1 Wednesday, 14th January 1998
2 (2.45 pm)
3 JUDGE MUMBA: Good afternoon, ladies and
4 gentlemen. I would like to check first of all if the
5 interpreters are all ready? Yes, they are.
6 THE INTERPRETER: Yes, thank you.
7 JUDGE MUMBA: Can they hear me? Can
8 everybody in the court hear me?
9 THE INTERPRETER: Yes, your Honours.
10 JUDGE MUMBA: Do my colleagues hear me, the
11 Prosecutor and the Defence? Does the accused hear me
12 in a language which he understands? Does he hear me
13 now in a language he understands?
14 MR. ERDEMOVIC: Yes, your Honour.
15 JUDGE MUMBA: Can I ask the Registrar to call
16 out the number and the name of the case?
17 THE REGISTRAR: Case number IT-96-22, the
18 Prosecutor versus Drazen Erdemovic.
19 JUDGE MUMBA: Thank you. We can now commence
20 with this hearing. Further to the decision of the
21 Appeals Chamber on 7th October 1997 and the order of
22 the President on 20th November 1997, the case of Drazen
23 Erdemovic has been remitted to this Trial Chamber.
24 Today we will be taking the reply of the accused to the
25 charges made by the Prosecutor against him in the
1 indictment dated 22nd May 1996. Could the accused
2 please rise and state for the Trial Chamber his name,
3 date and place of birth, and the name of his attorney?
4 MR. ERDEMOVIC: My name is Drazen Erdemovic,
5 I was born on 25th November in Tuzla, and my lawyers
6 are Mr. Babic and Mr. Kostic.
7 JUDGE MUMBA: Thank you. Could you confirm
8 to the court, Mr. Erdemovic, that you have had time to
9 confer with your lawyer on the various issues
10 concerning this case and that you are satisfied with
11 the legal advice that you have been receiving so far.
12 MR. ERDEMOVIC: Yes, I am satisfied with the
13 legal advice I have been receiving from my lawyers.
14 JUDGE MUMBA: Thank you. You may be seated.
15 Can we have appearances for the Prosecution,
17 MR. NIEMANN: If your Honours please, my name
18 is Niemann and I appear with my colleagues
19 Mr. McCloskey and Ms. Sutherland for the Prosecution.
20 JUDGE MUMBA: Thank you. Can I have
21 appearances for the Defence, please?
22 MR. BABIC: Your Honours, my name is Jovan
23 Babic, attorney, member of the bar of Vojvodina, which
24 is within the Serbian bar of attorneys, and an advisor
25 in the bar of Yugoslavia.
1 MR. KOSTIC: Good afternoon, your Honours, my
2 name is Nikola Kostic, I am an attorney from the
3 United States licensed to practise in that country.
4 JUDGE MUMBA: Thank you. For these
5 proceedings, the accused is charged with one count of a
6 crime against humanity and an alternative count of a
7 violation of laws and customs of war. Can I ask the
8 Registrar to read the indictment against Mr. Drazen
9 Erdemovic, please?
10 THE REGISTRAR: The Prosecutor of the
11 International Criminal Tribunal for the former
12 Yugoslavia, pursuant to his authority under Article 18
13 of the Statute of the Tribunal, charges Drazen
14 Erdemovic with a crime against humanity or
15 alternatively a violation of the laws and customs of
16 war, as set forth below:
17 1. On 16th April 1993, the Security Council
18 of the United Nations, acting pursuant to Chapter VII
19 of the United Nations Charter, adopted Resolution 819,
20 in which it demanded that all parties to the conflict
21 in the Republic of Bosnia and Herzegovina treat
22 Srebrenica and its surroundings as a safe area which
23 would be free from any armed attack or any other
24 hostile act. Resolution 819 was reaffirmed by
25 Resolution 824 on 6th May 1993 and by Resolution 836 on
1 4th June 1993.
2 2. On or about 6th July 1995, the Bosnian
3 Serb army commenced an attack on the UN 'safe area' of
4 Srebrenica. This attack continued through until
5 11th July 1995, when the first units of the Bosnian
6 Serb army entered Srebrenica.
7 3. Thousands of Bosnian Muslim civilians who
8 remained in Srebrenica during this attack fled to the
9 UN compound in Potocari and sought refuge in and around
10 the compound.
11 4. Between 11th and 13th July 1995, Bosnian
12 Serb military personnel summarily executed an unknown
13 number of Bosnian Muslims in Potocari and in
15 5. Between 12th and 13th July 1995, Bosnian
16 Muslim men, women and children who had sought refuge in
17 and around the UN compound in Potocari were placed on
18 buses and trucks under the control of Bosnian Serb
19 military personnel and police and transported out of
20 the Srebrenica enclave. Before boarding these buses
21 and trucks, Bosnian Muslim men were separated from
22 Bosnian Muslim women and children and were transported
23 to various collection centres around Srebrenica.
24 6. A second group of approximately 15,000
25 Bosnian Muslim men, with some women and children, fled
1 Srebrenica on 11th July 1995 through the woods in a
2 large column in the direction of Tuzla. A large number
3 of the Bosnian Muslim men who fled in this column were
4 captured by or surrendered to Bosnian Serb army or
5 police personnel.
6 7. Thousands of Bosnian Muslim men who had
7 been either separated from women and children in
8 Potocari or who had been captured by or surrendered to
9 Bosnian Serb military or police personnel were sent to
10 various collection sites outside of Srebrenica
11 including, but not limited to, a hangar in Bratunac, a
12 soccer field in Nova Kasaba, a warehouse in Kravica,
13 the primary school and gymnasium of 'Velko
14 Lukic-Kurjak' in Grbavci, Zvornik municipality and
15 diverse fields and meadows along the Bratunac-Milici
17 8. Between 13th July 1995 and approximately
18 22nd July 1995, thousands of Bosnian Muslim men were
19 summarily executed by members of the Bosnian Serb army
20 and Bosnian Serb police at diverse locations including,
21 but not limited to, a warehouse at Kravica, a meadow
22 and a dam near Lazete and diverse other locations.
23 9. On or about 16th July 1995, Drazen
24 Erdemovic and other members of the 10th sabotage
25 detachment of the Bosnian Serb army were ordered to a
1 collective farm near Pilica. This farm is located
2 north west of Zvornik in the Zvornik municipality.
3 10. On or about 16th July 1995, Drazen
4 Erdemovic and other members of his unit were informed
5 that busloads of Bosnian Muslim civilian men from
6 Srebrenica, who had surrendered to Bosnian Serb
7 military or police personnel, would be arriving
8 throughout the day at this collective farm.
9 11. On or about 16th July 1995, buses
10 containing Bosnian Muslim men arrived at the collective
11 farm in Pilica. Each bus was full of Bosnian Muslim
12 men; ranging from approximately 17-60 years of age.
13 After each bus arrived at the farm, the Bosnian Muslim
14 men were removed in groups of about ten, escorted by
15 members of the 10th sabotage detachment to a field
16 adjacent to farm buildings and lined up in a row with
17 their backs facing Drazen Erdemovic and members of his
19 12. On or about 16th July 1995, Drazen
20 Erdemovic did shoot and kill and did participate with
21 other members of his unit and soldiers from another
22 brigade in the shooting and killing of unarmed Bosnian
23 Muslim men at the Pilica collective farm. These
24 summary executions resulted in the deaths of hundreds
25 of Bosnian Muslim male civilians.
1 The accused.
2 13. Drazen Erdemovic was born on
3 25th November 1971 in the municipality of Tuzla. He
4 was a soldier in the 10th sabotage detachment of the
5 Bosnian Serb army. He is currently in custody in the
6 UN detention facility in The Hague.
7 General allegations.
8 14. At all relevant times to this
9 indictment, a state of armed conflict and partial
10 occupation existed in the Republic of
11 Bosnia-Herzegovina in the territory of the former
13 15. Drazen Erdemovic is individually
14 responsible for the crime alleged against him in this
15 indictment pursuant to Article 7(1) of the Statute of
16 the Tribunal. Individual criminal responsibility
17 including committing, planning, instigating, ordering
18 or otherwise aiding and abetting in the planning,
19 preparation or execution of any crimes referred to in
20 Articles 3 and 5 of the Statute of the Tribunal.
21 Charges. Counts 1-2 (crime against humanity)
22 (violation of the laws or customs of war).
23 16. By his acts in relation to the events
24 described in paragraph 12, Drazen Erdemovic committed:
25 Count 1: A crime against humanity punishable
1 under Article 5(a) (murder) of the Statute of the
4 Count 2: A violation of the laws or customs
5 of war punishable under Article 3 of the Statute of the
6 Tribunal and recognised by Article 3(1)(a) (murder) of
7 the Geneva Conventions.
8 Signed Richard J Goldstone, Prosecutor,
9 22nd May 1996, in The Hague, the Netherlands.
10 JUDGE MUMBA: Thank you very much. As there
11 are two alternative charges to which the accused has to
12 plead, my colleagues and I have decided that an
13 explanation of the differences of the charges is
15 Briefly, a war crime is a violation of the
16 laws and customs of war. A crime against humanity can
17 also be constituted by similar conduct as a war crime.
18 But it is an attack of a widespread or systematic
19 nature on the civilian population. The Appeals Chamber
20 in dealing with the appeal by the accused determined
21 that a crime against humanity is more serious than a
22 war crime and therefore carries a heavier penalty.
23 Will you please rise, Mr. Erdemovic? In the
24 charges against you, there are alternative charges, and
25 you have options as follows. You may plead not guilty
1 to both charges; or as these charges are in the
2 alternative, you may plead guilty to either one or the
3 other, and not guilty to the other charge. Do you
4 understand the content of the indictment and the
5 charges against you?
6 MR. ERDEMOVIC: Yes, I do.
7 JUDGE MUMBA: Have you discussed these
8 charges with your lawyer?
9 MR. ERDEMOVIC: Yes.
10 JUDGE MUMBA: Has he explained them to you?
11 MR. ERDEMOVIC: Yes, he did.
12 JUDGE MUMBA: Is there anything about which
13 you are not clear concerning these charges against
15 MR. ERDEMOVIC: There is nothing that is not
16 clear to me.
17 JUDGE MUMBA: Thank you very much. I would
18 still emphasise that it is very important for you to
19 understand the legal position and the choices available
20 to you and the consequences of whatever decision you
21 may take in making your pleas, but before proceeding
22 further, can you please sit down, Mr. Erdemovic? Can
23 you just sit down?
24 Before proceeding further, I would like to
25 discuss the question of motions. The Trial Chamber has
1 seen the motion raised by Defence counsel in his letter
2 of 3rd December and is aware of other developments.
3 Mr. Babic, can you confirm your position? Are
4 you maintaining your motion as raised in your letter
5 and would you like us to consider it now or later?
