1 Friday, 29 November 1996

2 [Sentencing]

3 [Open session]

4 --- Upon commencing at ^

5 JUDGE JORDA: [Interpretation] The Court is in session. Would the

6 registrar please cite the case and have the accused brought in.

7 THE REGISTRAR: Your Honours, the case is IT-96-22, the Prosecutor

8 against Drazen Erdemovic.

9 [The accused entered court]

10 JUDGE JORDA: [Interpretation] Are the interpreters ready as the

11 photographers are wrapping up? Can everyone hear what is being said?

12 Mr. Babic, you can hear me? Office of the Prosecutor, you

13 gentlemen hear me? Mr. Drazen Erdemovic, can you hear me, sir? Do you

14 hear me?

15 If we could have the appearances. First from the Office of the

16 Prosecution.

17 MR. OSTBERG: [Previous translation continues]... Ostberg. I

18 appear today with my fellow Senior Trial Attorney, Mr. Mark Harmon.

19 JUDGE JORDA: [Interpretation] Thank you. Who is representing the

20 accused? Mr. Babic?

21 MR. BABIC: [Interpretation] My name is Jovan Babic, and I'm

22 attorney from Yugoslavia.

23 JUDGE JORDA: [Interpretation] Thank you.

24 Now, in determining the appropriate sentence for Drazen Erdemovic,

25 the Trial Chamber has based its judgement on a line of reasoning in law

1 and in fact which it will now summarise in broad terms, recalling that the

2 judgement, in its entirety, will be available to the public in the

3 authentic version, that is to say, in the French version, immediately

4 after this hearing.

5 Now, the operative provisions of the judgement, which include the

6 sentence pronounced, will be read at the end of this summary, the accused

7 being present in accordance with Rule 101(D) of the Rules of Procedure and

8 Evidence.

9 The judgement delivered by the Trial Chamber -- by the Trial

10 Chamber is structured as follows: As setting out the historical

11 background of the procedure but before entering into its reasoning, the

12 Trial Chamber believed it necessary in this case to consider the validity

13 of the accused's plea of guilty. It then outlined the legal framework of

14 its jurisdiction, identifying the law and principles it deems applicable

15 regarding crimes against humanity. Lastly, it analyses the acts with

16 which the accused is charged, in particular, from the angle of the

17 mitigating circumstances he invoked in his defence.

18 Given the circumstances surrounding the guilty plea by Drazen

19 Erdemovic, the Trial Chamber felt it incumbent for it, before proceeding

20 to any consideration of substance to review the validity of that plea. It

21 first ensured that as of his initial appearance before the Trial Chamber,

22 Drazen Erdemovic pleaded guilty voluntarily and fully cognizant of the

23 nature of the charge and its implications. The Trial Chamber considered

24 in particular the psychological examinations it had itself ordered carried

25 out.

1 As justification for his conduct, however, the accused invoked the

2 urgent necessity to obey his military superior and the physical and moral

3 duress stemming from threats to his own life and the lives of his wife and

4 child. The Trial Chamber could legitimately consider whether the elements

5 put forward, which in themselves are such as to mitigate the penalty,

6 might also, in the light of the probative value attributed to them, be

7 regarded as factors justifying the criminal conduct and thereby affecting

8 the very existence of the crime itself.

9 The Trial Chamber would point out first that for an accused, the

10 choice of pleading guilty is part of a defence strategy he is formally

11 recognised as having within the procedure in force at the International

12 Tribunal. That strategy has been fully and consciously adopted by the

13 Defence.

14 Now, in respect of superior orders, the only case envisaged in the

15 Statute, it does not relieve the accused of his criminal responsibility.

16 At most, it may justify mitigation of sentence if the Tribunal deems it

17 consistent with justice.

18 As regards the physical and moral duress resulting from the

19 superior order and in the absence of any reference in the Statute, the

20 Trial Chamber has examined how the International Military Tribunal at

21 Nuremberg and the International Military Courts, delivering judgements

22 after the Second World War, had distinguished between exculpatory duress,

23 which justified the crime, and duress as a grounds for a mitigation of

24 sentence.

