Tribunal Criminal Tribunal for the Former Yugoslavia

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3 Case No. IT-96-22-A


5 - - - - - -

6 Before The Appellate Court consisting of:

7 President Cassese

8 Judge McDonald

9 Judge Li

10 Judge Stephen

11 Judge Vohrah

12 - - - - - -

13 The Prosecutor

14 -v-

15 Drazen Erdemovic

16 - - - - - -

17 Mr. Grant Niemann and Mr. Payam Akhavan appeared on behalf

18 of the Office of the Prosecutor.

19 Mr. Jovan Babic appeared on behalf of Mr. Erdemovic.

20 - - - - - -


22 - - - - - -




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1 Monday, 26th May 1997

2 (9.30 am)

3 (In open session)

4 PRESIDENT CASSESE: Good morning. May I ask the registrar

5 to call the case, please?

6 THE CLERK OF THE COURT: We have before us case IT-96-22-A,

7 the Prosecutor versus Erdemovic.

8 PRESIDENT CASSESE: May I have the appearances?

9 MR. NIEMANN: If your Honour pleases, my name is Grant

10 Niemann. I appear with Mr. Akhavan for the Respondent.

11 THE INTERPRETER: Microphone, please.

12 MR. BABIC: Your Honours, my name is Jovan Babic, attorney

13 from Yugoslavia, defence counsel for the accused,

14 Mr. Erdemovic.

15 PRESIDENT CASSESE: Mr. Erdemovic, can you hear me?

16 MR. ERDEMOVIC: Yes, your Honours.

17 PRESIDENT CASSESE: Thank you. Well, this morning we will

18 concentrate our hearing on the preliminary issues which

19 were set out in the scheduling order we issued on 5th

20 May 1997, and in this connection I should like to thank

21 both parties for promptly complying with the request for

22 submission of written briefs, a request contained in

23 that order.

24 Before we start, may I also add that the appeals

25 chamber has decided not to grant leave to file an amicus

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1 curiae brief to Mr. Sienho Yee. Let me tell you now how

2 we intend to proceed. Since both parties have submitted

3 exhaustive written briefs, I think they should not

4 restate their position here. I will ask each of them

5 whether they want to add anything, in which case each

6 party will have ten minutes available. After that, the

7 court will ask questions so as better to clarify the

8 views of each party. If this is agreeable to you, I

9 will start by asking defence counsel whether he has

10 anything to add to his brief, again solely with regard

11 to the preliminary issues we judges raised in our order

12 of 5th May. Mr. Babic?

13 MR. BABIC: Your Honours, I think that in my brief I was

14 clear regarding my positions, which range from the

15 closing statement to the appeal, the argument for the

16 appeal and the motion on preliminary issues, and I

17 really have nothing more to add to those briefs.

18 PRESIDENT CASSESE: Thank you. May I therefore turn to the

19 prosecutor and ask him whether he has anything to add to

20 his written brief?

21 MR. NIEMANN: We have, your Honours. Your Honours, we have

22 prepared a fairly substantial submission, in fact, to

23 assist the court, particularly on the question of how we

24 say international law deals with this topic, and we have

25 in that endeavoured to deal with the authorities and to

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1 argue how those authorities would lead to an inevitable

2 conclusion, that duress is not available in a crime that

3 involves the killing of innocent human beings. We have

4 also dealt with various aspects of the transcript which

5 we considered would assist the court in looking at the

6 way this matter progressed through the court into the

7 sentencing court. It seems, your Honour, that if you

8 wish us to deal with it in ten minutes, we are not going

9 to be able to do it in that time. I understand that the

10 submissions on international law are in a fairly

11 complete state, and if it would assist the court we

12 could hand up a copy of that, but we would be anxious to

13 put to the court, because we consider it a complex

14 issue, complex for two reasons: one, because there is a

15 division in the various jurisdictions of the world, a

16 division particularly between civil law and Common Law,

17 and we say that that leads to an inconclusive position,

18 and with the international law we argue that it is

19 clear, but it is not clear on a prima facie glance at

20 it, because there has been an influence of, we would

21 say, the civil law position on the international law,

22 but at the end of the day we would argue that the

23 authority clearly points to the conclusion that duress

24 is not available. We are anxious to present that to the

25 appeal court. If your Honour would prefer, we can do it

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1 by way of handing up a written submission.

2 I should add, your Honour, that it was prepared

3 for the purposes of an oral address, so it will have the

4 defects about it which would suggest that it was

5 prepared for that purpose alone, but save and except

6 that, if your Honour wishes to merely deal very briefly

7 with the matter, I would ask the court's leave to tender

8 that.

9 PRESIDENT CASSESE: Well, may I ask you how much time you

10 would need now to add your remarks?

11 MR. NIEMANN: Yes, your Honour. Your Honours, the issue of

12 international law, my colleague was going to deal with

13 that. If I may confer with him for a moment.

14 Your Honour, if I may be permitted to speak for

15 ten minutes and if Mr. Akhavan could speak for that same

16 period of time, I think we could dispose of it in that

17 period of time, if that would be permissible.


19 MR. NIEMANN: Your Honours, in our submission in answer to

20 the first question we would argue that clearly whether

21 duress is a defence to a crime against humanity or war

22 crime, when the underlying offence is the killing of

23 innocent human beings, is clearly low. Apart from the

24 international law issues that will be examined by my

25 colleague, Mr. Akhavan, momentarily, we say the position

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1 is also interesting in the United Kingdom. For

2 instance, in 1975 there was a case that came before the

3 House of Lords of Lynch v the Director of Public

4 Prosecutions for Northern Ireland, which was reported in

5 1975, 1 All England Reports at page 913. In that their

6 Lords considered the possibility of introducing a

7 defence of duress in cases of attempted murder as

8 opposed to murder in the first degree. This case was

9 then very quickly reconsidered by the House in a case of

10 Abbott V Queen, reported in 1976, 3 All England Reports,

11 page 140. This was where the House sat as the Privy

12 Council. In that decision Lord Salmon made a very

13 instructive and important speech, in our submission, on

14 the issue of duress, when the underlying offence

15 involves the killing of an innocent human being. In

16 particular His Honour looked at -- his Lordship looked

17 at the position from the point of view of war crimes

18 cases that occurred during the second world war, and in

19 his speech he addressed it from that point of view and

20 concluded that it would be most unfortunate if the

21 Common Law of England was to be varied or changed so as

22 to admit duress in circumstances where it involved in

23 that case murder in the first degree.

24 So even though there was a momentary shift towards

25 the possibility of admitting duress in Lynch v DPP, one

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1 year later it changed back very dramatically, and

2 ultimately, your Honours, in 1987, in the case of Howe

3 reported in 1987, 1 All England Reports at page 771, the

4 House of Lords overruled Lynch's case.

5 So, in our submission, that is an interesting

6 experience in the development of the law. Your Honours,

7 in our submission there will always be cases that

8 arouses the sympathy of the court because of the

9 circumstances under which the crime was committed.

10 However, the solution to the problem is not to permit

11 duress to be a defence to a crime where the underlying

12 offence involves the killing of innocent human beings,

13 but to mitigate the penalty. To the extent to which the

14 court is moved to be merciful mitigation, in our

15 submission, can be as broad as the sentencing discretion

16 of the court itself and in appropriate circumstances can

17 legitimately amount to no prison sentence being imposed

18 at all, but the life of innocent human beings murdered

19 by a principal of the first degree cannot be rendered so

20 cheap as to justify the approbation of the court, in our

21 submission.

22 Your Honours, moving on to the next question: was

23 the guilty plea entered by the Defendant at the initial

24 appearance equivocal? In our submission it was not

25 equivocal. The accused unequivocally pleaded guilty to

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1 the crime and after pleading guilty he merely raised an

2 excuse by way of mitigation. That was that he had acted

3 under superior orders, which orders he felt obliged to

4 obey. Lest there be any uncertainty about that, the

5 presiding judge was very careful in ensuring that he

6 clarified the matter, and at page 9 of the transcript of

7 31st May 1996 at line 11 through to 12 your Honours can

8 see where His Honour Judge Jorda dealt with this

9 question when it was raised.

10 In our submission, your Honour, the initial

11 position that was adopted by the accused did not change

12 with the passage of time, because six months later, when

13 he was before the chamber on 19th November, at page 36

14 of the transcript, lines 1-3, the position he adopted

15 was the same.

16 Dealing with the plea of guilty itself, your

17 Honours, in our submission the presiding judge dealt

18 with this matter with great care and detail. When he

19 was dealing with the plea of guilty he dealt with

20 Article 21, paragraph 4A of the Statute of the Tribunal,

21 ensuring that the accused understood the charges. He

22 also went to detailed length to ensure that the accused

23 had the opportunity to prepare, that he would be given a

24 fair and public hearing, that his right to be heard

25 would be respected and that he understood the sentence

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1 with which he was faced, and primarily that he knew what

2 he was doing by reason of the plea.

3 Now, your Honours, in our submission at no initial

4 stage -- at no stage of the initial appearance did

5 counsel for the accused raise the issue of duress.

6 Clearly the idea of raising duress had not occurred to

7 counsel for defence at that stage of the proceedings.

8 It was only during the course of the final address some

9 six months later did we hear the matter raised by

10 defence counsel for the first time, and when he does

11 raise it, it is different to the basis of what the

12 Defendant raised when he raised it with the sentencing

13 judge.

14 The problem with this is that the question of the

15 accused's mental state and the need for psychiatric

16 analysis was, as I say, not raised by the accused.

17 Initially it was brought up by the chamber itself, who

18 sought this psychiatric analysis in order to assist it

19 with sentencing. Even when it was brought up, in our

20 submission at that stage it was not discussed in any

21 detail by counsel for the accused or the accused

22 himself. When the report came before the court, again

23 the issue of his state of mind at the time of the

24 commission of the offence was not raised. So in our

25 submission, your Honours, this was all something that

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1 came up quite belatedly and we would suggest

2 opportunistically.

3 Your Honours, in our submission, if counsel for

4 the accused generally held any concerns for the state of

5 the accused's mental condition at the time of the

6 commission of the crime rather than just raising it

7 during the course of his closing address, then he had

8 ample opportunity to do something about that. He had

9 seven months, in our submission, from the time when the

10 decision for him to come to The Hague and finally he was

11 heard in order to go out and obtain any necessary

12 reports which he may have felt would assist him.

