1 Thursday, 5 March 1998
3 JUDGE MUMBA: Good morning. Madam
4 Registrar, please call the case.
5 THE REGISTRAR: Case number IT-96-22-Tbis,
6 the Tribunal Prosecutor versus Drazen Erdemovic.
7 JUDGE MUMBA: Mr. Erdemovic, do you hear me
8 in a language you understand?
9 MR. ERDEMOVIC: Yes.
10 JUDGE MUMBA: And, counsel, do you hear
11 me? Can I have the appearances?
12 MR. NIEMANN: My name is Niemann and
13 I appear with my colleague, Ms. Sutherland, for the
15 MR. BABIC: Good morning, your Honour, I am
16 Mr. Babic, attorney from Yugoslavia, Defence counsel for
17 the accused, Drazen Erdemovic.
18 MR. KOSTIC: Kostic, appearing for
19 Mr. Erdemovic.
20 JUDGE MUMBA: The Trial Chamber is today
21 pronouncing its sentence on Drazen Erdemovic further to
22 his guilty plea to count 2 of the indictment issued
23 against him on 22 May 1996, and confirmed on 29 May
24 1996, namely, "a violation of the laws or customs of
25 war punishable under Article 3 of the Statute of the
1 Tribunal and recognised by Article 3(1)(a) (murder) of
2 the Geneva Conventions". The formal judgement of the
3 Trial Chamber is separately handed down to be available
4 before the end of today. I will however summarise its
5 main elements.
6 The Trial Chamber was satisfied with the
7 guilty plea made on 14 January 1998 and, therefore,
8 convicted the accused accordingly on the same day.
9 A pre-sentencing hearing was held on the same
10 day and the Trial Chamber heard the submissions of the
11 parties. Drazen Erdemovic was granted leave to have
12 his previous testimony before the International
13 Tribunal admitted as evidence. With the consent of
14 both sides, the Trial Chamber admitted in evidence
15 several transcripts and documents which were tendered
16 in lieu of oral testimony and heard oral evidence from
17 Mr. Jean-Rene Ruez, the Investigating Officer in charge
18 of the Office of the Prosecutor's Investigations into
19 the fall of the enclave of Srebrenica.
20 The Trial Chamber has accepted as fact the
21 version of events which the parties have submitted. In
22 particular, it has accepted that Drazen Erdemovic
23 committed the offences in question under threat of
25 In determining the sentence to be imposed
1 upon Drazen Erdemovic, the Trial Chamber has duly
2 considered the relevant provisions of the Statute and
3 the Rules of Procedure and Evidence setting out
4 sentencing guidelines, namely Articles 7 and 24 of the
5 Statute and Rule 101 of the Rules of Procedure and
6 Evidence. The Trial Chamber has also applied the
7 various criteria and rulings of the Appeals Chamber in
8 its judgement rendered on 7 October 1997.
9 AGGRAVATING CIRCUMSTANCES:
10 The Trial Chamber considers that the
11 magnitude of the massacre in which Drazen Erdemovic
12 participated and the scale of his involvement are
13 aggravating circumstances to be taken into account in
14 accordance with Article 24(2) of the Statute.
15 MITIGATING CIRCUMSTANCES:
16 The following factors have been considered by
17 the Trial Chamber as worthy of being considered in
18 mitigation of the sentence:
19 Age: At the time of the killings, the
20 accused was 23 years old. He is now 26 years old and
21 evidence has been provided that he is "not a dangerous
22 person for his environment". The Trial Chamber
23 believes that, on account of his circumstances and
24 character, he is reformable. He should therefore be
25 given a second chance to start his life afresh, whilst
1 still young enough to do so.
2 Family: The accused has a wife, who is of a
3 different ethnic origin, and the couple have a young
4 child, who was born on 21 October 1994.
5 Background: The accused is a locksmith by
6 training. In July 1995 he was a private in the 10th
7 Sabotage Detachment where he was not in a position of
8 command. He was, apart for a two-month period as a
9 sergeant in that unit, a mere foot soldier, whose lack
10 of commitment to any ethnic group in the conflict is
11 demonstrated by the fact that he was, by turns, a
12 reluctant participant in the Army of the Republic of
13 Bosnia Herzegovina, the Croatian Defence Council and
14 the Bosnian Serb Army. The possibility of his being a
15 soldier of fortune has not been suggested by any of the
17 Character: In his submissions the Defence
18 counsel portrayed the accused as an easy-going young
19 man showing no signs of bigotry or intolerance. He had
20 a desire to help others in difficulty. The accused's
21 upbringing was steeped in values of tolerance for
22 others and this is reflected in the fact that he chose
23 to marry a woman from another ethic group. It had
24 nothing to do with the fact that love is blind.