25 While justification on account of moral duress and the state of

1 necessity pursuant to an order from a superior may not be excluded

2 absolutely, its conditions of application are especially strict. The acts

3 invoked, if proven, must be assessed according to very rigorous criteria

4 and appreciated in con crypta and involve, in particular, the lack of

5 moral choice by the accused when placed in a situation where he could not

6 resist.

7 Exercising its unfettered discretion, the Trial Chamber has not

8 hesitated to be particularly demanding, since the ambit of the

9 International Tribunal is the prosecution of the most serious crimes of

10 international humanitarian law. However, the elements drawn from the

11 facts of the case and the hearing have not enabled the Judges to consider

12 that evidence warranting a full exculpation of the accused's

13 responsibility exists. The elements invoked by the Defence will,

14 accordingly, be taken into account, as we'll see below, as mitigating

15 circumstances, that is to say, if proven, and it is on that basis that the

16 Trial Chamber confirms the validity of the guilty plea of Drazen

17 Erdemovic.

18 Now the Trial Chamber shall outline the legal framework, that is

19 to say, the applicable law and principles.

20 Now, the sentence delivered in this case is the first sentence to

21 be delivered by the International Tribunal and relates to a crime against

22 humanity. The Trial Chamber was therefore confronted with legal issues

23 which it had to resolve before proceeding to the actual consideration of

24 the gravity of the acts and the circumstances of the accused. In the

25 logical order in which they are addressed, these issues are, first, the

1 scale of penalties applicable when an accused is found guilty of a crime

2 against humanity; two, the principles governing sentencing; and thirdly,

3 enforcement of the sentence.

4 Now with regard to the scale of penalties which are applicable

5 when an accused is found guilty of a crime against humanity. Under the

6 Statute and the Rules, the International Tribunal may sentence an accused

7 who has pleaded guilty, is found guilty, to imprisonment only, which may

8 up to for the remainder of his life. In addition to the reference to the

9 general practice regarding prison sentences in the courts of the former

10 Yugoslavia, which will be addressed below, the text provides no indication

11 as to the term of imprisonment incurred for a crime against humanity. The

12 Trial Chamber has therefore identified the characteristics specific to

13 such crimes and to the penalties attached thereto under international as

14 well as national law.

15 As stated at Nuremberg and recalled by the Security Council in its

16 Resolution establishing the International Tribunal, crimes against

17 humanity refer to inhumane acts of extreme gravity. These crimes violate

18 human beings in what is most essential to them. They transcend the

19 individual, since through the assault on the latter, humanity is negated,

20 and whether at Nuremberg, where the most severe sentences, going as far as

21 the death penalty, were pronounced and executed or within the domestic

22 legislation of states that have introduced crimes against humanity therein

23 or within the relevant legislation of the former Yugoslavia, the harshest

24 penalties have been laid down for crimes against humanity. It is, as it

25 were, the expression of a general principle of law recognised by all

1 nations.

2 As to recourse to the general practice regarding prison sentences

3 in the courts of the former Yugoslavia, as referred to in the Statute, the

4 Trial Chamber notes that crimes against humanity are not, strictly

5 speaking, found in the provisions of the Yugoslavian code, which provides

6 for "genocide and war crimes against a civilian population."

7 The case law of the courts of the former Yugoslavia is hardly

8 significant, in particular, on account of the small number of judgements.

9 Accordingly, the Trial Chamber considers that the general practice

10 regarding prison sentences in the courts of the former Yugoslavia is not

11 binding on it, that is to say, binding on the Trial Chamber. The Judges

12 consider even that making recourse to that principle the sole standard for

13 determining the scale of penalties would, owing to the principles

14 sometimes invoked nullum crimen sine lege be tantamount to disregarding

15 the criminal character that is universally attached to crimes against

16 humanity, as such crimes have, for a long time, been part of the

17 international legal order and the harshest penalties attached to them.

18 Consequently, the Judges merely consulted, as it were, that practice.

19 Now with regard to the principles governing sentencing. The Trial

20 Chamber identified certain factors enabling the penalty to be fitted to

21 the case in point and the purposes and functions of the penalty. This, of

22 course, in the context of a crime against humanity.