13 Finally, your Honour, there was a suggestion at

14 some stage during the proceedings in the sentencing

15 court where the accused suggested that he was

16 subsequently shot because he had not obeyed the superior

17 orders that he was given. We submit, your Honours, that

18 there is no basis to that. We say there is no basis to

19 it because, firstly, he disobeyed superior orders on a

20 previous occasion and there was no consequence that

21 flowed from that; secondly, he disobeyed superior orders

22 on a subsequent occasion to the one in question and

23 there was no serious consequences flowed from that; and

24 ultimately, your Honours, the persons responsible

25 presumably inflicting this injury upon him then

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1 subsequently turned around and arranged for his transfer

2 to Belgrade where he received medical treatment, which

3 we would suggest is somewhat inconsistent with the

4 sanction of being shot being imposed on him for failure

5 to obey the orders.

6 Finally, when he goes to Belgrade investigators

7 from Republika Srpska and Bjelova come over to

8 investigate the offence. Ultimately there is some

9 hearing before a court on this matter, where one of the

10 witnesses at least says it all occurred in circumstances

11 where they were in a bar, they were drunk and one

12 soldier shot upon another.

13 In those circumstances we submit that there is no

14 basis whatsoever to suggest that he was genuinely under

15 fear of being shot as a consequence of not complying

16 with a superior order that he was given. We add to that

17 the fact that he had done it before. He had disobeyed

18 orders before. So presumably if he genuinely feared for

19 his wife and child, then he did not fear for them on

20 those other occasions. It was only on this occasion

21 with which he has been charged that he was concerned.

22 Finally, your Honours, was acceptance of the

23 guilty plea valid at the time of his initial appearance

24 in view of his mental condition or was any defect in the

25 proceedings corrected by his statements at subsequent

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1 proceedings? Your Honours, I need go no further, I

2 think, than to say that even the accused himself in his

3 brief says that he maintains his position with respect

4 to his plea of guilty and in our submission an

5 examination of the transcript clearly demonstrates at no

6 stage has he moved from that position. He clearly says

7 he is guilty of an offence. He has said so. On

8 numerous occasions he has been questioned about it, but

9 he maintains that. In any event and in conclusion, once

10 a plea of guilty has been entered, once a person has

11 been sentenced, then even if there is equivocation, then

12 in our submission that is not a basis upon which to set

13 aside the plea. There is authority in support of that

14 proposition and the authority on which I rely primarily

15 is a decision of North Carolina V Alfred. It is

16 reported in 400 US reports, page 25, but also there is

17 the case of R v Sullivan, 1984, 2 All England Reports at

18 page 673.

19 In this case the House did not actually deal with

20 that specific issue, but it dealt with the situation

21 where a person, clearly innocent, had pleaded guilty in

22 circumstances where he would have faced the alternative

23 of being found insane and the House of Lords found no

24 difficulty in the plea being accepted in those

25 circumstances. Thank you, your Honours.

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1 PRESIDENT CASSESE: Thank you. Mr. Akhavan?

2 MR. AKHAVAN: Honourable Members of the Chamber, in the

3 limited time that is available to me I would like to

4 quickly summarise the main points of the Prosecutor's

5 argument on the question of whether duress can ever be

6 admissible as a defence to the crime of killing an

7 innocent human being. By way of introduction I simply

8 want to emphasise that duress is an excuse under the law

9 and not a justification. It is often said that duress

10 is such that the actions of the accused are not

11 voluntary. However, duress does not concern itself with

12 the situation in which a person is compelled by physical

13 force to go through the motions of an actus reus without

14 any choice on his or her part. In such cases the

15 accused would be invariably exculpated. He would not be

16 guilty of any blameworthy conduct on the fundamental

17 ground that he did not exercise choice, that he did not

18 act, but as an excuse duress does not pre-suppose that

19 the accused did not have mens rea. As the English law

20 commentators Smith and Hogan observe, when duress is

21 invoked as an defence the accused admits that he was

22 able to control his action, and chose to do the act with

23 which he is charged but denies responsibility for doing

24 so. He may say: "I had no choice", but that is not

25 strictly true. The alternative to committing the crime

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1 may have been so exceedingly unattractive that no

2 reasonable person would have chosen it, but there was a

3 choice".

4 Duress, therefore, your Honours, I would submit is

5 not --

6 PRESIDENT CASSESE: Sorry, Mr. Babic?

7 MR. BABIC: I do not hear the translator.

8 PRESIDENT CASSESE: There is a problem with translation, I

9 understand.

10 MR. BABIC: Okay.

11 PRESIDENT CASSESE: Thank you. You may proceed.

12 MR. AKHAVAN: Therefore, your Honours, duress is not a

13 categorical defence to criminal conduct, because unlike

14 other defences it does not pre-suppose an absence of

15 mens rea. The notion that an act committed under duress

16 is involuntary is simply a legal fiction, as described

17 by the Supreme Court of Canada in the 1984 case of Perka

18 v The Queen, reported in 1984, 13 Dominion Law Reports,

19 4th series at 1. As described by the Supreme Court the

20 involuntary aspect of duress is simply "measured on the

21 basis of society's expectation of appropriate and normal

22 resistance to pressure". Therefore, I wish simply to

23 emphasise that unlike justifications, duress is an

24 excuse and its scope is determined, as the Supreme Court

25 of Canada said, based on societal expectations. It

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1 would not violate any fundamental principle of criminal

2 law if the appeals chamber was to choose not to apply it

3 to the crime of murder.

4 Moving on quickly, your Honours, to the question

5 of duress as a defence to murder under international

6 law, as our written submission clearly indicates, the

7 overwhelming weight of evidence in the post second world

8 war decisions indicates categorically that duress can

9 never be admitted as a defence to the crime of murder.

10 As indicated, the only exception, the only clear

11 exception to this rule, is the Einsatzgruppen trial

12 before the US Military Tribunal. However, as pointed

13 out in our submission, that case does not cite any

14 authority whatsoever in support of its proposition that

15 duress can be a defence to murder, and the case indeed

16 goes against the law of the United States military

17 courts as well as the Anglo-American Common Law, and as

18 further pointed out, this decision has strongly been

19 criticised by leading commentators, including Professor

20 Hersch Lauterpacht and Yoram Dinstein.

21 I wish simply to emphasise also that the Common

22 Law pedigree of international law in this respect should

23 in no way put into question the position of

24 international law on the admissibility of duress as a

25 defence. Such an argument, the argument that the court

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1 must somehow reject the overwhelming weight of authority

2 of this case law, simply because it has a Common Law

3 orientation, would overlook the essentially eclectic

4 character of international criminal law, borrowing, as

5 it does, from various legal systems, often haphazardly.

6 If the pedigree of each and every norm was to be

7 examined and contested before this court, it would

8 undermine the entire edifice of this body of law.

9 To quickly give but one example, the law of

10 conspiracy when it was discussed in 1944, during the

11 preparatory work of the Nuremberg Charter, was

12 considered by the French delegation, and I quote from

13 Bradley Smith, a leading commentator, "as a barbarous

14 concept unworthy of modern law". The Soviet delegation

15 was outright shocked at the concept of conspiracy.

16 Nevertheless it was retained in the charter and it was

17 developed through the case law both of the international

18 military Tribunal and the courts under control council

19 law number 10. It cannot now be argued that conspiracy,

20 because of its Common Law pedigree, should not be

21 admitted as a concept under international criminal law.

22 I would submit, your Honour, that the same clearly

23 applies to the defence of duress. The fact that the

24 position of international law concurs by virtue of

25 historical or other circumstances with the Common Law

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1 position, the fact that duress clearly cannot be a

2 defence to murder under international law, cannot be in

3 any way challenged because of the pedigree or origins of

4 that concept.

5 I would end, your Honours, by emphasising that one

6 cannot resolve this question of law through an

7 exhaustive survey of all legal systems under the

8 category of general principles of law. Firstly, the

9 Nuremberg decisions themselves are recognised as a

10 reflection of general principles of law. This is very

11 clear from the preparatory work of the International

12 Covenant on Civil and Political Rights with respect to

13 Article 15, paragraph 2, which recognises general

14 principles as a means of satisfying the nullem crimen

15 principle and which was specifically included to ratify

16 the jurisprudence of the post-Second World War trials.

17 The same applies to Article 7, paragraph 2 of the

18 European Convention on Human Rights, and there is case

19 law which clearly supports the proposition that the

20 jurisprudence of these tribunals is a reflection of

21 general principles.

22 Secondly, to try to resolve such a highly specific

23 question of law based on general principles would be

24 exceedingly difficult. General principles by their very

25 nature are general. They are not intended to be used

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1 for the determination of highly specific questions such

2 as that before the court. In any event such an

3 expedition would not result in a clear answer, because

4 it is very clear that domestic legal systems have very

5 different positions, and I may say these different

6 positions are not simply between the Common Law and

7 Civil Law systems, but in Common Law systems as well

8 there is considerable divergence on the scope of duress

9 as a defence.

10 By way of example, in the United Kingdom, duress

11 is a defence to all crimes with the exception of murder,

12 aiding and abetting murder and the crime of treason,

13 involving death of the Sovereign, but in Canada, in the

14 criminal code of Canada, it is applied to a wide range

15 of offences, meaning to say that duress cannot be a

16 defence not only to murder or treason, but also to other

17 acts, such as causing grave bodily harm, such as sexual

18 assault, such as kidnapping. Therefore, the only way

19 that this court can resolve this question with certainty

20 is by looking at the relevant international law as

21 decided by the courts following the Second World War,

22 and that we submit clearly indicates on the overwhelming

23 weight of authority that duress cannot be admitted as a

24 full defence to the crime of murder.

25 Unless I may be of further assistance, your

Page 19

1 Honour, those are the submissions of the Prosecutor.

2 PRESIDENT CASSESE: Thank you very much indeed for being so

3 concise. Before we start with questions, I would like

4 to turn to the defence counsel to ask him whether he

5 would like to comment on the oral submissions of the

6 Prosecutor. Mr. Babic?

7 THE INTERPRETER: Microphone.

8 MR. BABIC: Just a few remarks, your Honours. We are

9 dealing here with the relationship between the general

10 and specific sections of criminal codes in countries in

11 which the criminal law has been codified. Therefore, in

12 the European codes, not in a single criminal code that I

13 have had access to, and I have referred to them in my

14 brief, not a single institution from the general part of

15 the Criminal Code has been excluded in relation to any

16 criminal offence in the specific part of the Criminal

17 Code. Therefore, if an institution in the general

18 section of the Criminal Code, such as extreme necessity,

19 duress, self-defence, and all the other general

20 institutions, are proven in the proceedings, then they

21 can and must be applied in relation to all criminal acts

22 regardless of its seriousness that is the basic premise

23 of all the Criminal Codes of the European countries, in

24 my submission. If we were not to accept this, then we

25 would go back to the principle which we do not wish to

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1 question: "nemo crimen sine lege, nemo pene sine lege"

2 (sic), which means we have no general institutions. In

3 the initial hearings I said that my main problem was

4 which law should be applied, Common Law, Anglo-Saxon

5 law, Civil Law or some institutions such as the

6 Nuremberg trials, case law and so on. That is as far as

7 duress is concerned and the general institutions of

8 criminal law. The Prosecutor submits that duress is

9 determined on the basis of the expectations of society.

