8 to do it. They did not want to take part in this dirty business,

9 because Kremenovic knew Salapura very well and he knew about dirty

10 business he was involved in. So, Kremenovic came back with his Unit

11 on 22nd July 1995 and we also arrived in Bijeljina from Vlasenica,

12 and I met with Kremenovic at that time. I told you yesterday that I

13 was drinking heavily in those days after Srebrenica and that I did

14 not spend much time with my family at home. So Kremenovic told me

15 what had happened. I did not tell him everything about what had

16 happened, but he told me, "They are not going to take me - they are

17 not going to use me for their dirty business", and I just started

18 crying because I was thinking to myself, "I have been abused". So we

19 were discussing that and Kremenovic told me that on 23rd at 12

20 o'clock there was supposed be a meeting and that we would request to

21 separate from the Vlasenica platoon from those people who were

22 nationalist, that we would request a replacement of Pelemis and so

23 on. I do not know. All kinds of things could have happened before

24 that meeting. But on that night, myself, Kremenovic and another

25 colleague were shot by Stanko Savanovic. I will tell you now so that

1 you know -

2 Q. Stanko, are you sure that it was Stanko?

3 A. I will explain. When we got out of the cafe it was already

4 midnight. It was closing time, and I was quite drunk. I wanted to go

5 home, but Kremenovic told me, "Come with me, let's have a chat. God

6 knows what will happen tomorrow. Let's see what we can do tomorrow"

7 because the trusted me. He saved my life two times. He saved me when

8 I was injured. It was upon his intervention that I was transferred to

9 the hospital in Belgrade and later on he saved me once again before I

10 went into contact with that journalist. I did not want to make any

11 trouble for that man who is now living in the federative Republic of

12 Yugoslavia. So, Stanko Savanovic fired at me and another member of

13 our Unit and at Kremenovic also. This other member of our Unit was a

14 Muslim. I am a Croat. Kremenovic is a Serb. He is a Lieutenant and he

15 is Deputy Commander of our Unit. I will tell you how come I know that

16 it was ordered by Salapura and Miso. I can show this to you if I - I

17 could show this to you if I had a newspaper. Each incident that takes

18 place in a cafe or in the street is prosecuted by military tribunal

19 in Bijeljina, but investigating Judges established that Stanko

20 Savanovic, without any cause, without any reason whatsoever, had

21 attempted a triple murder. He had attempted to kill three persons. I

22 again asked for an explanation. Well, OK, I am a Croat, there is

23 nothing I can do about it, Ustasha, he would not be held responsible

24 for me. He would not be held responsible for this Muslim either. When

25 I asked him, "Are you going to bring a charge against him?" He told

1 me, "Well, what for? I can talk but nobody will listen to me". A

2 simple soldier shooting at an officer trying to kill him, attempting

3 a murder, and not be held responsible for that - and you know why,

4 because he was protected by Colonel Salapura who is the Chief

5 Intelligence Officer of the main headquarters of the army of

6 Republika Srpska. That is my explanation. He was under his orders and

7 that is what Kremenovic confirmed to the journalist.

8 Q. You were wounded. Did you take any legal action? Were there any

9 proceedings? Did the military police take down a report or what

10 happened?

11 A. No, I was in a very serious condition. My wife was told to get

12 ready for the worst because they did not believe that I would

13 survive. I had two serious injuries to the stomach and one injury to

14 my lungs. I had two operations at the same time in Bijeljina. It was

15 all at Kremenovic's intervention. The operation at Bijeljina did not

16 succeed. So, thanks to Kremenovic and some other colleagues from my

17 Unit, I was transferred to Belgrade and I am grateful for doctors

18 from the Belgrade hospital because I survived. After the operation I

19 was in a very difficult state again. I could not talk and so on.

20 Investigators from Bijeljina arrived then, and they asked me whether

21 I wanted to testify as a witness and whether I wanted to say whether

22 Stanko Savanovic really wanted to kill us. Of course that was his

23 defence. He said that he was not going to kill, it was not his

24 intention to kill anyone. Well, I could accept an explanation of a

25 friend or a colleague. I could accept the explanation of a stray

1 bullet; but three bullets, one Muslim as a victim, Kremenovic and

2 myself, I simply cannot understand. Nobody can explain that to me. So

3 I said, "I do not wish to bring charges" because I can tell about the

4 result right away. How was I supposed to confront them? I knew that

5 it would be to no avail. That is what they told me, some authorities,

6 when they visited me in the hospital in Belgrade. So I was called to

7 the Court to testify, but nobody was there. They just enquired, they

8 interviewed this owner of the cafe and he said that Savanovic simply

9 took out his pistol and started shooting at his colleagues,

10 colleagues from his Unit.

11 Q. Thank you. You had said that your military contract was going to

12 expire in 1997. Under what circumstances did you stop being a

13 soldier?

14 A. When I was wounded and I was not receiving my salary regularly. I

15 really do not know when was the last time I received a salary. A year

16 and a half has passed after I was wounded. I have not received any

17 salary.

18 Q. Coming back to the facts themselves, the last question which the

19 Tribunal would like to ask you. This is a technical problem,

20 unfortunately, but we would like to have your opinion about this. You

21 had a kalashnikov. This is a kind of a machine gun which shoots

22 bursts of fire. You also stated during the Karadzic hearing or

23 yesterday that you had also shot individual shots. I had asked you

24 whether you had seen your victims. We do not know whether it was

25 bursts or fire or whether you were aiming specifically at the

1 civilians there, aiming at their backs?

2 A. I will tell you. I said I shot single shots. I was not aiming.

3 When I was pulling the trigger, I would close my eyes and I would

4 turn around so as not to see those people falling down. That is how

5 it happened. I am telling you.

6 THE PRESIDING JUDGE: The Tribunal has a last question, but one not to

7 Mr. Erdemovic, I would like to ask Mr. Babic. Mr. Babic, yesterday

8 you spoke about a decision of the Supreme Court of the Yugoslav

9 Republic. Do you not hear?

10 MR. BABIC [In translation]: Your Honour, not the Supreme Court of the

11 Federal Republic of Yugoslavia, but the competent court of the

12 Federal Republic of Yugoslavia.

13 THE PRESIDING JUDGE: Do you have the decision?

14 MR. BABIC: Yes, yes.

15 THE PRESIDING JUDGE: Could we ask the Registrar to have it translated

16 for the Trial Chamber Judges? Would you please give it to the

17 Registrar? (Handed) Thank you. Mr. Erdemovic, yesterday you said that

18 you wished to speak about a certain number of mitigating

19 circumstances. The Tribunal will now ask you to go back right now,

20 take your place where you were sitting before, unless my colleagues

21 have other questions they would like to ask. You can take your

22 ordinary place here.

23 THE WITNESS: Thank you, and I am sorry about my outburst yesterday

24 when I showed my wounds. (The witness withdrew)

25 THE PRESIDING JUDGE: We will now go back to the agenda of our

1 hearing, as we set it yesterday. We had planned that we would hear

2 Mr. Babic who wanted to bring in witnesses to speak about the

3 mitigating circumstances, because that is the line of defence which

4 was chosen. Mr. Babic, would you first like to make a preliminary

5 report? How do you plan to organise the presentation of your

6 witnesses? I give you the floor.

7 MR. BABIC: Your Honour, I just wish to say the following. Yesterday

8 and today I think that many mitigating circumstances became more

9 obvious and clearer. In order to have a complete picture, I had

10 proposed at our last status conference that we receive a report, an

11 expert report, of psychiatrists and that this be part of the case,

12 the first and the second report; also to obtain a report on the

13 current state of health and the general state of health of the

14 accused Erdemovic. I am sure that the Registry has already done this.

15 On the other hand, there are other mitigating circumstances. What is

16 the character of Erdemovic? Therefore, I deemed it necessary to have

17 the witnesses established by the Court heard. I will make a final

18 statement at the end, but first I would like to hear the witnesses.

19 So, perhaps we can hear a witness first that Erdemovic, when it was

20 in his power, when he decided of his own freewill that he saved his

21 life. That will be the first witness and then we will hear the second witness.

22 THE PRESIDING JUDGE: Since these witnesses are covered by protective

23 measures, for our work, are you speaking about witness X or Y that

24 you would like to hear first?

25 MR. BABIC: Your Honour, it is all the same to me. I propose that we

1 start with X, but it can also be Y first. It is all the same to me.

2 THE PRESIDING JUDGE: The Prosecutor has no objection?

3 MR. OSTBERG: No objection at all.

4 THE PRESIDING JUDGE: Then I suppose we could begin with X then.

5 Registrar, would you please recall the measures which the Chamber

6 took in order to assure the protection of witness X? Perhaps you

7 could also state which have been taken for Y. Would you please recall

8 what measures have been taken by the Trial Chamber for X and for Y?

9 THE REGISTRAR: Yes, your Honour. Further to two recommendations of

10 the Legal Department of the Registry and the Witness and Victims

11 Unit, the Trial Chamber has set up protective measures which include

12 not naming the persons by their names - they will be known as X and Y

13 - and to protect their entrance into the courtroom which will, with

14 the leave of the Trial Chamber, mean that the curtains will be

15 lowered and that we will not show the faces on the television

16 screens. The faces will be hidden and the voices will be distorted.

17 Should it be necessary, the Trial Chamber could say that the

18 transmission of the images will be delayed by 30 minutes which would

19 allow us, if necessary, to correct any inaccuracies or any problems.

20 So perhaps we need five minutes now in order to set up the courtroom

21 before witness X can come in.

22 THE PRESIDING JUDGE: We will suspend the hearing. (10.55 a.m.)

23 (The Court adjourned for a short time) (11.10 a.m.)

24 THE PRESIDING JUDGE: The hearing is resumed. Would you please sit

25 down? Turning to the Registrar, have the provisions that are

1 necessary been made that needed to be made so that we can now bring

2 in witness X? Before we do bring him in, I would like to say to the

3 Prosecution - do you hear me, sir - that the decision of the higher

4 court which was given to us by Mr. Babic and which was given to the

5 Registrar is being translated, according to what Mr. Marro has just

6 said to me, and will, of course, be given to the Prosecution.

7 MR. OSTBERG: Thank you.

8 THE PRESIDING JUDGE: Turning to the Registrar?

9 WITNESS X, called.

10 THE PRESIDING JUDGE: Witness X, do you hear me in your language? Do

11 you hear me? THE WITNESS [In translation]: Yes.

12 THE PRESIDING JUDGE: You will first take the oath. I would like this

13 oath to be given to witness X. Read the oath, please.

14 THE WITNESS: I solemnly declare that I shall say the truth, the whole

15 truth and nothing but the truth. (The witness was sworn)

16 THE PRESIDING JUDGE: Thank you. Would you be seated, please? Witness

17 X, the Tribunal thanks you for coming at the request of Mr. Babic

18 from the Defence. Please realise that you are in the confines of an

19 International Tribunal. You are before Judges. All the measures of

20 protection which you have asked for have been taken. Therefore, you

21 can speak without fear and with the greatest serenity possible.

22 Nonetheless, the Tribunal must be sure of your identity but since

23 your identity cannot be revealed to the public, the Tribunal would

24 like you to write your name on a piece of paper, your first name,

25 including your date and place of birth, as well as your profession

1 and your nationality.

2 THE REGISTRAR [In translation]: Your name, your first name.

3 THE PRESIDING JUDGE: The date of your birth, the place of your birth,

4 your nationality and your current profession. Do not fear. This will

5 be brought to the attention of Mr. Babic. He will be shown the

6 document. Then it will be shown to the Tribunal. I am going to show

7 it to my colleagues. This document will be placed under seal in the

8 case files of the Tribunal and never transmitted. Mr. Babic, I give

9 you the floor.

10 MR. BABIC: Thank you, your Honour. Examined by MR. BABIC

11 MR. BABIC: I shall put my questions very directly and I shall also

12 ask the witness to give very direct answers. My first question: Does

13 the witness know the accused Drazen Erdemovic?

14 A. Yes.

15 Q. Since when have you known him? If you could tell me on which

16 occasion did he meet him?

17 A. [No translation].

18 MR. OSTBERG: No translation.

19 THE INTERPRETER: We cannot hear the witness. The interpreters cannot

20 hear the witness at all.

21 THE PRESIDING JUDGE: We do not hear the witness which means that the

22 interpretation booth does not hear the witness. We can begin again,

23 please. Perhaps the microphone has to be turned up. Do the

24 interpreters hear now? Would you please answer, witness X?

25 THE INTERPRETER: No, the microphone does not work, says the

1 interpreter.

2 THE PRESIDING JUDGE: Do the interpreters hear witness X?

3 THE INTERPRETER: No. The English booth does not hear him.

4 THE PRESIDING JUDGE: Mr. Babic, perhaps you could ask your question

5 again and this way we can be sure that the interpreters have

6 understood what the witness X is saying so that everybody can hear

7 the answer properly.

8 MR. BABIC: The first question was, does the witness know the accused

9 Drazen Erdemovic?

10 THE WITNESS: Yes.

11 MR. BABIC: The second question, when did they meet and on what

12 occasion? Does he remember correctly?

13 A. In November 1992. We were in the same Unit in the 115th Brigade of

14 HVO military police.

15 Q. When you were together then in the HVO, can you tell the Court

16 something about Drazen as a person, what was he like as a person?

17 A. We were not in that Unit together for a long time but he was like

18 other people. He did not really distinguish himself in relation to

19 others.

20 Q. Until when was Drazen in the HVO?

21 A. Drazen was in the HVO, I do not know the exact dates, I do not

22 know the exact dates, about three months. Then because, because he

23 transferred people of Serb nationality across the line, he was

24 transferred to another Unit and then he was not on the same Unit with

25 me any more.

1 Q. Do you know after that where Drazen was and what he did?

2 A. He was transferred to another Unit on the line. I did not meet him

3 after that, until August 1994.

4 Q. Until August 1994. Where was that in August 1994? Where were you

5 then and could you say in what capacity Drazen was there? Could you

6 tell us everything about this meeting that took place?

7 A. That day I went to the battalion command to take weapons to go to

8 the line.

9 Q. Belonging to what army?

10 A. The army of Bosnia-Herzegovina. This was on Mount Majevica, it was

11 not far away, and I saw Drazen and another soldier with him. They

12 were by themselves. They stopped me. This army had a scorpio weapon

13 and he wanted to shoot me and Drazen jumped up and said, "No, let the

14 man go. Don't shoot him". Then another one came up from my back. Then

15 I told Drazen, because I knew him, I did not know these other two

16 men, "What are you doing there?" I saw him wearing a Serb Army

17 uniform, and I said, "What are you doing there in that uniform?" and

18 these people started explaining something in a very impudent manner,

19 and he said, "(redacted), don't ask me too much, too many questions. I

20 have to do this. I tried to run away to Switzerland. They would not

21 let me", and that was it.

22 THE PRESIDING JUDGE: Mr. Babic?

23 MR. BABIC: I kindly request the witness not to mention names, X.

24 THE PRESIDING JUDGE: We remind witness X that if he has to be

25 protected, the people whom he is speaking about should also be not

1 named. There is a delay. We have a system which permits us to

2 transmit things with delay which allows to correct any mistakes which

3 may have been made.

4 MR. BABIC: On that occasion were you, frankly speaking, fearful for

5 your life?

6 A. Of course I was. I did not have anything and they had weapons on

7 them. This other man had a weapon too and I did not know what he

8 would do. Of course it was only natural, it was only human, to be

9 afraid in a situation like that. I was, frankly speaking, truly

10 afraid that they would shoot me.

11 Q. Then what happened to you?

12 A. They detained me there for about two or three hours. I asked hem

13 to let me go, but these two would not but then it was strictly at

14 Drazen's insistence that they let me go.

15 Q. And you?

16 A. Then he gave me a box of cigarettes, a pack of cigarettes, and he

17 also gave me some pistol ammunition. He said, "Take care, comrade, be

18 careful".

19 Q. Was this your last meeting with Drazen Erdemovic?

20 A. Yes.

21 Q. Do you think that Drazen Erdemovic saved your life?

22 A. Yes, at any rate he did.

23 MR. BABIC: Thank you, your Honour. No further questions.

24 THE PRESIDING JUDGE: The Prosecutor, have you any questions?

25 MR. OSTBERG: No, thank you, your Honour.

1 THE PRESIDING JUDGE: Judge Odio Benito? Judge Riad?

2 Examined by the Court

3 JUDGE RIAD: I will call you Mr. X, sorry. I shall not say your name.

4 You mentioned that you knew Mr. Erdemovic during your service in the

5 military police, that is right?