6 MR. BABIC: Your Honours, I suggest that both
7 my motions, the one of 3rd December and the one that
8 I submitted yesterday, regarding the goals and elements
9 of the sentence and the annex of the motions -- to the
10 motion which I also submitted yesterday, that they
11 should both be discussed today and if I can speak to --
12 if I can argue those, I would do that, provided you do
13 not have other preliminary questions; in other words,
14 my suggestion is that we discuss the motions now.
15 JUDGE MUMBA: What you mean is that we
16 discuss these motions before the plea is taken?
17 MR. BABIC: Yes, it is. I would also like to
18 make a statement. During the drafting of the motions
19 and my preparation for the complete defence of my
20 client, that is the accused Erdemovic, and my efforts
21 to contribute to the Trial Chamber's gaining the full
22 picture of the full scope of the guilt and
23 responsibility of Erdemovic, I studied the issue of
24 reformatio in peius, and I also submitted yesterday as
25 part of the annex to the motion a study of the Supreme
1 Court of Yugoslavia, as well as other High Courts in
2 the Republics of the former Yugoslavia, which support
3 the thesis that I have set out, and I have also filed a
4 motion on aims and elements for the determination of
6 Based on my work on these two motions and the
7 annex, together with my learned colleague Kostic,
8 I co-operated with the Prosecution, especially as
9 relating to the Article 11 of the US federal law, and
10 I have determined that it would be reasonable and that
11 it would be very important that I withdraw both my
12 motions today, and have it replaced by the agreement
13 which we have drafted together with the Prosecution,
14 and this is my initial statement. Thank you.
15 JUDGE MUMBA: Thank you very much: the Trial
16 Chamber confirms that you have withdrawn both motions
17 and you are relying on the joint motion with the
19 MR. BABIC: That is correct.
20 JUDGE MUMBA: Prosecution, any comments?
21 MR. NIEMANN: No, your Honour. We note what
22 has been said by counsel and we affirm there is an
23 agreement which has been entered into between the
24 parties which we have filed for your Honours'
1 MR. BABIC: Your Honours, I would just like to
2 add one thing. I would like to explain why this was
3 done by the Defence. It was done because the Defence
4 was not clear which procedure and which system we were
5 going to follow before this Trial Chamber, and when we
6 concluded that so far the common law practice was the
7 guiding system, this is when we decided on this which
8 we have just presented.
9 JUDGE MUMBA: Thank you very much. The Trial
10 Chamber does take note of the plea agreement as
11 confirmed by both parties, and as the parties
12 themselves acknowledge, we are not bound by the terms
13 of this agreement, but we will, of course, take it into
14 very careful consideration, the issues raised by both
15 parties. We do however wish to have confirmation from
16 the accused as to whether he understood the agreement,
17 that he entered into it voluntarily.
18 Mr. Erdemovic, will you please stand? I am
19 sure you have understood what your counsel has just
20 stated to the Trial Chamber, that he has withdrawn his
21 two motions and that he confirms the agreement entered
22 into with the Prosecution just now. I would like to
23 ask you whether you are aware of this agreement
25 MR. ERDEMOVIC: Your Honours, I am aware of
1 the agreement and I have signed it and I am aware of
2 everything that is written down in it.
3 JUDGE MUMBA: Thank you very much. I am
4 going to put to you the charges against you. As I have
5 already explained, there is count 1 and then in the
6 alternative count 2. Count 1, a crime against
7 humanity, punishable under Article 5(A), murder, of the
8 Statute of the Tribunal. How do you plead? In
9 pleading I wish to have the words, "I plead not
10 guilty", or "I plead guilty". So to count 1, crime
11 against humanity, how do you plead?
12 MR. ERDEMOVIC: On count 1, I plead not
14 JUDGE MUMBA: Thank you. The alternative
15 count, which is count 2, a violation of the laws or
16 customs of war, punishable under Article 3 of the
17 Statute of the Tribunal and recognised by Article
18 3(1)(a), murder, of the Geneva Conventions, how do you
20 MR. ERDEMOVIC: I plead guilty.
21 JUDGE MUMBA: Thank you very much,
22 Mr. Erdemovic. Before the plea of guilty is recorded,
23 I would like to find out from you whether you had
24 sufficient time to discuss your plea with your counsel,
25 with your lawyer.
1 MR. ERDEMOVIC: Yes, your Honours.
2 JUDGE MUMBA: Do you agree that the manner in
3 which you have pleaded to the alternative count which
4 is count 2 is in accordance with the instructions of
5 your lawyer?
6 MR. ERDEMOVIC: Yes, your Honour.
7 JUDGE MUMBA: I would also like to be sure
8 whether any pressure was put on you, either by the
9 Prosecution or indeed your own counsel to plead guilty
10 to count 2.
11 MR. ERDEMOVIC: No, your Honour.
12 JUDGE MUMBA: Any other outside sources, any
13 pressure from anybody else besides the Prosecution and
14 the Defence counsel?
15 MR. ERDEMOVIC: No, your Honour.
16 JUDGE MUMBA: Do you realise the consequences
17 of pleading guilty under our Statute? We take into
18 account the sentencing practices of the courts of the
19 former Yugoslavia and our own Statute. In that regard,
20 we can impose a sentence of life imprisonment on you.
21 Are you aware of this?
22 MR. ERDEMOVIC: Yes, your Honour.
23 JUDGE MUMBA: Thank you very much. You may
24 sit down, Mr. Erdemovic.
25 I would now like to hear the Prosecutor's
1 reaction to the plea of guilty to count 2, and also
2 hear submissions on the requirements imposed by Rule 62
3 bis (C). Is there a sufficient factual basis for the
4 crime and the accused's participation in it and if so,
5 what are the facts, Mr. Prosecutor?
6 MR. NIEMANN: Your Honours, as was contained
7 in the agreement that we submitted for your Honours'
8 consideration, the Prosecution accepts that a plea of
9 guilty to the charge of a war crime is in accordance
10 with the agreement that was entered into between the
11 parties. Your Honours, the Prosecution submits that
12 there is ample evidence in support of the plea and in
13 support of the charges, and in that regard, we have
14 filed with your Honours some material which was
15 previously tendered in this matter, which facts do not
16 in any way differ from what we would put forward at
17 this stage, so if your Honours please, there is a
18 motion that we filed on 8th January 1998, and contained
19 within that there is the transcript of the sentencing
20 hearing that took place before Trial Chamber I on
21 19th to 20th November 1996, and we submit that for
22 your Honours' consideration as facts that may be taken
23 into account in a consideration of this plea.
24 In addition to that, your Honours, there is
25 transcript of the guilty plea itself before the Chamber
1 on 31st May 1996, which we have also filed before the
2 Chamber and we respectfully submit that for
3 your Honours' consideration, having regard to the facts
4 of this matter.
5 There is also submitted for your Honours'
6 consideration two psychological evaluations, one of
7 24th June 1996 and one of 14th October 1996, and we
8 respectfully submit that all of this material, taken
9 into consideration, form an adequate basis for the
10 allegations in the Prosecutor's indictment and form the
11 facts on the plea that we would submit to you for
12 consideration in this matter.
13 JUDGE MUMBA: Thank you very much,
14 Mr. Niemann, but because this is a replea, these are
15 fresh proceedings, the Trial Chamber would still
16 appreciate a brief statement of the facts which support
17 the indictment to which the accused has pleaded guilty.
18 MR. NIEMANN: There are the facts that are set
19 out in the indictment, in particular paragraphs 2
20 through to 12 of the indictment, which we rely upon.
21 Would your Honour excuse me a moment? (Pause).
22 There is also the facts contained or referred
23 to in paragraph 11 of the agreement that was entered
24 into by the parties.
25 To briefly go over the factual basis of this
1 matter, your Honours, I take your Honours to the
2 initial decision of the Chamber which heard this
3 matter, and where it decided upon certain of the facts
4 of the case. It was found there, your Honour, and
5 these facts we rely upon and there is no dispute by the
6 Prosecution and I understand by the Defence as to them,
7 that on 16th July 1995, when the accused, as a member
8 of the 10th sabotage detachment of the army of
9 Republika Srpska, participated in the shooting of
10 approximately 1200 unarmed Muslim civilians at the
11 Branjevo farm near the village of Pilica.
12 The Pilica farm is near a building in
13 Zvornik. These are the facts which, in addition to
14 those that we have referred to, we rely upon in this
15 plea. As I have said earlier, it has been agreed
16 between the parties that those will represent the facts
17 for the purposes of this agreement, so unless there is
18 any other matters that I can assist your Honours with,
19 I do not think that I can take you to anything other
20 than -- other than read material out to you which has
21 already been submitted, but I am happy to do that if
22 your Honours would like me to read out the material.
23 JUDGE MUMBA: Thank you very much. I think
24 that is sufficient. The references to the materials
25 and the paragraphs in question are sufficient.
1 The Defence, do you agree to what the
2 Prosecution has stated before the court, the facts in
3 this case?
4 MR. KOSTIC: Your Honours, we are prepared and
5 do stipulate and agree to the facts that were outlined
6 by Mr. Niemann. We also know the contents of the
7 documents that he referred to, as does our client, so
8 we would agree to all of those submissions, including
9 Mr. Niemann's oral presentation.
10 JUDGE MUMBA: Thank you very much. Yes,
11 Mr. Babic?
12 MR. BABIC: The first Trial Chamber, when
13 passing its judgement, in the text of its decision,
14 there was a vague reference which actually brought
15 about suspicion that the 10th sabotage unit of the
16 Bosnian Serb army was also involved in the execution of
17 500 Muslims in the social hall in Pilica. This part of
18 the judgement was brought into question by the Defence
19 during the appeal, because the 10th sabotage detachment
20 did not take part in these killings. We would just
21 like to hear from the Prosecutor whether they still
22 insist that Drazen Erdemovic had anything to do with
23 this act of the 10th sabotage detachment, which was not
24 involved in the massacre in Pilica.
25 JUDGE MUMBA: Thank you. Prosecution,
2 MR. McCLOSKEY: Yes, your Honours. My name is
3 Peter McCloskey. Mr. Babic is correct, there was some
4 confusion in the record regarding the two incidents of
5 massacres that occurred on this day. The one that
6 Mr. Erdemovic was involved in occurred at Pilica farm
7 during the entire day, and then after that was through,
8 a detachment of people from another brigade went into
9 the town of Pilica and participated in the murdering of
10 500 individuals. It is our understanding and belief
11 that the facts do not show that Mr. Erdemovic was
12 involved in that in any way. I believe the confusion
13 was not in the factual record from the testimony but
14 perhaps how it was interpreted. There was some
15 confusion, he is correct, but to make it clear today,
16 those are the facts, Mr. Erdemovic was not involved in
17 that second massacre.