23 Now with regard to the factors enabling the penalty to be fitted

24 to the case in point. According to the terms of the applicable text,

25 these factors are primarily the gravity of the offence, the personal

1 circumstances of the accused, and the existence of aggravating or

2 mitigating circumstances, including substantial cooperation of the accused

3 with the Prosecutor.

4 The Trial Chamber has rejected the existence of any aggravating

5 circumstances. Besides the fact that they're not defined in the Rules,

6 the Trial Chamber's position is that circumstances that might characterise

7 the gravity of the crime may only cancel out any leniency based on any

8 mitigating circumstances there might be.

9 Now, the situation's wholly different as regards mitigating

10 circumstances. The Statute and the Rules provide non-restrictively for

11 situations which, if proven, are such to lessen the degree of guilt of the

12 accused and warrant a mitigated sentence. In this respect, the Trial

13 Chamber takes account inter alia of remorse or contrition. As stated

14 above, in connection with the review of the validity of the plea,

15 mitigation on account of superior orders alone is expressly enshrined in

16 the Statute, which replicates on this point the Statute of the Nuremberg

17 Tribunal. The fact that an accused acted pursuant to superior orders was

18 often raised before the international and national military courts

19 established after the Second World War.

20 The Nuremberg Tribunal did not question the admissibility of

21 superior orders for mitigation of sentence, pointing out, however, that

22 the order received by a soldier to kill or torture in violation of

23 International Law of War had never been regarded as justifying such acts

24 of violence. A soldier could -- excuse me. A soldier could rely on it

25 only to obtain a mitigation of punishment. And in the view of the

1 Nuremberg Tribunal, the regular test of criminal responsibility was by no

2 means a question of the order received but of the moral choice, that is to

3 say, the moral choice of the perpetrator of the act charged.

4 Nonetheless, the Trial Chamber believes that dismissing the

5 defence of superior orders, as was the practice of the Nuremberg Tribunal,

6 was due to the high position of authority of the accused and that, as a

7 result, the precedent-setting value of the judgement in this regard is

8 reduced in the case of an accused of low rank.

9 In his report, the Secretary-General of the United Nations

10 addressed the issue of superior orders in connection with duress,

11 considering that the order of a government or superior may be considered

12 "in connection with other defences such as coercion or lack of moral

13 choice." The Trial Chamber will content itself with that position

14 provided the elements prone to characterise a state of necessity or duress

15 as argued by the accused are proven by him and this on the basis of

16 criteria of probative value which shall be discussed below.

17 Lastly, given the Tribunal's situation, which is exceptional

18 because it does not have its own facility for imprisonment, the Trial

19 Chamber takes notes of the unavoidable isolation in which convicted

20 persons, serving their sentences in institutions often far removed from

21 their place of origin, will find themselves.

22 Now, still in connection with the determination of the sentence,

23 we shall review, myself and my two fellow Judges, the purposes and

24 functions of the penalty for a crime against humanity. Now, given the

25 unique nature of the International Tribunal, the Trial Chamber considered

1 the purposes and functions of the penalty for crimes against humanity and,

2 more particularly, a term of imprisonment. Here again, neither the

3 Statute nor the report of the Secretary-General nor the Rules elaborate on

4 the objectives sought by imposing such a sentence. Accordingly, to

5 identify them, the focus must be on the very object and purpose of the

6 International Tribunal.

7 The Trial Chamber thereupon examined the purposes and functions of

8 the penalty for a crime against humanity in the light of international

9 criminal law and of national criminal systems, including that of the

10 former Yugoslavia.

11 Now, as they emerge from the texts of the origin of the

12 International Tribunal, the objectives as envisaged by the Security

13 Council, that is to say, deterrence, reprobation, retribution, as well as

14 reconciliation, collective reconciliation, are part of a broader aim of

15 the Security Council to maintain peace and security in the former

16 Yugoslavia. The only precedence in international criminal law, that is,

17 the Nuremberg and Tokyo Tribunals, do not expressly state the purposes

18 sought in imposing penalty for war crimes or crimes against humanity, but

19 a review of the declarations by the signatories of the London Charter

20 would indicate that the penalties seem to be aimed at general deterrence

21 and retribution.