6 A. Yes.

7 Q. Which is the Serbian Croat police?

8 A. This was strictly HVO military police.

9 Q. Yes, the Bosnian Croat?

10 A. Yes.

11 Q. The Bosnian Croat, and he was dismissed from this police because

12 he helped the Serbs to go out from Croatia to Serbia or to the

13 Bosnian-Serb region, is that right?

14 A. Not from Croatia, from part of the federation that was under the

15 control of the army of Bosnia-Herzegovina. He helped people of Serb

16 nationality to go not to Serbia but to Republika Srpska.

17 Q. To Republika Srpska?

18 A. Yes.

19 Q. Did he help any others? Did he help Muslims to go back to Bosnia

20 or did he help Croats to go back to the Croatian region?

21 A. I do not know if he could have helped Muslims then or Croats to go

22 here and there because he was on territory that was held by the army

23 of Bosnia and Herzegovina. Muslims were not going from the territory

24 of the army of Bosnia-Herzegovina to the Serb entity.

25 Q. Were you alone when he tried to save you or did you have other

1 people with you which he also tried to save?

2 A. No, I was alone that day.

3 Q. Do you think there is any special reason why he would have chosen

4 to save you; in particular, the relationship, what kind of a

5 relationship exactly did you have with him? Was it just because you

6 belonged to the same country, let us say? A. I do not know his reasons, but

7 probably we were in the same Unit. He had known me for three

8 or four months while we were together. JUDGE RIAD: Thank you very much.

9 THE PRESIDING JUDGE: The Tribunal thanks you, witness X. You will now

10 be taken out of the courtroom the same way that you were brought in.

11 The Registrar will be responsible. For the time being do not move.

12 (The witness withdrew)

13 THE PRESIDING JUDGE: Since the curtains are drawn, we can now bring

14 in Witness Y using the same procedures.

15 MR. BABIC: Yes.

16 WITNESS Y, called.

17 THE PRESIDING JUDGE: Witness Y, first of all, do you hear me?

18 THE WITNESS: Yes.

19 THE PRESIDING JUDGE: Please read the oath that you will take before

20 this Tribunal.

21 THE WITNESS [In translation]: I solemnly declare to say the truth,

22 the whole truth and nothing but the truth. (The witness was sworn)

23 THE PRESIDING JUDGE: Please be seated. Witness Y, at the request of

24 the Defence, you have agreed to testify before this Tribunal. You are

25 in front of Judges and we have taken all precautionary measures for

1 protecting you that you asked for. For that reason you may speak with

2 full serenity and no fear to Judges who will listen to you answering

3 the questions which Mr. Babic will ask you, Mr. Babic who is the

4 counsel for Drazen Erdemovic. As we did for the previous witness and

5 so that we can ensure what your identity is, we will ask you to write

6 your name, your first name, the date and place of birth, nationality

7 and profession on the piece of paper which has been given to you.

8 Witness Y, the information which you have just given to the Tribunal

9 and to the Defence and to the Prosecution will be put under seal and

10 never revealed. So this will ensure that your testimony is made in

11 full serenity, as I said before. I give the floor immediately to Mr.

12 Babic now who will ask the questions that he considers to be the most

13 appropriate. Examined by MR. BABIC

14 MR. BABIC: Yes, rightly so, Mr. Chairman, the most appropriate

15 questions in this role of witness. May I start with the same question

16 again? Does the witness know Drazen Erdemovic? Since when has the

17 witness known Drazen Erdemovic and how does the witness know Drazen

18 Erdemovic as a person?

19 A. I know Drazen Erdemovic. I met him in January/February 1993. We

20 were friends. That is all.

21 Q. This friendship, was this just a friendship between the two of you

22 or with several other people of the same age, your classmates from

23 school or from the neighbourhood?

24 A. This friendship was not between the two of us only. It was a

25 multinational friendship with all acquaintances of ours, regardless

1 of nationality, from school, our friends that we went out together

2 with.

3 Q. Does that mean that, in your company, among your friends, there

4 were Muslims, Croats and Serbs?

5 A. Yes.

6 Q. In this company of friends, did anybody ever ask questions as to

7 religion, nationality, etc?

8 A. No.

9 Q. Do you know Drazen's views and did Drazen ever present his views

10 on these matters?

11 A. Yes, I know that Drazen was not a nationalist at all. It was not

12 important to him who was what nationality. It was only important for

13 him that we knew how to be friends and that we had a sense of humour.

14 Q. Does that mean that in your company of friends nobody ever raised

15 that question?

16 A. Nobody. That is right.

17 Q. Is it the same now?

18 A. Yes.

19 Q. Did Drazen like this company of friends?

20 A. Yes.

21 Q. Did his friends like him?

22 A. Yes.

23 Q. What was his character like? Was he a vivacious person, good

24 natured or did he like to pick a fight?

25 A. He did not like to pick a fight. He was a vivacious person. He was

1 always outgoing.

2 Q. Do you know Drazen well?

3 A. Yes.

4 Q. Do you know anything about where Drazen went during the war?

5 A. Yes.

6 Q. Do you know that Drazen was mobilized and went into the Croat

7 army, the Muslim army? Do you know when he left the territory of

8 Bosnia-Herzegovina under the control of the Muslim army and the

9 Croatian army, when and where did he go to?

10 A. Yes.

11 Q. Could you tell the Court, please?

12 A. I did not know Drazen when he was in the army of Bosnia-

13 Herzegovina, but I know him when he was in the HVO. I know that he

14 left it on 3rd November and then he went over to Republika Srpska. He

15 spent two months there without joining any army and then he had to

16 join the Serb Army.

17 Q. How did he join the Serb Army? Was he mobilized?

18 A. Yes. Yes, everybody had to go to the army regardless of who and

19 what he was, so he had to. He tried to avoid it. He tried to find a

20 way out. He tried to get out but it was not possible. He had to join

21 the army.

22 Q. Did Drazen ever tell you something about the war, what his

23 attitude towards the war was and what his attitude towards the army

24 and these armies in general was?

25 A. Drazen did not enjoy the war at all, and I am certain that he

1 hated the war and that he hated the army, but he simply had to do all

2 of it.

3 Q. Do you know what the consequences were for a person who did not

4 respond to mobilization by any army?

5 A. There were fateful, if you know what that means, fateful

6 consequences, yes, yes.

7 Q. I am going to address a question to you belonging to the present.

8 In the environment in which you live today, in the narrower or

9 broader sense of the word, are people commenting on the trial of the

10 accused Drazen Erdemovic? Could you say how people are commenting on

11 this? Did you comment on this in the company of your friends or what

12 kind of company did you comment upon this? Was this a multinational

13 company of people and what do people think about this and how do they

14 assess Drazen's role before this Court?

15 A. It is only natural that people are commenting upon his trial.

16 However, regardless of the nationality they belong to, everybody says

17 that Drazen was not that kind of person and that Drazen had to do

18 this under pressure, that he would not kill of his own freewill but

19 only if he was forced to do so.

20 Q. Is this being commented upon by Croats, Serbs and Muslims?

21 A. Yes, mostly by people who are in the environment in which I live,

22 who are important people there, who hold important posts.

23 Q. Are these people Serbs?

24 A. No, Muslims.

25 Q. You said that Drazen was against the war, against the army?

1 A. Yes.

2 Q. Did he try to do something in order not to go into the war or not

3 to join the army?

4 A. Yes. At first he tried to find a way out of the federation to get

5 out to Republika Srpska. However, this was only in passing so that he

6 would go abroad, but the situation was such that nobody managed to

7 get out, especially if he was a male. Everybody had to go to the army

8 and the consequences were fateful, disastrous.

9 Q. Did you know about the fact that the accused Erdemovic was

10 wounded?

11 A. Yes.

12 Q. Is it known in the environment in which you live that this

13 happened and why this was done?

14 A. Yes.

15 Q. Could you tell us about it?

16 A. Everybody comments on this in the same way. He was wounded only so

17 that he would be eliminated so that he would not testify about the

18 acts, the terrible things, that took place there.

19 Q. These comments, do they continue until the present day?

20 A. Yes.

21 Q. Do you read newspapers? Do you watch television?

22 A. Yes.

23 Q. The mass media, do they comment on this trial and in what way?

24 A. I do not know. It depends. If we watch Serb television then Drazen

25 is a traitor, and if we watch Muslim television then Drazen is a

1 witness who will corroborate war crimes of higher people in the Serb

2 Republic, so it differs.

3 MR. BABIC: Your Honour, I have no further questions. Thank you.

4 THE PRESIDING JUDGE: Thank you, Mr. Babic. Prosecution, have you any

5 questions?

6 MR. OSTBERG: No, no questions, your Honour. Examined by the Court

7 JUDGE RIAD: Excuse me for calling you (redacted) Y". I will call you

8 (redacted) Y". You said that you met Mr. Erdemovic in January 1993.

9 Where was that exactly?

10 A. In a disco club.

11 Q. Yes, was it in Republika Srpska or was it not there?

12 A. No, it was in the federation of Bosnia-Herzegovina. It was in the

13 federation of Bosnia and Herzegovina.

14 Q. Then he went after that to Republika Srpska. What forced him to go

15 there?

16 A. I do not know. Republika Srpska was just supposed to be in

17 passing. He was supposed to go abroad, to a better life abroad.

18 Q. He stayed from November '93 to April '94 in Republika Srpska

19 without any job or any work, is that right, and then he joined, after

20 he joined the Bosnian Serb Army. What did he do during this period

21 before joining the Bosnian Serb Army?

22 A. He was moving from one place to another then. When things would

23 become critical in one place, then he would move to another place,

24 just to dodge the army.

25 Q. You said that when you met him he had friends from every, let us

1 say, nationality - Croatian, Serbs and Muslims?

2 A. Yes.

3 Q. Did his feelings change during the war gradually towards some of

4 them?

5 A. No.

6 Q. Did he remain friends with the Muslims or were there some quarrels

7 off and on during the period of fighting?

8 A. No, Drazen remained a friend. We have an example. In Republika

9 Srpska, we had two friends who were girls, Muslims, and now they are

10 in Tuzla. I am still friends with them. Now, when I was leaving they

11 told me to give their best to Drazen.

12 Q. The Defence asked you about the echo of his being here on trial.

13 You mentioned that the Serbs consider him as a traitor. Why do they

14 consider him as a traitor?

15 A. Well, because he agreed to tell the world about the crimes over

16 there, and that in the long run it was the small fry who were held

17 responsible and that those who were responsible for issuing commands

18 are not being exposed.

19 Q. From the Muslim side, is it not mentioned, no mention of his

20 participation in the executions?

21 A. It is being mentioned, but all of them say that Drazen was only an

22 executor of orders and that the main culprits should be found and

23 those who issued these orders.

24 JUDGE RIAD: Thank you very much.

25 THE PRESIDING JUDGE: Witness Y, throughout these journeys which took

1 the accused from one camp to another, did your relationship with him

2 remain?

3 A. Yes.

4 Q. Were you always in a relationship with him? Did you ever give him

5 any advice? Were you afraid for him? Did you give him any advice?

6 Would he call you, for example, sometimes, let you know what was

7 going on with him? Would you say something to him? What did you say

8 to him about all this moving about that he was doing, this dangerous

9 moving about? What were you doing? If I am not being indiscreet, what

10 kind of advice were you able to give him or did you give him? Would

11 you say, "Things are all right" or "You cannot do anything else" or

12 did you say, "Be careful" or "I do not agree"? Did you have the

13 freedom to express your opinion and, if it is possible, could you

14 tell us what that opinion was?

15 (redacted)

16 (redacted)

17 (redacted)

18 Q. For example, when he was wounded, these serious wounds that he

19 received, you knew about them? What did you know about the

20 circumstances surrounding the wounds that he received? Did you see

21 him then in the hospital? Were you able to find something out? What

22 could you tell the Tribunal about that?

23 A. I only found out that these were his comrades at arms from

24 Republika Srpska and that one of them had wounded him, but this was

25 all according to the orders of his Commander because they had

1 suspected Drazen, because of the case from 1994, I think. There was a

2 suspicion concerning Drazen as far back as then.

3 Q. Going back to you, Witness Y, to your opinion, because after all

4 you are here to express your feelings, once again, what image do you

5 have of this journey across the war through the area controlled by

6 Croats, then to Republika Srpska, then dozens of Muslims are killed?

7 What is your feeling about it, your own feeling?

8 A. I think that Drazen is not the kind of person who would enjoy

9 killing. I think that he was ordered to do that and that he had to do

10 that, and he had to do it because of his family which was then in

11 Republika Srpska.

12 Q. When one receives an order, do you believe that these orders must

13 always be obeyed? What do you feel about that, you personally, you,

14 Witness Y?

15 A. That is the situation in Republika Srpska, that orders have to be

16 obeyed and carried out otherwise the consequences are fateful for the

17 family and, in this particular case, the accused, Drazen Erdemovic

18 too.

19 Q. Throughout this period did he keep you informed about his moods,

20 about his opinions? Could you say something to us about that or about

21 common friends that you had? Did he tell you, "This is a dreadful

22 war" or, on the contrary, did he say, "I just cannot do anything

23 else" or that "You have to be too brave to do something else. I have

24 no way of being other than I am"? Could you tell us what his mood

25 was, his mental state?

1 A. (No translation). He was fed up and that he wanted to get out, not

2 to participate in the war at all in the former Yugoslavia.

3 Q. The accused told us that at one point he began to drink. Did he

4 drink before that? What could you answer about that?

5 A. Drazen, I mean, before we would all drink depending on our mood

6 and if we were celebrating something we would all have a drink, and

7 when he would return from his assignments Drazen starting consuming

8 more alcohol and he withdrew. He did not want to talk about anything.

9 He was nervous. He sought comfort in alcohol.

10 Q. Since the beginning of this trial, even before that, ever since

11 the accused has been here in The Hague, have you received any

12 threats? Do you receive any threats? Do you feel that you are in

13 danger?

14 A. I do not know. There were some conflicts but nothing terrible.

15 THE PRESIDING JUDGE: Thank you, Witness Y. I have the feeling that

16 Mr. Babic perhaps wished to ask another question? No. I believe that

17 Judge Riad does have another question he would like to ask.

18 JUDGE RIAD: (redacted), you mentioned (and we have all evidence)

19 that Mr. Erdemovic joined the Bosnian Serb Army in April 1994 after

20 having spent five months almost in Republika Srpska without doing

21 anything. That is right, from November 1993, I think, to April 1994

22 he was in Republika Srpska and you said going from one place to

23 another to avoid trouble, and -

24 A. Yes.

25 Q. - in 1994 he was forced to join the Bosnian Serb Army. Would it

1 not have been possible for him during these six months before to go

2 back to the Croatian part where he belonged and to avoid joining the

3 Republika Srpska army?

4 A. I do not know.

5 Q. You do not know. In that time were you in Republika Srpska?

6 A. Yes.

7 Q. Was it known what their execution squads, or what they called the

8 Sabotage Units and so on, were doing? Was the idea of ethnic

9 cleansing in the information media or was it completely put aside?

10 A. The media did not speak of this at all. I know the case of

11 Srebrenica. The Serbs were saying that the Muslims had moved out and

12 that Srebrenica was empty and that the Serbs simply walked into an

13 empty town. Nobody had any idea of the killings and of the torture of

14 Muslims.

15 Q. You also mentioned that it was inevitable to obey the orders and

16 to execute the orders given to kill. It so happened that Mr.

17 Erdemovic was brave enough, apparently from the evidence, that he

18 refused the action once under Pelemis and he was degraded. But he

19 could refuse; and then another time he refused to go to the hall, the

20 school, and kill the 500 Muslim prisoners there. He could do that.

21 Then it was possible, in your opinion, to avoid executing the

22 killings?

23 A. The only way to avoid this killing was for him to stand in line

24 with them, for him to be a victim too as well as his family, which

25 was then in Bijeljina. That was the only way.

1 Q. So the family would have been in danger, according to the system

2 in Republika Srpska?

3 A. Yes.

4 JUDGE RIAD: Thank you very much.

5 THE PRESIDING JUDGE: Mr. Babic, you have another question you wish to

6 ask?