18 JUDGE MUMBA: Thank you very much.
19 Mr. Erdemovic, please stand. You have heard
20 what the Prosecution has said as to what the facts are
21 to the charges on the plea -- on the charge to which
22 you have pleaded guilty. You have also heard what your
23 counsel Mr. Babic has said and the correction he has put
24 in as regards the facts found by the previous Trial
25 Chamber. I would like you to answer the Trial Chamber,
1 whether you agree with the facts as stated by the
2 Prosecution and agreed to by your counsel, subject to
3 the correction, on the count in which you have pleaded
4 guilty, do you agree to the facts?
5 MR. ERDEMOVIC: Your Honours, I completely
6 agree with the Prosecution and with my counsel.
7 JUDGE MUMBA: Thank you very much. You may
8 be seated. (Pause). Very well then. There are no
9 questions from my colleagues. The Trial Chamber has
10 determined that the plea of Drazen Erdemovic is valid.
11 Drazen Erdemovic, this Trial Chamber now
12 formally accepts your plea of guilty and directs the
13 Registrar to record that fact. The Trial Chamber
14 convicts you on count 2 of the indictment, a violation
15 of the laws or customs of war, punishable under
16 Article 3 of the Statute of the Tribunal and recognised
17 by Article 3(1)(a), murder, of the Geneva Conventions.
18 Can the Prosecutor please confirm that he is
19 withdrawing the other charge?
20 MR. NIEMANN: Yes, your Honour, we confirm we
21 withdraw the crime against humanity count.
22 JUDGE MUMBA: Thank you very much. The
23 Registrar, please enter the conviction and note the
24 withdrawal of count 1. At this stage, it is necessary
25 to make arrangements for pre-sentencing hearing to
1 enable the parties to submit any relevant information
2 that may assist the Trial Chamber in determining an
3 appropriate sentence.
4 I understand from the Registrar that the
5 courtroom is available, should we wish to hear any
6 submissions of the parties later this afternoon or even
7 tomorrow. Are the parties in a position to proceed to
8 make their submissions on sentencing this afternoon,
9 after a short recess?
10 MR. NIEMANN: The Prosecution is ready,
11 your Honours.
12 JUDGE MUMBA: Thank you. Mr. Babic?
13 MR. BABIC: As far as the Defence is
14 concerned, the Defence is also ready to proceed.
15 JUDGE MUMBA: Thank you very much. The court
16 will adjourn for a short period, 30 minutes, before we
17 go into sentencing hearings. Thank you. The court
18 will rise.
19 (3.20 pm)
20 (A short break)
21 (3.50 pm)
22 JUDGE MUMBA: The proceedings have resumed.
23 I would like to check if the interpreters are ready.
24 THE INTERPRETER: We are, thank you.
25 JUDGE MUMBA: Do my colleagues hear me? The
1 Prosecutor and the Defence? Thank you. Does the
2 accused hear me in a language he understands?
3 MR. ERDEMOVIC: Yes, your Honour.
4 JUDGE MUMBA: Can I ask the Registrar to call
5 out the number and the name of this case again,
7 THE REGISTRAR: Case IT-96-22-T bis, the
8 Prosecutor versus Drazen Erdemovic.
9 JUDGE MUMBA: Thank you very much. We are
10 now commencing the pre-sentencing hearing. We have
11 already recorded a plea of guilty as stated by the
12 accused. In accordance with the decision of the
13 Appeals Chamber and the Rules of Procedure and
14 Evidence, the conviction has been recorded. We are now
15 proceeding to Rule 100 of our Rules of Procedure and
16 Evidence to enable the parties to submit any relevant
17 information which may assist the Trial Chamber in
18 determining the appropriate sentence to be imposed on
19 Mr. Erdemovic. I would like to call upon the parties to indicate
20 which way they would like to go, whether they intend to
21 lead evidence for this proceeding, or whether they have
22 any documents which they would like to rely upon. May
23 I ask the Prosecution first?
24 MR. NIEMANN: Yes, your Honours. We have a
25 transcript of the evidence that Mr. Erdemovic gave at
1 the hearing pursuant to Rule 61 of the Rules of
2 Procedure and Evidence, which we would seek to tender
3 or make available to the Chamber in relation to what we
4 have to say about mitigation. We will suggest that the
5 extensive nature of the evidence he gave is a
6 mitigating factor, so I hand that to the Chamber.
7 JUDGE MUMBA: I would like to hear from the
8 Defence counsel, please. You have heard what the
9 Prosecution have said and the document they have put
10 in. Do you agree, or do you have anything else to
12 MR. KOSTIC: Your Honour, the only thing
13 I would like to add is we anticipated that this
14 document would become a part of the record and we will
15 stipulate and agree to it and its admission for your
17 JUDGE MUMBA: Thank you very much.
18 MR. NIEMANN: In addition your Honours, also
19 dealing with the issue of mitigation, we have available
20 today to call Mr. Jean-Rene Ruez, who is an investigator
21 for the Office of the Prosecutor, and he could attest
22 to the significant co-operation that has been provided
23 to the Office of the Prosecutor by Mr. Erdemovic, and
24 that may be a matter that would assist your Honours in
25 addressing the sentence in this matter. Should
1 your Honours feel that that would assist, we have him
2 here available and we can call him. My colleague
3 Mr. McCloskey would ask him some questions.
4 In addition to that, I can address
5 your Honours shortly on the matter of sentencing, if
6 that would be of assistance to you.
7 JUDGE MUMBA: Thank you.
8 MR. NIEMANN: I would propose doing that
9 before calling -- before we call the witness, if that
10 is an acceptable course to your Honours.
11 JUDGE MUMBA: Thank you very much,
12 Mr. Niemann. You can go ahead with your proposal. You
13 can address the Trial Chamber and then call the
15 MR. NIEMANN: Your Honours, I wish to address
16 you only shortly on these matters but to assist you to
17 refer to Article 24(2) and Article 7(4) of the Statute
18 of the Tribunal, and Rule 101 of the Tribunal's Rules
19 of Procedure and Evidence, all of which in our
20 submission go to the question of imposing a sentence.
21 If your Honours please, the relevant factors
22 mentioned in those provisions deal with such issues as
23 the gravity of the offence, the individual
24 circumstances of the convicted person, whether the
25 accused was following superior orders, any aggravating
1 circumstances, any mitigating circumstances, and
2 substantial co-operation with the Prosecutor by the
3 convicted person.
4 Your Honours, I do not think it is necessary
5 for me to deal with aggravating circumstances, I think
6 the facts speak for themselves, and I do not think it
7 is necessary for me to go further than just to direct
8 your Honours to those facts for that purpose.
9 Likewise, with respect to the gravity of this
10 offence, it should not be necessary for me to labour
11 that, your Honours, as it is so obvious from the facts
12 of the matter.
13 However, because it is such a serious crime,
14 and because the circumstances are so aggravating and so
15 serious, it is I think necessary for us to, as the
16 Prosecutor, to place some emphasis on the question of
17 mitigation, because that is a factor which needs to be
18 balanced against the heavy aggravating circumstances
19 that your Honours need to consider.
20 Your Honours, Mr. Erdemovic has been of
21 considerable assistance to the Office of the
22 Prosecutor. Firstly, in respect of surrendering
23 himself to the Tribunal in The Hague. It is true that
24 he was transferred to the Tribunal upon request, but it
25 should be noted that he was already in the process of
1 coming to The Hague before he was arrested by officials
2 in the Federal Republic of Yugoslavia, which ultimately
3 resulted in him being transferred here. I think what
4 is significant is that he had already made the initial
5 steps to surrender and come to The Hague, and in
6 respect of that, your Honours, we would submit that
7 that is a significant matter, having regard to the
8 historical difficulties that have confronted this
9 Tribunal in having persons arrested and brought before
10 the Chamber.
11 Your Honours, shortly after Mr. Erdemovic came
12 to the Hague, he voluntarily confessed to his crimes to
13 an investigator from the Office of the Prosecutor.
14 During the course of speaking to members of the Office
15 of the Prosecutor, he expressed his genuine remorse for
16 his actions which occurred on July 16th 1995. This
17 combination of factors, his efforts to surrender
18 himself, his confession of guilt, and his expression of
19 remorse, which has been accepted as genuine,
20 your Honours, are in our submission mitigating factors.
21 Your Honours, in addition to those mitigating
22 factors, your Honours may wish also to consider that he
23 acted pursuant to superior orders when he carried out
24 this crime, a crime in that the order he was given was
25 criminal in its nature, but he was complying with
1 superior orders. That is a factor your Honours may
2 consider is appropriate mitigation when determining any
4 Your Honours, the issue of substantial
5 co-operation with the Office of the Prosecutor is a
6 matter which in our submission does justify
7 considerable mitigation. We say that because the
8 position of the Office of the Prosecutor cannot be
9 directly equated to that which occurs in national
10 jurisdictions, in the sense that in national
11 jurisdictions the prosecutor officials have access to
12 police forces who are mobile on the ground and can
13 obtain evidence and information much more readily and
14 easily than occurs with the Office of the Prosecutor
15 here in the Tribunal, which to a large extent is
16 dependent upon the co-operation of states and other
17 international and non-international bodies, before that
18 information can be collected and gathered.
19 Because of those constraints upon the
20 Prosecutor in bringing before the Chamber the evidence
21 of these cases, it is significant when an accused
22 person provides assistance and co-operation, because
23 without that assistance and co-operation, it is often
24 the case that the Office of the Prosecutor would not
25 otherwise be able to present these matters before the
2 Indeed, your Honours, in relation to this
3 particular -- the events in this particular case, the
4 Office of the Prosecutor had no information directly in
5 relation to these, in particular the details about the
6 Branjevo farm in Pilica where these 1200 souls were
7 murdered. That information was not available to the
8 Office of the Prosecutor in any great detail prior to
9 the assistance that was given by Mr. Erdemovic. The
10 location of the site was significantly -- of
11 significant importance to the Office of the Prosecutor
12 and permitted an exhumation to be carried out at that
13 site where the victims were uncovered. Not all of the
14 victims were uncovered, but it would seem that a large
15 number of them may have been removed.
16 There is also the events that occurred in the
17 cultural hall in Pilica. The accused himself was not
18 involved in this incident at all, he was merely a
19 witness to the events, but it was again a tragic
20 circumstance where some 500 people, 500 civilians were
21 murdered, and Mr. Erdemovic witnessed this and he gave
22 evidence of this event to the Office of the
23 Prosecutor. Again, this is an incident that the Office
24 of the Prosecutor was not aware of prior to the
25 assistance that was given by Mr. Erdemovic.
