1 Tuesday, 7th October 1997
2 (10.30 am)
3 PRESIDENT CASSESE: May I ask the Registrar to call the
5 THE REGISTRAR: Case IT-96-22-A, the Prosecutor versus
6 Drazen Erdemovic.
7 PRESIDENT CASSESE: Appearances, please?
8 MR. NIEMANN: If your Honours please, my name is Niemann and
9 I appear for the Prosecution.
10 PRESIDENT CASSESE: Thank you.
11 MR. BABIC: Your Honours, my name is Jovan Babic, I appear on
12 behalf of the accused, Erdemovic.
13 PRESIDENT CASSESE: Thank you.
14 Mr. Erdemovic, can you hear me?
15 MR. ERDEMOVIC: Yes, your Honour.
16 PRESIDENT CASSESE: Thank you. Let me say at the outset
17 that Judges Li and Stephen wish to apologise through me
18 for being unable to attend this hearing.
19 I shall now read out a short summary of the
21 The appellant had challenged the judgement handed
22 down by the Trial Chamber number 1 on 29th November
23 1996, sentencing him to ten years imprisonment after he
24 had pleaded guilty to a charge of having committed a
25 crime against humanity in July 1995 in the territory of
1 the former Yugoslavia.
2 The issues considered by the Appeal Chamber have
3 comprised not only those raised formally by the parties,
4 but also issues concerning the guilty plea of the
5 appellant raised by the Appeal Chamber itself. By
6 addressing three preliminary questions regarding the
7 validity of the appellant's guilty plea to the parties,
8 the Appeal Chamber ensured that the parties were given
9 opportunity to make submissions in relation to these
10 additional issues.
11 In its judgement, the Appeal Chamber examined the
12 validity of the guilty plea entered by the appellant,
13 adopting the reasoning contained in the joint separate
14 opinion of Judges McDonald and Vohrah, the majority of
15 the Appeals Chamber notes that the concept of the guilty
16 plea per se is the product of the adversarial system of
17 common law countries, and justifies the existence of the
18 guilty plea within procedure of this International
20 The advantages provided by the guilty plea in
21 minimising costs, saving court time and avoiding the
22 inconvenience of trial to many are equally applicable to
23 trials in an International Criminal Tribunal. The
24 Appeal Chamber sets out the following three minimum
25 preconditions which must be satisfied before a plea of
1 guilty can be accepted as valid.
2 Firstly, the guilty plea must be voluntary. It
3 must be made by an accused who is mentally fit to
4 understand the consequences of pleading guilty, and who
5 is not affected by any threats, inducements or promises.
6 Secondly, the guilty plea must be informed. That
7 is, the accused must understand the nature of the
8 charges against him and the consequences of pleading
9 guilty to them.
10 Thirdly and finally, the guilty plea must not be
11 ambiguous or equivocal. It must not be accompanied by
12 words amounting to a defence contradicting an admission
13 of criminal responsibility.
14 The majority of the Appeal Chamber, with Judge Li
15 dissenting, finds as follows in relation to each of
16 these three preconditions.
17 The guilty plea of the appellant was voluntary.
18 However, the guilty plea of the appellant was not
19 informed. The appellant did not understand the nature
20 and consequences of pleading guilty in general, nor did
21 he understand the nature of the charges against him, and
22 the distinction between the alternative charges.
23 These matters were never adequately explained to
24 the appellant by the Trial Chamber or by Defence
25 counsel, and as a result, the appellant elected to plead
1 guilty to having committed a crime against humanity,
2 rather than the alternative charge of a war crime.
3 Upon examining the distinction between these two
4 offences, the majority of the Appeal Chamber, with
5 Judge Li dissenting, holds that, all things being equal,
6 the punishable offence, if charged and proven as a crime
7 against humanity, is more serious and should ordinarily
8 entail a heavier penalty than if it were proceeded upon
9 on the basis that it were a war crime.
10 Rules proscribing war crimes address merely the
11 criminal conduct of a perpetrator against an immediate
12 protected object. Rules proscribing crimes against
13 humanity in contrast address the perpetrator's conduct
14 not only towards the immediate victim, but also towards
15 the whole of mankind. Consequently, in electing to
16 plead guilty to a crime against humanity instead of a
17 war crime, the appellant pleaded guilty to the more
18 serious offence and the one entailing a heavier penalty.