7 MR. BABIC: Related to the question put by distinguished Judge Riad.

8 Let us set the record straight. These six months that he spent there

9 after leaving Muslim and Croat controlled territory, he did not spend

10 these six months only in Republika Srpska. He spent these six months

11 on the territory of Yugoslavia too, in Serbia, going from one place

12 to another trying to find a way out. Then when mobilizations began in

13 Serbia and Yugoslavia, fearful of being detained or maybe some other

14 measures were taken then, I do not know, but he says that he was

15 afraid. Then he went back to Bijeljina and then he was mobilized in

16 Bijeljina and then he had no choice.

17 THE WITNESS: Yes.

18 THE PRESIDING JUDGE: Thank you for this precision. Would any response

19 be forthcoming from the Prosecution?

20 MR. OSTBERG: No.

21 THE PRESIDING JUDGE: Witness Y, the Tribunal thanks you for having

22 come this far to testify at the request of the accused. You will be

23 taken out in the same way that you were brought in so that you may go

24 home under the best conditions possible. (The witness withdrew)

25 THE PRESIDING JUDGE: The Registrar has informed me that there will be

1 three changes - I can speak openly now - the references which through

2 the questions which all of us have asked will have allowed the

3 witness to be identified. How much time do we need? Would you like to

4 recall them or, rather, recall what these changes are?

5 THE REGISTRAR: It seemed to me that under 11.45.24 and 11.24.00,

6 11.58.02 and 12.00 should be removed completely. 11.45.24, 11.46.24

7 and 11.58.02.

8 THE PRESIDING JUDGE: Yes, that is correct. The Tribunal agrees. Is

9 that all? My colleagues as well as myself would like to inform the

10 parties of the following decision. We have now heard the witnesses.

11 We have heard what has to be said about mitigating circumstances

12 which, as I have said before, is the line of defence adopted by the

13 Defence. The accused Erdemovic yesterday stated that he wished to

14 speak about the mitigating circumstances under oath, of course. I

15 will ask him if he wishes, and if his counsel agrees, to come back

16 under oath to speak about these mitigating circumstances. If he does

17 agree - I see that Mr. Babic is nodding yes; therefore he can come

18 back - after that we will suspend the hearing and resume at 2.30 when

19 we will hear the final statement of the Prosecution and the Defence

20 by Mr. Babic. Then the final statement not under oath made by Drazen

21 Erdemovic will put an end to this hearing. Mr. Babic, I understand

22 that you agree with this way of working and so does the Prosecutor.

23 MR. OSTBERG: Yes.

24 THE PRESIDING JUDGE: It is now five minutes after 12.00. Drazen

25 Erdemovic, would you please come to the stand to speak about the

1 mitigating circumstances?

2 MR. DRAZEN ERDEMOVIC, recalled.

3 THE PRESIDING JUDGE: Can you hear me? It is not a matter of going

4 back over the facts of the case. We have gone into them in quite some

5 detail. We have gone into it a bit too frequently, but yesterday

6 morning I cut you off, as it were. So we would like to hear you speak

7 your mind and to put forward evidence in connection with mitigating

8 circumstances. Now, there are several elements involved here. There

9 are superior orders, there are threats, there is duress, be it moral

10 or physical in nature. You said that you wanted to address these issues.

11 You are under oath, so if there are questions you do not want to answer you

12 need not do so, but that goes - or, rather, it is the opposite. You have

13 to answer the questions put to you by the Prosecution, by the Defence

14 and by the Judges. THE ACCUSED: Honourable Judges -

15 THE PRESIDING JUDGE: Did you hear what I said?

16 THE ACCUSED: Yes, I heard you, I am sorry. First of all, I would like

17 to tell you that while I was a child, when I went to school, the

18 elementary school, and later on I went to secondary school, I have

19 never ever been a nationalist. I have never ever hated anyone. That

20 is the way how I was brought up and educated at school by my parents.

21 The environment in which I lived was a multinational environment

22 where Serbs, Muslims and Croats lived together. So I was not a

23 nationalist. I cannot say, I cannot tell you, I do not know why

24 things happened the way they did in the former Yugoslavia. This

25 country was known to the world as a country in which many people

1 lived together, people who got along well with each other. Nobody

2 hated anyone. People used to visit each other, visit them for family

3 reunions. When we would go to do our military service in the JNA, it

4 was a special occasion for everybody in Bosnia. It meant that you

5 were able, you were healthy enough, to do your military service in

6 the former JNA. That is how it was in Bosnia. I do not know about the

7 rest of the country. It did not really matter whether you were a Serb

8 or a Croat. That is how it was in the area where I lived, as far as I

9 know. After the death of, I can now say, the person I respected and

10 loved (and I still regret that), after the death of comrade Tito,

11 several years after that, everything went the wrong way in

12 Yugoslavia. You could tell it from the fact that this conflict, this

13 war, broke out. The first conflict broke out in Slovenia between the

14 JNA and the Slovenian Territorial Defence, and then the conflict

15 moved down to the territory of Republic of Croatia in 1990/91. Later

16 in '92, as you know, it broke out in the area where I lived, in my

17 Republic, the Republic of Bosnia and Herzegovina. So, I am speaking

18 frankly. I know I am under oath. I served my military service in

19 December 1990. I joined the JNA. I went to do my military service

20 because I believed in the former Yugoslavia. I used to love that

21 country and that army. I thought that they were honest, but later I

22 realised that things had changed. So I went to do my military service

23 and did it in Belgrade. I was with the military police and in 1991 I

24 was sent -

25 THE PRESIDING JUDGE: Just one second, please.

1 THE ACCUSED: Later I was transferred to Slavonia - believe that is

2 the name of the area - in the vicinity of Vukovar, to be precise. I

3 was a member of the military police. I was securing a checkpoint. I

4 will explain to you what kind of assignments we had. We were in

5 charge of checking vehicles that were passing by, relevant papers,

6 weapons, because there was a war there. So we had to check who issued

7 the permission for carrying weapons and things like that. Then at

8 that time certain paramilitary units appeared. They were causing lots

9 of problems in Belgrade. That is why we, the JNA, were in charge of

10 controlling that. They called us a communist army and traitors. So I

11 did my military service in an honest way, the way I believed in, and

12 I was not a nationalist. I was never a nationalist. I had Slovenian

13 colleagues in the JNA, Serbs, Hungarians, and I do not know who else,

14 you name it, Albanians. You know how many different nationalities

15 live in Yugoslavia. We never ever discussed politics and background

16 of other soldiers. We were only discussing those paramilitary units

17 because those people caused us problems, and how they had been

18 established, I do not know. I was just a regular soldier. Even the

19 officers did not know. We were even fired at by them once when we

20 tried to stop them. Thank God I returned home safe and sound from my

21 military service but, unfortunately, I did not spend much time with

22 my parents and the conflict soon broke out in BH and then in Tuzla on

23 15th May 1992. Then I was called to the army - and I forgot to tell

24 you last time; when I came back from Belgrade I received call up

25 papers from the barracks in Tuzla which was controlled by the JNA. I

1 received that paper, and I went there together with - I took the

2 paper and I told them, "Well, gentlemen, I do not want to go to any

3 army. I do not want to take part in any war. I have seen a war. I do

4 not know what it is. I have done my military service. I have done my

5 year", so I just throw away that paper and I left. But nobody came to

6 arrest me because at that time problems started between the JNA and

7 the Ministry of the Interior of Bosnia and Herzegovina - at least

8 that is what they were showing on TV in BH. So after that, as I told

9 you, general mobilization started. So I received again call up

10 papers. I reported, and I reported to the Territorial Unit in my

11 area, the area of the Donja Dragunja Local Commune. There were Serbs

12 there, Croats, Muslims. There was a kind of defence from so-called

13 aggression against the Republic of Bosnia and Herzegovina. That is

14 what they told us. They told us that they were setting up units.

15 After that the war started in Bosnia and Herzegovina. You no longer

16 simply defended yourself, your home and your town, but we were sent

17 outside Tuzla, for example, to the Brcko area. Those were the

18 assignment, they deployed units there. But I knew what the war was

19 all about. I had seen it back in '91 when I was with the JNA. I had

20 seen many things that other people had not seen. I saw people getting

21 killed. I was at that checkpoint and I could see wounded soldiers

22 being transported, hundreds of them. Some of my colleagues were burnt

23 alive in their tanks and I was telling those stories when I returned

24 home. I was in favour. I was supportive of the reformist party in the

25 area of Tuzla. They said that they were in favour of peace, that they

1 did not want war. Unfortunately, the war happened in Tuzla and in

2 Bosnia-Herzegovina as well. So, as I said, I was in with the army of

3 Bosnia and Herzegovina, but after that, wishing to avoid the war,

4 because I had lost four of my very best friends, people with whom I

5 had spent more time than with my own brother, one of them was a

6 Muslim, one of them was a Croat, one Serb and one Albanian who lived

7 in Bosnia, four very good friends of mine. So I joined the HVO, and I

8 will tell you this. I was a member of the military police and we

9 received orders to arrest people, to put uniforms on them and to send

10 them to the front line. I rebelled at that time at the command. I

11 told them that I did not want to arrest anyone. I did not want to be

12 responsible for the death of anyone. I did not want to be exposed to

13 criticism of mothers whose sons were killed and so on. I did not want

14 to be responsible for that. So, one other incident; there was an

15 offensive in the area of Brcko, and some of my colleagues and some

16 other people whom I did not know were killed in Brcko, five of them.

17 This is what hurts most and this will hurt me for the rest of my

18 life. The Commander of this HVO Unit, HVO Brigade, came to see our

19 Commander who was in charge of the military police, and he said that

20 he needed four men to go to the exchange with the Serbian side so

21 that they can get back the bodies. So we got all the necessary

22 information, names, surnames, dates of birth and so on. They gave us

23 four names, four dates of birth of those people and also the unit

24 they - the units they belonged to. But when we got to Brcko I did

25 not get in there because there were just too many bodies there and

1 the exchange took place in Brcko, I cannot remember exactly where -

2 maybe later. Then this friend of mine from the military police told

3 me, "Drazen, could you please come and see whether this is the

4 person? Let us not make a mistake", because those people did not have

5 any kind of identification papers with them. They were naked. They

6 did not have anything. So I went there. I recognised the man. I found

7 the fifth person as well, the fifth HVO member who had been killed.

8 So the Commander of the HVO had forgotten one of his men, one of his

9 men who was killed in Brcko. This shows you just how much he cared

10 for his people. He told me four persons and I found a fifth one. Now,

11 I think you can understand what made me flee that war, what kind of

12 injustice I had been through and everything that had happened. So, as

13 I told you, I did not go to the Republika Srpska because in order to

14 join their army and stay there. It was just supposed to be a stop

15 over on my way to Switzerland because I did not want to take part in

16 that war; I did not want to. I simply could not bear seeing my former

17 neighbours committing such crimes. I simply could not understand how

18 such things could happen. I could not understand. Maybe somebody else

19 could, but I could not. So, as I already told you, in the Republika

20 Srpska I was first in Bijeljina and then I went for Janja. Then some

21 soldiers from a paramilitary unit tried to arrest me in Janja. They

22 wanted to kill me. They knew I was a Croat. They wanted me to report

23 in their unit and all kinds of things happened. So I fled to Serbia

24 together with my wife. We just kept moving about Serbia from one

25 place to another, and then this general mobilization of Bosnians took

1 place in Serbia. They wanted all Bosnians in Serbia to go back to the

2 Republika Srpska. That was a government's order. So I was afraid, I

3 was afraid of everything, and I did not know what to do. I kept

4 thinking it would have been easy if I had been alone, but I did not

5 know what to do with my wife who was pregnant at that time. It would

6 have been easy for me to flee across the border, even without papers,

7 but I knew that if I got caught they would kill me because I was a

8 Croat and I did not have any identification papers, except for my ID

9 from Tuzla. I did not have any passport. So I went back to Republika

10 Srpska and I went to a cousin of my wife. We went to Foca. When we

11 got to Foca - I told you about that yesterday - when we got there,

12 I had to register myself somewhere. I had some kind of paper from

13 Republika Srpska and, being a Croat, it was difficult. This man told

14 me, "Drazen, OK, you have been with the army of Bosnia and

15 Herzegovina. You admitted that. You have been with the HVO. You did

16 not commit any crimes. You helped Serbs. Just don't stay in Foca. It

17 is not safe for you, you, a Croat". That is all he had to tell me,

18 because they could not guarantee that I would survive there. The wife

19 could stay, that is what they told me, but I could not. That was his

20 advice. So I took his advice and I went back to Bijeljina. As I told

21 you, I was stopped by the civilian police in Bijeljina. They

22 requested some kind of permission which I did not have, but this Serb

23 who was with me at the time confirmed that I was the person I was. He

24 told them everything about me. He knew certain details about me. So

25 they told me that I should immediately report to the town hall and

1 that I should be given a green card, a green refugee card, with all

2 details of my whereabouts, and people I was living with and so on. I

3 think that that green card should have been obtained from the Federal

4 Republic of Yugoslavia, if you have that document from that country.

5 However, nothing, no accommodation, no papers were possible, it was

6 possible to obtain them because I was not a member of any army. So I

7 had to join the army. Why? To survive. So this man who was working in

8 the military department who was in charge of deploying, assigning,

9 people to various units, asked me about my name, "Drazen Erdemovic,

10 who are you? What are you?" and I did not hide it. I told him I was a

11 Croat. So he kept staring at me, "How did you get out? Who let you

12 out?" Then I started my story from the beginning; how I helped Serbs

13 in Tuzla, how I am not a criminal. But I had to be a member of an

14 army so I went to all kinds of details to make my story believable.

15 So after that he told me that there was this Unit and there is one

16 Muslim in this Unit, one Slovenian, one Croat, and there is another

17 unit which is a paramilitary Unit, and some people from that unit

18 wanted to kill me after I left Tuzla and if I had not fled to Serbia

19 they would have probably killed me at that time. So I joined this

20 first Unit and the first thing that I asked was when I saw those two

21 people, two Croats, "What is the task of this Unit? What are they in

22 charge of? Is there any dirty business that they are supposed do?"

23 They told me, "Drazen, the Commander is a very good man and he has

24 never ever issued any order to liquidate anyone". That is what they

25 told me. I talked to this Commander and he had talked with those

1 Croats whom he trusted more. He wanted to know more about myself and

2 so on, because I told my story to the authorities of the Ministry of

3 the Interior, how I arrived in Republika Srpska, and this Commander

4 never issued me with an order to kill anyone. We were in charge of

5 reconnaissance and intelligence activities. I was even praised by

6 this one person when I let Mr. X, the witness, when I let him go, he

7 told me that is what I should have done anyway. After that this

8 Pelemis arrived in October and everything changed. The Unit was

9 extended and some nationalists joined the Unit. It was horrible for

10 me. It was a horrible experience for me. I will tell you exactly what

11 happened. I could not do it yesterday but I can do it now. So Pelemis

12 introduced himself and he said, "Well, I am your new Commander", and

13 he said he was a hero of Republika Srpska. "OK, you are a hero. I am

14 nobody, but that is fine with me". He said he was from the main

15 staff, that he was working for the intelligence service and that we

16 were to obey strictly his orders. Well, what was I supposed to do? I

17 just kept silent, everybody else did. So after that I had been given

18 my rank from the former Commander and Pelemis said, "OK, you can

19 continue with your rank". He had heard that I was an honest man, that

20 I was not a liar and so on. OK. I got my assignments. At that time I

21 received a report which was to help me for that assignment. They had

22 everything written down, the type of vehicles, the route to be taken

23 and the description of the person we were supposed to arrest. They

24 were even going to give us a helicopter for that kind of action. So I

25 did not undertake anything before I checked it all myself, together

1 with four other colleagues. So when I got there, when I got to the

2 site, I realised that the report was not true. It was not true that

3 it was not dangerous, because they were assuring me that the civilian

4 population would not be harmed. That is what was stated in the report

5 that I had been given which had been signed by Pelemis. So I sat down

6 with my colleagues. I could talk to them. I knew them, and I told

7 them, "Well, is this the kind of situation that we have seen? Is this

8 what it says in the report? Can you see these people here in these

9 meadows, women and children? They are Muslims. They do not care about

10 fighting. They are just working on their fields in order to survive",

11 and none of my soldiers ever pointed a gun at those Muslims and I do

12 not think their names will ever appear before any Tribunal, thanks to

13 me, because Pelemis would have exposed them to the same trouble I

14 have been exposed to. So we came back from that assignment and I told

15 them that the report was not true, and at that time I would like to

16 emphasise that - I would like you to understand me, your Honours - at

17 that time I was the Commander of the 1st Sabotage Unit which was part

18 of the Bijeljina platoon. I am emphasising this because you have

19 mentioned two of my refusals to carry out Pelemis's orders. Did you

20 not mention that two times that I refused to carry out orders?