1 In addition to that, your Honours, he has
2 given us names and identities of other perpetrators to
3 a number of crimes, the details of which I cannot go
4 into for obvious reasons, but your Honours, that has
5 led to active investigation by the Office of the
6 Prosecutor which continues to this moment.
7 I tendered, your Honours, the information,
8 I should say the transcript of the evidence that
9 Mr. Erdemovic gave in the course of the Rule 61 hearing
10 into the indictments of Radovan Karadzic and Ratko
11 Mladic. Mr. Erdemovic very courageously gave evidence
12 in relation to these very significant persons who have
13 been indicted by the Tribunal and he gave that evidence
14 freely and voluntarily and at some personal risk in so
15 doing, and in our submission, your Honours, that is
16 another factor that we would suggest to you may
17 appropriately be considered in mitigation of any
18 sentence that may be imposed upon him.
19 Your Honours, Rule 101(B)(iii) states that
20 the Trial Chamber should take into account the general
21 practice regarding prison sentences in the courts of
22 the former Yugoslavia. We previously provided an
23 analysis of this and addressed it previously, if
24 your Honours please, and indeed probably, having regard
25 to the agreement that has been reached between the
1 parties in relation to the view that the Office of the
2 Prosecutor takes on sentencing, which I emphasise is
3 merely a matter for your Honours to consider or reject
4 as you please, but it probably has little significance,
5 but it is worth noting that in the former Yugoslavia,
6 this type of crime would be punishable by a term of
7 imprisonment between 5 and 20 years, so 5 being the
8 minimum and 20 years being the maximum.
9 Your Honours, the only matter that I would
10 finally wish to address to you is the fact that having
11 regard to the fact that Mr. Erdemovic now faces sentence
12 in relation to a war crime, as opposed to the more
13 serious crime of a crime against humanity, which is a
14 more serious crime, the Office of the Prosecutor wishes
15 to indicate for your Honours' consideration that so far
16 as our view was concerned, an appropriate sentence
17 would be seven years' imprisonment. As I say,
18 I emphasise, that is a matter for your Honours to
20 Unless I can be of any further assistance,
21 I would seek the assistance of my friend, Mr. McCloskey,
22 to call the witness, Mr. Ruez, who has spoken to
23 Mr. Erdemovic on numerous occasions and who has been
24 provided with considerable assistance as an
25 investigator of the Tribunal. If your Honours please?
1 JUDGE MUMBA: Thank you very much. We shall
2 proceed to hear the witness as stated by Mr. Niemann.
3 Mr. McCloskey, please.
4 MR. McCLOSKEY: Thank you, your Honours.
5 I would refer you to the lengthy testimony of
6 investigator Jean-Rene Ruez at the sentencing hearing
7 when he covered the length and breadth of this case,
8 but for the purposes of this proceeding, we wish to
9 concentrate on Mr. Ruez's testimony on the three most
10 significant mitigating factors to give you some
11 understanding what the factual basis is for those three
12 factors that were just gone over by Mr. Niemann. Those
13 are, just for your knowledge, they are in the plea
14 agreement between the parties in paragraph 13, 14 and
15 16(c), and I will just briefly refer to those.
16 There is the voluntary appearance by Mr. Erdemovic,
17 before we even knew Mr. Erdemovic existed or Branjevo
18 farm existed; then the value of his co-operation to the
19 Prosecution and lastly that the Prosecution feels
20 that he was acting under superior orders and under
21 duress and that should be taken into account in
22 mitigation. Mr. Ruez can give you some of the
23 background facts and is open, of course, for your
24 questions on that and anything else you wish to talk to
25 him about. Without further ado, I would call Jean-Rene
2 JUDGE MUMBA: Thank you very much. The
3 Registrar will administer the oath.
4 (Witness entered court)
5 JUDGE MUMBA: You may take the oath.
6 JEAN-RENE RUEZ (sworn)
7 JUDGE MUMBA: Thank you. Counsel?
8 Examined by MR. McCLOSKEY
9 Q. Could you please state your name and spell
11 A. My name is Jean-Rene Ruez.
12 Q. You may sit down. Could you tell the court
13 your position?
14 A. I am a French judicial police superintendent
15 working at the Office of the Prosecutor since April
16 1995 as an investigation team leader now for the
17 Srebrenica investigation, which started in July 1995.
18 Q. Have you been the team leader for that
19 investigation since the inception of that
21 A. This is correct.
22 Q. The court has just been prepared to hear your
23 responses on three basic issues that go to mitigation
24 regarding the conduct of Mr. Erdemovic. You also will
25 be questioned perhaps on any other issues regarding the
1 case, but the first issue that I want to ask you about,
2 and we will just go directly to it, is: did the
3 Prosecution know anything about Mr. Erdemovic prior to
4 Mr. Erdemovic's surfacing in the former Yugoslavia?
5 A. No, before his first contact with a French
6 journalist, we did not know about him and most
7 certainly if he had not come to The Hague, we would
8 never have heard about him.
9 Q. Can you explain to the judges the
10 circumstances, how he happened to come forward and what
11 you have learned about that?
12 A. What we know about it is mostly coming from
13 Mr. Erdemovic himself, but also from the people he was
14 in contact with when he made several attempts to get in
15 touch with the Tribunal at that time. When he was in
16 Belgrade, he used a colleague of his as an intermediary
17 with several people in an effort to gain access to the
18 Tribunal and come and explain the situation in which he
19 has been put during the events at Branjevo farm.
20 Q. Was he finally able to get an audience with
21 some press people through this intermediary?
22 A. He did. Unfortunately for him, these events
23 led to his arrest by the authorities of the Federal
24 Republic of Yugoslavia and so he has been arrested and
25 later on, we have requested him to be transferred to
1 the Tribunal.
2 Q. Can you explain to the court how his contact
3 with the press resulted in his arrest?
4 A. He had to make several attempts. At that
5 time there was no office of ICTY in Belgrade, therefore
6 he had to contact several of our organisations and
7 press people. The multiplication of his attempts have
8 raised attention on him and this is why at one point he
9 got arrested before we could gain direct access to him
10 in that place.
11 Q. To your knowledge, was he interviewed by the
13 A. He was interviewed by the press, he gave a
14 full story about the situation he wanted to report to
15 the Tribunal. He slipped some things we went on to
16 correct, he did that on purpose at that time because he
17 wanted to be sure everyone would respect that part of
18 the deal and once he had told the story to these
19 people, their part of the contract would also be
20 fulfilled and they would arrange transportation for him
21 to go to The Hague and explain that directly to us.
22 Later on we sorted out all these little differences
23 between the statements he gave to the press and to us
24 and on all these points he gave very clear and direct
1 Q. Shortly after his contact with the press,
2 were ICTY able to interview the press person that had
3 interviewed him?
4 A. Yes, we took a statement from one of these
5 press persons and we have it in the records.
6 Q. Was the information provided by the press
7 person consistent with what Mr. Erdemovic has been
8 saying all along in his other statements?
9 A. Yes, it is, the story is nearly equivalent to
10 the one that he told us, there is no major difference,
11 and he was also requested several times if he was aware
12 of the fact that he might be held responsible for the
13 actions he was communicating with us, and he told to
14 these people that he knew that he may be held
15 responsible, but he was accepting this responsibility
16 and insisted on his will to come to The Hague and
17 testify about it.
18 Q. Shortly after his arrest in the former
19 Yugoslavia and the Prosecution became aware of his
20 existence, did the Prosecution and Mr. Erdemovic --
21 excuse me. Did Mr. Erdemovic then agree to come to
22 The Hague from the former Yugoslavia?
23 A. Yes, he did and as soon as he arrived here,
24 he reproduced the story he had to tell and then we
25 entered in a lot of details and he was never reluctant
1 to enter into these details.
2 Q. He was represented by Mr. Babic during that
4 A. Absolutely, during the first main statement,
5 if we can call it so, Mr. Babic was present, but we had
6 also several contacts without the presence of his
7 counsel, but with the agreement of Mr. Babic, who gave
8 us a waiver so that we could communicate with Drazen
9 Erdemovic for the needs of the investigation at any
10 moment and this is what we did on several occasions.
11 MR. McCLOSKEY: Unless the court has any
12 particular questions about that first of three elements
13 of mitigation, I would go on to the next one.
14 JUDGE SHAHABUDDEEN: I should find it more
15 agreeable, counsel, if you would conclude your
16 examination and then leave it to the judges to consider
17 whether they wish to put any questions. I would not
18 personally wish to segment the matter.
19 MR. McCLOSKEY: Thank you, your Honour.
20 Mr. Ruez, can you briefly describe to the
21 court what kind of co-operation Mr. Erdemovic has
22 provided the investigation and how valuable that has
23 been to the investigation?
24 A. The collaboration of Drazen Erdemovic has
25 been absolutely excellent. He has repeated the things
1 that he told previously to others before his arrival at
2 the Tribunal, he has always entered in all the details
3 we wanted him to enter. At the beginning it was
4 extremely painful for him, because now he is in a much
5 better physical and mental condition than he was at his
6 arrival. At the beginning entering again all these
7 details was extremely painful for him, but he did it
8 and even went sometimes above the collaboration that we
9 were expecting from him.
10 As an example, when he was watching the
11 television in his cell and he pinpointed some events or
12 individuals he knew and knew about the crimes that they
13 had committed in the context of the Srebrenica
14 operation, he let us know about it and we could
15 interview him on the subject and deepen the subject and
16 he was always very willing to collaborate with us on
17 these points.
18 Q. He also testified at the Rule 61 hearing?
19 A. Sure, he testified also during the Rule 61
21 Q. Was that testimony consistent with what you
22 had learned from him in previous statements?
23 A. Absolutely. In addition also to this, to
24 make clear the points on which he has assisted this
25 investigation and some points which we would probably
1 have not known about it without his assistance is of a
2 massacre which was committed at the Pilica house of
3 culture. It is a situation about which we had no other
4 sources except his testimony, and this enabled us to
5 find the location and to conduct a crime scene analysis
6 of the location, and it was a totally new event for
7 those who are conducting this investigation.
8 Q. Has Mr. Erdemovic also promised to continue
9 his co-operation in the future, including testifying
10 and providing any other information he knows?
11 A. Yes, he did. His obvious motivation is not
12 to please the Office of the Prosecutor to get some
13 weakening of his possible punishment, he was very clear
14 on that point since the beginning. He wants the truth
15 to be known about these events and he wants the people
16 who are responsible for these events to face justice
17 one day, and there is no doubt that if that day
18 happens, he will confirm the information that he has
19 given to us until now.
20 Q. Based on his conduct thus far and his
21 co-operation, do you have any reason to believe he will
22 fail to live up to that proposition?
23 A. I do not believe so.
24 Q. All right. On the third point, can you give
25 the judges some of the background into the actual
1 incident that leads you to believe that there was
2 duress present when he committed these crimes and that
3 this duress should be used as mitigation?