10 Which society? If we are talking about the society in

11 the territory of the former Yugoslavia and the moral

12 position of that society in relation to such and similar

13 offences, then the position of that society is expressed

14 in the motto of my argument of the appeal, and that is

15 to do evil by defending oneself against evil is no

16 crime. That is the motto. It is not possible to

17 exclude duress if it exists in relation to the classical

18 act of murder. If it is proven in the proceedings, it

19 must be accepted. When my learned colleague elaborates

20 on this all, referring to authorities, he is actually

21 always referring to national laws and national judicial

22 decisions.

23 So let us see. If we do not have a codified

24 international criminal law, then we must see which

25 national laws and which national judicial decisions are

Page 21

1 relevant.

2 The last point I wish to make regarding the mental

3 state. My learned colleagues incorrectly saying that

4 the defence did not react in time regarding mental

5 state. The defence did not have the chance, nor should

6 it have commented on that, because the very guilty plea

7 of the accused, when he explained the conditions under

8 which the act was committed, that defence existed from

9 the very first statement made by the accused before this

10 trial chamber. Those would be my comments, your

11 Honours.

12 PRESIDENT CASSESE: Thank you. I suggest, if my colleagues

13 are agreeable, now to start with questions to both

14 parties, and I would like to start with questions to

15 defence counsel.

16 I have two questions relating to what you wrote in

17 your written briefs as well as what you said this

18 morning. My first question is as follows. In your

19 written brief, Mr. Babic, you argue that Erdemovic acted

20 under duress or, as you say, necessity. Necessity is a

21 defence in that and I quote your words "it precludes

22 either the existence of the offence or the Defendant's

23 guilt". You also say that in Yugoslavia, and again I

24 quote your words "a sharp distinction is made between a

25 criminal offence and criminal responsibility". You go

Page 22

1 on to say: "The fact that someone has committed a

2 criminal offence does not mean that he necessarily is

3 criminally responsible".

4 Now, this is in line with what you actually stated

5 before the trial chamber in your closing argument, which

6 I have with me, and there -- I am afraid I am quoting

7 from the English version -- on page 57 you said, line

8 29:

9 "In his statement Erdemovic actually incriminated

10 himself and defended himself at the same time".

11 Then on page 62 you quote quite a few criminal

12 codes of various European countries, which all state,

13 according to you, but I think there you are correct,

14 that the existence of extreme necessity is a ground for

15 the exclusion of illegality and guilt or exclusion of

16 criminal responsibility. Consistent with this position

17 on page 64 and 65 and of your transcript -- again I am

18 quoting your closing argument -- you stated that you

19 requested that your client, Mr. Erdemovic, be acquitted.

20 Then as an alternative argument you requested that

21 duress or necessity should be regarded as a mitigating

22 circumstance.

23 Now, if this is so, how can you then argue that

24 the guilty plea does not have an ambiguous character?

25 Again I am putting your words, the words in your written

Page 23

1 brief concerning the preliminary issue. In paragraph 2

2 you say:

3 "The guilty plea does not have an ambiguous

4 character".

5 Do you not find contradict re or inconsistent to

6 state on the one hand that the Defendant, although he

7 committed an offence, is not criminally responsible

8 because of necessity and then to state, on the other

9 hand, that the guilty plea is valid? You know,

10 Mr. Babic, under our Statute, as you know, to plead

11 guilty is not the same as to confess to the perpetration

12 of an offence. Under the Statute of our Tribunal to

13 plead guilty means to admit to one's criminal

14 responsibility. After pleading guilty there no longer

15 arises the problem of whether or not one is criminally

16 responsible. This problem of criminal responsibility is

17 settled by the guilty plea. The only problem that

18 arises at that point revolves around the penalty to be

19 meted out, the sentence.

20 I wonder whether you could comment on this remark

21 I have just made, where to stress it again, I find a

22 contradiction in your statement. Could you comment on

23 that?

24 MR. BABIC: Honourable Mr. President, I fail to see any

25 contradiction in my submissions, and having said this I

Page 24

1 find the grounds for saying this in the national

2 legislation of my country, in its practice and judicial

3 theory. According to the Criminal Code of Yugoslavia

4 for someone to be sentenced and for someone to be found

5 guilty it is necessary to prove the objective elements

6 of the act and the subjective elements of the act. Let

7 me make a small digression.

8 In the proceedings that we had here I personally

9 believe, although my honourable colleague the Prosecutor

10 is reproaching me for this, that it was up to him to

11 prove both the objective and subjective elements of

12 offence for someone to be found guilty by this chamber.

13 He is saying that I did not make a motion for experts to

14 make an examination regarding the mental state of the

15 accused at the time of the offence. It was the duty of

16 the Prosecutor to do that, according to our criminal

17 proceedings. Therefore, if the Defendant appearing in

18 the criminal court of Yugoslavia says: "Yes, I did

19 commit such and such an offence" and he explains why he

20 committed that offence and under which circumstances,

21 then he may be relieved of responsibility because of the

22 absence of a criminal act if it is proven that he

23 committed it in necessary self-defence, under extreme

24 necessity, and duress is an element of extreme

25 necessity. That is one point.

Page 25

1 Secondly, a Defendant, according to our law, may

2 be relieved of criminal responsibility if it is proven

3 that at the time of the commission of the act he was

4 mentally irresponsible or that there was no direct or

5 indirect premeditation. That is why my starting point

6 was and remains that the statement of my Defendant is

7 not ambiguous. By his statement, by his plea, he

8 actually expressed his moral attitude towards the

9 offence and the circumstances under which he committed

10 that offence.

11 Further, we are certainly not calling into

12 question the statement of the accused, not even

13 regarding his mental state, even though the first

14 statement was made at a time when physicians said that

15 he was suffering from Post Traumatic Stress Disorder,

16 but he made such a statement before that, too, in the

17 same mental state, after that, too, and under oath

18 between this trial chamber as well, and especially that

19 statement made under oath before the Chamber validates

20 all the previous statements that he made. Therefore, we

21 are not questioning it at all.

22 PRESIDENT CASSESE: Thank you, Mr. Babic, but I do see that

23 you still stick to the code -- the Yugoslav code of

24 criminal procedure. I am afraid here in our Tribunal we

25 do not apply any code of, say, Yugoslavia or France or

Page 26

1 Germany or, say, the United States of America. We apply

2 our Statute, our Statute and our rules of procedure.

3 Now under our Statute it is clear when you say "I

4 plead guilty", that means that you regard yourself as

5 criminally responsible, whereas if you say: "I plead

6 guilty" and then immediately you say: "However, I

7 murdered somebody but I say I acted in self-defence",

8 that means in a way you negate your guilt and you do not

9 regard yourself as guilty. You do not say "I am

10 criminally responsible". You say "I did perpetrate an

11 offence. I did act contrary to criminal law. However,

12 I was excused by self-defence". In this case you cannot

13 plead guilty. Anyway, I do not want to engage on a

14 discussion on this point, but you should be aware again

15 in our Statute, in our Tribunal, we have to apply the

16 rules laid down in the Statute and the so-called

17 Criminal Code, namely the rules of procedure and

18 evidence.

19 I wonder whether my colleagues have any question

20 to put to Mr. Babic. Judge Li?

21 JUDGE LI: Yes. Mr. Counsel for the defence, I would like

22 to ask you a question: could you cite a judgement

23 rendered by a military Tribunal after World War 2

24 affirming a complete defence to a charge of killing

25 innocent civilians under duress so that the accused was

Page 27

1 acquitted? My question is this. Thank you.

2 MR. BABIC: Your Honour Mr. Li, the judgements I had access to

3 I referred to in my closing statement in the appeal and

4 in the appellant's brief, these were mostly judgements

5 rendered in 1947, 1948, when the main perpetrators for

6 grave breaches of international humanitarian law were

7 being tried. In all those judgements we see the position

8 of the Nuremberg court that duress and superior orders

9 cannot be accepted as exculpatory for the crimes

10 committed by Fascist Germany and I stick to that to this

11 day, but I do not find that those judgements are

12 applicable to this case. In those judgements I never

13 encountered duress as being accepted as excluding

14 criminal responsibility, but I do not think that those

15 cases are relative to this case, because we are talking

16 about a regular enlisted man, a soldier. Those

17 judgements do not refer to such lower rank military men.

18 There is a well-known case in Yugoslavia, Soldier

19 Schult, who was ordered with his unit to execute

20 innocent people in Smedreska Palanta. He refused.

21 There in front of those people who were later executed

22 he was stripped of his rank, he was disarmed and later

23 executed. There is a film in the archives of the

24 Yugoslav cinematec, and it can be even seen, if

25 necessary, as evidence material.

Page 28

1 Therefore, my reply is clearly in the judgments of

2 1947 and 1948 there were no such positions that you have

3 referred to.

4 JUDGE LI: Thank you. You say that there is no judgment

5 affirming -- there is no judgment rendered by a military

6 Tribunal after World War 2 affirming a complete defence

7 to a charge of killing innocent civilians under duress

8 so that the accused was acquitted. You cannot find any

9 judgement of military Tribunal to this effect. Is it

10 so?

11 MR. BABIC: It is so, yes.

12 JUDGE LI: No precedent, no judicial precedent as to this

13 question?

14 MR. BABIC: Yes, that is correct, but let me add again, I do

15 not consider those judgements and those cases to be

16 comparable with this case that is being tried here.

17 JUDGE LI: All right. Thank you very much. May I ask

18 another question to the attorney for the prosecution?

19 PRESIDENT CASSESE: If you do not mind, afterwards.

20 JUDGE McDONALD: Mr. Babic, when Mr. Erdemovic entered his

21 plea of duress, he pleaded guilty and asserted a plea of

22 duress; is that correct?

23 MR. BABIC: Yes.

24 JUDGE McDONALD: At that time was it his intention to

25 assert it as a defence or as mitigation of punishment?

Page 29

1 MR. BABIC: We are going back to the question, your Honour,

2 of the purpose of the statement of the accused. That is

3 a theoretical question. The statement of the accused

4 has to be admitted both as evidence and as defence.