21 THE PRESIDING JUDGE: It is for the Presiding Judge to put the

22 questions, but to set your mind at rest, not only are we listening to

23 you because you have been talking now for some twenty minutes, I

24 believe, and none of the Judges interrupted you, normally it was the

25 mitigating circumstances that we wanted to hear about, duress,

1 threats, etc. We have let you speak. I would be happy to answer your

2 question. Yes, I do believe we are listening to you and we are not

3 interrupting you. So please proceed.

4 THE ACCUSED: Yes, thank you. So I went back to Bijeljina. I was

5 debriefed and I had agreed with those four comrades who were all

6 Serbs, and I was a Croat and I was the Commander of that Unit because

7 I knew the area and that is why I had been given the assignment in

8 the first place. So we agreed that the task could not be carried out

9 because people could get killed, both members of the Muslim army,

10 Muslim civilians and my colleague soldiers. I believe that none of us

11 would have survived. So I went back. I reported to my superiors in

12 writing. They probably asked those four colleagues whether what I had

13 written was true. I do not know. Maybe Pelemis had his informant

14 among those four people - who knows - because that is what kind of

15 people the intelligence people are. However, they gave me their

16 support. Several days later, Colonel Salapura arrived from the main

17 intelligence centre and convened a meeting. So he had the floor and

18 he knew that I had saved this witness X, but Pelemis did not know

19 about that at that time. So Salapura tells me, "Mr. Erdemovic, what

20 do you think, what kind of behaviour is that? Do you know who the

21 Commander is here? Do you know who is in charge of issuing orders?

22 What do you think? What kind of an attitude is that? You are a

23 Commander. You should co-operate with the command not with your

24 soldiers". I told him, "Well, I prefer my soldiers to you because you

25 are sitting comfortably in your armchairs while we are freezing to

1 death in mountains", and so he just looked at me, but that is what I

2 told him. So he said,"OK, I know, you are lying. We have our people

3 working for us. They have been informing us. We know what you have

4 been doing". When he said "you," he meant Croats, because there were

5 two Croats and one Slovenian there. I said, "OK, I am prepared to

6 answer, to be accountable, for everything that I did". So I came to

7 work the next day, because I was under a contract - I would like to

8 emphasise that - I had a regular job. I had to be there at 7 o'clock

9 and I worked until 3 o'clock in the afternoon in the barracks in

10 Bijeljina. I could not move without permission. So that is when I was

11 taken off my rank and that is when the abuse started. My wife gave

12 birth in October, on 21st October. I had a very small child. My wife

13 fell sick. It was winter and then later in March she was still sick

14 and my son was still very small. So I kept sitting by his bed because

15 I love him dearly and I was feeding him because my wife could not get

16 up from bed, he was sick, and I had to go to work the next morning. I

17 had to go to the barracks; I simply had to. Nobody asked me whether I

18 wanted to, whether I could; I had to. So I had to leave my bedridden

19 wife and my child. I had no time to eat myself. My small son was

20 crying and, well, it is good that I still know what happened. So I

21 went to the barracks and I had no time. I had not had time to shave.

22 Pelemis was there, and he said, "Half of you are not - haven't

23 shaved" and then Pelemis said, "Erdemovic, who are you trying to fuck

24 here?" I apologise for this expression. He said, "You should be

25 ashamed of yourself. You forgot to shave this morning and only

1 yesterday you were in charge here, you were a Commander". I thought I

2 was going to ask him to go home because my wife was sick, but then I

3 realised that I could not ask for anything any more because I could

4 even be sent to a prison. So, several days later we were sitting

5 here, this friend of mine and myself, four of us, we were sitting in

6 the corridor and talking, and Pelemis comes by and nobody stands up

7 to greet him. He is an officer. We were supposed to stand up and

8 greet him but nobody did. Then again, "You, Erdemovic", but then

9 again, "You mother fucker" - I apologise once again - "Who do you

10 think you are? Who do you really think you are?" I just kept silent.

11 "Why don't you get up?" I said, "Well, my colleagues did not get up

12 either". "You used to be their Commander. That is what you have

13 taught him. You have just taught them disrespect for their

14 superiors". I just kept silent. I thought it was just better for me

15 not to say anything then, to talk. After that nothing, I did not have

16 any contacts with Pelemis whatsoever. I only had contacts with this

17 other Commander and Pelemis would not hear about me any more. He was

18 not interested about me, but I knew that he was up to something. I

19 knew that he was going to send me somewhere. I know that he would

20 send some people to liquidate me. I was not 100 per cent sure, but I

21 just had this feeling. This friend of mine mentioned me something to

22 that effect. He was also a member of my Unit. Not only me, but many

23 others, irrespective whether they were Serbs too, I will tell you

24 about one of our actions. It was a covert action, and a Serb went to

25 town and told his girlfriend something in connection with that

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1 action, but then this girl, you know, you know women, they tell each

2 other things, and the story went through town and, "Who said that?"

3 and it was that man. You know what Mr. Pelemis said? "You go there. I

4 do not care. You are going to enemy territory now. If your lives -

5 if you lose your lives, then it is going to be his fault". But he did

6 not tell anyone of the boys to kill that Serb. Fortunately, there was

7 no shooting and this Serb was not killed, therefore. After that comes

8 Srebrenica. I tell you, I came to work in the morning. The Commander

9 of the platoon said, "Get ready, you are off to an assignment". So

10 what could I do? I took my rifle and I went off to this assignment. I

11 do not know where, only Pelemis knew and probably the Commander of

12 the platoon. As I said, we came on 10th in the evening, I cannot

13 tell, above the town of Srebrenica. It was the first time in my life

14 that I had seen Srebrenica. Pelemis said, "OK, you are going to sleep

15 there". We slept outdoors. We did not have anything. We slept on the

16 ground. He went some place, probably to a bed. "I will come back

17 tomorrow and I will issue your orders". I kept silent and I was not

18 anything, and he was talking to the Commanders and I was not

19 interested. I was no longer a Commander. In the morning he came and

20 said that we had got orders to go to Srebrenica, to go down to

21 Srebrenica as a Sabotage Unit and that we would be joined by some of

22 the soldiers from the Drinski Corps, and that is the way it was.

23 About 9.00, 9.30, I do not know exactly, we went down to a town. Of

24 course they prepared us. They said that there would be heavy

25 resistance and that there were, I do not know how many armed

1 soldiers, and that they were extreme Muslims. That is what they

2 explained. But we went into town. Not a single shot was fired at us,

3 not a single bullet was shot at us. It was really strange to me. I

4 was wondering, what is this? Where are these people? What is going

5 on? We came to what I think was the centre of the town. I tried to

6 explain this to Mr. Ruez. He probably checked that and he said it was

7 the centre of the town. I thank him for that. Let it be known that I

8 am not lying. Nothing - our orders were to stop, not to go anywhere

9 before General Mladic would come. Pelemis said, "Drazen" - no, not to

10 me, he told somebody else, "Take four men and go back to the southern

11 part". Ruez helped us tell which side this was, where this was. "When

12 General Mladic comes into town, let us know by radio communication

13 that he is entering town". From then onwards I have no idea what

14 happened in Srebrenica and elsewhere. I saw some of it on BBC, here

15 on television, and I talked about this with the investigating

16 gentleman. He asked me about certain details in connection with these

17 films. I told him what I knew and what I did not know, I did not

18 know, but when I saw those people in the camp I was really surprised.

19 How could that happen, that I could be there and not see these

20 people? I do not know. I wondered myself. I probably do not know why.

21 That is the way it was. We spent the night - that night in

22 Srebrenica. Pelemis came again the next day and he said, "We are

23 packing up, we are going. There is nothing else to be done. Our

24 assignment has been completed." OK, fine. We all crowded into our

25 vehicles and went back to our homes. Then, of course, in the vehicle

1 we would talk and I asked a man from Vlasenica, "What is going on?

2 Where are these people? Is this the Srebrenica that was surrounded

3 for four years?" He said, "I do not know. I do not know". That is

4 what he said. After that, while travelling, I told you our vehicle

5 broke down and we were left behind for a long time until it was

6 repaired. When we came to the base of the Vlasenica platoon, we heard

7 about Pelemis causing a traffic accident which killed a soldier who

8 was in the group that I had commanded previously. Tomorrow, the next

9 day, when we got up, Pelemis did not tell me personally, but a man

10 who was in - who was part of the quartermaster's Corps, he told me

11 that something should be bought for this man's family and he said,

12 "You are going and four more people were going". I said, "Of course,

13 I liked this man. He never said anything bad do me. He never said

14 that I was Croat and that he was a Serb or that he hated me". On the

15 contrary, they always went to the place where I lived so that we

16 would have coffee together or what I would have, if I had something

17 else for us to drink. Of course, I will tell you now while I was in

18 Bijeljina - I forgot that - my next door neighbour was Muslim. We

19 were on friendly terms and this man helped me cure my son once

20 because he was running a high fever and he gave me a natural syrup

21 made of apples which would reduce a fever, and I did not smoke at the

22 time and I would give this man who was an elderly man in his 60s,

23 perhaps, I would give him these cigarettes that I had received. I was

24 also in touch with these girls, these two friends, (redacted)

25 (redacted) . These two girls were Muslims also. Nothing whatever

1 happened. They came to my son's first birthday party and they bought

2 him the most valuable of presents. I can never forget that, a gold

3 bracelet. I do not know why - perhaps because I was bad or perhaps

4 because I was good. Even now they are sending their regards to me and

5 I thank them for it. Now let me go on once again what happened. When

6 I came back from the funeral on 16th in the morning, I tell you

7 Pelemis did not tell me directly but Brano Gojkovic came and said,

8 "Erdemovic, Kos Franc and Goronja Zoran, get ready. You going on to a

9 mission". So what could we do? I asked when we would be going home.

10 He said, "You are going on a mission. What kind of a home are you

11 talking about?" So I had to go on this mission, I had to. I did not

12 know, but I did not know what it was. Had I known what it was, I

13 would not have moved from there. They would have to kill me on the

14 spot. I do not know what. Had I been the Commander of the group, then

15 I tell you, quite frankly, I would have refused that assignment with

16 an explanation, I will try to find an explanation for the command; I

17 would have tried. I will tell what you this explanation would have

18 been. I would have said that this was a crime, that this is

19 punishable and I would have primarily persuaded my colleagues that

20 people are held accountable for that kind of thing, that this is not

21 a minor affair, that people lose their lives. That is how I would

22 explain this. Then they would help me when I would report to Pelemis.

23 They would defend me. But I was not Commander then, regrettably. An

24 idiot was Commander, an idiot - not a fool, an idiot. A fool is good

25 and honest, but an idiot is an idiot. We came to Zvornik. He reported

1 to this command, to a Lieutenant Colonel. I do not know his name or

2 surname and I saw his rank, his insignia on his chest. This

3 Lieutenant Colonel told our driver, "Sit in the vehicle and follow

4 me", and that is the way it was. We were driven off to this farm.

5 Again this Lieutenant Colonel was talking to Brano saying - I do not

6 know what they were talking about, I do not know, I was not present

7 during that conversation. When this Lieutenant Colonel sat in the

8 vehicle and started going away, then Brano said, "Now buses will be

9 brought in with civilian population from Srebrenica, men." He

10 emphasised civilians, that is to say, that they would be wearing

11 civilian clothes. I said, "People, I do not want this, are you

12 normal?" Nothing. "Mr. Erdemovic" - this is what Brano told me - "if

13 you do not want to, stand with them so that I, so that we can kill

14 you too or give them weapons so that they can shoot you". I was not

15 afraid for myself at that point, not that much. If I were alone, I

16 would have run away, I would have tried to do something, just as they

17 tried to flee into the forest or whatever. But what would happen to

18 my child and to my wife? So there was this enormous burden falling on

19 my shoulders. On the one hand, I knew that I would be killing people,

20 that I could not hide this, that this would be burning at my

21 conscience. I cannot bring up my child if I conceal things like that.

22 How can I bring up my child properly and teach him good things if I

23 am hiding something that is bad, that is a crime? Then, on the other

24 hand, how can I sacrifice my child which was only a few months old

25 and my wife, and they were not to be blamed for anything. So I was in

1 this Unit, so I had a guilty conscience in terms of myself. So what

2 do I do? If I sacrifice myself and my family, again it would be the

3 same; these people would be killed again because I am not deciding on

4 their fate. So, as I said, what happened happened. I saw that I had

5 no way out, and I had to shoot these people. I tried to refuse. I

6 tried to explain, "People, people are held accountable for this. Do

7 you know what you are doing?" No, they probably did not have the kind

8 of conscience I had. Let me tell you, none of them had families so

9 that was probably the reason too. They did not think about this very

10 much. But then all of a sudden it became clear in my head. What was I

11 supposed to do? Where do I go? Before I could run to one town and

12 then another town or whatever. Where do I go with a wife and with a

13 small child? Where? Where? What happened happened; buses started

14 coming in. There were two military policemen escorting these buses.

15 They would bring out groups of 10 people out of the bus and, of

16 course, they were looking into the ground. I remember the first bus.

17 I remember the first bus. Their heads were bent downwards and their

18 hands were tied and they were blindfolded. I remember the first bus,

19 but all the rest is dimmed, as I told Mr. Ruez. I do not know.

20 Doctors, when they talked to me, when doctors talked to me, they

21 asked me, "Drazen, perhaps out of this fear of yours, out of this

22 psychological thing, I mean, all the things that you lived through,

23 experienced, did you say that there were 20 buses, that there were so

24 many people?" I said, "People", I said that many because that is the

25 way it seemed to me and I think that is the way it was. I did not

1 count them, nor did I think it was right to count, but I think that

2 that is how it was. If you look at the time that all of this had

3 taken, it all fits into this mosaic. After that, later, I do not know

4 what time it was, these people from Bratunac came and not all of them

5 had even gotten out of their vehicles, and I showed Mr. Ruez one of

6 them. You can see this on BBC television on their films. This man was

7 probably born in Srebrenica and he was in the Bratunac Brigade and he

8 was a Serb. He said, "Ah, ah, you, Turk, you were the worst one in

9 Srebrenica. You did this, you did that". They started beating them. I

10 do not know what they were doing to people. I cannot describe this. I

11 do not have the words to do that. Nothing. Nothing. I just kept

12 quiet, kept quiet. I tried to save a man. I had certain arguments

13 because he saved Serbs who were in the Federal Republic of

14 Yugoslavia. This man was giving their telephone numbers to have this

15 checked, but there were no witnesses. The command was all should be

16 dead and no witnesses. I did not even know when the end would come.

17 Then this Lieutenant Colonel came in and he used the following words,

18 "In the hall in Pilica there were 500 people", so the figure he used

19 is the figure I used, 500. Then I had really broken down, you know,

20 as we say in Yugoslavia, broken down. That means that I was

21 distressed, psychologically, physically, I do not know what, and I

22 said I would not do it any more. I do not know why I decided then

23 that I would not do it, I do not know, I do not know, I am not aware

24 of that, but had - he said that I would have to do it, and probably

25 I was supported by some of my comrades. That is why I was so resolute

1 perhaps, I do not know, I do not know exactly. Had he said that I had

2 to do it, I would have turned my rifle towards him and I would have

3 shot him. "If you say that I have to do it, well, I do not have to do

4 it" and I would have done that, no matter what happened to me after

5 that at that point. But afterwards I was afraid. The next few days I

6 was wondering, what had I done. I was afraid. I was afraid that they

7 would try to liquidate me because of my behaviour at that farm. I

8 refused that. These comrades supported me and after that we went to

9 this meeting. Nothing important was said there. We went back to

10 Vlasenica and we came to Bijeljina. I kept saying, "Please, let us go

11 home". Some individuals were already drunk. They were saying, "Wait,

12 wait, wait, let's have another drink." I said, "Come on, people,

13 let's go home. I want to go see my child". Fortunately, fortunately,

14 I said, the Lieutenant Colonel said that we could go. God knows when

15 we would have left there. I came to Bijeljina. I came home, as I

16 said. I was in a hurry to go home to see my wife and child. I know

17 what I had experienced and all of that hurt, but what could I do? I

18 did not want anything. I did not want the war. I did not want that,

19 but what could I do? I kept quiet. I could not tell my wife about

20 what had happened. I was worried how to put them away some place. I

21 knew what Pelemis had been doing to me before that, and now what will

22 he do now? However, not much time had gone by and what I had expected

23 came true. My colleague shot three bullets at me and two other

24 friends. Why, I do not know. The authorities of Republika Srpska had

25 carried out this investigation and, of course, the owner of this cafe

1 had reported the shooting because he had to do it for his own safety.