25 The Trial Chamber has noted that the accused
1 has no criminal record and that he has said that, prior
2 to the mass murder in Srebrenica, he had never killed.
3 Admission of guilt:
4 The Trial Chamber notes the submission of
5 Defence counsel that the accused's statements as to
6 guilt should "above all, be taken as his moral attitude
7 towards the truth on the one hand, and as a plea for
8 understanding of how far the limits of the abuse of man
9 in this region were stretched, not only in his local
10 environment but also in the wider scope".
11 An admission of guilt demonstrates honesty
12 and it is important for the International Tribunal to
13 encourage people to come forth, whether already
14 indicted, or other unknown perpetrators. Furthermore,
15 this voluntary admission of guilt, which has saved the
16 International Tribunal the time and effort of a lengthy
17 investigation and trial is to be commended.
19 The accused has said that he feels sorry for
20 all the victims, not only for the ones who were killed
21 at the farm, but also for all the victims in Bosnia and
22 Herzegovina, regardless of their nationality. The
23 post-traumatic stress which the accused suffered from
24 in the aftermath of the Srebrenica atrocities
25 demonstrates how he himself suffered, after having been
1 forced to commit the killings.
2 Cooperation with the Office of the
4 "The collaboration of Drazen Erdemovic has
5 been absolutely excellent." These are words rarely
6 spoken by the Prosecution of an accused. The Trial
7 Chamber, remembering its obligation to consider such
8 cooperation under Rule 101 of the Rules of Procedure
9 and Evidence, has taken note accordingly.
10 It has also noted the submission of the
11 Prosecution, supported by the testimony of Mr. Ruez,
12 that the accused cooperated without asking for anything
13 in return and that the extent and value of his
14 cooperation has been such as to justify considerable
16 Whilst the Office of the Prosecutor knew in
17 general terms of the killings committed in Srebrenica,
18 the testimony of the accused has particularly been
19 valuable for providing them with details of four
20 incidents of which they did not previously know. The
21 accused also provided substantial details in connection
22 with the identification of his commanders and fellow
23 executioners, as well as information on the Drina
24 Corps, the structure of the Bosnian Serb Army, and the
25 units that were involved in the take-over of Srebrenica,
1 such as the 10th Sabotage Detachment and the Bratunac
3 On 5 July 1996, the accused gave evidence in
4 the Rule 61 hearing of the case brought against Radovan
5 Karadzic and Ratko Mladic. His testimony was
6 significant in two respects. It contributed to the
7 decision to issue international arrest warrants for the
8 two and, secondly, his testimony, as far as that of an
9 insider in the Bosnian Serb Army, is evidence of what
10 happened in Srebrenica.
12 The Trial Chamber has applied the ruling of
13 the Appeals Chamber decision that:
14 "Duress does not afford a complete defence
15 to a soldier charged with a crime against humanity
16 and/or a war crime involving the killing of innocent
17 human beings."
18 It may be taken into account only by way of
20 It has been accepted by the parties and the
21 Trial Chamber that there was duress in this case. The
22 evidence reveals the extremity of the situation faced
23 by the accused. The Trial Chamber finds that there was
24 a real risk that the accused would have been killed had
25 he disobeyed the orders. He voiced his feelings, but
1 realised that he had no choice in the matter -- he had
2 to kill or get killed.
3 PLEA BARGAIN AGREEMENT:
4 On 8 January 1998, both sides filed with the
5 Registry a Joint Motion for Consideration of Plea
6 Agreement between Drazen Erdemovic and the Office of
7 the Prosecutor. Attached thereto was a plea agreement
8 between the parties, the purpose of which was expressed
9 to be to clarify the understanding of the parties as to
10 the nature and consequences of the accused's plea of
11 guilty, and to assist the parties and the Trial Chamber
12 in ensuring that the plea entered into by the accused
13 was valid, according to the Rules of the International
14 Tribunal. There is no provision for such agreements in
15 the Statute and the Rules of the International
16 Tribunal. Whilst in no way bound by this agreement,
17 the Trial Chamber has taken it into careful
18 consideration in determining the sentence to be imposed
19 upon the accused.