22 The purposes and functions of national criminal systems are often

23 hard to identify precisely. That is because they are multiple and have,

24 moreover, in fact, been written to a large extent into the Criminal Code

25 of the Federal Republic of Yugoslavia. Now, that said, the competence of

1 the International Tribunal, therefore, is fundamentally that of a national

2 court which punishes all sorts of offences, usually ordinary crimes.

3 In the light of the above review, the Trial Chamber deems most

4 important the aforementioned concepts of deterrence and retribution but

5 would insist especially on reprobation as an appropriate purpose of

6 punishment for a crime against humanity and the stigmatisation of the

7 underlying criminal conduct.

8 Now, having reviewed these principles relative to sentencing, we

9 shall consider the enforcement of the sentence, and here one of the major

10 difficulties with which the international Tribunal has to contend relates

11 to the place and form of execution of the sentence. In the light of the

12 permanent texts, the Trial Chamber notes that enforcement relies on the

13 designation of a state and on the Tribunal's supervision of the conditions

14 of imprisonment, and fourth, on that state's territory. The Trial Chamber

15 accordingly considers that it is for the Registrar, upon consultation with

16 the President of the International Tribunal and with the approval of the

17 Presiding Judge of the Trial Chamber which delivered the sentence, to

18 designate the state where the imprisonment will be served. The Trial

19 Chamber intends, however, to take account of the matter of place and

20 conditions of execution of the sentence in an effort to ensure due

21 process, the proper administration of justice, and lastly, with a view to

22 ensuring the equal treatment of convicted persons. Every accused should,

23 in fact, know the possible consequences of a conviction for an

24 international crime. A certain level of uniformity must be upheld in the

25 enforcement of sentences irrespective of the state in which the sentence

1 is served, and the Trial Chamber feels it incumbent to provide some

2 guidance in respect of the enforcement of international judgements. In

3 this regard, the Trial Chamber considers that pursuant to the principle of

4 equality before the law, there must not be any major disparities from one

5 state to another in the enforcement of sentences. I therefore recommend a

6 certain degree of uniformity and consistency in the enforcement of

7 international criminal sentences.

8 There are two concerns I believe are essential in the light of the

9 international character of the penalty that shall be delivered. One is

10 respect for the duration of the sentence. The other is respect for

11 international standards relative to the treatment of prisoners. As

12 regards duration, in the Trial Chamber's view, no measure should be taken

13 by a state which might terminate the sentence or alter its nature by

14 reducing it. As regards the treatment of prisoners, under the Statute and

15 the Rules, the Tribunal has some powers regarding the treatment of

16 convicted persons. The Trial Chamber considers that the penalty imposed

17 and its execution must always comply with the principles of humanity and

18 dignity at the heart of the international standards for the protection of

19 the rights of prisoners.

20 Now, having specified its legal framework, the Trial Chamber will

21 now analyse the criminal acts as submitted to it in the indictment against

22 Drazen Erdemovic and the circumstances leading to their commission with a

23 view to determining the most appropriate sentence. So we shall consider

24 the case in point.

25 Now, the Trial Chamber first set out the relevant facts of the

1 case and then considered their probative value, and particularly from the

2 angle of the mitigating circumstances invoked by the accused.

3 First with regard to the relevant acts. The Trial Chamber would

4 recall that the acts with which Drazen Erdemovic is charged occurred in

5 the context of the events which followed the fall of the enclave of

6 Srebrenica. Those events were attested to publicly during the hearing

7 pursuant to Rule 61 and the Prosecutor's cases against Radovan Karadzic

8 and Ratko Mladic. The acts involved would implicate those two indictees

9 in the commission of crimes against humanity and have been corroborated by

10 many statements, including the testimony of the accused. They were

11 further corroborated by him, by Drazen Erdemovic, during his guilty plea,

12 and they're outlined below.

13 According to the public testimony of the investigator of the

14 Prosecutor's office, the sites of the massacres with which Drazen

15 Erdemovic is charged have been identified, thus corroborating the

16 accused's own statements. First, there is the Branjevo Farm at Pilica,

17 where approximately 1.200 Muslims were executed by soldiers of the unit of

18 which Drazen Erdemovic was a member, an involvement to which he admitted.