5 Accepting one or the other would be inconsistent. If

6 the accused Erdemovic in his testimony said that he was

7 guilty because he participated or had to participate, as

8 he put it, then that is both an accusation and a

9 defence, but the prosecution did not provide any other

10 evidence anyway, and we are not questioning that

11 statement. The only evidence of that criminal offence

12 is the statement by the accused. If that statement is

13 admissible for such a grave crime, then it must be

14 equally trustworthy regarding the conditions under which

15 it was committed. So he did make that statement both as

16 a plea of guilt and as a plea of defence.

17 JUDGE McDONALD: Let us see if we can follow up a little

18 bit on that. Was it your intention then when the plea

19 of guilty was entered that if the trial Chamber accepted

20 the plea of duress, that would result in no criminal

21 punishment to the accused, or was it your intention that

22 it be considered for the purpose of limiting the

23 punishment that should be given to the accused?

24 MR. BABIC: My position and my argument of the plea is

25 positioned alternatively. One is that all that I have

Page 30

1 said be admitted and the accused be acquitted, or if

2 this reasoning of mine is not admitted and my defence is

3 not admitted, taking into consideration all this that we

4 are discussing, then that it should effect a significant

5 mitigation of the sentence.

6 JUDGE McDONALD: If I may just follow up on that, it

7 appears from the sentencing judgement in paragraph 14 on

8 page 7 the trial Chamber stated that:

9 "The plea of duress may mitigate the penalty and,

10 depending on the probative value and force which may be

11 given to these factors, it might eliminate mens rea of

12 the offence and therefore the offence itself".

13 So at least it seems to me from my reading of this

14 sentencing judgement that the trial Chamber was taking

15 basically the same position that you have taken. Pardon

16 me?

17 MR. BABIC: But it was not admitted in the final judgement.

18 JUDGE McDONALD: I quite understand. They did not accept

19 it. I accept that. It seems to me, although the

20 judgement changes -- sometimes it refers to it as a

21 defence; sometimes it is mitigating -- perhaps this must

22 be the best for me at least explanation of what the

23 Trial Chamber was intending, and that is that it may

24 mitigate the penalty but depending on the probative

25 value and force which may be given to it, that it might

Page 31

1 eliminate the mens rea of the offence and the offence

2 itself. I understand your position that the Trial

3 Chamber did not give it the value that you felt was

4 appropriate. So, then, if I understand your position,

5 you were asserting it both as a defence and as a

6 mitigation; is that correct?

7 MR. BABIC: Yes, yes, that is correct.

8 JUDGE McDONALD: Now -- I am sorry. Go ahead.

9 MR. BABIC: Your Honours, I am truly honoured to be the

10 first attorney to appear at the appellate hearing of

11 this Tribunal at which such extremely important issues

12 are being discussed, and that is why I felt it was

13 important that we reach some common understanding we

14 should apply not only for this case but maybe for future

15 cases as well.

16 JUDGE McDONALD: I have just another question, if I may. I

17 gather that it is your position that the prosecution

18 bears the burden of proving duress -- the absence of

19 duress, because it is your position that it is a mens

20 rea element or it is an element of the offence because

21 of the mens rea requirement, and that the prosecution

22 must then prove that the accused had this mens rea; is

23 that correct?

24 MR. BABIC: That is my position, and I think that is the

25 position upheld by the criminal codes of European

Page 32

1 countries. The burden of proof is with the Prosecution,

2 and it is not just the objective elements that have to

3 be proven, but also the subjective elements or mens

4 rea. So it is up to the Prosecution to prove that,

5 which does not mean to say that the defence should take

6 a passive attitude, of course.

7 JUDGE McDONALD: Mr. Akhavan, though, this morning stated

8 with respect to duress mens rea and actus reus exist but

9 duress as a defence I believe he said is only if there

10 is no moral choice. Now, if you accept the proposition

11 that even in a situation of duress mens rea exists, then

12 would you still take the position that it is the burden

13 of the Prosecution to prove the existence of mens rea in

14 order to overcome a defence of duress, if you understand

15 my question?

16 MR. BABIC: Yes, I quite understand. I said that the

17 subjective elements of a criminal act are the question

18 of competence, mental competence, and meditation.

19 According to European codes you have to prove the

20 objective elements, that somebody did commit an offence,

21 the actual act, its consequences and the cause and

22 effect -- those are the objective elements -- and the

23 subjective elements, that somebody was mentally

24 competent and his attitude towards that act, the mens

25 rea, his mental attitude and his voluntary attitude,

Page 33

1 mentally whether he was conscious of what he was doing

2 and, secondly, does he accept what he is doing? Does he

3 have the will to do that? That is the law of European

4 countries. That is the Prosecution -- up to the

5 Prosecution to prove it. Of course the defence, too, if

6 it is in its interest.

7 JUDGE McDONALD: But it may then prove mens rea and still

8 the plea of duress may at the very least result in

9 mitigation, and if that were the case, if the plea of

10 duress is an issue of mitigation and not a defence, then

11 would the defence have the burden of proving the

12 validity of the plea of duress or would the Prosecution

13 have the burden?

14 MR. BABIC: Let me refer again to the Criminal Code of

15 Yugoslavia. According to the Yugoslav Criminal Code the

16 court, irrespective of what the defence and the

17 Prosecution asserts, can independently establish certain

18 facts, regardless of what the parties submitted. In

19 this case, whether duress has to be proven by the

20 Prosecution or by the defence as a mitigating

21 circumstance, we have tried to prove it, and I think we

22 did prove it in the least as a mitigating circumstance.

23 JUDGE McDONALD: One final question, Mr. President, if I

24 may. The quote that you referred to, Mr. Babic, in your

25 brief "to do evil to protect oneself against a crime is

Page 34

1 no evil", and you also referred in your opening comments

2 this morning to self-defence, now that quote seems to me

3 that that would raise an issue of self-defence, but that

4 was not the plea that Mr. Erdemovic entered when he

5 entered his plea of guilty. He was not claiming

6 self-defence, was he?

7 MR. BABIC: Your Honour, you have made a very good point,

8 but it is true that this quotation is reminiscent of

9 self-defence, but it is also reminiscent of extreme

10 necessity as a second institution. Necessary

11 self-defence excludes the existence of an offence and

12 there is another one, that is extreme necessity, too.

13 JUDGE McDONALD: Thank you.

14 PRESIDENT CASSESE: Thank you. I would like to ask one

15 further question.

16 THE INTERPRETER: Microphone please, your Honour.

17 PRESIDENT CASSESE: I am sorry. I am not very good with

18 this equipment. It is too complicated for me. If you

19 do not mind, Mr. Babic, I would like to ask you a second

20 question, which does not relate to the issue of guilty

21 plea -- or I mean not to the extent -- it is a bit

22 different from the various problems we have been

23 discussing so far.

24 You know that Mr. Erdemovic was charged by the

25 Prosecutor on the same facts for war crimes or crimes

Page 35

1 against humanity. Now when he entered a guilty plea, he

2 pleaded guilty to crimes against humanity. My question

3 is as follows: did you explain to him the difference

4 between war crimes and crimes against humanity? In

5 particular, did you explain to Mr. Erdemovic that, all

6 things being equal, to classify an offence as crime

7 against humanity normally entails a heavier penalty than

8 that consequent upon a war crime? For instance, if

9 somebody is charged with murdering, say, ten persons or

10 five persons, now if this murder which occurs during an

11 armed conflict is classified as a war crime, normally it

12 entails a less heavy penalty than the same murder if it

13 is classified as a crime against humanity because of the

14 stigma which attaches to crimes against humanity and

15 also because, as the Trial Chamber pointed out in its

16 decision, a crime against humanity is a crime committed

17 not only against somebody, the persons who are killed,

18 but also against humanity as a whole. The victim is not

19 only the person who is actually killed but also the

20 whole of mankind. So did you clarify to your client the

21 difference between these two classes of crimes, because

22 I have seen -- we have all seen that actually he pleaded

23 guilty to the more serious crime. This is my question

24 to you.

25 MR. BABIC: Your Honour, before the accused Erdemovic

Page 36

1 entered his plea as to what he felt he was guilty of, he

2 was questioned by the esteemed colleague from the

3 Prosecution. When all this came together and when he

4 entered his plea and when this was compared with the

5 legal solution set forth in the Statute as to what is

6 the essence of the criminal offence of the war crime and

7 what is the essence of the criminal offence of the crime

8 against humanity, taking into account the absence of war

9 operations, combat operations and bearing in mind the

10 presence of the civilian population, there was no other

11 choice. We did not have the option of war crime,

12 because the elements -- all the elements of the criminal

13 offence of the war crime were not present. So we

14 discussed that.

15 PRESIDENT CASSESE: Sorry. May I ask you -- I did not

16 understand you correctly. You said that some elements

17 of war crimes were not present. Which elements of war

18 crimes were not present?

19 MR. BABIC: Yes.


21 MR. BABIC: The presence of the civilian population is not

22 an element of the war crime; it is an element of the

23 crime against humanity.

24 PRESIDENT CASSESE: Do you mean to say that in an armed

25 conflict, whatever its classification, whether it is

Page 37

1 classified as internal or international, the killing of

2 civilians may not be regarded as a war crime? I mean,

3 if you go through the case law of --

4 MR. BABIC: During combat operations, yes, during combat

5 operations.

6 PRESIDENT CASSESE: All right. Thank you. Now I think we

7 can now move on to the Prosecutor, and I think we have

8 quite a few questions -- I for one have quite a few

9 questions to ask the Prosecutor. I wonder whether my

10 colleagues would mind if I ask and I will probably give

11 up some of my questions. Probably there are too many.

12 First of all, there is an issue which has just

13 been discussed between Judge McDonald and the defence

14 counsel, namely what actually defence counsel did when

15 he raised the question of duress, whether he urged

16 duress as a defence or as a mitigating circumstance.

17 Now, the Prosecutor in his written brief states,

18 and I quote:

19 "The guilty plea entered by the accused was

20 unequivocal in that the accused invoked duress only in

21 mitigation of his sentence and not as a defence".

22 Now, this is in conflict -- this is contrary both

23 with what -- contrary both to what the defence counsel

24 has just pointed out and also to what actually happened

25 in the various stages of the proceedings before the

Page 38

1 Trial Chamber. Let me also quote a few passages of

2 those transcripts. This was on 31st May, I think. When

3 Mr. Erdemovic entered the guilty plea, he said and I

4 quote -- it is page 9 of that transcript, Friday, 31st

5 May 1996, page 9, lines 7-11. He said and I quote:

6 "Your Honour, I had to do this", namely to kill

7 the civilians. "If I had refused, I would have been

8 killed together with the victims. When I refused they

9 told me: "If you are sorry for them, stand up, line up

10 with them and we will kill you too. I'm not sorry for

11 myself, but for my family, my wife and son, who I then

12 had nine months but I could not refuse because then they

13 would have killed me. That is all I wish to add".