4 A. I have a personal belief that indeed he was
5 under duress at that time, but the reason for that
6 would need to re-explain a certain number of facts,
7 which have probably for some of them not been raised in
8 front of a court until now. He knew about the
9 behaviour of some of the members of the unit he was
10 part of, the unit was split into two locations, one was
11 in Bijeljina and one was in Vlasenica.
12 The rumour he was aware of was that members
13 of the unit in Vlasenica had committed numerous crimes
14 since the beginning of the war. It was public
15 knowledge inside the unit. He also witnessed occasions
16 where under the order of a commander, people were
17 killed only because the order was given. He was
18 himself in a very difficult situation at that time
19 because of his ethnic background he was not fully
20 trusted by his comrades.
21 Also he already had some strong arguments
22 with his commanders, because he did not fulfil the
23 assignments he was given. The reason why he did not
24 fulfil them was that for especially one of them, there
25 was a big risk of civilian casualties and he did not
1 fulfil the assignment, which led that he was stripped
2 from his rank, so he was already at that moment in a
3 very weak position in front of his superiors and also
4 in front of his comrades.
5 Q. Let me interrupt you for one second. Could
6 you describe just factually, briefly, how he found
7 himself when he first came to the Zvornik area and with
8 his squad and where they went and just the factual
9 circumstances of this situation?
10 A. The factual circumstances of the situation,
11 we know them also only through his testimony, was that
12 on the morning of 16th July, he was designated to go
13 with a few men to Zvornik, he did not know about the
14 assignment at that moment. The fact is that the team
15 leader of the group was a member of Vlasenica platoon
16 which is not normally his own chain of command. The
17 reason is that the man who was designated team leader
18 had a close relationship with the commander of the unit
19 and was part of these people who committed allegedly
20 and according to the rumour bad actions since a couple
21 of years.
22 When he arrived in Zvornik, a lieutenant
23 colonel came out of a building which is currently the
24 Zvornik brigade headquarters. He was accompanied by
25 two military policemen and led the team of the
1 10th diversion unit to the Branjevo farm where the
2 civilians arrived and the assignment was given to
3 execute all of them.
4 Q. Have you been to that farm?
5 A. Yes.
6 Q. Was it as described by Drazen Erdemovic?
7 A. Yes, the location is as described by Drazen
8 Erdemovic. Even before his arrival in The Hague, the
9 first information which he gave to the press enabled us
10 to collect additional intelligence and pinpoint the
11 location of this farm and also gain access to some
12 photographic evidence which was presented during the
13 public hearing of July 1996, which confirmed already at
14 that time the version of the facts as it was explained
15 by Drazen Erdemovic.
16 Q. I interrupted you as you were explaining
17 other factors that you felt led to duress. I do not
18 know if you can recall back where you were, but is
19 there anything else you recall from the facts that you
20 have learned that would lead you to believe he was
21 really under duress when this happened?
22 A. Yes, it is more or less also the whole
23 context of the situation at that time. He participated
24 in the military operation, of the takenover of the safe
25 haven of Srebrenica, and also knew from his colleagues
1 when he came back from a funeral in Trebinje, where he
2 went for the funeral of one of his comrades who had
3 been killed in an accident during that operation, he
4 learned at that time that a lot of events had happened
5 during his absence. He knew that when he was at the
6 farm and all these buses were arriving, understood very
7 quickly that all this was part of a quite huge
8 operation and it would be out of the question for him
9 to rage against it. Most certainly he would get in
10 very deep trouble if he had done so, so he made a few
11 attempts, but very quickly found out that it was
12 absolutely unuseful and even received the command that
13 if he was sorry for these people, he could line up with
14 them. At that point, he made the choice to participate
15 in this, not to be killed either on the spot, either
16 very shortly afterwards and also had in mind the will
17 to protect his wife and his kid, who were both in
18 Bijeljina at that time.
19 MR. McCLOSKEY: Unless you have anything
20 further to add to this issue, I would have no further
22 JUDGE MUMBA: Thank you. That is the end of
23 the evidence from this witness?
24 MR. McCLOSKEY: Yes, your Honour.
25 JUDGE MUMBA: Thank you. Defence counsel?
1 Cross-examined by MR. KOSTIC
2 Q. Thank you, your Honour.
3 Mr. Ruez, you have been a police officer for
4 a long time, is that not right?
5 A. For ten years.
6 Q. A part of your job and your training has to
7 do with interrogating, interviewing and working with
8 witnesses and accused, correct?
9 A. This has happened on many occasions, indeed.
10 Q. So when you began to work with Mr. Erdemovic,
11 it was something that you had done before and you were
12 quite familiar with it and quite good at it, I would
14 A. I do not know if I was good at it, but I was
15 quite familiar at it, indeed.
16 Q. Can you tell me as a general figure, how many
17 times did you speak with Mr. Erdemovic and perhaps tell
18 us the number of hours, just roughly?
19 A. I do not have my records with me so it is
20 difficult to answer very precisely, but I would say
21 that we had maybe ten contacts. Some of them were
22 fairly long, nearly one day, others were one
23 afternoon. Some were very formal because it was
24 interviews, video interviews, interviews which were
25 recorded, other situations were a presentation of
1 videotapes, attempts of recognition of people,
2 situations, and some even more informal circumstances
3 where it was only aimed to clarify some points or some
4 discrepancies between the way the story had been
5 reported by the press people he was in contact with and
6 the way he was explaining the situation to us. All
7 these points have always been clarified in a very
8 straight way and without any hesitation, which makes me
9 believe that the man is indeed very credible.
10 Q. Not only credible, but he has been very
11 co-operative with you, correct?
12 A. Very co-operative with us, absolutely.
13 Q. Both Mr. Erdemovic and Mr. Babic feel
14 comfortable with the process so that you had access to
15 Mr. Erdemovic whether Mr. Babic was present or not?
16 A. Absolutely, for the reason of the
17 investigation, we could have access to him at any
18 moment. We were for sure always informing Mr. Babic
19 that we would have these contacts, but there was never
20 any problem with that. As I said, even on some
21 occasions he came straightforward to us to provide us
22 with information that we did not even pinpoint.
23 Q. So is it your opinion that Mr. Erdemovic did
24 not hold back any information when he was co-operating
25 with you in regard to the events in Srebrenica and
2 A. No, I do not think so.
3 Q. Let me just ask you, just to clarify one
4 thing, you testified about the fact that Mr. Erdemovic
5 had some contacts with journalists.
6 A. Yes.
7 Q. Subsequently, it is my understanding that one
8 of them, a Vanesa Vasic Janekovic, wrote a letter to
9 the Tribunal, is that right?
10 A. This is right. She is the person who gave an
11 interview also to the Tribunal about the context of
12 this first meeting with Drazen Erdemovic, and also
13 wrote this letter very recently about it. That was
14 confirmed to us in March 1996.
15 Q. Would you agree with me that the gist or the
16 highlight of that letter was the fact that before
17 Mr. Erdemovic made his statements to the journalists,
18 this person, Vanesa Vasic, told him on a couple of
19 occasions that if he made the statements that he did,
20 he could end up being responsible as a participant in
21 these crimes, and somehow if arrested to be taken to
22 The Hague to the International Criminal Tribunal.
23 A. Sure. More than that, she told him that he
24 would be most probably held responsible and would face
25 trial. It is indeed what happened, and he was very
1 aware of this since the beginning and also in the
2 course of our communication with him, he has never
3 tried to bargain anything, he has never asked if his
4 collaboration would be of help for him in judicial
5 terms, all the judicial process has also had no
6 influence on his behaviour. Whenever the moment we
7 chose to have an interview of him or a contact with
8 him, the fact that there was an appeal ongoing or any
9 trial situation had never any interference, so his
10 behaviour has always been the same and he always
11 collaborated with us in the same spirit, whatever
12 happened around the situation.
13 Q. That co-operation was important to you, was
14 it not, because you could then use his statements to
15 collaborate and really make sure that some of the
16 events that he testified about actually happened. He
17 gave you such detailed information, is that right?
18 A. Yes, he did. He enabled us to corroborate
19 other witness testimonies that we had. As we explained
20 to the court during the first sentencing, there were
21 some survivors from the massacre at the Branjevo farm,
22 so we already had some information about it and this
23 enabled us to check what Mr. Erdemovic was telling us,
24 and the situations were described more or less in the
25 same way, and also enabled us to find things that we
1 would most probably not have found without him.
2 Anyhow, at this stage of the investigation, we would
3 not have found about it. I am thinking especially
4 about the house of culture in Pilica, in which he did
5 not participate but witnessed the event from a cafe
6 where this same lieutenant colonel took them after the
7 massacre at the Branjevo farm. He refused to
8 participate in this next killing. He was followed in
9 that by the members of the killing squad, but other
10 individuals who were coming from Bratunac volunteered
11 for that assignment and committed these killings.
12 Mr. Erdemovic was witnessing this event from a distance
13 of about 100 metres, and could give us a certain number
14 of details about the location which enabled us to find
15 the place and the crime scene was perfectly preserved
16 even one year after the events happened.
17 Q. So it is true that his statement then was
18 corroborated by in fact scientific evidence that you
19 gathered in regard to that house of culture?
20 A. Definitely the crime scene analysis, some of
21 them are still on process, are confirming the story
22 that he told us about it.
23 Q. I am going to ask you a little more difficult
24 question, I think. As you spent all the time that you
25 did with Mr. Erdemovic, you must have at some point
1 discussed other things with him, such as his feelings
2 about what he did, feelings about his family, feelings
3 about the war, feelings about the position that he was
4 in. Did you not get to that point with him?
5 A. We did not talk too much about feelings. His
6 feelings were extremely obvious when he arrived here.
7 He was in a very heavy state of stress and each time he
8 was talking about details, he was again in a state of
9 shock and we never entered too much about feelings, we
10 stick more or less on facts.
11 Q. Like a good policeman, right? But if I can
12 just move it a bit along, he did express to you at
13 times feelings of remorse, sorrow for what happened to
14 the people at Srebrenica, did he not?
15 A. Sure he did.
16 Q. More than once?
17 A. More than once.
18 Q. Those feelings of sorrow and remorse, do you
19 feel they were genuine, real, that he really was going
20 through that process?
21 A. I have personally no doubt on that. He is
22 extremely angry against the people who have put him in
23 that situation and his own motivation at this moment,
24 I think it is still the same one, it is to designate
25 these individuals and ensure that we will have enough
1 material to bring them to trial.
2 Q. It is your belief that Mr. Erdemovic will
3 continue to co-operate with you and with the
4 Prosecutor's Office as these cases go on?
5 A. I believe that, yes.
6 Q. Whether or not he signed an agreement which
7 is in front of me does not matter, he will continue to
8 co-operate with you and give you information?