2 He was interrogated and all the witnesses and they all corroborated

3 the same story, because these two witnesses were in better condition

4 than I was. I could not speak because of the consequences of the

5 wounding. Only some 20 days after that I was visited by these

6 inspectors from Bijeljina in Belgrade at the military hospital.

7 "Drazen, what happened? Are you going to tell us about it?" "People,

8 I cannot tell you about it. I am afraid. I cannot tell you anything.

9 Are you going to bring charges?" "How do I bring charges? He tried to

10 kill me the other day." I kept quiet. The Muslim was also asked and

11 he said: "No, no, nothing. No, no, no, forget it." I remembered but I

12 said: "No, no, this was forgotten. How do I know who would tell who

13 what?" When I left the hospital, ah yes, in the hospital I was only

14 visited by one man from my unit, only one man from my unit. He also

15 lived in the Federal Republic of Yugoslavia and he helped me stay

16 alive, rather have me transported from Bijeljina to the military

17 hospital in Belgrade. He explained some other details to me, then

18 what was being done, what would happen. He advised me to move my

19 family away. I had been wounded so badly that I had been operated on

20 and this stoma was removed only in the Netherlands. But when I came

21 home I was wounded. I did not have a single dinar, not a single

22 dinar. The medicine was exorbitant, the medicine I needed was

23 exorbitant. Had it not been for some people who I had known who had

24 cafes and who knew I was a good man and also some companies, had I

25 not asked them for money for my medicine nobody would have given it

1 to me. I would have died. There were no medicaments at the Bijeljina

2 hospital and all of this is privately owned, pharmacies, everything.

3 To tell you exactly, the only pharmacy in Belgrade that had my

4 medicines and those stoma and other things I needed cost 150

5 deutschemarks and this was only to last me for 20 days, only 20 days.

6 So wounded as I was, I would take the bus and go to Belgrade to buy

7 my medicine. When I would come to the border, I want to say that too,

8 between Republika Srpska and the Federal Republic of Yugoslavia, as

9 far as I could see, these policemen behaved towards me in a humane

10 manner. They never asked me, "What are you doing Croat? Where do you

11 want to go? What are you doing?" They would always say, "Sir, would

12 you please show us your papers? Where you are going?" I would show my

13 permit, they would have a look at it, and then I would do the same

14 thing that I did yesterday. I would raise my shirt and they would see

15 the wounds, the stoma and they would say, "Fine". "I am just going to

16 buy this medicine I need and I am going back immediately." After that

17 I wondered: How could I transfer my wife and where do I transfer her?

18 Problems again. I was being threatened. In the street they were

19 saying loud and clear, "You're an Ustasha." Although I was in their

20 army I was an Ustasha for them. My wife was Ustasha hoar for them

21 because she had borne a Croat child. That is the kind of people they

22 are. Why? Why, because Pelemis had talked them into that. I suffered.

23 I suffered. I had the strength to sustain all of that. Fortunately,

24 IFOR came into Bosnia. Routes were being opened Orasje and Tuzla, the

25 road between Oraci and Tuzla, going by the town of Brcko and I

1 besieged my wife and child. I could not tell her what happened. She

2 had assumed what had happened. She knew I was wounded and I said,

3 "Please, you and the child go there, go to our parents, so that you

4 would stay alive at least and it does not matter what happens to me.

5 Please just take my child away." I had such trouble talking her into

6 it. She was wondering whether she would run into problems with the

7 Muslim authorities there. I said: "Don't be afraid, (redacted). The

8 people from the Muslim Ministry of the Interior know me. They know

9 that I am not that kind of person. They know everything about me.

10 They have my files. They know that I am not a criminal, that I never

11 committed a crime. I did not even fight with anybody or quarrel with

12 anybody, nothing." Then she agreed. A friend of mine, a Serb, drove

13 her there by car, my wife and child, they went to Tuzla. I came back

14 to Bijeljina. Then when I got out of this friend's car I did not know

15 what to do. Where do I go now? I know the next day when people would

16 find out that my wife went to Tuzla it would all be over. I was

17 suspected even then. Then after that what could I do? I knew what had

18 destroyed my life and that is what troubled me. First, I was

19 wondering whether I should commit suicide, take five kilograms of

20 explosives tied around me, walk into the office of Milorad Pelemis

21 and blow him up and myself. It would be of no use. Where is the truth

22 there? What is the truth about Drazen Erdemovic? Why did Drazen

23 Erdemovic have to go through all of that and why did he have to live

24 through such things? I was talking to a friend and he said, "Drazen,

25 Salapura and Mico are not worthy of your life. Do something else.

1 Don't do that." I listened to that man and I did what I did. I went

2 to a friend in the Federal Republic of Yugoslavia. I thought of

3 getting in touch with you directly, the International Tribunal, but I

4 did not have any contact. I did not have a passport. I only had an ID

5 from Tuzla, this military contract, and an ID stating the unit I

6 belonged to. No other documents. Also this green card. I do not have

7 if I have it here. I do not know. I told this friend of mine about this,

8 you know, and he looked at me and he said: "You're crazy." I

9 said: "Yes, I am crazy." I said: "Yes, you are with your child." I

10 looked at his child and I said: "Where is (redacted)"? Why? I do

11 not know why. I know actually what happened but I do not know why.

12 Why did all of this happen. I said resolutely that is what I have

13 decided. I shall either be dead or I shall tell about what I know

14 before the International Tribunal. Then this friend of mine

15 understood what I was saying and helped me get in touch with

16 journalists. Without any guesswork involved I told this lady

17 journalist, I said that I was not asking for any money or for any

18 services from her, any favours. I just asked her to help me get to

19 The Hague. I asked her: "Please, don't let this be revealed. If it is

20 revealed I am a dead man. It is not that I will be a dead man, it is

21 not that that is important. I took part in this. I feel guilty

22 because of that. I feel some kind of guilt, but this man who helped

23 me and I am staying with him, he is not to be blamed and he will

24 suffer because of that and his child will suffer." Not even two days

25 had gone by since I gave this interview my friend and I were

1 arrested. We were arrested by the State Security of the Republic of

2 Serbia. They did not beat us up or anything. They did not torture us

3 in any way. They knew everything about me. They simply took away the

4 lady's cassette at the airport in Belgrade. They had everything. I

5 know that they have everything. This lady told me and this friend of

6 mine it is all over. I was searched at Belgrade airport and the

7 cassette was taken away. Nothing. I said: "What do I do now with my

8 friend?" I look at his wife and child and I say: "God, if I destroy

9 my own life, OK, but what do I do with this man?" Nothing. After this

10 call, after less than half an hour, the police knocked at the door.

11 They said it was the police and nothing. They opened the door. They

12 walked in. They said nicely: "Take your jackets, put your shoes on

13 and come with us." Nothing. My friend and I got up and left. Of

14 course, we could not talk to each other. I was looking at one side.

15 He was looking to the other side. We came to this place, the SUP, the

16 Ministry of the Interior and then interrogation started. He was in

17 one room. I was in another room. Nobody had harassed me in any way.

18 One man told me though that I was a Croat spy, but then he was

19 intoxicated. I said, OK, I helped Serbs in Tuzla and I am married to

20 a Serb. I do not know what I had said and he looked at me. A pleasant

21 man came, I must say just as pleasant as Mr. Ruez who talked to me.

22 He was fair and decent. I knew then that they had everything and that

23 they knew everything and I knew why they arrested me. It started and

24 I told them everything just as I told you, everything, everything,

25 all the details, all the details. I said that I was forced to do

1 that. I was not afraid that they would arrest some of the people who

2 were there with me. Let them arrest them and let any one of them say

3 I was not forced to do that. I told these people all of that and this

4 man believed me, and they would not even handcuff me after that, me

5 or my friend. We were not in prison in Novi Sad, no, that is to not

6 true. We were on Dedinje in a house that was guarded by the State

7 Security of the Republic Serbia. I was not harassed in any way. They

8 provided medicine for me for my wounds. I had fruit, food just like I

9 have here in detention and also a fair attitude. I was treated

10 fairly. I was not addressed by "hey, you spy" by these men who were

11 with me. They probably received orders from their superiors. Oh yes,

12 and then I appeared before this court in Novi Sad. Then Mr. Jovan

13 Babic became my attorney. I just looked at this man and I saw that he

14 was an honest man, an honest man. I just looked at him. I asked him

15 what I should do and he said: "Drazen, the best thing for you is to

16 say the truth, exactly what had happened and how it had happened."

17 Then I told the whole story again before the court in Novi Sad. Mr.

18 Jovan Babic put certain questions that he thought were unclear. He

19 asked me about all these armies, because it is a bit unusual to

20 everyone, how come I was in three armies. So that is why I had to

21 speak about this at length. I told the whole story. I even said the

22 name of the man who was supposed to transfer me to Switzerland. I do

23 not know if that is in the papers that came in from Yugoslavia, but I

24 think that the name is there. They asked me and I told them the name.

25 Mr. Ruez did not ask me and whatever he had asked me I answered. So

1 that is how it happened. My counsel told me that we would be seeing

2 each other every week. The first time we met I asked him - I actually

3 gave him a telephone number and I asked him to contact that person

4 and to get some news of my wife, my son and the rest of my family in

5 Tuzla because I knew that they had heard everything, that that they

6 had heard about my statement. He told me: "Drazen, don't you worry

7 about that. It has been taken care of. I had just said that and he

8 told me that it had all been taken care of. The next time we saw each

9 other he told me: "Your family is OK." I told him: "Well, don't lie

10 to me. Tell me openly what's going on with them?" He said: "They are

11 fine. They are doing fine. You should not worry about anything." So

12 then this procedure started and gentlemen whose names I do not

13 remember from the Tribunal came. They talked to me, not for very

14 long. They just asked me whether I was willing to come to The Hague.

15 I said to the Security Services that I wanted to go to The Hague.

16 That is what I also told the court in Novi Sad and that is what I am

17 telling you now. That is how it all happened. That is how I arrived

18 here on 30th March. Then the proceedings that you are aware of

19 started. Yesterday I told you about that. The Prosecution and my

20 Defence counsel told you how much I helped the Prosecution and they

21 said that yesterday. I do not think I should repeat that here again.

22 THE PRESIDING JUDGE: Fine, Mr. Erdemovic. Please return to your usual

23 seat. We are going to proceed to a recess, unless there are any

24 questions? Mr. Babic, do you have any questions?

25 MR. BABIC: No. I think that the testimony has been given in detail

1 and that his personality can be seen.

2 THE PRESIDING JUDGE: Mr. Prosecutor?

3 MR. OSTBERG: I think, your Honour, we have one question to Mr.

4 Erdemovic.

5 Q. Mr. Erdemovic, you have read and heard the facts stated in this

6 indictment many, many times. I am certain that you realise that there

7 is one crucial question to which the Court needs to have an absolute

8 clear answer. That is, from the moment on 16th July 1995 when you

9 realised what your task was going to be and until around 3 o'clock in

10 the afternoon when the shooting stopped, did you at any point have

11 any possibility to avoid taking part in this shooting without

12 jeopardising your life?

13 A. No. No, that is my most sincere and frank answer; not because I am

14 defending myself. I am really being honest. First, you may remember

15 yesterday you mentioned, I did not mention, I did not even know that,

16 that the crime was actually discovered by me and you had not been

17 aware of that crime before that.

18 Q. Your answer to this crucial question is no?

19 A. No. MR. OSTBERG: Thank you. No further questions, your Honour.

20 THE PRESIDING JUDGE: Judge Odio Benito?

21 JUDGE ODIO BENITO: Thank you.

22 Q. Mr. Erdemovic, could you tell us how your relationship was with

23 your parents when you were a kid in Tuzla, a kid and a young boy? How

24 was your relationship with your family in general?

25 A. How shall I put it? The relations were good, at least I think they

1 were good. I did not spend much time with my father who was away in

2 business very often in various towns in Yugoslavia. He would leave

3 Tuzla for Serbia, for a town in Serbia or in Croatia, for his work.

4 That was the kind of work he had. So I spent much more time with my

5 mother. To be honest, I was relatively free. They did not force me to

6 do anything. They taught me not to hate anyone. I am grateful for

7 that to them. They taught me to be a law-abiding person. Even when my

8 dad was at home when, for example, some older friends would come and

9 ask for me to go to a party, my father trusted those friends of mine

10 who were older than myself and he told them: "You will be responsible

11 for him." So it was quite free. I was not made to do anything. They

12 did not tell me to do this or that. There was not such a thing.

13 Q. Are your parents still alive?

14 A. Yes.

15 Q. When you were wounded in the hospital in Belgrade, did you receive

16 their visit?

17 A. I told you, I was only visited by this friend, a colleague from my

18 unit, and I was also visited once by my wife and my child throughout

19 that one month period.

20 Q. Do you know why they did not visit you, your parents?

21 A. Well, it was impossible for them to travel from Tuzla to Belgrade.

22 It was impossible to reach Belgrade at that time. The roads were not

23 opened and IFOR was not yet there. Only the UN forces were there in

24 Bosnia and Herzegovina.

25 Q. You told us during your declaration this morning that at sometime

1 you were transferred near to Vukovar. When id this happen, when you

2 were transferred to Vukovar?

3 A. I was not in Vukovar. I was in a place some 15 kilometres away

4 from Vukovar. There was a checkpoint there and it was while I was

5 doing my regular military service with the JNA.

6 Q. When?

7 A. When in 1991, in the summer of '91. I do not recall the exact date

8 but it was in July, I believe. I do not know exactly. I cannot

9 answer.

10 Q. Before these Srebrenica facts had you killed anyone in the war?

11 A. No. That is why I have been tormented by that so much when I have

12 to talk about it. That was the first and the last time.

13 JUDGE ODIO BENITO: Thank you. No further questions.

14 THE PRESIDING JUDGE: Mr. Erdemovic, just one question. Your future

15 depends of course on what the Tribunal is going to decide, but when

16 you foresee your own future how do you see things in terms of your

17 family life, professional life, in social terms, geographical terms?

18 How do you see your future?

19 A. First of all, I have been discussing it with doctors, the doctors

20 who have been suggested by the Tribunal. They asked me - at the

21 beginning you knew how I was. I started to cry during my initial

22 appearance and everything. So while I was talking to them I kept

23 telling them that my life had been destroyed and that my life was

24 worthless, but later on these guards in the detention unit helped me.

25 They would beg me to get out to do some sport, to do something, you

1 know, just to keep those thoughts away. So I started to react

2 positively. I started playing table tennis. Although I was still

3 wounded I was trying to play basketball, you know, I had to. I felt I

4 should do it because those people, one of them, he can speak

5 Yugoslavian and he told me: "Drazen, why are you doing this to

6 yourself? You are here but you are not alone." So he tried to

7 convince, well, he was doing his job. I know he is a guard there.

8 Then the doctors paid me another visit and we talked again and they

9 asked me: "Drazen, how are you doing now?" I told them: "Well, thank

10 God I am doing fine. This surgery has been performed. My wife had

11 visited me with my child. The guards are behaving in a very correct

12 way. I have not been forced to do anything. My lawyer also cheers me

13 up when he comes to see me. We make jokes." I told them I was feeling

14 much better, but I still had those thoughts. I am still asking myself

15 why I am not together with my wife and my child, with my parents. Why

16 has all this happened? Why am I here? Why have I become a criminal?

17 Why am I in a prison? Why? Why? All because of others. Others did

18 this to me. Of course I have to be tormented by that. Of course I

19 have to think about what happened on that farm. I have to have those

20 thoughts because I lost everything. I have lost all my friends. OK, I

21 have not lost the real friends, they are sending their regards, even

22 some Muslim friends because they do not believe, even some people who

23 are in important positions in Tuzla, who work for the Ministry of the

24 Interior, they are just saying that this is not possible that I would

25 do this of my own free will. The Commander of my unit in the Muslim

1 army who is a Muslim by nationality, he said: "No, that is not Drazen

2 Erdemovic. That is not him." The Commander of my HVO unit also: "No,

3 no, that is not Drazen Erdemovic. We know Drazen Erdemovic very

4 well." They keep sending their regards, my friends. On 21st October

5 some of them came to my son's birthday party and there were Muslims,

6 Serbs and Croats there and I could not be there. Why? Because of this

7 Pelemis, because of Salapura, because of the war, because of

8 everything, because of everything.