14 At that stage it was not clarified whether this

15 statement was made to urge mitigation of the sentence or

16 whether it was urged as a defence proper. So, as I say,

17 this point was not clarified. However, later on in the

18 closing statement, closing argument of the defence

19 lawyer, which I quoted before, clearly, as he just

20 pointed out, the question of duress or necessity was

21 again urged both as a defence proper, and therefore

22 quite consistently he insisted that Mr. Erdemovic be

23 acquitted, as well as a mitigating circumstance, and he

24 requested that a very lenient sentence be passed.

25 So, therefore, I do not understand why you make

Page 39

1 this statement which I just mentioned before, and I

2 would like to ask you whether you could clarify this

3 point?

4 MR. NIEMANN: Certainly, your Honour. Your Honours, the

5 position of the Prosecution on this is that the issue of

6 the guilty plea was explained in great detail by the

7 sentencing court, and even when this question arose, it

8 was explained again. In addition to that there is the

9 rules of the Tribunal, which speak of a sentencing

10 hearing in Rule 92, I think -- sorry -- Rule 62,

11 paragraph 5. Once the plea of guilty is entered, then a

12 date for the pre-sentencing hearing takes place. So

13 there is in the rules itself -- it is implicit, in our

14 submission, that one moves immediately from the plea to

15 the sentencing issue. That was understood, we submit,

16 by the accused and his counsel. The sentencing judge

17 himself at page 6 of the transcript of 31st May 1996 at

18 line 22, we submit, starts off by setting out what is

19 understood by a plea of guilty, and he clearly says:

20 "If you plead not guilty, you will be entitled to

21 a trial during which, of course, with your lawyer, you

22 will contest the charges and allegations and the charges

23 presented against you by the Prosecutor. As I will

24 remind you, alternatively, either one of the other

25 violation was of the crimes against humanity or war

Page 40

1 crimes..."

2 His Honour goes on. Then at line 26 he says:

3 "If you plead not guilty the trial will continue

4 but completely differently, which I am sure you

5 understand, but which I have to explain to you. At that

6 point you will have the opportunity during another

7 hearing and a date which we will set at that point in

8 agreement with everybody you will plead guilty but you

9 will plead under other circumstances, that is that there

10 are attenuating circumstances, mitigating circumstances

11 or aggravating circumstances. Then there will be a

12 discussion between your attorney and the Prosecution,

13 which will not be the same".

14 Now that was explained, in our submission, right

15 at the outset. Then at the point your Honour, the

16 learned President, took us to, you say that he raises

17 here an equivocal plea. We submit not. What he raises

18 here is, and what we say is instructive about this is

19 line 9, where he says:

20 "I am not sorry for myself but for my family, my

21 wife and son we then had nine months and I could not

22 refuse because then they would have killed me".

23 In our submission, your Honour, this is raised at

24 this point. His Honour the presiding judge then moves

25 immediately on to the question. He says at line 14:

Page 41

1 "Mr. Erdemovic, would you please rise again? The

2 Tribunal must be sure that you know what you are doing,

3 because you know that pleading guilty or not guilty does

4 not have the same consequences. You are before a

5 Tribunal and the Tribunal must determine a penalty for

6 your behaviour. At the proper time it will do so, and,

7 of course, at the end of this one how we are going to

8 organise the second one where you can explain yourself,

9 but you cannot go back on the facts to which you have

10 pleaded guilty. This is finished now and this is

11 something that the Tribunal wants to be sure you really

12 understand, and that your plea is sincere. You are

13 represented by Mr. Babic. Are you satisfied with his

14 representation, with your counsel? Have you been able

15 to discuss things with your attorney under the most

16 desirable conditions?"

17 The accused responds: "Your Honour, I am satisfied

18 with the indictment".

19 His Honour then says, and I labour this point

20 because it I will states the very point. His Honour

21 then insists:

22 "This is not the indictment now I am talking

23 about. I want to know whether through the contacts that

24 you have had were you able to have counsel of your

25 choice? If I ask you this question it is because the

Page 42

1 Tribunal had to appoint counsel".

2 His Honour goes on to speak about the appointment

3 of counsel. Then at the bottom of the page, line 32,

4 page 9:

5 "Therefore, from this point on, you have given up

6 the right to a trial to determine whether or not you are

7 guilty. This must be clear. This must be clear to you,

8 clear between you and the Tribunal ...", and so on. I

9 do not need to labour it any further.

10 The point I make, your Honour, is at that stage

11 his honour the presiding judge of the sentencing Chamber

12 was meticulous to ensure that the accused and his

13 counsel knew what was happening. There is a confusion,

14 your Honours, and the confusion is simply this, and I

15 think Mr. Babic points to it in his appeal papers when he

16 says there is a collision between two jurisdictions. We

17 submit there is no collision, because the international

18 law position is very clear and duress is simply not

19 available or open to the accused, but what the collision

20 is, your Honour, is the fact that notwithstanding what

21 the sentencing judge was saying, notwithstanding what

22 was in the rules about what was happening and the great

23 lengths that His Honour the Presiding Judge went to

24 try and ensure that the accused knew what he was doing,

25 the accused through his counsel continually went back to

Page 43

1 the position where he wanted it to be both ways. This

2 was notwithstanding the fact that the judge explained

3 it.

4 So there is either two things here. One is he

5 could not understand or did not understand what the

6 judge was saying to him, or alternatively he refused to

7 understand. Our submission is at the time he entered

8 his plea of guilty he knew what he was doing. He was

9 saying: "Yes, I committed this crime, but I want to say

10 to you that I did so because I had to protect my wife

11 and child", who he was concerned about. "I was not

12 concerned about myself. It was not a circumstance where

13 I genuinely feared that there would be immediate

14 reaction to me disobeying this order". I pointed out

15 the fact, your Honours, on two other occasions he had

16 disobeyed orders. He was not concerned then that there

17 would be immediate reaction. He was concerned about his

18 wife and child, so he says. He said that: "I want your

19 Honours to take that into account when you are

20 sentencing me". That was clear. That was very clear.

21 Just touching on the issue of whether that

22 position changed, in so far as the accused is concerned,

23 it never changed. In our submission, the accused

24 himself maintained the same position throughout.

25 PRESIDENT CASSESE: Mr. Prosecutor, on one small point still

Page 44

1 I do not understand you when you say he was only

2 concerned about his wife and child, because as I said

3 before, I quoted Mr. Erdemovic's statement here when he

4 pleaded guilty. He said: "When I refused to shoot, they

5 told me: "If you are sorry for them, stand up, line up

6 with them, and we will kill you too". Then he goes on

7 to say: "I was also sorry for my family, my wife and my

8 son". So, therefore, he was also concerned about his

9 own life.

10 Anyway, I agree with you in a way it was clear

11 throughout the proceedings that the counsel for defence

12 did not perceive the real import and scope and

13 significance of guilty plea notion under our Statute.

14 However, it is a fact that he insisted all over again on

15 both his client being guilty and on necessity, on

16 necessity. So I wonder whether this by itself would not

17 make the guilty plea ambiguous, but let me move on to a

18 different point, if you allow me.

19 Now this morning Mr. Akhavan has stated again what

20 was forcefully pointed out in your written submission,

21 and I quote Mr. Akhavan, namely there is overwhelming

22 evidence to the effect that duress cannot be urged as a

23 defence in case of murder. I wonder whether this is

24 correct, because actually in your written statement you

25 mention three cases, two British cases and one Canadian

Page 45

1 case, but quite properly you also say that there is

2 another British case, Wepson case, and two US cases

3 before the Nuremberg Military Tribunal -- the American

4 Military Tribunal sitting at Nuremberg which took a

5 different position. Therefore it is not true that there

6 is an overwhelming weight of evidence, but on top of

7 that I would like to add that I am sure you are aware

8 that there are quite a few other cases which take a

9 different position, namely a position whereby duress may

10 be pleaded as a defence even in case of murder or in any

11 cases where important tribunals do not make any

12 distinction between the underlying crime. Let me just

13 quote the Eichmann case, the Supreme Court of Israel; two

14 French cases, Touvier, T-O-U-V-I-E-R, judgements by a

15 Court of Appeal and Court of Cassation in France, and

16 P-A-P-O-N, the Papon case; as well as a recent Italian

17 case, P-R-I-E-B-K-E, Priebke. Let me just read out and

18 ask you to comment on one small passage from the Israeli

19 case. This is from the international law reports volume

20 36 and it is the judgement delivered by the Supreme Court

21 of Israel. There they say and I quote:

22 "As stated, the applicability of these defences,

23 namely constraint or necessity, as relieving from

24 responsibility in respect of the offences the subject of

25 the law of 1950" -- this is an Israeli law of 1950 --

Page 46

1 "has been excluded by Section 11 there".

2 I think it is a very bad translation. The point

3 comes now. They go on to say, and I quote:

4 "But even had the Israeli law permitted the

5 accused to rely on the defence that in carrying out the

6 order to commit the crime he was acting in circumstances

7 of constraint or necessity, he would still not succeed

8 unless the following two facts were proved: one, that

9 danger to his life was imminent; two, that he carried

10 out the criminal task out of a desire to save his own

11 life and because he knew of no other possibility of

12 doing so".

13 Then they quote the Einsatzgruppen case. Then

14 they go on to say:

15 "As will be seen below, neither of the said

16 conditions has been met in this case".

17 Then I have again for your comments an Italian

18 case where, as in the case of Eichmann -- as you know,

19 Eichmann was accused of planning the genocide of millions

20 of Jews. Now this is a case which came up before the

21 Italian Military Court in Rome. The accused, Captain

22 Priebke, he was a Captain of the SS, he was accused of

23 complicity in the killing of quite a few people. Again

24 it is a murder case. There the Tribunal pointed out the

25 following, and I will read slowly the relevant passage:

Page 47

1 "The Tribunal observes that had the accused faced

2 an imminent threat of death, he would no longer have

3 been under a duty to refuse the order, as he would have

4 been acting in a state of necessity".