9 A. I have no doubt of that.
10 MR. KOSTIC: Thank you very much.
11 JUDGE MUMBA: Any clarification by the
13 MR. McCLOSKEY: No, your Honour, though I do
14 believe we have a copy of the letter from the
15 journalist, perhaps Defence counsel has it and we will
16 make that an exhibit for your reference.
17 JUDGE MUMBA: Thank you.
18 MR. KOSTIC: I have one copy, so I would be
19 happy to tender it to the court, if there is no
20 objection. Apparently there is not.
21 JUDGE MUMBA: Yes, we would be pleased to
22 receive it.
23 MR. KOSTIC: It is not in such good shape,
24 your Honour, I apologise. We will tender it
1 JUDGE MUMBA: I hope it will be numbered
2 appropriately. Thank you.
3 JUDGE SHAHABUDDEEN: Mr. Ruez, I have only one
4 or two small questions to put to you. One concerns the
5 arrest of Mr. Erdemovic in Serbia. He was, to your
6 knowledge, a Croat?
7 A. Bosnian Croat, yes.
8 Q. Bosnian Croat. Yes, that is an important
9 distinction and I must not forget it. Thank you. You
10 have been engaged in investigative work for some number
11 of years now, connected with the functioning of the
12 Tribunal, is that correct?
13 A. A member of the Office of the Prosecutor
14 since April 1995.
15 Q. Can you just enlighten me on one thing?
16 Would I be right in supposing that the Serbian
17 authorities arrested other persons in connection with
18 allegations of the commission of war crimes of one kind
19 or another in the Bosnia-Herzegovina area?
20 A. I have no knowledge of any arrest which is
21 connected with the investigation I am in charge of and
22 which has happened in Federal Republic of Yugoslavia,
23 with the exception of Mr. Kremenovic, who was arrested
24 at the same time as Mr. Erdemovic for sheltering a
25 criminal and Mr. Kremenovic was in possession of weapons
1 at that time and has been charged for that as well, but
2 these are the only two individuals I am aware of, and
3 we are aware of, which have been arrested in connection
4 with the Srebrenica events.
5 Q. Mr. Kostic complimented you, I am sure
6 correctly, on the efficiency with which you have been
7 performing your functions. Would I be in order in
8 supposing that had the Serbian authorities made any
9 other arrests of the kind to which I am alluding, that
10 fact would in the normal course have come to your
12 A. It is hard for me to answer this question.
13 I am not part of the Belgrade authorities, so I do not
14 know --
15 Q. No, but you are an investigative officer.
16 A. I am not sure I understand very well the
17 question, but on that topic, there is something quite
18 significant that you might be willing to learn. That
19 is that we could have corroborated a little bit more
20 the events as they have been explained by
21 Mr. Erdemovic. Unfortunately, we have requested the
22 authorities of the Federal Republic of Yugoslavia to
23 hand over to the Tribunal the videotape which was
24 stolen from the journalist who gave an interview to the
25 Tribunal --
1 JUDGE SHAHABUDDEEN: I think you are going
2 into an area that is foreign to the purpose of my
3 question, so I would suggest that we might shift to
4 another matter.
5 May I at this stage enquire from counsel on
6 both sides about one matter? We have had put in
7 evidence the record of the Rule 61 proceedings, mm?
8 Have we had put in evidence the record of the previous
9 proceedings on 19th and 20th November 1996 relating to
10 this matter?
11 MR. NIEMANN: Yes, your Honour, I submitted
12 those at the opening.
13 JUDGE SHAHABUDDEEN: You would regard them as
14 forming part of the record of these proceedings, and
15 the Defence counsel as well?
16 MR. BABIC: Yes, your Honour.
17 JUDGE SHAHABUDDEEN: You would have given
18 evidence on 19th November before Trial Chamber I.
19 A. Yes, I did.
20 Q. In the course of your evidence, you would
21 have referred then as you refer now, to the statement
22 by the accused that he, in effect, acted under duress.
23 A. Yes.
24 Q. On 16th July 1995, there were, as
25 I understand it, two main events. One was the shooting
1 at Branjevo farm which lasted from around 9.00 or 10.00
2 in the morning until 3.00 or 4.00 in the afternoon.
3 A. This is correct.
4 Q. Then when that ended, there was a request
5 that the accused should participate in another shooting
6 of people who had assembled or had been made to
7 assemble in a public building at Pilica.
8 A. Yes.
9 Q. So there were two main events.
10 A. Absolutely.
11 Q. We have heard the correction by Mr. Babic
12 concerning the question whether you were not present,
13 but I can tell you this, Mr. Babic, with the consent of
14 Prosecutor counsel, corrected the record by making it
15 clear that the accused did not participate in the
16 second event, he only participated in the first event.
17 You were testifying on 19th November about
18 these matters, and I am reading the transcript, and
19 I observe, tell me if this is correct, that in relation
20 to the first event, you said he, meaning the accused:
21 " ... had understood then what the purpose of the
22 operation was and that he would be involved in the
23 execution of these people."
24 That is in relation to the Branjevo farm
1 A. Yes, it is.
2 Q. Then I observe you did not mention his
3 statement that he then acted under duress. Am I right
4 or wrong in so reading the transcript of your evidence?
5 A. You are right. At that time I was just
6 explaining the facts as they were reported by Drazen
7 Erdemovic and also the level of corroboration that we
8 had reached at that time.
9 Q. Now I shift to the second event which
10 lamentably occurred on that date. I am reading again
11 from the transcript of your evidence. It is in
12 connection with that second event that you then say:
13 "Drazen Erdemovic states that he refused to
14 participate in the second execution and his colleagues
15 did likewise."
16 Do you recall saying that?
17 A. Absolutely.
18 Q. So on that occasion, you mentioned his
19 statement that he acted under duress, but you mentioned
20 it in connection with his refusal to participate in the
21 second round of shootings.
22 A. Yes, and I could say in addition on this, but
23 this is an information that I got from Drazen
24 Erdemovic, the reason why he dared oppose to
25 participate in the second killing was that they already
1 had spent five hours on this killing field, killing all
2 the people who were arriving on the spot, and having
3 fulfilled this part of the assignment, they felt secure
4 enough to oppose the order of the lieutenant colonel,
5 since they had the feeling that they had already done
6 far enough that day, so they had a feeling that this
7 man could not take action against them at that moment,
8 and also the fact that other comrades of him
9 immediately stepped behind him, saying "no, we are not
10 willing to do that". He felt that the lieutenant
11 colonel could not take the risk at that moment to have
12 a kind of rebellion among this execution squad, which
13 was also in -- the confrontation was unuseful, since
14 this officer also had at his disposal a few members of
15 soldiers coming from Bratunac who were obviously
16 volunteered for the task.
17 Q. Let me give you an opportunity to help the
18 Tribunal by supplementing the transcript a little. We
19 have established, I think, that on 19th November when
20 you were testifying, you did not mention his statement
21 about the duress when speaking of the first set of
22 executions. Was it the case that he might have told
23 you so but you did not remember to tell the Tribunal
24 that on 19th November?
25 A. No, the reason why I did not mention any
1 duress at that time was simply because I was not asked
2 about that. I was just requested to explain what had
3 been the -- what was our knowledge of the events, from
4 where we got that knowledge and what was the
5 corroboration that we could provide the court about
6 these events. That was the situation at that time, but
7 at that moment I was not asked what was my feelings, my
8 personal feelings, which are only of my
9 responsibility. Maybe others would have other
10 feelings, but I was not asked about what was my opinion
11 about the duress at that time in November 1996.
12 JUDGE SHAHABUDDEEN: I appreciate the answers
13 which you have given me and I thank you.
14 JUDGE WANG: Mr. Ruez, I have only one
15 question to you. That is at the very first contact
16 with the accused, Mr. Erdemovic, did he explain to you
17 why he exposed such a serious offence to society and
18 intending to go to The Hague to be tried? Did he
19 explain that to you at this point and did you report
20 that you talked to the Office of the Prosecutor and put
21 it in writing, that is afterwards?
22 A. Yes, he did. He did not explain it in one
23 occasion, in fact the explanation came little bit by
24 little bit through the multiplication of the contacts
25 that we had together. He never made an issue of that
1 at the beginning and we did not also. The first -- the
2 first aim was to get access to the facts that he had
3 the knowledge of and only at a later stage did we
4 deepen the reasons why he made all these efforts to
5 come and testify. The reasons were already quite
6 obvious since the beginning, because he explained how
7 responsible he thought these people were to have put
8 him, who was a soldier, he was doing only sabotage
9 operations and suddenly he was stuck in a huge criminal
10 operation and he was extremely angry about these people
11 who have put him in this situation and explain also the
12 relationship that he had with his commander which was
13 getting worse and worse after some time, and all these
14 explanations came in fact slowly.
15 And the fact is also that if ever they did
16 not have decided to kill him, maybe he would not have
17 made all these efforts to come, so all these situations
18 are a bit melted together, because the fact that he got
19 shot was most probably due to his obvious attitude, not
20 only on the spot when the execution was carried out,
21 but also when he told us bit by bit, he explained to us
22 also what was his behaviour after the massacre when he
23 came back to Bijeljina, he started to drink, did not
24 communicate much more with his wife and had more or
25 less on any occasion arguments with other
1 members of his unit. Some of them were kind of proud
2 of what they had done and instead of staying quiet, he
3 was a bit verbally aggressive to them, so he quickly
4 not only raised suspicion, but he raised the anger of
5 the others against him. This is most probably the
6 reason why at one point they decided to get rid of
7 him. This is the event that triggered the necessity
8 that at this point he had to escape and the best escape
9 he could have at that time was to come and testify to
10 the Tribunal. It was helping his situation and on top
11 of it was providing him with the tools to take a kind
12 of revenge on his commanders and explain exactly what
13 had happened at that time, because he is clearly
14 strongly against this kind of criminal behaviours.
15 JUDGE WANG: Thank you.
16 JUDGE MUMBA: Thank you very much. As
17 a result of the questions put to the witness by the
18 judges and the witness's answers, is there anything the
19 Prosecution would like to clarify?
20 MR. McCLOSKEY: No, your Honours.
21 JUDGE MUMBA: Thank you. The Defence
23 MR. KOSTIC: No, your Honour.
24 JUDGE MUMBA: Thank you. Thank you very
25 much, Mr. Ruez. You may leave the witness box.
1 (The witness withdrew)
2 JUDGE MUMBA: That is the only witness the
3 Prosecution was going to call?
4 MR. NIEMANN: Yes, your Honour. They are the
5 matters that we wish to put to you.