19 As the appellant's plea was not the result of an
20 informed choice, the appellant must be afforded the
21 opportunity to replead with full knowledge of the nature
22 of the charges, the distinction between the alternative
23 charges and the consequences of pleading guilty to one
24 rather than the other.
25 The Appeal Chamber then addresses the question of
1 whether the plea of the appellant was equivocal. A plea
2 is equivocal when the accused pleads guilty but persists
3 with an explanation of his actions which in law amounts
4 to a defence. The court is then obliged to reject the
5 plea and to enter a plea of not guilty. In the present
6 case, the appellant pleaded guilty but then claimed to
7 have acted under duress. Accordingly, the question
8 whether the appellant's plea was equivocal depends upon
9 whether duress can afford a complete defence to a
10 soldier charged with crimes against humanity or war
11 crimes where the soldier has killed innocent persons.
12 The Appeal Chamber finds that there is no
13 customary international law rule on this specific issue
14 of whether duress can be pleaded by a soldier to a
15 charge of killing innocent persons. The majority of the
16 Appeals Chamber, with Judge Cassese and Judge Stephen
17 dissenting, finds that duress is no complete defence for
18 a soldier charged with crimes against humanity or war
19 crimes and involving the killing of innocent human
21 In the majority, Judges McDonald and Vohrah,
22 examine general principles of law recognised by
23 civilised nations as a source of international law under
24 Article 38 of the Statute of the International Court of
25 Justice. They are satisfied that underlying the
1 specific rules on duress, in each of the surveyed
2 jurisdictions, is the general principle that a person is
3 less blameworthy and less deserving of the full
4 punishment when he performs a certain prohibited act
5 under duress.
6 In the light of the irreconcilable inconsistency
7 between the rules regarding duress in the legal systems
8 of the world, Judges McDonald and Vohrah adopt the
9 settled practice of international judicial bodies of
10 employing the general principle in order to derive a
11 legal rule applicable to the facts of the particular
12 case. They find that the rule is duress is no complete
13 defence for a soldier charged with a crime against
14 humanity or a war crime involving the killing of
15 innocent human beings.
16 In reaching these conclusions, they attach great
17 weight to the proposition that international criminal
18 law has a normity of purpose and must guide the conduct
19 of soldiers in armed conflict in an effort to deter the
20 commission of breaches of international humanitarian law
21 and protect those who are vulnerable and weak in armed
22 conflict scenarios.
23 Judge Li, also on the majority on this issue,
24 finds that no general principle of law may be derived on
25 the question whether duress can afford a complete
1 defence for the killing of innocent human beings,
2 because positions of the legal systems of the world in
3 relation to this issue are too divergent. Judge Li
4 accordingly examines the existing international case law
5 and concludes that the weight of this case law supports
6 a finding that duress is no complete defence in
7 international law to a charge of killing innocent
9 The disposition of the judgement of the Appeals
10 Chamber is therefore as follows: the Appeal Chamber
11 unanimously rejects the appellant's application that the
12 Appeal Chamber should acquit him. By four votes to one,
13 it rejects the appellant's application that the Appeal
14 Chamber should revise his sentence. By four votes to
15 one, it finds that the guilty plea entered by the
16 appellant before Trial Chamber I was not informed. By
17 three votes to two, it finds that duress does not afford
18 a complete defence to a soldier charged with a crime
19 against humanity and/or a war crime involving the
20 killing of innocent human beings and that consequently,
21 the guilty plea entered by the appellant before Trial
22 Chamber I was not equivocal. By four votes to one,
23 holds that the case must be remitted to a Trial Chamber
24 other than the one which sentenced the appellant, so
25 that the appellant may have the opportunity to replead,
1 in full knowledge of the nature of the charges and the
2 consequences of his plea.