19 Then there is a public building in Pilica where, according to the public

20 testimony of the accused, approximately 500 Muslims were executed by

21 members of the 10th Sabotage Unit.

22 As regards the acts with which Drazen Erdemovic himself is

23 charged, the Trial Chamber has reviewed them as they were set forth in the

24 indictment and as they were formally recognised by the accused when he

25 entered his plea of guilty and subsequently elaborated on at the hearing.

1 They will not be addressed in this summary.

2 The Trial Chamber has endeavoured, in particular, to address these

3 acts from the angle of the gravity of the crime committed and the

4 mitigating circumstances invoked by the accused. In the sentencing

5 procedure, that discussion will be the prime support of the line of

6 reasoning behind the sentence, that is to say, a discussion of the

7 mitigating circumstances.

8 Now, the next point relates to the gravity of the acts and

9 mitigating circumstances. The Trial Chamber considers that the crime's

10 extreme gravity has been demonstrated; participation in the murder of

11 1.200 unarmed civilians over a five-hour period on 16 July 1995.

12 According to as many affirmations, Drazen Erdemovic is responsible for the

13 murder of from 10 to 100 people.

14 As regards mitigating circumstances, the Trial Chamber has

15 distinguished two categories. One, those, that is to say the mitigating

16 circumstances which were contemporary with the perpetration of the

17 criminal act, that is to say, the mental incapacity of the accused, the

18 urgent necessity he was allegedly in at the time he committed those acts,

19 as well as his low military rank; and two, the second category of

20 mitigating circumstances. These are those relating to the accused's

21 attitude after the commission of the acts, that is, the contrition he

22 showed, his willingness to surrender to the International Tribunal, and

23 his cooperation with the Office of the Prosecutor. Lastly, the Trial

24 Chamber discussed certain aspects of the personality of Drazen Erdemovic

25 as elucidated by his testimony, by the public testimony of Witnesses X

1 and Y, and in the closing arguments of his Defence counsel.

2 Now with regard to the mitigating circumstances that were

3 contemporary with the perpetration of the criminal act and, particularly,

4 the mental condition of the accused. The Trial Chamber has not accepted

5 the line of argument of the Defence regarding the mental condition of the

6 accused at the time of the acts. There is nothing in the case file or in

7 the experts' reports which enables conclusions to be drawn in respect of

8 the accused's psychological state at the time of the crime.

9 Now, still in the context of contemporary mitigating

10 circumstances, the urgent necessity Drazen Erdemovic was allegedly in on

11 account of duress due to a superior order. Now, to assess its probative

12 value, the Trial Chamber identified a number of questions. Could the

13 accuse have had avoided the situation he was in? Was the accused

14 confronted with an insurmountable order he had no way of eluding? Was the

15 accused or close members of his family exposed to the danger of immediate

16 or short-term death? Did the accused have no moral choice to oppose the

17 orders he received, or if he had, did he attempt to oppose those orders?

18 The Trial Chamber noted that as far as the overall account of the

19 accused goes, it could be considered quite likely to have happened. It is

20 also the way the general atmosphere prevailing at Srebrenica was at the

21 time of the enclave fell and when the ensuing events occurred. However,

22 in respect of the acts involving the person of the accused, which might be

23 a basis for allowing mitigating circumstances, the Defence has provided no

24 testimony, expertise, or other element which might corroborate what Drazen

25 Erdemovic said. Accordingly, the Judges consider themselves unable to

1 accept the defence of urgent necessity.

2 Now still in the context of the mitigating circumstances

3 contemporary with the perpetration of the criminal act, the third

4 circumstance, that is to say, the low military rank. According to him,

5 Drazen Erdemovic was a sergeant and as such was in command of a small

6 unit. He says he was demoted before committing the crimes with which he

7 is charged, but no document clearly establishes his military rank. The

8 indictment in which the accused pleaded guilty describes him as a soldier

9 in the 10th Sabotage Unit, that is, at the time of the criminal acts.

10 The Trial Chamber considers that Drazen Erdemovic, described by

11 the Prosecutor as a low-ranking member of the Bosnian Serb army, did not

12 hold a position of authority at the time of the said crimes.