5 Then it went on to say:

6 "In this event of imminent threat of death he have

7 could have backed down from refusing to obey an order

8 and participated in the executions only to save his own

9 life, claiming the defence of state of necessity, which

10 is provided for in all legal orders, including German

11 law. Indeed, in this case, no person could have

12 expected Priebke", the German captain, "to act as a hero

13 and sacrifice his own life in order to avoid

14 participating in the inhumane execution, the execution

15 of 335 civilians. Thus, in all of the possibilities

16 with which we have dealt Priebke could have had a way

17 out. This way out, however, certainly could not be that

18 of obeying a manifestly unlawful order except in case of

19 imminent danger to his life. As such danger was never

20 realistically made apparent in this case, it follows

21 that he has full responsibility as an accomplice with

22 other executioners".

23 Therefore, the court rejected the defence of

24 duress on point of fact. I wonder if you could comment

25 on these cases and in a way elaborate on the philosophy

Page 48

1 of your view of duress as only a mitigating circumstance

2 in case the underlying crime is a murder.

3 MR. NIEMANN: Your Honours, I will ask Mr. Akhavan to give me

4 some assistance in this, because he has done a

5 particular study of the international cases and other

6 cases relating to this. I would like to comment

7 generally, if I may, on the matters that were raised by

8 your Honours. It has never been the position of the

9 Prosecution that there is not a division of opinion

10 among the various national states with respect to the

11 question of whether or not duress can be a defence,

12 especially when the underlying offence involves a

13 killing of innocent human beings. Our argument is, and

14 I will ask Mr. Akhavan to develop this for your Honour,

15 is that in international law, and the law we would urge

16 your Honours to apply, we would say that applying that

17 law, your Honours, duress is not a defence to a crime

18 where the underlying offence involves the killing of

19 innocent human beings. We say that although there is

20 perhaps strong and compelling arguments in favour of why

21 some jurisdictions would admit duress as a defence, we

22 say there is equally some strong and compelling reasons

23 why it should not be admitted as an offence, especially

24 when it involves the killing of innocent human beings.

25 We say that it is appropriate for your Honours to apply

Page 49

1 the international law, and in that respect we would

2 reinforce that by referring to the strong underlying

3 principles which would suggest that it should not be a

4 defence.

5 If I may, and if it would assist your Honours, the

6 case that I referred to by Lord Salmon is very

7 instructive on this point. If I may, I will read out

8 the passage because I think it may assist in an

9 understanding of at least the policy considerations as

10 to why it should not be admitted as a defence.

11 His Honour -- his Lordship Lord Salmon first deals

12 with the case of Lynch v the Director of Public

13 Prosecutions, which had admitted duress to attempted

14 murder. Then he makes a comment that -- he says:

15 "There is no case in England or any other part of

16 the Commonwealth" bearing in mind this was Privy Council

17 "that duress is an defence to a charge of murder by a

18 principal in the first degree".

19 He points to one exception in South Africa and

20 says that is a combination of Roman, Dutch and English

21 law. Then he says this:

22 "Counsel for the appellant has argued that the law

23 presupposes a degrees of heroism, of which the ordinary

24 man is incapable and which therefore should not be

25 expected of him and modern conditions and concepts of

Page 50

1 humanity have rendered obsolete the rule that the actual

2 killer cannot rely on duress as a defence. Their

3 Lordships do not agree. In the trial of those

4 responsible for war crime atrocities such as mass

5 killings of men, women and children, inhuman experiments

6 on human beings often resulting in death and like crimes

7 it was invariably argued for the defence that these

8 atrocities should be excused on the grounds they

9 resulted from superior records and duress. If the

10 accused had refused to do these dreadful things they

11 would have been shot and therefore they should be

12 acquitted and allowed to go free. This argument has

13 always been universally rejected. Their Lordships would

14 be sorry indeed to see it accepted by the common law of

15 England. It seems incredible to their Lordships that in

16 any civilised society any such acts as the appellant's,

17 whatever threats may have been made to him, could be

18 regarded as excusable or within the law. We are not

19 living in a dream world in which the mounting wave of

20 violence and terrorism can be contained by strict logic

21 and intellectual niceties alone. Common sense surely

22 reveals the added dangers to which in these modern times

23 in the modern world the public would be exposed if the

24 change in the law proposed on behalf of the appellants

25 was effected. It might as well, as Lord Simon of

Page 51

1 Glysdale said in Lynch's case, prove to be a charter for

2 terrorists, gang leaders and kidnappers".

3 His Honour then goes on to hypothesise what would

4 happen if this defence was permitted, and how terrorists

5 might put under duress other parties who could go and

6 plant a bomb in a market place, on a plane or

7 elsewhere. People would be killed en masse, and then it

8 may be used again by terrorists to do the very same

9 thing. We submit that these policy considerations,

10 coupled with the international law itself, is in our

11 submission why duress should not be permitted.

12 To answer your Lordship's question relating to the

13 international law, I will ask my friend to address you.


15 MR. AKHAVAN: Your Honours, I would like to point out first,

16 of course that in terms of the respective authority of

17 the cases which you have mentioned that all of these are

18 cases before domestic courts, and they are, I believe,

19 applying domestic law or perhaps the domestic

20 interpretation of the applicable international law.

21 With respect to these cases, one clearly sees in terms

22 of the higher archive of sources for international law

23 under Article 38, paragraph 1 of the Statute of the

24 International Court Of Justice, that judicial decisions

25 are only subsidiary sources of international law. They

Page 52

1 are clearly not the primary or decisive source for

2 determination of norms. Of course, when a court is in

3 its decision reflecting international law, whether it is

4 conventional, customary or otherwise, then it can be

5 given more weight. I would submit that the decisions in

6 the Touvier, Papon and Priebke cases in no way

7 contradict the earlier submission I made today and the

8 submission we have may have had in writing in the sense

9 that these are all civil law jurisdictions in which

10 clearly duress has a broad applications, which includes

11 the crime of murder.

12 The Eichmann case may be somewhat different, but

13 the Eichmann case is also referring back to the erroneous

14 judgement of the Einsatzgruppen trial. First of all, I

15 would have to inspect more closely the specific facts

16 that are involved when the court made the statement

17 which your Honour referred to, but my understanding once

18 again from what you have read is that the court is

19 referring back to the Einsatzgruppen trial.

20 The reason why I am saying that the overwhelming

21 authority is against the proposition is based on the few

22 assumptions. The first assumption is that the report of

23 the United Nations War Crimes Commission, which I have

24 reproduced for your Honours -- I may be able to hand the

25 relevant parts -- in Volume 15, which deals with the

Page 53

1 plea of duress, has isolated the leading cases or

2 actually the only cases which are on point with respect

3 to duress. I believe that those cases must be given

4 considerably more weight than any national decision in

5 the sense that all of those cases were applying

6 international law, even though some of them were

7 national courts of the occupying powers. The control

8 council power number 10 was adopted by the four allied

9 powers and 19 additional signatories, such that one can

10 consider it as part of the corpus of international law.

11 From those decisions you have pointed out a number of

12 cases which go contrary to our position.

13 The Wepson I case was decided before a British

14 military Tribunal. It was decided in 1946, and was

15 effectively overruled by the two subsequent decisions of

16 the British cases in the Stalag Luft III case and in the

17 Furstein case, which were decided in 1947 and 1948

18 respectively. Also in 1946 a Canadian Military Tribunal

19 in the Holzer case had decided the contrary position.

20 The Wepson trial cites no authority whatsoever in

21 support of its proposition, contrary to the three other

22 decisions which we have spoken of. Certainly when a

23 court does not cite any authority in support of its

24 proposition, its statement cannot be given the same

25 weight as that of the three other courts.

Page 54

1 In the US cases as well, as we have pointed out,

2 the IG Farben, Krupp and Flick cases are not on point.

3 They do not deal with the question of killing. At most

4 there is a passing reference to this question in Krupp

5 based on an obscure commentary from 1932. It is our

6 submission that that cannot be given any significant

7 weight. Similarly the Einsatzgruppen trial does not

8 produce any authority in support of its proposition. As

9 we have pointed out, even had they wanted to, they would

10 not have found anything in international law. They

11 would not have found any precedent as of that point in

12 time which would support their proposition, nor even in

13 their own American law would they have found any support

14 for that proposition. So I do not think that one can

15 say that the reference to the erroneous judgement of the

16 Einsatzgruppen trial, the erroneous reference in

17 subsequent decisions such as Eichmann in any way

18 invalidates the argument which we have made.

19 If I may also clarify one small point, your

20 Honours, that refers back to the question of mens rea,

21 the question of duress as an excuse. What I was trying

22 to explain, your Honours, is simply that there is no

23 reason why duress categorically must apply to the crime

24 of murder. Unlike justification, it is not a defence

25 which in all respects removes the criminal character of

Page 55

1 the crime in question. I refer here to the 1996 report

2 of the International Law Commission in its commentary on

3 the Draft Code of Crimes against the Peace and Security

4 of Mankind at page 74. The Commission recognises the

5 distinction between justifications and excuses and goes

6 on to say as follows:

7 "Self-defence is a justification eliminating in

8 all respects the criminal character in question",

9 but the Commission goes on to recognise

10 specifically that:

11 "Duress, if admitted in relation to particular

12 crime, is merely an excuse which may exculpate a

13 particular accused".

14 What we are simply trying to point out, your

15 Honour, is that the question of where one draws the line

16 as to the application of this defence is one which is

17 determined variously in differing legal systems. In

18 order to decide where to draw that line in international

19 law, one has to refer back to the leading authorities,

20 which we submit are those cited by the UN War Crimes

21 Commission, and on the weight all support the

22 proposition that duress should never apply as a defence

23 to murder.

24 If you have no further questions ...

25 PRESIDENT CASSESE: Thank you. I think it is time --

Page 56

1 JUDGE STEPHEN: I would just like to take up with you the

2 question of the distinction that is apparently drawn in

3 the report to which you have just referred between

4 self-defence and duress. How do you understand the

5 basis for that distinction? In each case the act is

6 done consciously and voluntarily, "voluntarily" in

7 quotes, if you like, because of an overwhelming need

8 either to defend yourself or to save yourself from

9 threatened duress. What is the distinction between the

10 two?

11 MR. AKHAVAN: If I may quote on that point, your Honour, the

12 comments of Smith and Hogan once again on the English

13 law, whereby they say:

14 "An act is justified when we positively approve of

15 that". When someone kills in self-defence or even one

16 can give the example of someone administering a death

17 penalty, one is not engaging --

18 JUDGE STEPHEN: But the administration of a death penalty

19 is entirely different. That is a state servant carrying

20 out the order of a court. Let us get back to

21 self-defence.