6 JUDGE MUMBA: Thank you very much. Mr. Babic,
7 any evidence you would wish to call in mitigation,
8 whether you wish to call the accused himself or any
9 other witness? We are aware of the witnesses that were
10 called in the previous hearing, Witness X and
11 Witness Y, who were under the Tribunal's protection.
12 We are also aware of the evidence Mr. Erdemovic gave
13 during that hearing, but it is up to you really to
14 decide what to do before this trial.
15 MR. BABIC: Your Honours, I will not call any
16 witnesses. I suggest that we use the transcript of the
17 testimonies of the witnesses X and Y and they be used
18 in evidence, upon which the determination will be
19 made. Also together with my learned colleague Kostic,
20 I have spoken with the accused Erdemovic, whether he
21 had the strength to testify one more time before this
22 Trial Chamber on his own behalf. He requested, and
23 I am passing on his request to you, if it is not
24 necessary for the Trial Chamber, he would also like to
25 rely on the testimony he gave to the previous Trial
2 JUDGE MUMBA: Mr. Babic, we just want to be
3 clear with what you have just said, particularly the
4 last part, that you would rely on the transcripts of
5 evidence which particularly the accused himself gave in
6 the previous Chamber. Is that your decision?
7 MR. BABIC: Yes, it is.
8 JUDGE MUMBA: In which case, besides the
9 transcripts of evidence of Witness X and Y in defence
10 and also the evidence which the accused gave in the
11 previous Trial Chamber, you have no other witnesses to
12 call; that is your position?
13 MR. BABIC: We do not have another witness to
15 JUDGE MUMBA: Mr. Erdemovic, will you please
16 stand? You have heard what your Defence counsel has
17 said, that in mitigation, the evidence of the witnesses
18 which were called before the previous Trial Chamber
19 gave, that is Witness X and Y for the Defence, and also
20 the evidence that you gave during the hearing before
21 the previous Chamber. The transcripts of that
22 evidence, of the witnesses and yourself, will be used
23 by this Trial Chamber and that you do not wish to give
24 any more evidence yourself in person; is that correct?
25 MR. ERDEMOVIC: Your Honour, if you wish to
1 ask any question, I will do so, but honestly speaking,
2 I would prefer not to talk about it any more.
3 JUDGE MUMBA: Thank you. Yes, Mr. Babic?
4 MR. BABIC: My understanding was that the
5 representative of the Prosecution has also moved that
6 the two reports that we have by the medical commission
7 also be introduced into evidence, and I would just like
8 to make this absolutely clear, and I would like to
9 support that. Also, as stated by my colleague
10 Mr. Kostic, I would like to also move into evidence the
11 statement of the journalist Vasic Janekovic and that
12 would be all the documents we would like to tender into
13 evidence. This would be one issue and as the Defence,
14 we would also like to make some comments before the
15 sentence itself is passed, which regard the sentence
16 itself and the Article 11 of the federal law of the
17 United States.
18 JUDGE MUMBA: Yes, I understand that you
19 would like to make such submissions. I will return to
20 you later. Can you please sit down?
21 JUDGE SHAHABUDDEEN: Mr. Babic, I would just
22 like to be clear in my own mind as to the status of the
23 question and the making of any decision relating to the
24 question whether your client should or should not
25 testify. I understood you to mean that so far as the
1 Defence is concerned, the Defence does not wish
2 Mr. Erdemovic to testify, but that he is available to
3 testify if the Chamber wishes him to testify; is that
4 the position?
5 MR. BABIC: Your Honour, we have spoken to
6 Mr. Erdemovic, both myself and my learned colleague
7 Mr. Kostic, on this very topic. It is the eighth time
8 that Mr. Erdemovic is speaking to the matter of his
9 guilt. It is the eighth time that he is reliving the
10 events that he had lived. We have seen some dramatic
11 scenes before this Tribunal, and so we thought that if
12 it is not absolutely necessary we would like whatever
13 he stated on the first through the seventh occasion in
14 evidence. We just wanted to spare him, but he is
15 available for any questions you may have.
16 JUDGE SHAHABUDDEEN: I understand, and
17 I think I appreciate the humanities which are involved
18 in this aspect of the matter and I would leave it
20 JUDGE MUMBA: Thank you very much. We shall
21 now hear any submissions that the parties wish to make and
22 will begin with the Prosecution first.
23 MR. NIEMANN: I rely on what I said earlier,
24 your Honour.
25 JUDGE MUMBA: Thank you very much.
1 Mr. Babic or Mr. Kostic?
2 MR. KOSTIC: Thank you, your Honour. Mr. Babic
3 and I have split up some of our duties, so I will try
4 to be a bit more brief in regard to my submission.
5 What I wanted to do, because it is my understanding
6 that this may be the first case in front of this
7 Tribunal which first of all is back for a replea, but
8 then in addition to that, that we have an agreement
9 that we have submitted to the court. I want to talk
10 about that just briefly. One I think initial remark is
11 this: the rules and regulations, the Statute of the
12 Tribunal, I have been told by academics is a hybrid of
13 all legal systems. A lawyer from the United States, of
14 course, should not come here and tell you that one
15 system or another is better, but he should tell you
16 that maybe if we take the best of all systems, this
17 system will be much better.
18 Mr. McCloskey and Mr. Niemann and Mr. Babic and
19 I have worked very hard to put together an agreement
20 for your consideration and whereas Mr. Babic, you may
21 want to know, really had no familiarity with such a
22 document, it just is not used in his system,
23 Mr. McCloskey and I, of course, became fast friends,
24 because we are from the same system -- fast friends
25 I mean in the adversarial way, and worked on this
1 agreement because we understood what it meant because
2 we would use it weekly, monthly, daily, for many years
3 of our practice.
4 What is probably more important about that is
5 the fact that we told Mr. Erdemovic that we were working
6 on this, and when he entered the plea in front of you
7 earlier this afternoon, he considered this agreement.
8 I think the agreement has really all of the, I should
9 say, aspects of this case and it also serves the
10 purpose, I think, of everyone involved in this matter:
11 the judges, your Honours, the Prosecution, the Defence
12 and let us not forget one other thing; we also have
13 victims in this case, and I think it serves the needs
14 of the victims.
15 What does it do? There is no need for a long
16 and lengthy trial. Mr. Erdemovic has come in and
17 entered a plea, said he had committed the crimes, and
18 I think that -- he has done that quite speedily. If
19 you know from the record in this case, he entered a
20 plea of guilty at the arraignment. The very first time
21 he appeared in court, he entered the plea. I recall
22 sitting in my living room back in the United States and
23 watching a very dramatic presentation of Mr. Erdemovic
24 pleading guilty. He has been consistent, as you know,
25 seven or eight times. That, of course, I think helps
1 the victims in this case, because they do not have to
2 worry about certain things. That part of the case has
3 been done, has been concluded in a very speedy fashion.
4 I think it unfortunately, obviously the
5 horror of this whole situation is such that I do not
6 want to go much further with it, but I think it does
7 add to some finality in a small piece of this process.
8 The Prosecution was spared a lengthy trial, lots of
9 witnesses, a lot of expenses. You know, when you are
10 sitting in a courtroom like this, with some of the
11 finest minds, with some of the highest ideals, we do
12 not want to talk about finances, because we cannot
13 measure justice in finances, but then I am told when
14 I come here that there are such pressures and it does
15 help the Prosecution, it helps the Tribunal.
16 As far as your Honours are concerned, I think
17 it allows you, if this is done as it was done in this
18 case, it allows you to go on and use your time for
19 other cases, where maybe there are genuine issues.
20 Judicial economy is what we call it in the
21 United States, but I think that is a part of it, and
22 that is important.
23 For the Defence, likewise, we have an
24 agreement. Mr. Babic talks about Rule 11 in the
25 United States. I am not sure if we need to go into
1 that, that is a very specialised rule, where in fact we
2 occasionally get a prior consent on the agreement,
3 including the amount of time to be served. Obviously
4 if the judge does not like it he tells us to go away
5 and do something else, but that is what Rule 11 stands
7 Nevertheless for the Defence, we do have some
8 things that are favourable to us, we know what we are
9 pleading guilty to, and then finally, Mr. Erdemovic gets
10 a peace of mind in this situation. He knows what he is
11 going to plead guilty to, he knows what the
12 recommendation is going to be. I think he feels
13 comfortable. You have seen the process this afternoon,
14 his comfort with having entered that plea because he
15 has a man of Mr. Niemann's stature, a seasoned
16 Prosecutor in his country, here in the Tribunal, he
17 knows what a case is worth. He has fought the wars
18 here for three years, he knows that his recommendations
19 are good, they are sound, and, of course, we all hope
20 that you would follow the Prosecutor's recommendation.
21 That is our hope, that is our recommendation. Also by
22 the way, pursuant to the agreement, we also feel that
23 the seven year sentence is an appropriate one.
24 So those are my remarks about this plea
25 agreement. I think it is a good instrument, it is a
1 good document, I hope that the Tribunal, the other
2 Chambers would use it if there are appropriate
3 circumstances. In this particular case, I think it is
4 a very fair resolution of this particular case and it
5 is fair to everyone who is concerned in this case, so
6 again I apologise for maybe trying to be a little
7 preachy about what this stands for, but I hope that you
8 understand my position, that I do want to see
9 Mr. Erdemovic receive a sentence that is consistent with
10 the plea agreement. Thank you very much.
11 JUDGE MUMBA: Thank you very much.
12 Mr. Babic?
13 MR. BABIC: Your Honours, on this occasion,
14 I would like to express my special satisfaction that in
15 a procedure that has raised many legal and moral
16 issues, we as a Defence and the learned colleagues of
17 the Prosecution have reached very similar or I should
18 say literally similar positions and legal arguments.
19 I think that until now, the proceedings have confirmed
20 this, before this Trial Chamber.
21 In this phase of the proceedings, before the
22 passing of the sentence, I would just like to make
23 several comments which the Trial Chamber I hope may
24 find useful when determining whether to accept the
25 agreement and what punishment it should pass.
1 Today, the accused Erdemovic pleaded, and
2 I have counted these pleas, because I was present at
3 all of them, it is the eighth time, and this time he
4 pleaded guilty for the war crime. In this situation,
5 that is just before the punishment has been determined,
6 the Defence would like to point out that the issue
7 before us is not just a legal one, it is equally, if
8 not more, a moral issue. So someone's plea of guilty
9 and admission of his guilt and the severity of
10 punishment is not only a legal issue but also a moral
12 This is the case not only in the case of
13 particular country but also for the international
14 community which is a community of all the nations. It
15 also affects the victims of the crimes, as well as the
16 perpetrator. The Defence believes that this complex
17 approach is the only one that is possible and I am
18 grateful that the Prosecution adopted this position and
19 I am hopeful that the Trial Chamber would do so as
21 I would like to remind the Trial Chamber of
22 the voluntary, informed and unequivocal statements of
23 the accused Erdemovic about his guilt. These
24 statements should, above all, be taken as his moral
25 attitude towards the truth on the one hand and as a
1 plea for understanding of how far the limits of the
2 abuse of man in this region were stretched, not only in
3 his local environment but also in the wider scope.