13 We shall now consider the mitigating circumstances relating to the

14 attitude of the accused after the commission of the acts, the first one

15 being in relation to the accused's remorse and willingness to surrender.

16 Drazen Erdemovic's remorse for the crimes he committed is evident

17 through his statements, his conduct, and the report of the medical

18 experts, a letter having been designated by the Trial Chamber.

19 The Trial Chamber notes the constantcy with which the accused has

20 unequivocally and spontaneously expressed his responsibility in the

21 massacre at Branjevo Farm and his contrition therefore. The desire to

22 clear his conscience was expressed by his willingness to surrender to the

23 International Tribunal to answer for his crime and in his plea of guilty.

24 The medical experts noted the state of depression in which he arrived at

25 The Hague, accompanied by a feeling of guilt.

1 In determining the penalty, the Trial Chamber accepts the remorse

2 expressed by the accused.

3 With regard to cooperation with the Office of the Prosecutor. The

4 Prosecutor has referred repeatedly to the cooperation of the accused,

5 which he characterised as substantial, full, and unconditional, and the

6 Prosecutor revealed that without the accused's statements, he would not

7 have been cognizant of four events, including, precisely, the massacres at

8 the Branjevo Farm and in the public building at Pilica. Other information

9 provided by Drazen Erdemovic has permitted the Prosecution to gain a

10 better understanding of the geographic area where the massacres occurred,

11 the logistic resources deployed, and the names and identity of a number of

12 the individuals responsible for these acts. In addition, the accused gave

13 essential testimony in the hearings against Radovan Karadzic and Ratko

14 Mladic.

15 The Trial Chamber considers that the accused's cooperation with

16 the Office of the Prosecutor must be accorded significance in mitigating

17 the penalty.

18 Now, as I indicated, we looked at some aspects of the accused's

19 personality. The Trial Chamber heard the accused on the subject of his

20 childhood, his schooling and his professional training, and about his

21 present family situation. It noted the statements Defence Witnesses X

22 and Y, and acquainted itself with the findings of the medical experts. On

23 the basis of these elements taken as a whole, the Trial Chamber deems it

24 appropriate to give special consideration to the relative youth of the

25 accused at the time of the crimes, his present family situation, the fact

1 that he does not pose a threat, his gesture in rescuing Witness X and the

2 series of features characteristic -- characterising, rather, a courageable

3 personality.

4 Now, having considered all of the facts of the case submitted for

5 its attention, the Trial Chamber is of the conviction that given the

6 inherent gravity of his crime, it is appropriate to grant Drazen Erdemovic

7 the benefit of the following mitigating circumstances: His age at the

8 time the crimes were committed and his low military rank, also the remorse

9 he expressed, his willingness to surrender, and the cooperation he has

10 provided to the Office of the Prosecutor, and then lastly, the fact that

11 he does not pose a threat and has a courageable personality.

12 Trial Chamber I, for these reasons, delivering its judgement

13 publicly in the presence of the parties and in first instance pursuant to

14 Articles 23, 24, and 27 of the Statute and Rules 100, 101, and 103 of the

15 Rules of Procedure and Evidence, noting the indictment as confirmed on

16 29 May 1996, noting the plea of guilty by Drazen Erdemovic on 31 May 1996

17 to the count of crime against humanity as provided under Article 5(A) of

18 the Statute, noting the briefs of the parties, having heard the closing

19 arguments of the Prosecution and the Defence, in punishment of said crime,

20 sentences Drazen Erdemovic, born on 25 November 1971, at Tuzla, to ten

21 years imprisonment; and rules that from the total duration of this

22 sentence shall be deducted the periods during which the convicted person

23 was in custody or in provisional detention pending his transfer to the

24 International Tribunal and this judgement by this Trial Chamber, that is

25 to say, from 3 March 1996 until today; rules that the Registry shall, upon

1 consultation with the President of the International Tribunal and with the

2 approval of the Presiding Judge of this Trial Chamber, designate the state

3 where the sentence will be served; and rules that this judgement shall be

4 enforceable immediately. Judgement done in French and in English, the

5 French text being authentic. Today, 29 November 1996, The Hague, the

6 Netherlands.

7 The meeting is closed.

8 --- Whereupon the sentencing hearing adjourned

9 at ^

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25