22 MR. AKHAVAN: In both cases, as Smith and Hogan would

23 explain, the behaviour is approved of. The act in

24 question is approved of, whereas when an act is merely

25 excused, it is disapproved of, but we think not to treat

Page 57

1 it as a crime. So in the case of self-defence, the act

2 in question, the actual killing, which is committed in

3 self-defence, is approved of, and one can also say that

4 the mens rea the element of the guilty mind, does not

5 exist, whereas in the case of an excuse the act itself

6 is disapproved of. It involves a guilty mind, but there

7 is exculpation for reasons -- what I would consider to

8 be reasons of public policy cited from the case from the

9 Supreme Court of Canada based on societal expectations

10 of what is reasonable pressure, what is reasonable

11 resistance to pressure.

12 But the point is simply that it is very clear from

13 the different legal systems of the world that

14 self-defence is seen as a categorical defence. It is

15 always a defence when the requisite elements are

16 present, but duress is not so. Duress is applied in

17 very different ways, not only between the civil law and

18 Common Law systems, but within the Common Law systems

19 themselves based on various considerations of public

20 policy, of societal expectations as to what may

21 legitimately be expected of the reasonable person when

22 subjected to certain pressure.

23 JUDGE STEPHEN: Thank you.

24 JUDGE McDONALD: All I want -- I do not want a question.

25 The case that you referred to, you did not refer to in

Page 58

1 your brief. Could you provide a copy of that case?

2 MR. AKHAVAN: Certainly, your Honour.

3 JUDGE McDONALD: If you could provide it so that I can look

4 at it over the recess, it would help me.

5 MR. AKHAVAN: I will do it immediately.

6 PRESIDENT CASSESE: Before we break for 20 minutes may I

7 just point out, however, that you insist on the

8 authorities given by some cases -- in some cases, the

9 Stalag Luft III case, the Furstein and the Holzer case,

10 but these authorities are British authorities. I know

11 very well. They keep quoting Dudley and Stephen. So

12 again they are within the national approach. You cannot

13 make a difference between other courts which apply

14 national law, as you said, and then these three cases

15 which you very much emphasise because they are blind to

16 national law. No, not at all. To the best of my

17 recollection they simply quote British cases, in

18 particular the famous Minionette case. So again I do

19 not see any difference between these various classes of

20 cases. Again I do not see why 3 out of 20 cases should

21 remain and be regarded as the overwhelming weight of

22 evidence in international law, but this is a point we

23 can take up later on. I think it is high time for a

24 break. I suggest to adjourn for 20 minutes. The

25 meeting stands adjourned.

Page 59

1 (11.20 am)

2 (Short break)

3 (11.40 am)

4 PRESIDENT CASSESE: Before we start with questions for the

5 Prosecutor, may I tell you that we have decided to go on

6 until 1 o'clock and then to adjourn and resume at 2.30.

7 Is that agreeable to you? Thank you. Now let us go on

8 with questions to the Prosecutor. I have one final

9 question, which relates to, as Mr. Niemann put it, policy

10 considerations of policy issues behind the question of

11 duress and also the basic issue of whether or not there

12 really exists a split, it is a different approach

13 between civil law and Common Law countries. Let me try

14 to clarify with you this issue by in a way submitting to

15 you four different cases or instances and by discussing

16 these four different instances we may see whether

17 actually there exists a difference between, as I say,

18 civil law countries and Common Law countries, and also

19 we could probably try to pinpoint the philosophy behind

20 the notion of duress and why in Common Law countries

21 duress may not be urged as defence in case of murder.

22 One first case is very simple. A person, A,

23 compels at gunpoint a person, B, to kill a third, C. A,

24 B, C. A tells B if he cannot kill C, he himself will be

25 shot dead. It is very clear the person must choose

Page 60

1 between his life and the life of a third person. This

2 is the most elementary case. This is the case normally

3 dealt with by quite a few judgements, including those

4 which you have mentioned. There are also some judgements

5 delivered by the French military courts after the Second

6 World War, where we have precisely this situation, a

7 captain telling a soldier: "If you do not kill that

8 civilian, I will kill you". Therefore the person

9 coerced, as I say, has to choose between his own life

10 and the life of a third person.

11 Then we have the slightly more complicated case.

12 The person A tells B if he does not kill C he will kill

13 the child of B. Here the person coerced must choose

14 between the life of a third person and the life of his

15 own child, but still probably we still remain within the

16 approach, within the framework of the choice between the

17 life of an innocent person and the life of that person

18 who is requested to shoot.

19 Then I think we may move on to a different

20 situation. Let me give you two examples there, two

21 instances which I have thought up. One may be regarded

22 as typical of, say, our own countries' situation in time

23 of peace. Say a bank robbery case. A person, say a

24 robber, after taking hostage another person, requests a

25 witness of the hostage taking to kill the hostage. The

Page 61

1 robber, say A, adds that if C, namely the witness, does

2 not execute the hostage he will shoot both the hostage

3 and the witness. Now in this case the person coerced

4 must choose between shooting the hostage or being killed

5 together with the hostage. So the witness, therefore,

6 knows that in any case the hostage will be killed.

7 Could one then say that by killing the hostage he

8 chooses the lesser of two evils? As I say, he knows

9 that in any case the hostage will be killed. So his

10 choice is very limited. "Either we both die or he will

11 die, and he will die in any case. He will be shot

12 either by me or by the hostage taker".

13 Then a similar example that is more germane to a

14 warlike situation, and I will say the example is as

15 follows. The member of an execution squad upon his

16 refusal to take part in the execution of ten prisoners

17 of war is threatened to be shot right away. No other

18 member of that execution squad refuses to obey the order

19 to kill the POWs. In this case the person under duress

20 must decide whether to sacrifice his own life knowing,

21 and this is my major point, knowing that the ten

22 prisoners of war will be shot anyway. He is not faced

23 with a real choice between his own life and that of

24 other persons.

25 Now do you see the difference, because in a way if

Page 62

1 you think of the first two cases I very much doubt in a

2 civil law country judges would take a position different

3 from that of a Common Law court. Probably even of a

4 civil law country the philosophy which you mentioned

5 before and which you in a way propounded so well, the

6 philosophy you set out, the philosophy behind duress not

7 being a defence in case of murder. Probably that

8 philosophy would also apply in a civil law country.

9 Why? Because again there is the choice between my life

10 and the life of an innocent person. Of course, this in

11 particular applies when I am a soldier. I am a

12 combatant, and therefore because of my own profession, I

13 have to face risks, whereas the innocent person is not a

14 combatant. He is just a civilian. So, therefore, as I

15 say, even in a civil law country we, -- I think a court

16 would stick to your philosophy. Probably with some

17 doubts between a choice of being killed or the child

18 being killed, my second example. I have to choose

19 between killing a third person or killing -- seeing my

20 child killed by the person who is coercing me, but if

21 you think of the third or fourth case, there in any case

22 you know there is no choice, because in any case, as I

23 said, either the witness and the hostage both will be

24 killed or ten prisoners of war will be killed. Could

25 you comment on these various cases and see whether you

Page 63

1 could apply your philosophy? To what extent what you

2 find as the rationale behind the three cases you are

3 insisting upon, whether this rationale can also apply to

4 all the four cases or only to some of them?

5 MR. AKHAVAN: Well, your Honour, this is, of course, an

6 exceedingly complex philosophical discussion. One could

7 discuss this from very different perspectives. If the

8 underlying issue is the proportionality of evil, as you

9 are suggesting, then one would have to measure what is

10 the evil in each particular situation, which is avoided

11 as opposed to the evil which is committed, but that is

12 not as easy an exercise as it may appear to be. Even if

13 one reduces it to a pure game of numbers, which I think

14 is problematic from several points of view, to say it is

15 better to take one life than allow two to be killed,

16 even if one accepts that premise, there are still wider

17 considerations of public policy. Is such a defence

18 going to be open to abuse? Is it going to open a

19 Pandora's box? Is it going to creates ambiguities in a

20 certain area of criminal law where there should be

21 none? Is the evil which is avoided by saving two lives

22 rather than killing one, does it not also take into

23 account the evil in that occasion of allowing such a

24 defence? I think what I was trying to explain in the

25 beginning is that this is essentially a very imprecise

Page 64

1 moral and philosophical discussion we are engaging in.

2 It is very clear different societies deal with it

3 differently. In France the notion of "contrainte"

4 applies to all crimes, even murder. In Canada not only

5 does it not apply to murder; it also does not apply to

6 causing grave bodily harm, it does not apply to sexual

7 assault, it does not apply to kidnapping. Essentially

8 what we are dealing with are different societal

9 expectations which is the reason I quoted that Supreme

10 Court of Canada case just as an example of how different

11 systems recognise that there is no categorical

12 imperative, there is no absolute reason for applying

13 duress to all crimes. For reasons of public policy, for

14 considerations of what society will accept as reasonable

15 resistance to pressure certain crimes may be exempt.

16 If any injustice is to be done to the Defendant,

17 that can be dealt with by way of mitigation. It can be

18 dealt with, for example, through the remission of a

19 sentence. The problem, your Honour, is if we are going

20 to resolve this issue based on this abstract

21 philosophical discussion, it will be extremely

22 problematical from the point of view even of the nullem

23 crimen principle. To the extent possible we should

24 reduce this discussion to a rather positive discussion,

25 if I may say, of what is the applicable law under

Page 65

1 international law? That is the reason why, in our

2 submission, we have pointed to what we believe are the

3 most authoritative cases in international law.

4 I wish to explain that when considering decisions

5 such as Priebke, Papon, Touvier or the Eichmann trial, as

6 distinct from the decisions of the post-World War II

7 tribunals, one has to make an analysis of the authority

8 to be attributed to these sources. We are dealing with

9 a system in which there is considerable ambiguity

10 because of the absence of a Sovereign legislature. One

11 has to make a careful enquiry as to what weight is to be

12 given to these various sources.

13 We would submit clearly that the Nuremberg

14 judgement and Charter is beyond doubt part of the

15 customary international law, as recognised in the report

16 of the Secretary General. We would further submit that

17 the Control Council Law Number 10, which was adopted by

18 fifteen states upon conclusion of the Second World War

19 is also beyond doubt part of customary international

20 lawful. This is also recognised by the report of the

21 Secretary General, by the Resolution 95 of the General

22 Assembly in 1946, and so on and so forth. That core

23 area is a core area of certainty. The domestic cases of

24 various jurisdictions can only create confusion.

25 Now, one way of considering this discussion is to

Page 66

1 turn it around and to say: could we say that duress is

2 applicable to murder as a defence? If one was to go

3 with that position, then one would ignore not only the

4 relevant international authority, but even if one bases

5 it entirely on domestic legal systems, then one would

6 have to ignore the position of a significant number of

7 domestic systems.