9 THE PRESIDING JUDGE: I believe Judge Riad has a question for you.

10 JUDGE RIAD: Mr. Erdemovic, in your long description of your life you

11 have not mentioned anything about your profession. Could you tell us

12 something about your profession, before the war at least? A. Yes, I

13 have mentioned that. I am a locksmith by occupation. I graduated from

14 secondary, vocational secondary school in Tuzla in 1989. There was no

15 work at that time in former Yugoslavia. It was very difficult to find

16 a job. I did not have any money to pay to get a job. People who did

17 not have any money, they were just supposed to wait and keep quiet. I

18 was not employed at all. At that time the conflicts in the former

19 Yugoslavia started and everything stopped at that time. Factories no

20 longer worked, nothing. Q. You were very clear in expressing to us

21 your belief in the co-existence of all religious and racial factions

22 in ex-Yugoslavia, and you pleaded very much the cause of peace. At

23 the same time you happened to join all the fighting groups during

24 this war. Was there not any other way to express your belief in

25 co-existence? A. How shall I put it? We were forced to join the army.

1 I had received these call-up papers. I had no one to turn to. Who was

2 I? I was just simple Drazen Erdemovic with nobody who would listen to

3 me. I could not go to see a President or a Commander of a unit. I

4 told you that this morning. I did not vote for either the SDS, HDZ or

5 SDA. I voted for the reformists, Mr. Ante Markovic's party who won in

6 Tuzla. I did not vote for nationalists such as Beslagic in Tuzla, but

7 nobody was interested to know that. Nobody said: "Drazen Erdemovic,

8 you did not vote for any nationalist party. You are against the war."

9 No. "Drazen, go to the war. Willy-nilly, you have to go too."

10 Q. According to your observation during this period, was this the

11 case of all the young people of your age in former Yugoslavia? Did

12 they all have to pass through this ordeal?

13 A. Well, I will tell you this. Some, for example people who were

14 older than myself, they had a passport, but my generation, for

15 example, we did not have a passport. We were minor at that time.

16 Before you do your military service and if your parents did not work

17 abroad you could not get a passport, such was the law at that time.

18 You simply could not have a passport before you do your military

19 service. Once you have done your military service you can make a

20 request to be issued a passport and then they would do some checks,

21 checking your record and then they would issue you a passport. But

22 before I completed my military service the war broke out. So, who was

23 supposed to issue me a passport? That was the problem.

24 JUDGE RIAD: Thank you very much.

25 THE ACCUSED: Thank you.

1 THE PRESIDING JUDGE: I was asking the Registrar to make sure it might

2 not be necessary to make some corrections or erasures in some of the

3 indications that were very personal that appeared or that were stated

4 during the testimony which might cause anybody to be insecure about

5 anything. It is now 1.30. We are going to adjourn the session. I want

6 to thank the interpreters who have worked very hard. We will not

7 begin until 3.15. The Court stands adjourned. We will resume at a

8 quarter after 3. (1.30 p.m.) (3.15 p.m.)

9 THE PRESIDING JUDGE: The hearing is resumed. Would you please have

10 the accused brought in? In accordance with what we said this morning,

11 we will first hear the closing remarks of the Prosecutor, the

12 argument of the Defence, and for a very short statement that he might

13 want to make without his having to take an oath, we will hear the

14 accused. But before I give the floor to the Prosecutor, I would first

15 like to point out a point of the proceedings against Drazen Erdemovic

16 in the Federal Republic of Yugoslavia. In my hands I have a decision

17 which was taken on 29th May 1996 by the Trial Court II presided over

18 by Mrs. MacDonald in which the Federal Republic of Yugoslavia's

19 government was requested to transmit to the International Tribunal

20 the facts of the investigation and, if necessary, a copy of the case

21 files of the judgment of its national courts. This morning Mr. Babic

22 submitted to us the Novi Sad court decision which will be translated.

23 I shall turn to the Prosecutor's Office and ask if you have those

24 documents? If you do, can they be annexed to the other documents in

25 the proceedings? You have the floor now.

1 MR. OSTBERG: Yes, your Honour, I see no objection to that.

2 THE PRESIDING JUDGE: They can be annexed. You have no objection to

3 their being annexed. Does the Defence object to that? The Registrar

4 will contact the Trial Chamber to make sure which parts of the

5

6 documents should be translated. Without any further ado, I once again

7 give the floor to the Prosecution so that he can make his closing

8 remarks in this case. I give you the floor, Mr. Prosecutor.

9 MR. OSTBERG: Thank you, your Honour. Before the final arguments which

10 are going to be given by Mr. Harmon, if it pleases the Court, I would

11 like to briefly address the question of venue for a prison sentence,

12 if prison is imposed by the Court. We have not taken up this issue

13 before. The Registrar has filed with the Trial Chamber and also sent

14 copies to the Defence, I believe, and to the Prosecutor's Office

15 discussing where could a prison sentence be executed. I have gone

16 through the memorandum from the Registrar and eleven countries have

17 declared their willingness to execute prison sentences by this

18 Tribunal. However, four of them, Denmark, Netherlands, Germany and

19 Sweden, have restricted their willingness to accept convicted

20 nationals only of residents of those respective states. The

21 Netherlands, Denmark, Germany and Sweden can then not be in question.

22 Croatia which, in the report of the Secretary-General, is said not to

23 be a place to execute prison sentences. No State from the former

24 Yugoslavia should, in the view of the Secretary-General, take on them

25 to execute prison sentences. Others on this list, Iran and Pakistan,

1 have not adopted a specific legislation to do this. That leaves us

2 with three States, namely, Finland, Norway and Italy. In the opinion

3 of the Prosecutor's Office, we have no preference as to which one of

4 these three possible States imprisonment would take place. Thank you,

5 your Honour.

6 THE PRESIDING JUDGE: Thank you, Mr. Prosecutor. I will perhaps not

7 give the floor to the Defence immediately on this point. I think that

8 Mr. Babic will have the opportunity to say what he has to say about

9 that point during his final arguments. Do you agree, Mr. Babic?

10 MR. BABIC: Yes.

11 THE PRESIDING JUDGE: All right. Mr. Harmon, representing the Office

12 of the Prosecutor, for the closing remarks, I now give you the floor.

13 MR. HARMON: Thank you very much, your Honours. The defendant before

14 you, Mr. Drazen Erdemovic, will be the first person to be sentenced

15 for war crimes before an International Criminal Tribunal in 50 years.

16 Mr. Erdemovic has pleaded guilty to a crime against humanity, the

17 underlying facts of which are undisputed and which involve the mass

18 murder by a firing squad of 1200 defenceless men and boys from

19 Srebrenica. This crime was one of enormous proportions and, by his

20 own admissions, Mr. Erdemovic's role in it was significant. He has

21 stated at various times to various people that he killed between 10

22 and 100 people. Exactly how many people Mr. Erdemovic personally

23 killed on 16th July 1995, I cannot tell you. I do not know. Mr.

24 Erdemovic may not know and you will never know; only God knows. But

25 what I am certain of is that the massacre at Branjevo farm was

1 amongst the largest crimes committed during the tragic conflict in

2 Bosnia and Herzegovina and that Mr. Erdemovic's deadly actions

3 contributed to it. However reluctantly he says was his participation

4 in it, he did so throughout the day. When not engaged in the

5 killings, his presence at the scene armed with an automatic weapon

6 undoubtedly assisted in creating an atmosphere of fear and

7 intimidation wherein countless victims walked to their deaths rather

8 than attempt to resist or to flee. The facts behind the charges

9 against Mr. Erdemovic have in all respects been corroborated by the

10 investigations of the Office of the Prosecutor. In every national

11 jurisdiction, the taking of a life or of lives by another is

12 punishable by the severest of sanctions, often by imprisonment up to

13 and including a life term or, in some national jurisdictions, by

14 death. In this case the maximum punishment which Mr. Erdemovic faces

15 is a life imprisonment term. Were Mr. Erdemovic one who planned,

16 organised or instigated this monstrous crime or took significant

17 initiative in it, my recommendation to you would be simple and

18 direct, impose a life sentence. That will not be my recommendation to

19 you. In deciding upon the proper sentence in this case, the Trial

20 Chamber must be guided by Articles 24.2 and 7.4 of the Statute of the

21 Tribunal and Rule 101 of the Tribunal's Rules of Procedure and

22 Evidence, all of which set forth factors that the Trial Chamber shall

23 consider in imposing a proper sentence. The relevant factors

24 mentioned in those provisions include the gravity of the offence and

25 the individual circumstances of the convicted person, whether the

1 accused was following superior orders, any aggravating circumstances,

2 any mitigating circumstances, the substantial co-operation with the

3 Prosecutor by the convicted person and the general practice regarding

4 prison sentences in the courts of the former Yugoslavia. In respect

5 of aggravating and mitigating circumstances, the Prosecutor's Office

6 has filed a brief with the Trial Chamber on this subject. What makes

7 this case particularly difficult is finding the proper balance

8 between punishing Mr. Erdemovic for the aggravated crime of which he

9 stands convicted and giving recognition to the considerable factors

10 in mitigation which are also present in his case. I have already

11 discussed the aggravating circumstances of this case, the slaughter

12 of 1200 defenceless men and boys over a five hour time period on a

13 single day and Mr. Erdemovic's role in it constitutes an aggravating

14 factor. I need not repeat myself in this regard. I would, however,

15 like to address some of the factors of mitigation that the Prosecutor

16 considers relevant for your deliberations. The first of these

17 concerns the actions taken by Mr. Erdemovic to surrender himself to

18 the Tribunal. As this Chamber is aware, Mr. Erdemovic attempted to

19 travel to The Hague in order to confess his guilt but en route was

20 arrested by the Federal Republic of Yugoslavia. He was later

21 transferred to The Hague at our request. Until Mr. Erdemovic took

22 affirmative steps to self-surrendering, he was like one of the

23 faceless, nameless executioners depicted in Goya's famous painting,

24 The Executions of May 3rd, and he would have remained so had he not

25 voluntarily set into motion a chain of events that brought him before

1 the Tribunal. Until he made those efforts, the Prosecutor neither

2 knew of him, nor of the killing fields at Branjevo farm, nor of the

3 execution site at the cultural hall in Pilica. Shortly after being

4 transferred to The Hague Mr. Erdemovic met with Mr. Jean Rene Ruez of

5 the Prosecutor's Office and confessed to his crimes. After being

6 indicted by the Prosecutor, he made his initial appearance before

7 your Honours and accepted responsibility for his crimes by entering a

8 guilty plea. During my and Office of the Prosecutor investigators'

9 contacts with Mr. Erdemovic, he has expressed remorse for his actions

10 of July 16th 1995. This combination of factors, his efforts to

11 surrender himself to the Tribunal, his confession of guilt, his

12 expressed remorse for his conduct and his prompt acceptance of

13 responsibility for his crimes by pleading guilty are, in the

14 Prosecutor's view, mitigating circumstances which we urge this

15 honourable Trial Chamber to consider in determining a proper

16 sentence. Another mitigating factor which the Trial Chamber may wish

17 to consider is found in Article 7.4 of the Statute. Article 7.4 says

18 that an accused person acting pursuant to an order of a superior

19 shall not relieve him of criminal responsibility but may be

20 considered in mitigation of punishment if the Tribunal determines

21 that justice so requires. In this case, Mr. Erdemovic, a low ranking

22 member of the Bosnian Serb Army, followed orders, albeit patently

23 illegal orders, of a superior to execute innocent civilians. He says

24 he did so out of fear for his life. You may consider these as

25 mitigating circumstances and give them weight, whatever weight you

1 deem appropriate. Rule 101(B)(ii) of the Tribunal's Rules of

2 Procedure and Evidence explicitly provides that in determining the

3 sentence, the Trial Chamber shall take into account, and I quote,

4 "the substantial co-operation with the Prosecutor by the convicted

5 person before or after conviction". Let me be very clear on this

6 point. Mr. Erdemovic has provided substantial assistance to the

7 Prosecutor's Office in relation to the investigations of Srebrenica.

8 His co-operation was and continues to be voluntary and unconditional.

9 By "unconditional" I mean that no promises were made to him by the

10 Office of the Prosecutor to secure his co-operation and assistance. I

11 would like to summarise for you the substantial nature of his

12 assistance. As a result of his co-operation, the Office of the

13 Prosecutor was informed for the first time about four criminal

14 events. The first of those events occurred on July 11th 1995 and it

15 involved the summary execution of a Bosnian Muslim civilian in

16 Srebrenica. He provided us, secondly, with details about a summary

17 execution of a Muslim prisoner in Vlasenica that was another war

18 crime. Thirdly, he provided details about Branjevo farm in Pilica

19 where 1200 civilians were murdered. Until Mr. Erdemovic informed us

20 of this site, the Office of the Prosecutor was unaware of its

21 existence. As a result of identifying this location, this past summer

22 exhumations were conducted at the site and the remains of between 140

23 and 160 victims were recovered. These remains were mistakenly left at

24 the site when the Bosnian-Serb Army attempted to cover up its crimes

25 in September 1995. Steps are now underway to identify those victims

1 whose remains were recovered and reunite them with their grieving

2 families. Fourthly, Mr. Erdemovic provided details about the cultural

3 hall in Pilica where an estimated 500 civilians were murdered. Until

4 Mr. Erdemovic informed us of this site, the Office of the Prosecutor

5 was unaware of its existence. Thereafter, investigators from my

6 Office travelled to Pilica, located this site and conducted forensic

7 examinations, the preliminary results of which confirm relevant

8 aspects of Mr. Erdemovic's information. In addition to each of those

9 criminal events, Mr. Erdemovic has provided us with the names and

10 identities of many of the perpetrators responsible for these foul

11 deeds. Simply put, without his assistance we would never have known

12 or may never have known of their identities. His co-operation, in

13 addition, has provided the Office of the Prosecutor with valuable

14 information about the Drina Corps and about the structure of the

15 Bosnian-Serb Army. As you may recall, your Honours, from the large

16 map, Exhibit No. 1, and the location of the Pilica farm and the

17 Branjevo, in the hall, in the cultural hall, in Pilica, your Honours

18 are aware that those areas are far north of the other areas that were

19 at the time known to the Office of the Prosecutor. In essence, the

20 information provided by Mr. Erdemovic expanded the geographic range

21 in which these killings took place and corroborate other evidence

22 that the Office of the Prosecutor has showing that the executions of

23 civilians from Srebrenica was well-planned, systematic and organised.

24 This past summer, your Honours, Mr. Erdemovic testified at the Rule

25 61 hearing for Radovan Karadzic and Ratko Mladic. I have submitted to

1 your Honours in Exhibits 14 and 15 transcripts of Mr. Erdemovic's

2 testimony at that particular hearing. As this Trial Chamber is aware,

3 witnesses are often reluctant to testify publicly, yet Mr. Erdemovic,

4 to his credit, when asked to testify at the Rule 61 hearing had no

5 such hesitation and did so willingly. His testimony at the Rule 61

6 hearing was significant in two respects: Firstly, it contributed to

7 this Trial Chamber's decision to issue international arrest warrants

8 for Radovan Karadzic and Ratko Mladic. Secondly, Mr. Erdemovic was

9 the first Bosnian Serb Army insider to provide public testimony about

10 the events at Srebrenica. His testimony exposed the lies of

11 Bosnian-Serb political and military leaders that the killings of

12 civilians from Srebrenica was nothing but Muslim propaganda. I would

13 submit to your Honours that his testimony at the Rule 61 hearing

14 influenced, in a positive sense, the public clamour to arrest Radovan

15 Karadzic and Ratko Mladic. In respect of both his co-operation with

16 the Prosecutor and his decision to testify publicly at the Rule 61

17 hearings, these were courageous decisions by Mr. Erdemovic. I will

18 tell your Honours quite frankly, his assistance to us has been

19 invaluable. It has significantly advanced our investigations. I dare

20 say that if the Office of the Prosecutor had the assistance of others

21 like Mr. Erdemovic, our investigations would be considerably

22 advanced. We believe that the substantial co-operation provided by

23 Mr. Erdemovic to the Prosecutor's Office merits a significant

24 mitigation of his sentence. Lastly, I would like to turn to Rule

25 101(B)(iii) which states that Trial Chamber shall take into account,

1 and I quote, "the general practice regarding prison sentences in the

2 courts of the former Yugoslavia". In our analysis of the laws of the

3 former Yugoslavia, we believe that the crime entitled "War crimes

4 against the civilian population" most closely resembles the crime for

5 which Mr. Erdemovic stands convicted. In the former Yugoslavia this

6 crime was punishable by a term of imprisonment between five and 20

7 years. If there were circumstances in mitigation, the minimum term

8 could be reduced below five years. Now turning to the sentence in

9 this case. The maximum sentence that this honourable Court may impose

10 is a term of life imprisonment. Justice would not be served by

11 imposing that sentence on Mr. Erdemovic, and we strongly urge the

12 Court not to do so. Because of the considerable factors in mitigation

13 which I have discussed, the Prosecutor recommends leniency in the

14 case of Mr. Erdemovic. If it is the decision of this honourable Court

15 to impose a term of imprisonment, we would respectfully recommend

16 that it not exceed 10 years. Thank you very much, your Honours. That

17 concludes my remarks.