20 SENTENCING POLICY OF THE CHAMBER:
21 In addition to the aggravating and mitigating
22 circumstances already discussed, the sentence
23 determined by the Trial Chamber has taken into account
24 the circumstances of the killings, in particular the
25 degree of suffering to which the victims of the
1 massacre were subjected before and during the killings,
2 the means used by the accused to kill, and his attitude
3 at the time. The atmosphere of terror and violence has
4 been well illustrated to the Trial Chamber and the
5 degree of suffering of the victims cannot be
6 overlooked. The accused's reluctance to participate
7 and his reaction to having to perform this gruesome
8 task have already been discussed and it is clear that
9 he took no perverse pleasure from what he did.
10 It is in the interests of international
11 criminal justice and the purposes of the International
12 Tribunal to give appropriate weight to the cooperative
13 attitude of the accused. He truthfully confessed his
14 involvement in the massacre at a time when no authority
15 was seeking to prosecute him in connection therewith,
16 knowing that he would most probably face prosecution as
17 a result. Understanding of the situation of those who
18 surrender to the jurisdiction of the International
19 Tribunal and who confess their guilt is important for
20 encouraging other suspects or unknown perpetrators to
21 come forward.
22 The International Tribunal, in addition to
23 its mandate to investigate, prosecute and punish
24 serious violations of international humanitarian law,
25 has a duty, through its judicial functions, to
1 contribute to the settlement of the wider issues of
2 accountability, reconciliation and establishing the
3 truth behind the evils perpetrated in the former
5 Discovering the truth is a cornerstone of the
6 rule of law and a fundamental step on the way to
7 reconciliation: for it is the truth that cleanses the
8 ethnic and religious hatreds and begins the healing
9 process. The International Tribunal must demonstrate
10 that those who have the honesty to confess are treated
11 fairly as part of a process underpinned by principles
12 of justice, fair trial and protection of the
13 fundamental rights of the individual.
14 On the other hand, the International Tribunal
15 is a vehicle through which the international community
16 expresses its outrage at the atrocities committed in
17 the former Yugoslavia. Upholding values of
18 international human rights means that, whilst
19 protecting the rights of the accused, the International
20 Tribunal must not lose sight of the tragedy of the
21 victims and the sufferings of their families.
22 CREDIT FOR TIME SERVED:
23 Under Rule 101(E) of the Rules of Procedure
24 and Evidence of the International Tribunal, the Trial
25 Chamber is required to give credit to the convicted
1 person for the period, if any, during which he was
2 detained in custody pending his surrender to the
3 Tribunal, or pending trial or appeal. In this case, an
4 order for transfer to the custody of the International
5 Tribunal was made by Judge Fouad Riad on 28 March
6 1996. The relevant period of time spent in custody
7 will therefore run from that date.
8 Drazen Erdemovic, will you please rise?
9 I shall now read out the deposition contained
10 in the sentencing judgement, which is available in
11 English, French and your language.
12 The Trial Chamber II TER unanimously, for the
13 foregoing reasons, pursuant to Articles 23, 24 and 27
14 of the Statute and Rules 100, 101, and 103 of the Rules
15 of Procedure and Evidence, noting the indictment of
16 22 May 1996, confirmed on 29 May 1996, noting your
17 guilty plea on 14 January 1998 to the count of a
18 violation of the laws or customs of war, pursuant to
19 Article 3 of the Statute, having considered the
20 evidence submitted in this matter and having heard the
21 submissions of the parties, sentences you, Drazen
22 Erdemovic, born on 25 November 1971, to five years
23 imprisonment and rules that from this sentence shall be
24 deducted the time which has been spent in custody from
25 28 March 1996.
1 It directs that the imprisonment be served in
2 a State to be designated by the International Tribunal
3 in accordance with Rule 103(A) of the Rules of
4 Procedure and Evidence;
5 Orders that, until the expiry of 15 days from
6 the date hereof within which you may lodge an appeal
7 against this judgement pursuant to Rule 88 bis of the
8 Rules of Procedure and Evidence, and pending the
9 finalisation of arrangements for the transfer to the
10 State where your sentence will be served, you shall
11 remain in the custody of the International Tribunal;
12 Rules that in accordance with the Rule 102 of
13 the Rules of Procedure and Evidence the sentence,
14 subject to the above-mentioned deduction, shall begin
15 to run from today, 5 March 1998.
16 Judge Shahabuddeen appends a separate opinion
17 to this judgement.
18 This concludes the entry of the sentencing
19 judgement. The session of the International Tribunal is
20 therefore adjourned.
22 (Hearing adjourned)