4 Also, his moral attitude towards the truth
5 must be proportionately reflected in the punishment.
6 It must be satisfactory to the victims, acceptable and
7 beneficial to the national and international
8 communities and fair towards the accused himself. With
9 all due respect, I think that this should be the
10 approach that the Trial Chamber should adopt when
11 determining the proper sentence.
12 I will now move on to the mitigating
13 circumstances, taking into account what the learned
14 colleagues from the Prosecution have already argued.
15 The proceedings so far confirm beyond any doubt that
16 there is a number of mitigating circumstances in favour
17 of Mr. Erdemovic, and I will try to enumerate them.
18 First, the accused Erdemovic found himself
19 caught up in the vortex of war which was caused by the
20 conflict of three ethnic communities, without his own
21 will. This conflict assumed the aspect of a total war,
22 including an element which played a greater role than
23 at any time in the modern history, which was this
24 element of the ethnic cleansing.
25 The criminal act in which the accused
1 Erdemovic took part as a direct perpetrator without a
2 doubt falls within the scope of the most serious
3 violations of international law, but the accused
4 Erdemovic is not creator here, or an ideologue, or
5 somebody who issued orders. He is not a religious or a
6 nationalist fanatic. Nor is he a sadistic soldier, but
7 rather a victim which begets further victims; a simple
8 instrument for killing, which had to kill lest it be
10 That the accused Erdemovic could in no way
11 have avoided the situation in which he unforeseeably
12 and suddenly found himself, that before the commission
13 of the crime, he at the scene made a hopeful but futile
14 attempt to resist the implacable order of the superior;
15 that the accused Erdemovic proceeded to commit the
16 crime under irresistible duress as was pointed out by
17 the learned colleagues from the Prosecution; that he
18 pleaded guilty for the crime of -- war crime rather
19 than crime against humanity, and his plea for the first
20 time has spelled out clearly that the crime against
21 humanity is a more serious crime of the two.
22 Further, that Mr. Erdemovic found himself in a
23 position of clear and present danger to his own life
24 and that of his family's, and he was in a position
25 where he either had to shoot or he would be shot; that
1 all this caused Erdemovic fear for his own life and
2 that of his family, to which he found no alternative,
3 no alternative in his local environment and anywhere in
4 the territory of the former Yugoslavia, and that
5 therefore his intent in committing the crime was
6 significantly diminished, and here I would also like to
7 respectfully refer to the findings of the medical
9 That during the commission of this crime, he
10 tried to save the life of one person, but he failed to
11 do so, and then that he refused, and this time it was
12 with the support of the members of this unit, this was
13 in Pilica, he refused to take part in the execution at
14 the social hall in Pilica. He found inner strength and
15 this was also supported by the comments of the learned
16 colleagues of the Prosecution, who explained why he did
17 so; that in the end, Erdemovic himself became a victim
18 of his own "fellow soldier", who gravely wounded him,
19 so that he managed to turn himself in and appear before
20 this Tribunal, thanks only to the successful efforts of
21 physicians in the former Yugoslavia and here in
22 The Hague and the Registry of this Tribunal; that the
23 accused Erdemovic held a low rank in the military units
24 in which he was. As he said, he at first held the
25 lowest rank up from the private, and only for one
2 That the testimony of the Witness X confirms
3 without a doubt that the accused Erdemovic never before
4 committed any crimes against any members of the army;
5 in fact on the contrary, he let a man go and he saved
6 his life. He did everything he could in order to let
7 the public know the facts of this committed crime and
8 he was determined to appear to answer to them before
9 this very Tribunal. In all his statements, from the
10 first one he gave to all the ones he gave to this
11 Tribunal, he admitted his participation in the
12 commission of this crime and virtually accused himself
13 or brought himself before this Tribunal, whereby he
14 expressed his moral stance and a strong sense of
16 That from the start of these proceedings, he
17 has significantly co-operated with the Prosecution, as
18 was also supported by the Prosecution today, and that
19 he also testified as part of this co-operation, he
20 testified in the hearings according to the Rule 61.
21 That throughout his stay in the detention, he behaved
22 in accordance with the rules of this institution and
23 very correctly, and based on the information that
24 I regularly received from the officials in the
25 detention unit, he clearly expressed strong remorse for
1 having taken part in the commission of the crime, as
2 was also corroborated by the witness Jean-Rene Ruez.
3 We would also like the Trial Chamber to take
4 into account several other issues. It is the personal
5 circumstances of the accused Erdemovic, that is his
6 personality, his character, his family and social
7 background. At the time of the commission of the
8 crime, the accused Erdemovic was only 23 years old. He
9 is a Croat and a Catholic. He comes from a working
10 class family, in which the children were brought up in
11 the spirit of religious and ethnic tolerance, and as
12 Yugoslavs. This he adopted in his own life without
13 reservation, and he acted accordingly. The different
14 religions and ethnic groups in his environment were his
15 true wealth, and as crowning proof of this all, he
16 married a woman from another ethnic and religious
17 group, with whom he has a three year old child.
18 His family lives in the Tuzla area, which is
19 where they lived before the war and during the war, and
20 they have fallen on hard times. Therefore his family
21 will suffer hardship due to his serving a prison
22 sentence. He did everything he could to avoid these
23 winds of war and to leave the country and go abroad
24 with his family. However, unfortunately, he did not
1 So the confluence of many circumstances in
2 the territory of the former Yugoslavia, and I think
3 that the Trial Chamber is aware of this, and the
4 unavailability of other choice took him to all three
5 warring sides. This was his modus vivendi and not only
6 his, this was a fate shared by all. He never belonged
7 to any nationalist party. He resisted as much as he
8 could all propaganda advocating intolerance, just as he
9 was taught at school, by the community and family.
10 He has no criminal record, and he does not
11 even have any misdemeanour charges against him. All
12 this makes it clear that the accused Erdemovic poses no
13 danger for his environment and that his character is
14 reformable. This is also borne out by the expert
15 commission findings.
16 The Defence submits to the Trial Chamber that
17 these mitigating circumstances should be taken as real
18 and founded. They should be taken also as a basis on
19 which the accused, Erdemovic, has reached a plea
20 agreement with the Prosecution, having admitted his
21 guilt, taking into consideration that a seven year
22 sentence is adequate, bearing in mind all the
23 circumstances, and this is what he has to give back to
24 his victims.
25 I want to give you my personal view on this.
1 I believe that this is going to be a recurrent
2 nightmare for the accused, Erdemovic, for the rest of
3 his life.
4 Therefore, the Defence believes that the
5 agreement which has been reached between Erdemovic and
6 the Prosecution, all elements of punishment will be
7 satisfied, both the national and international ones.
8 In closing, I would like to add that this
9 Trial Chamber, based on Rule 101(B) of the Rules of
10 Procedure and Evidence, that the Trial Chamber will
11 take into account the time that the accused Erdemovic
12 has spent in detention, which is close to two years.
13 I would just like to add one more thing, that this
14 Trial Chamber will also consider its decision in which
15 host country the accused, Erdemovic, is going to go to
16 serve out his sentence. Thank you very much.
17 MR. KOSTIC: May I add something, just very
18 minor. I believe that we have agreed with Mr. McCloskey
19 and Mr. Niemann that Mr. Erdemovic was arrested on March
20 3rd 1996, which would give us approximately 22 months
21 and 11 days in custody. If I am off, I certainly would
22 stand to be corrected. I think I am fairly close, to
23 give you an idea as to his time in custody before his
25 MR. McCLOSKEY: Your Honours, I am sure we can
1 reach exactly what that date is. I know we have the
2 documents, but it may need closer looking into to
3 double-check the exact date. It should not be a
4 problem. It should be very close if not correct.
5 MR. KOSTIC: We may be able to make a
6 stipulation to the court.
7 JUDGE MUMBA: On this issue of taking into
8 account previous incarceration, I would like to be
9 clear with the parties. It is the time in detention
10 after the Tribunal came on the scene that matters.
11 MR. McCLOSKEY: That is correct,
12 your Honours. That is the view of the Prosecution.
13 JUDGE SHAHABUDDEEN: The understanding
14 between the parties is that that previous detention
15 time is to be deducted from whatever sentence of
16 imprisonment, if such a sentence is imposed, were to be
17 ordered; that is it?
18 MR. BABIC: That was the agreement we reached,
19 your Honour. That was our agreement.
20 JUDGE SHAHABUDDEEN: Does the Prosecution
21 confirm that?
22 MR. NIEMANN: Yes, your Honour. So if
23 your Honours were to impose a particular sentence of a
24 number of years, it would be that sentence commenced at
25 the time he started his custody in The Hague, so it
1 would date from that time.
2 JUDGE MUMBA: Thank you very much. I think
3 we have come to the end of our proceedings. Unless
4 there are any other matters that the parties would like
5 to mention at this stage? Mr. Niemann?
6 MR. NIEMANN: Yes, I just wish to confirm
7 your Honours. I have been handed a document that
8 suggests that Mr. Erdemovic was transferred to the
9 Tribunal on 30th March 1996.
10 JUDGE MUMBA: 30th March.
11 JUDGE SHAHABUDDEEN: Not 3rd March.
12 MR. NIEMANN: He was arrested earlier on
13 2nd March and transferred on 30th March.
14 JUDGE SHAHABUDDEEN: Would not the Defence be
15 suggesting that from the time of his arrest his status
16 would be one of incarceration on behalf of the
18 MR. NIEMANN: I am not sure whether that is
19 what is being suggested by the Defence, but the
20 position that we have taken is that it should be from
21 the moment of incarceration in The Hague, which is
22 30th March. We do that based on the decision of the
23 Chamber in the Tadic case, which also commenced its
24 period of consideration as the period from
25 incarceration in The Hague. Fortunately for
1 Mr. Erdemovic in this case it is a matter of some 20
2 days, but nevertheless I would not belittle that in any
4 MR. BABIC: If I may add, your Honours,
5 I personally would not agree to this, but in the
6 interests of expediency, we wish to support the
7 position of the Prosecution.
8 JUDGE MUMBA: Thank you very much. This
9 brings our proceedings today to a close. The
10 sentencing judgement of this Trial Chamber will be
11 delivered in due course in open court. The parties
12 will be given advance warning of the date of delivery
13 of judgement, which will be in public. This session is
14 now adjourned.
15 (5.30 pm)
16 (Hearing adjourned)