18 THE PRESIDING JUDGE: Thank you, Prosecution. I now give the floor to

19 you, Mr. Babic.

20 MR. BABIC: Your Honours, gentlemen, counsel for the Prosecution,

21 after the accused Erdemovic pleaded guilty, at first it seemed that

22 the proceedings would be simplified from that point on and that the

23 only thing that remained was to pronounce the sentence. Is that the

24 case? My answer has been and is a strong "no". The reason is that so

25 many questions posed in the proceedings require an answer that would

1 be rooted in the logic of every day and legally acceptable before any

2 sentence can be pronounced. The hearing yesterday and the hearing

3 today confirmed that and I will explain that in my closing argument.

4 When I first contemplated the defence of the accused Erdemovic,

5 sitting in my office I silently and somehow automatically scanned the

6 titles of books in my library. My eyes lingered and my mind came

7 awake at the title: "The naked and the dead." This is a novel that

8 you will know, a novel by the American author, Norman Mailer; a book

9 that paints a hardened up picture of war, a book in which the writer

10 empathises with the fate of the soldiers, their relations, the

11 atmosphere of fear, suffering and death. This is a book about the

12 circumstances that have forced men to cause harm to each other and to

13 themselves, a book in which man is but a victim. But this is also a

14 book filled with yearning for the warmth and peaceful sleep without

15 suffering blood, mud and insomnia. The title of the book summarises

16 its content, the naked and the dead. The title reminded me forcibly

17 of the fate of men in a cruel war in the former Yugoslavia. The fate

18 of the dead and the fate of the naked. The fate of my client. That is

19 why this title has from the start been a motto of my defence and the

20 motto of this closing argument. It was a moral and professional

21 stimulus to agree to defend the man accused of a grave crime, but the

22 man who is also a victim of the whirlwind of war and the victim of

23 his own deed. In the proceedings so far I did not dwell on that that

24 much because everything was clear at the very first hearing of this

25 Trial Chamber, of this Tribunal, in the presence of the accused

1 Erdemovic, before the eyes of the world and the TV cameras. I am

2 convinced, your Honours and my learned colleagues from the

3 Prosecution, that even now after all this time you still feel the

4 impact of the most poignant moment of the hearing. This is why I urge

5 that the accused Erdemovic, because of his bad health and damaged

6 mental state, be tried today. Based on our decisions, the Registry

7 has taken measures that have led to very successful surgery of my

8 client, the accused Erdemovic, and the psychiatrists and

9 psychologists have managed to calm his disturbed mental state.

10 Everything was done to make the accused Erdemovic competent to stand

11 trial today, as stated in the conclusion of the international expert

12 team. Your Honours, the limits of this trial were set by the

13 indictment of the Prosecutor, but also by the things that Erdemovic

14 pleaded guilty to. As the indictment has not been amended in the

15 meantime, I will now make some observations. I have read the

16 indictment several times with due care as the document itself and the

17 trial warranted. Every time I had to ask myself why it was written in

18 this form in respect to the accused Erdemovic, particularly because

19 the first part is not based on any evidence presented in this trial.

20 Here I refer to paragraphs of the indictment 1 to 8 and paragraph 14

21 of the indictment. As I searched for the answer to that question and

22 read the Nuremberg trial documents, I found substantial similarities

23 between the indictment, this indictment, and the indictment issued by

24 the Board of Prosecutors of the International Military Tribunal in

25 Nuremberg. However, in reality, these were two very different

1 affairs. Allow me a digression: The International Military Tribunal,

2 pursuant to Article 6 of its Statute, was competent to, and I quote

3 "try and punish major war criminals of the countries of the European

4 Axis, to try and punish persons who either as individuals or as

5 members of organisations committed any of the crimes sanctioned here

6 acting in the interests of the Axis countries" and so on. So not only

7 individuals, 22 of them, but also criminal organisations of the Nazi

8 Germany were on trial in Nuremberg. A whole era, a regime, was on

9 trial and the Board of Prosecutors was bound to include in the

10 indictment the collective responsibility as the results of the era

11 and the activities of that regime. This Trial Chamber, however, of

12 the International Criminal Tribunal for the former Yugoslavia tries

13 an individual, my client, the accused Erdemovic. The fact that these

14 parts of the indictment against him refer to a general military and

15 political situation in Bosnia and in Srebrenica, in particular, does

16 not have any factual foundation and any legal foundation in the

17 Statute or the Rules of Procedure and Evidence of this Tribunal, nor

18 in any evidence presented, nor does it have anything to do with the

19 accused Erdemovic. The Statute of this Tribunal, Article 6 - there

20 seems to be a coincidence here with the Statute of the International

21 Military Tribunal - stipulates that the Tribunal is competent to try

22 only individuals and not any collective entities. I am referring to

23 governments, parties, military leaderships, police forces and so on.

24 That is one point. Another point, the way this was described in the

25 indictment, the accused Erdemovic did not contribute at all to the

1 military and political situation described in the indictment. He was

2 not a military Commander. He was not a person with political

3 authority. He was not even close to the persons who bear the most

4 responsibility for this cruel war which could give rise to any

5 assessments of the general military and political situation in

6 relation to his deeds. On the contrary, he was (as were so many

7 others from all warring factions) a victim of the cruel war and its

8 horrors. That is why I appeal to you, to your honourable Judges, to

9 reject that part of the indictment against Erdemovic in all respects

10 and especially in respect of his contribution and culpability for the

11 situation, and also in respect of the fact that this part of the

12 indictment cannot affect the degree of responsibility of Erdemovic

13 for the acts he had pleaded guilty to before this Trial Chamber. That

14 is why the judgment of the Trial Chamber must only refer to the

15 evidence, facts and the degree of the responsibility to which the

16 accused Erdemovic pleaded guilty. In other words, the contents of

17 paragraphs 9 to 12 and partly in paragraph 15, qualified in paragraph

18 16.1, of the indictment as crimes against humanity. As regards that

19 part of the indictment, specific charges against my client Erdemovic,

20 in my closing argument I will first assess the evidence presented

21 here and the establishment of the relevant facts. I will deal with

22 the facts from the point of view of criminal law. So let me proceed.

23 As regards the act itself, the only direct piece of evidence

24 presented before the Trial Chamber is the statement of the accused

25 Erdemovic given under oath. In this statement he actually

1 incriminated himself and defended himself at the same time. The self-

2 incrimination in his defence concerned mostly the following facts. On

3 16th July 1995 a group of eight members of the 10th Sabotage Unit,

4 Sabotage Corps of the Serbian Army, received the order to go to

5 Zvornik and report to the military police command. The accused

6 Erdemovic was in this group and he had no idea of what kind of

7 assignment it would be. Upon their arrival in Zvornik and a short

8 stay there, the group went together with an officer from the military

9 police command to the farm near the village of Pilica. On the farm,

10 for the first time, the group Commander informed the members that

11 Muslims would be bussed to the farm and that it was their task to

12 shoot those Muslims, and an order was issued to that effect. The

13 accused Erdemovic immediately opposed the order, but the Commander's

14 response was typically military and brooked no opposition: "If you

15 don't want to do it, you can line up next to them". In such a

16 surprising situation, the accused Erdemovic was not able to resist

17 the order. According to his statement, he feared greatly for his life

18 and the lives of his family. His whole body shook and his mind went

19 blank. Against his own will he obeyed the order of his Commander and

20 fired in the direction of the innocent Muslim civilians who had been

21 brought and lined up there. Because of the state he was in, Erdemovic

22 does not know how many Muslims were shot that day, least of all how

23 many of them he shot himself. This figure cannot be checked. He knows

24 that it lasted from 10.00 in the morning until 4.00 in the afternoon.

25 During the shooting, the accused Erdemovic tried to free a Muslim but

1 failed. He and the other members of the group all refused to carry

2 out the task of shooting Muslims in the cultural hall in Pilica. This

3 was followed by days of struggle to find the bare necessities of life

4 and the fight for his life and long sleepless nights with no end in

5 sight. The facts, as I have stated, were established only on the

6 basis of Erdemovic's testimony. So if the Trial Chamber decides to

7 give credence to his plea of guilty, then they should also trust

8 these facts, because his statement is a logical one and proved by the

9 life itself. The Prosecution has also accepted these facts and they

10 mentioned them in their closing argument. We have just heard that. As

11 for the subjective elements which are important in judging this case,

12 and they are important and objective for me, but the importance of

13 subjective elements in the Nuremberg trials was, let me remind you,

14 illustrated by a psychologist of the International Tribunal, Mr.

15 Gilbert, in his book "The Great Criminals" and the English writer and

16 lawyer Airey Neave in his book "Nuremberg". So, as regards the

17 psychological attitude of the accused Erdemovic towards the act, his

18 current mental state and his character in general, in addition to his

19 own testimony, the Trial Chamber heard witnesses X and Y, two reports

20 of an international team of experts were obtained on the

21 psychological and psychiatric condition of the accused Erdemovic.

22 There is also the report on his general health. So based on this

23 evidence, I deem that the following legally relevant facts have been

24 established beyond reasonable doubt. The accused Erdemovic on 25th of

25 this month will be 25 years old - five years that he has spent in

1 war. He is a Croat and a Catholic but never paying too much attention

2 to that. His childhood and boyhood days were happy in the place where

3 he was born, in the vicinity of Tuzla. He was a good student at

4 school. He liked school, especially because of the friends he had

5 there. He socialised with everybody, regardless of their religion or

6 nationality. Those questions were simply never asked. He was brought

7 up as a Yugoslav and that is how he felt himself to be. He loved his

8 country, former Yugoslavia. We have heard that from him today. He

9 thought that it was the most beautiful country in the world with most

10 freedom. He enjoyed sports very much, especially football. He was a

11 fan of "Red Star" in Belgrade and he is still a supporter of "Red

12 Star" in Belgrade. In 1991, he was proud when he came to that same

13 town, Belgrade, to do his military service. But when the war broke

14 out in Croatia in July 1991, as a soldier of the Yugoslav Army, he

15 went to Slavonia with his Unit but did not take part in any of the

16 fighting around Vukovar. After completing his military service in

17 March '92, he returned to his home where he was first mobilized into

18 the Muslim army and then into the HVO who arrested him because he had

19 tried to help Serbs. Because he had no choice, in November 1993 he

20 fled to the Serb-held territory and then he roamed in Serbia for a

21 while. Later he joined a Unit of the army of Republika Srpska because

22 he had no other possibility. As a member of a Unit of the army of

23 Republika Srpska, he never took part in any actual direct combats or

24 any similar assignments. However, as the war drew to its end in a

25 situation which I have described, sudden and unforeseen, on an order

1 of his Commander he took part (as he himself had said) in the

2 execution of Muslims. He stated to the authorities of the Federal

3 Republic of Yugoslavia and to the investigator of the Tribunal, Mr.

4 Ruez, to psychiatrists and to the psychologists, he stated the same

5 thing that he stated before this Trial Chamber. It is contained in

6 all records that were composed in relation to those interviews. After

7 that this calvary of war was followed by his personal calvary and

8 that of his family. He was unable to support his family and himself.

9 He took his wife and son to their parents and he remained in

10 Bijeljina and took to drinking. He felt unsafe because he was called

11 "Ustasha" because of his Croatian origin. Then on 22nd July 1995 in a

12 cafe in Bijeljina a fellow fighter shot him and two of his friends.

13 His wounds were serious and life threatening. He underwent surgery

14 three times. While he was treated at the Military Medical Academy, he

15 was visited by only one of his brothers-in-arms. He was bitterly

16 disappointed at losing them too. Although he did not have any

17 objections to the way he was treated by the Yugoslav authorities, he

18 wanted to be tried by this honourable Tribunal. However, he still

19 suffered a serious form of post-traumatic stress syndrome as stated

20 by the experts in their report. He was very hurt by the fact that his

21 close relatives have had problems because of him. The accused

22 Erdemovic has lost everything. He has lost his home, not only because

23 of his destiny but also because of the destiny of other people,

24 innocent people, and he suffers because of that a lot as he bears

25 everything with himself and one can say that it is with certain

1 uneasiness but it is very hard for him. I would like to stress that

2 on the basis of the evidence heard, certain very important facts have

3 been established, importance which will enable to establish criminal

4 responsibility of the accused Erdemovic. The Judges and investigators

5 of this Tribunal were not aware of the events in Pilica not until the

6 accused Erdemovic started speaking about that, not until he

7 incriminated himself. This fact is accepted by my learned colleague

8 from the Prosecution. The testimony of witness X confirmed the

9 statement of Erdemovic that when he was in a position as a soldier of

10 the army of Republika Srpska to decide on the fate of a member of an

11 opposing army, he set him free and he saved his life. Likewise, when

12 he was in the HVO, he tried to help Serbs, but he was caught and

13 imprisoned. From the very first statement to the authorities of the

14 Federal Republic of Yugoslavia until the statement given under the

15 oath before this Trial Chamber, he admitted to the participation and

16 the commission of the act and thereby brought himself to justice,

17 showing his moral attitude towards the crime. I will tell you

18 something. Personally, I admire this behaviour of my client and why.

19 Immediately before he gave a statement to the investigators of this

20 Tribunal, I advised him to change his statement, the statement that

21 he gave to the authorities, the plea that he gave to the authorities

22 of Yugoslavia. Throughout the proceedings he expressed his attitude

23 about the fate of the innocent people. Throughout the proceedings he

24 has clearly co-operated with the Prosecutor without any plea

25 bargaining, as the Prosecution has confirmed. Your Honours, as far as

1 I am concerned, these are the relevant facts in judging this case.

2 However, when I had to draw some legal conclusions I stumbled upon

3 the issue which legislation to apply, especially when it comes to the

4 basic concepts of criminal offence, the possible full defence is

5 necessary self-defence, extreme necessity, caution, duress, criminal

6 responsibility, degree of capacity, mental capacity, premeditation

7 and so on. The reason is that because these concepts are not

8 regulated in the Statute and the Rules of this Tribunal. I found the

9 following reasons why this was not done, and I think that from the

10 stand point of legality it had to be done, first, because these

11 concepts are generally accepted in most laws and are regulated in

12 more or less the same way or, secondly, that international

13 commissions established after Nuremberg did not accomplish one of

14 their tasks and that is to codify international criminal law. That is

15 why in drawing my legal conclusions I referred myself to judgments,

16 theory and practice of legal jurisdictions, including my own country

17 which is what the provisions of the Statute and the Tribunal

18 encourage in a way. So, given the situation with the statutory

19 provisions, my view is that the evidence heard and the statement of

20 facts which I mentioned before point to the following two legal

21 attitudes that can be taken in respect of this criminal case.

22 Firstly, and it is a hypothesis, it was necessary to answer the

23 question whether the crime alleged in the indictment has been proved

24 beyond reasonable, that is, whether the confession of the accused

25 Erdemovic is sufficient proof that the alleged crime was actually

1 committed. Judgments of the court's legal theory and practice often

2 indicate that in order to reach a judgment in a legal matter, the

3 confession of an accused is not enough. It should be corroborated in

4 other evidence. This is why I insisted on that particular point

5 yesterday, because Erdemovic's plea of guilty and the explanation

6 given by his counsel must be confirmed so that a Court can reach an

7 objective and legally acceptable judgment beyond any doubt. My

8 intention was not to challenge Erdemovic's plea on his behalf.

