Tribunal Criminal Tribunal for the Former Yugoslavia

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1 Tuesday, 7th October 1997

2 (10.30 am)

3 PRESIDENT CASSESE: May I ask the Registrar to call the

4 case?

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.


11 MR. BABIC: Your Honours, my name is Jovan Babic, I appear on

12 behalf of the accused, Erdemovic.


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

20 judgement.

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

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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

19 Tribunal.

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

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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

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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

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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

20 beings.

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

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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

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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

8 persons.

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,

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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

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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

21 circumstance.

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

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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

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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

23 adjourned.

24 (10.55 am)

25 (Hearing adjourned)