3 Finally, the Appeal Chamber instructs the
4 registrar in consultation with the President of the
5 International Tribunal to take all necessary measures
6 for the expeditious initiation of proceedings before a
7 Trial Chamber other than Trial Chamber I.
8 So I have now read out the disposition of judgement
9 of our Appeal Chamber and I would like to turn to
10 Mr. Erdemovic.
11 May I ask you to stand up, Mr. Erdemovic?
12 Mr. Erdemovic, you have now heard in summary the judgement
13 of the Appeals Chamber. The judges have deliberated for
14 many months on this matter, because your situation
15 raises issues of the greatest importance for law and
16 morality. Let me assure you, however, that we have not
17 ignored your obvious distress at the situation in which
18 you find yourself. We have not lost sight of your
19 counsel's strong avowal on your behalf at the close of
20 the appellate hearings in May this year, when he said
21 that not only do you not wish to endure a trial, but
22 indeed that you feel psychologically unable to stand the
23 rigors which such a trial might entail.
24 Let me then make it very clear to you and to your
25 counsel that the further resolution of this matter now
1 lies in your hands. You have a choice before you. That
2 choice will be made from three options, three options
3 available to you when the matter is remitted to a Trial
4 Chamber, as we have decided it should be, a new Trial
5 Chamber, I should add, the composition of which has
6 already been decided and which stands ready to hear your
7 case with all due expedition.
8 Your three options are as follows: (1) you may
9 change your plea of guilty to crimes against humanity
10 for acts you confessed to committing at Srebrenica for
11 one of guilty to war crimes. In this case, the new
12 Trial Chamber will not conduct a trial, but will simply
13 proceed to sentence you and it might decide to take into
14 mitigation your claim to have acted only because of a
15 threat to your life.
16 (2) you may again enter a plea of guilty to crimes
17 against humanity. Again, the new Trial Chamber will
18 then simply proceed to sentence without conducting a
19 trial, and again it might take into account the duress
20 from which you claim to have acted as a mitigating
22 (3) you may enter a plea of not guilty before the
23 new Trial Chamber. In this case only will there be a
24 trial on the evidence to determine whether or not you
25 are guilty as charged. It may be however, and I cannot
1 speak for the Trial Chamber on this matter, that such a
2 trial could at least be based in part on the evidence
3 you presented before the other Trial Chamber which has
4 been recorded on audio and visual tape.
5 In any event, as a result of the decision of the
6 majority of this Appeals Chamber, the fact that you were
7 allegedly compelled by a threat to your life to act as a
8 member of the firing squad will not in itself constitute
9 a defence leading to your acquittal. However, as in all
10 trials before this International Tribunal, you will be
11 presumed innocent and only convicted and sentenced if
12 the Chamber is satisfied on the evidence presented of
13 your guilt beyond reasonable doubt.
14 Mr. Erdemovic, these are your choices. They may be
15 difficult, but they are at least clear. I do not ask
16 you to take any decision now, but to consult with your
17 counsel and weigh the matter deeply and carefully. It
18 will be for you to plead anew before the new Trial
19 Chamber. The majority of this Appeal Chamber has found
20 that on the first occasion, your plea of guilty was not
21 informed. Our only concern now is that you enter an
22 informed plea that is one made with an understanding by
23 you of the nature of the charges pending against you and
24 the consequences of your plea. We ask and expect of you
25 and your counsel that you consider all this very
1 carefully and that you enter an informed plea before the
2 new Trial Chamber when the matter is remitted to it for
3 its consideration.
4 That is all. If there are any comments,
5 statements? The hearing is adjourned. I wonder whether
6 Mr. Erdemovic intends to make any statement.
7 MR. ERDEMOVIC: Your Honours, I simply have to say that I do
8 not wish, not on my behalf but because of my family, to
9 have another trial. It is up to your decision whether
10 you are going to mitigate the sentence or not. If it is
11 going to be ten years I will serve ten years, so I do
12 not know what to say. I do not wish, because of my
13 family, my name to be mentioned again on TV, on radio
14 and all that. That is all.
15 PRESIDENT CASSESE: Thank you. I wonder whether -- thank
16 you, Mr. Erdemovic. As I said before, it is now for you
17 to consult with your counsel and decide how to proceed
18 when you will be brought before the new Trial Chamber
19 and what sort of plea you should enter, and I tried to
20 outline the three different options, I hope I was clear,
21 and depending on what option you take, the consequences
22 will follow very clearly. Thank you. The hearing is
24 (10.55 am)
25 (Hearing adjourned)