9 However, according to the principle in dubio pro reo, certain

10 questions arose yesterday. Your questions, your Honours, also had

11 that tone. That was the impression that I had yesterday. Because I

12 believe, your Honours, that if there is any shade of doubt in that

13 answer to that question, then the decision of the Court should go in

14 favour of the accused Erdemovic, because regardless of his plea of

15 guilty, if his statement is not corroborated, the alleged crime

16 cannot be proved and the criminal responsibility cannot be

17 established. However, today we have heard many details. My second

18 legal opinion has for its basis the determination of this Chamber

19 that the evidence heard confirms the commission of the alleged crime

20 and corroborates his statement. In that case all the above mentioned

21 facts and circumstances enable me to include the following. First,

22 that the accused Erdemovic committed the alleged crime out of extreme

23 necessity, that is, in face of the present danger for his life. This

24 concept is accepted in the Criminal Codes of all European

25 jurisdictions. Allow me to elaborate on this. The Austrian Criminal

1 Code of 1975 in its Article 10 provides for the extreme necessity

2 which excludes guilt. The Belgium Criminal Code of 1967 stipulates in

3 its Article 71 that "there are no crimes or offences when the

4 perpetrator was under duress which he could not resist". The Greek

5 Criminal Code speaks of the existence of the extreme necessity as

6 grounds for the exclusion of illegality and guilt. The Hungarian

7 Criminal Code from 1961 in its article 26 stipulates that the

8 perpetrator who has committed the criminal offence out of extreme

9 necessity shall not be held responsible. The criminal code of

10 Finland, article 10, provides for the possibility of discharging for

11 the act committed out of extreme necessity. The Dutch Criminal Code,

12 article 40, stipulates that an act shall not be considered as

13 punishable if committed under duress or coercion. The French Criminal

14 Code, article 64, stipulates that there shall be no offence if the

15 accused at the time of the commission of the crime was under duress

16 which he could not resist. The German Criminal Code from '75,

17 articles 34 and 35, provide for the extreme necessity which excludes

18 criminal responsibility. The Swiss Criminal Code from '37, article

19 34, stipulates that the perpetrator who has committed offence out of

20 extreme necessity shall not be punished especially if by doing so he

21 was saving his own life. The same is provided for in the Swedish

22 criminal code from 1965, Chapter 24, Article 4. The criminal code of

23 Yugoslavia from 1977 in its Article 10 provides for the extreme

24 necessity which excludes the very act but provides for the

25 possibility of acquittal. Historically speaking, it is a long

1 tradition of a certain concept, but the very essence of the concept

2 of extreme necessity is the same as the one described in the criminal

3 code of France from 1870. The concept of extreme necessity is

4 accepted in the legal theory and judicial practice both as a range of

5 subjective theories which lead to the discharge of the perpetrator,

6 or a range of objective theories which all boil down to the

7 non-existence of the public danger and the illegality of the crime or

8 else as a theory of individualization, according to which all cases

9 of extreme necessity cannot have the same type of defence which would

10 justify an acquittal. The stated position that the accused Erdemovic

11 committed the alleged crime in a state of extreme necessity can be

12 confirmed with the following facts. I have to repeat them. The

13 accused Erdemovic was a member of a unit which was ordered to carried

14 out an execution of Muslim civilians. This is stated in the

15 indictment. So, together with seven other members of his unit, on the

16 relevant day he found himself in situation which he could not foresee

17 or anticipate. When the Commander issued out the order he had no idea

18 of what kind of assignment it was. He tried to resist the order, but

19 he did not succeed. Moreover, it was indicated to him that he too

20 would be shot. Fearful for his own life and the life of his family,

21 the accused Erdemovic, against his own will and in a disturbed state

22 of mind, took part in the execution. As a soldier, a Croat fighting

23 on the Serbian side and always a potential traitor, he had to obey

24 the order and not his consciousness. He could not resist the order in

25 any possible way. One can say that he was instinctively protecting

1 his own life and the life of his family which were his highest values

2 contained in the declaration on human rights. It is not moral to

3 expect that he should have sacrificed his own life and then quite

4 certainly the life of his family. Finally, even if he had done that

5 in relation -

6 THE PRESIDING JUDGE: You are speaking a bit too fast, Mr. Babic. If

7 you could slow down a little bit for the sake of the interpretation.

8 Thank you.

9 MR. BABIC: I believe it is not moral to expect that he should have

10 sacrificed his own life first and then, quite certainly, the life of

11 his family too. Finally, even if he had done that, that would not

12 have helped the innocent victims and he would have been shot with

13 them. Your Honours, I remember an historic event from the Second

14 World War in Yugoslavia. A German dared, so to speak, to refuse

15 orders, to disobey orders, and he refused to shoot innocent

16 civilians. He simply took the side of the civilians. He was shot and

17 the civilians were shot too. At his initial appearance before this

18 Tribunal he himself said: "Honourable Judges, I had to do that. If I

19 had refused to do it I would have been killed together with these

20 people. When I tried to refuse the order they told me: 'If you feel

21 sorry for them, go and stand in the same line with them.'" This is

22 what he repeated yesterday and today several times. Therefore, the

23 accused Erdemovic in a specific situation was exposed to an

24 unavoidable, psychological type of duress which was beyond his

25 capacities and which he could not resist. Therefore, your Honours, I

1 request that he be acquitted. This is provided for in all the above

2 stated documents, either as an obligation or as a possibility as far

3 as extreme necessity is concerned. In relation to this request, I

4 wish to point out two other very important issues. The issue of the

5 accused Erdemovic's mental responsibility at the time of the

6 commission of the crime and the issue of his premeditation at the

7 time the crime was committed. Although these issues were not

8 specifically examined by medical experts, that is neuro-psychiatrists

9 and psychologists, I believe the experts who were hired by the Court

10 presented sufficient elements on the basis of which it would be

11 possible to draw reliable, factual and legal and psychiatric

12 conclusions on the state of the mental responsibility and the

13 premeditation of the accused Erdemovic at the time the crime was

14 committed, both on his awareness of the seriousness of the crime and

15 on his will to commit it too. The elements I am referring to are the

16 following: emotional immaturity, that is what it says decidedly in

17 the expert report; the feeling of helplessness at the time and after

18 the crime; panic and fear at the time the crime was committed; an

19 obvious long-lasting post-traumatic stress disorder. These elements

20 are supported by other elements which have been established beyond

21 reasonable doubt in the proceedings so far, the fact that even after

22 refusing to carry out the order, after the unsuccessful refusal to

23 obey it because he was fearful for his life, the accused Erdemovic

24 was no longer conscious of his acts, he literally did not have nor

25 could he have had any freedom of will. He did not want to commit the

1 act of his own will. It was the will of the command. Then, your

2 Honours, the following legal conclusions have to be drawn. The

3 accused Erdemovic at the time of the commission of the crime lacked

4 mental responsibility because he suffered a temporary mental disorder

5 or, at best, his mental responsibility was significantly diminished

6 also. In the case of the accused Erdemovic there was no premeditation

7 at the time of the commission of the act because he did not want to

8 commit it. Based on these legal premises and on this basis, I seek

9 that the accused Erdemovic be acquitted. Your Honours, my

10 professional experience makes me cautious. I see this caution in

11 possible failure to accept my views as presented here on the

12 existence of extreme necessity and lack of mental responsibility and

13 premeditation in the accused Erdemovic, and the failure to agree to

14 my request that he be acquitted. In that case, I deem the facts that

15 I use to establish extreme necessity and lack of mental

16 responsibility and premeditation, as well as the facts I presented

17 regarding the character of the accused Erdemovic should be taken into

18 consideration as special mitigating circumstances when the sentence

19 is passed. May I repeat this once again. The accused Erdemovic barely

20 managed to stay alive and he lost everything else. His next of kin

21 are not left in peace. He lost his comrades. He lost his country. He

22 came to realise that in this war all civilisational values were

23 rejected in this war, that all traditional ideas of morality, justice

24 and law have been replaced by somebody's needs and interests. He

25 believes that the individual his liberties, rights and requests would

1 not survive as such. Is there a worse way of using and abusing a man?

2 Is there a graver punishment? The basis for passing a sentence is

3 envisaged in Article 24 of the Statute and Article 101 of the Rules

4 of Procedure. In this connection, I believe it is very important that

5 this Court takes into account hitherto experience in the world and in

6 the former Yugoslavia and to find in this context the right position

7 and role of the accused Erdemovic and to determine the degree of his

8 responsibility. Allow me to quote some of this experience. In the

9 Nuremberg trials 22 people were tried, the main war criminals of

10 fascist Germany. Twelve were sentenced to death, three to life in

11 prison, four to imprisonment from 10 to 20 years respectively and

12 three were acquitted. It is well-known that this was the political

13 and military leadership of Germany, whose crimes had killed millions

14 of people and brought awful terrors to the world. Further on, the

15 verdict of the American Tribunal from February 19th 1948 against high

16 Nazi military commanders headed by Field Marshal Liszt, out of 12

17 accused for war crimes and crimes against humanity two were convicted

18 to life imprisonment and six to time in prison from seven to 20

19 years. At the trials of main war criminals in Hungary similar

20 sentences were passed. As a source for that I use the book "Genocide

21 and Punishment" whose author Dr. Lajco Klajn is a Professor at the

22 University of Novi Sad. The main criminals who were tried in the

23 former Yugoslavia after the Second World War also received the

24 highest sentences too. As a source for that I use the book "Through

25 the Secret Archives of UDBE" of the well-known Yugoslav writer Nikola

1 Milovanovic. The accused Erdemovic is not a Field Marshal nor any

2 kind of military Commander. He is not a Minister. He is not the head

3 of a criminal organisation, nor the main culprit. In the structure of

4 the army of Republic Srpske he was a plain soldier. That is why there

5 is not a place for him on that ladder in terms of his role, in terms

6 of what he did, in terms of his degree of responsibility or in terms

7 of possible imprisonment. If by some circumstance this Tribunal were

8 to try all of those who committed crimes in the former Yugoslavia,

9 then it is also quite certain that the accused Erdemovic would be in

10 the group of the least responsible, or perhaps he even would not be

11 in that group at all. Regrettably, your Honours, in this closing

12 statement I cannot present the punishment determined by the courts of

13 the former Yugoslavia to others, that is to say, not to the main

14 perpetrators of war crimes in the Second World War, simply because

15 these verdicts have not been compiled in one place. The country fell

16 apart and archives fell apart. One thing is certain, that most of

17 this punishment was time in prison and that most of the convicted

18 persons did not stay in prison until the end. In determining

19 punishment before this Court the Statute and the Rules of Procedure

20 also refer to legal solutions in Yugoslavia. In this connection I

21 presented to a brief to the Tribunal. I just wish to repeat. For the

22 criminal offence of war crimes against a civilian population, which

23 is an act stipulated in Article 142 of the Criminal Code of

24 Yugoslavia, a sentence of imprisonment from five to 15 years was

25 envisaged or imprisonment of 20 years. Also in the brief I said that

1 there was a legal possibility of mitigating such a sentence. This

2 mitigation can go up to one year of imprisonment. All of the

3 above-mentioned mitigating circumstances, the elements provided by

4 the Statute and the Rules of Procedure, as well as legal provisions

5 in the penal code of Yugoslavia, give me a basis for suggesting to

6 this honourable Court to considerably mitigate the sentence passed on

7 the accused Erdemovic. I am profoundly convinced that in this

8 particular case that is the only sentence that can be fair, not only

9 for him but also for the victims. Even more so because there are, in

10 my opinion, no aggravating circumstances in the case of the accused

11 Erdemovic. In this connection, we cannot take into account as an

12 aggravating circumstance the death of several persons as the

13 Prosecutor said, because this element is included in the very being

14 of the crime and this is determined by the level of responsibility of

15 its perpetrators. May I summarise by saying that I ask this

16 honourable Court to acquit the person, to pass a sentence mitigated

17 by at least one year. In connection with a possible jail sentence, it

18 is very important where it will be served. In the Statute and the

19 Rules of Procedure there are certain provisions referring thereto. I

20 do not want to declare myself directly on this question now. I

21 believe that such a decision should be passed without the presence of

22 the public. But my request and the wish of my defendant is that if he

23 serves time that this be done in a western European country where the

24 system and conditions of imprisonment are at a high level. Your

25 Honours, at the end of this closing statement I wish to say before

1 you and the distinguished representatives of the Prosecution, before

2 the entire public, in my own name and on behalf of the defendant,

3 that these criminal proceedings were conducted in keeping with the

4 Statute and the Rules of Procedure, but that is not to say that these

5 two documents should not be further improved upon. On the contrary, I

6 think they should. But I also wish to say that these proceedings have

7 been conducted fairly and honestly. They were conducted and

8 participated in by people of high professional and moral qualities,

9 which shows how lofty this profession is. Through this and through

10 all other trials every one of us can only draw a humane lesson and a

11 message which will, like a memento mori, be transferred to all people

12 worldwide, regardless of where they live and what they do. Everyone

13 who receives this message and who draws on this experience will be

14 able to distinguish what truly happened on the territory of the

15 former Yugoslavia, what reality is, what the truth and what

16 propaganda and lies are. Let the Court of history pass judgment on us

17 and also the Court of legal science and practice which is inevitable.

18 Let them show that we have done everything well and in the interests

19 of justice. In your decision, our decision, may the main message be

20 that these terrible experiences do not be repeated and that mankind

21 does not fall into the abyss of war horrors once again. I am

22 confident, your Honours, Judges of this highest criminal institution

23 of the international community, that when passing your decision in

24 this case through your knowledge of the facts and your understanding

25 of reality you will show humaneness towards the accused Erdemovic

1 through a decision which will give him hope for a life of love, not

2 of hatred. That is what the accused Erdemovic looks forward to and

3 sincerely hopes for. Thank you.

4 THE PRESIDING JUDGE: Thank you, Mr. Babic. As we had said, the Trial

5 Chamber will now listen to a final statement by the accused, if he

6 cares to do so. The accused will not be under oath. Mr. Erdemovic, is

7 there anything you would like to add, a brief statement which as, I

8 said, will not be under oath? If you care to stand and make such a

9 statement.

10 THE ACCUSED: Yes.

11 THE PRESIDING JUDGE: If it is more convenient for you to remain

12 seated, please remain seated. Otherwise you may have some problems

13 with the microphone.

14 THE ACCUSED: Yes, it is OK. First of all, honourable Judges, I wish

15 to say that I feel sorry for all the victims, not only for the ones

16 who were killed then at that farm, I feel sorry for all the victims

17 in the former Bosnia and Herzegovina regardless of their nationality.

18 I have lost many very good friends of all nationalities only because

19 of that war, and I am convinced that all of them, all of my friends,

20 were not in favour of a war. I am convinced of that. But simply they

21 had no other choice. This war came and there was no way out. The same

22 happened to me. Because of my case, because of everything that

23 happened, I of my own will, without being either arrested and

24 interrogated or put under pressure, admitted even before I was

25 arrested in the Federal Republic of Yugoslavia, I admitted to what I

1 did to this journalist and I told her at that time that I wanted to

2 go to the International Tribunal, that I wanted to help the

3 International Tribunal understand what happened to ordinary people

4 like myself in Yugoslavia. As Mr. Babic has said, in the Federal

5 Republic of Yugoslavia I admitted to what I did before the

6 authorities, judicial authorities, and the authorities of the

7 Ministry of the Interior, like I did here. Mr. Babic when he first

8 arrived here, he told me, "Drazen, can you change your mind, your

9 decision? I do not know what can happen. I do not know what will

10 happen." I told him because of those victims, because of my

11 consciousness, because of my life, because of my child and my wife, I

12 cannot change what I said to this journalist and what I said in Novi

13 Sad, because of the peace of my mind, my soul, my honesty, because of

14 the victims and war and because of everything. Although I knew that

15 my family, my parents, my brother, my sister, would have problems

16 because of that, I did not want to change it. Because of everything

17 that happened I feel terribly sorry, but I could not do anything.

18 When I could do something, I did it. Thank you. I have nothing else

19 to say.

20 THE PRESIDING JUDGE: Please be seated. Our deliberations are now

21 complete. The Tribunal will render its decision within approximately two

22 weeks. A specific date which will be transmitted through the

23 press and information office. The Court stands adjourned. (4.30 p.m.)

24 (The Court adjourned)

25