8 PRESIDENT CASSESE: Sorry to interrupt you, but I think you

9 are missing my point. Probably I did not make myself

10 clear. First of all, you have to choose between

11 positive law -- you are mentioning positive law on the

12 one side and then reasons of public policy on the other

13 side. You have to choose. I mean, you cannot move from

14 one point of view to another. These are two different

15 approaches.

16 MR AKHAVAN: If I may clarify, your Honour --

17 PRESIDENT CASSESE: You are saying public international law

18 is clear on this matter because of three judgements you

19 are quoting and then at least 25 judgements can be quoted

20 to the contrary. Therefore, probably public

21 international law is not very clear on this matter.

22 What I want to now explore with you is the rationale

23 behind those three judgements, namely the British cases,

24 the famous Dudley and Stephen and even Howe, which we

25 know very well, and try to understand whether this

Page 67

1 rationale can apply in those other cases and actually

2 even be applied, say, in civil law courts as well as in

3 international tribunals. Now, as I say, the rationale

4 of this court is you cannot choose between your own life

5 and the life of an innocent person. These are the

6 so-called reasons of public policy which you very well

7 emphasised in your statement and the statement of

8 Mr. Niemann.

9 However, my point was totally different. I said

10 that you have two different situations, a situation

11 where you have this choice and then you make the wrong

12 choice, if you wish, because you then kill somebody else

13 for the sake of not sacrificing your own life. Then you

14 have a different situation where you have no choice at

15 all, because you know that you are a member of a ten

16 member execution squad. You see that the other nine,

17 all of them are prepared to shoot the ten prisoners of

18 war, and you are faced with this option, because your

19 captain said: "Look, if you do not also take part in the

20 killing, I will shoot you".

21 Now in this case, as I say, by sacrificing your

22 life you do not save the life of the ten people,

23 prisoners of war, because in any case they are going to

24 be shot. Is there a real moral choice in this case? Do

25 you not see the difference between the other case where

Page 68

1 you have to choose between your life and the life of

2 somebody else? In the very elementary case where you

3 have three people, one tells the other one: "If you do

4 not shoot the third person, I will shoot you". There you

5 have to choose and then a soldier -- I agree with the

6 rationale behind the British case law. I agree that a

7 soldier should not sacrifice the life of an innocent

8 person, and because of his profession, because of moral

9 duties, because of his habit to kill and his profession

10 to be somebody who shoots and kills combatants, he has

11 to sacrifice his own life. This is the philosophy

12 between Dudley and Stephen and Howe. You see the case

13 is totally different in the case I have offered you for

14 your comments. I would like you to comment on the case

15 of the ten POWs and the member of the execution squad

16 and tell me has he got any real choice, knowing that in

17 any case the POWs will be killed? Is there any point in

18 his sacrificing his own life? Should he be requested to

19 be a hero so for historic record in the future people

20 will say: "He refuse to take part in a killing", but for

21 what purpose?

22 MR AKHAVAN: First of all, I would be very interested to

23 know once again what the international authority is on

24 this particular scenario which you have posed, but even

25 so the question once again of making a distinction

Page 69

1 between various concepts, for one thing, yes, I would

2 argue that even in such a scenario where the killing of

3 one life may save ten that there may be sound reasons in

4 law not to permit a complete defence but to compensate

5 for the lack of moral choice through other means such as

6 sentencing. I think this is exactly the thinking behind

7 the Common Law position.

8 What I tried to say when I was distinguishing

9 between an excuse and a justification is that there is

10 no categorical reason for saying that duress must

11 necessarily apply. It may or may not based on one's

12 expectations of what is reasonable under the

13 circumstances, based on one's expectations of the harm

14 which creation of such a defence may create for such a

15 society at large.

16 Now we are not -- perhaps I should clarify. We

17 are not necessarily making an argument of public policy

18 here. We are trying to reduce the equation to the point

19 possible, to a series of decisions which we believe have

20 to be the core of the law which is applied by this

21 court.

22 Now if I may elaborate briefly once again on those

23 cases, firstly, it is clear that one could -- at some

24 point there has to be a delimitation of the sources of

25 law which we are going to use in order to make a

Page 70

1 determination on this question. Many of the courts

2 which have dealt with this question in civil law

3 countries have simply applied the civil law. The French

4 decisions which you have cited I am not aware of, but

5 the French cases which were decided pursuant to Control

6 Council law number 10, I am not aware of any case which

7 specifically states that duress may be admitted as a

8 defence to murder. Even if that were the case, surely

9 the French courts would have relied on their own system,

10 as the British courts relied on theirs. The question

11 is: are we going to reduce this to a question of a

12 contest between the Common Law and the civil law? I

13 would submit that the court should not make this a

14 contest between two systems, because it does not have

15 to.

16 As I was trying to explain, the fact that the

17 British courts relied on the laws of their own country

18 may or may not be problematic, but through the past

19 fifty years that body of law has become beyond doubt

20 part of customary law. We cannot now go back fifty

21 years and question the sources which they have relied

22 on. Frankly speaking, the courts had no other sources

23 to rely on. There was nothing in international law

24 which they could have relied on. There was nothing

25 under the general principles of law which they could

Page 71

1 rely on. One could even say that the court made an

2 arbitrary decision. The British court, realising that

3 it cannot rely on any clear precedent, simply said: "We

4 will apply the law of the House of Lords". That law has

5 not been contested or disputed and it is now part of

6 customary law, just as conspiracy, a concept wholly

7 alien to the civil law system, is. I am sure the

8 contrary is true.

9 One could cite a number of Roman law maxims which

10 have been introduced into international law. One could

11 not now say because they pertain to the Roman legal

12 system that they should not be admissible. I would go

13 further and say we are presupposing there is only the

14 Common Law and civil law. There are many other legal

15 systems. One could go on really an endless expedition

16 of analysing what different legal systems have to say.

17 Going, if I may, just quickly back to the case

18 law, our submission is that only the Einsatzgruppen

19 trial from the law which this court should apply goes

20 contrary to our position. Even the High Command case,

21 which is often cited as authority, does not deal with

22 this specific issue. In the High Command case the

23 statement in passing on duress is made in a section

24 entitled "superior orders" and the defence in that case

25 was suggesting, if I may just quote quickly:

Page 72

1 "To recognise as a defence to the crimes set forth

2 in Control Council law number 10 that a Defendant acted

3 pursuant to the order of his government or of a superior

4 would be in practical effect to say that all the guilt

5 charged in the indictment was the guilt of Hitler alone,

6 because he alone possessed the law-making power of the

7 State and the Supreme authority to issue civil and

8 military directives".

9 This is at page 12 of my oral submission:

10 "To recognise such a contention would be to

11 recognise an absurdity".

12 Now that is what the court was dealing with. It

13 was that defence of superior orders and not duress. So

14 even the High Command case is really not on point. At

15 best its ambiguous formulation may be considered as

16 obiter dicta. Even in the Einsatzgruppen trial the

17 court never seriously considered the defence of duress.

18 The case, of course, dealt with the extermination squads

19 of Einsatzgruppen in Eastern Europe, which had

20 slaughtered thousands and thousands of people. I do not

21 think the court at any point gave any serious

22 consideration to the proposition that people who had

23 engaged in an orgy of slaughter over several years could

24 seriously raise the defence of duress. What I mean to

25 say, your Honour, is that the court in the

Page 73

1 Einsatzgruppen case did not really make a serious

2 enquiry as to what the applicable law is. The fact that

3 what I consider to be an erroneous decision is now

4 repeated in subsequent commentaries, in the Eichmann

5 case, for example, does not give it any more legitimacy

6 than it had to begin with.

7 I would also add once again that the leading

8 commentators on international law have not simply

9 objected to this case but, to quote Sir Hersch

10 Lauterpacht, have expressed serious objections to the

11 reasoning of the court. Yoram Dinstein, an Israeli

12 international lawyer, goes as far as to say it is most

13 unfortunate that the court has decided this is a defence

14 of unlimited application, because hypothetically if it

15 is a defence of unlimited application, it could justify

16 a number of scenarios which for various reasons would

17 not be in the best interests of international law as a

18 system.

19 So I hope that clarifies our position, your

20 Honour.

21 PRESIDENT CASSESE: Thank you very much indeed. Before I

22 ask my colleagues whether they have questions to ask

23 you, let me say that I very much admire the calm way you

24 have responded to my questions and I apologise nor being

25 a bit passionate and vehement. I did not intend to be

Page 74

1 aggressive, not at all. I am just so excited by these

2 important questions. I think these are crucial issues.

3 Again I apologise. I would like to ask my colleagues

4 whether they have any questions: Judge McDonald?

5 JUDGE McDONALD: I have a few, and I will try to be as

6 passionate as President Cassese. I can be. I want to

7 return for a moment to this motion of whether or not the

8 plea was equivocal, and I want to discuss self-defence

9 as opposed to duress. Now, if the accused had pleaded

10 self-defence that, of course, would have been an

11 equivocal plea, because there is no mens rea to commit

12 murder, as you have said. There is no mens rea because

13 the notion of self-defence is that you are protecting

14 yourself against the perpetrator and that at least in my

15 system you may use only such force as is necessary to

16 protect yourself. So there would be no mens rea in that

17 situation and thus there would be an equivocal plea; is

18 that so?

19 MR AKHAVAN: Yes. I would submit that --

20 JUDGE McDONALD: Because it is a justification. You cannot

21 plead guilty if what you are pleading to is a

22 justification.

23 MR AKHAVAN: Clearly, your Honour. Clearly.

24 JUDGE McDONALD: Now with respect to duress, however, it is

25 your position that that is not justification. That is

Page 75

1 an excuse. Is that correct?

2 MR AKHAVAN: It is an excuse, and even so we would submit

3 it is not open to the crime of murder.

4 JUDGE McDONALD: Okay. Is it your position that with

5 respect to duress that when a person is acting under

6 duress, they nevertheless have the mens rea and Actus

7 Reus to commit the crime?

8 MR AKHAVAN: That is correct.

9 JUDGE McDONALD: They, however, are excused for what

10 reason?

11 MR AKHAVAN: They are excused, as I tried to explain,

12 essentially for moral considerations for reasons of what

13 society's expectations are of what a reasonable person

14 should do in a situation of extreme pressure. I think

15 that one has to make a distinction between a crime in

16 the technical sense, a crime which involves mens rea and

17 Actus Reus as distinct from the moral considerations

18 surrounding that act. To say there was no moral choice

19 is not say there was no mens rea. The accused who has a

20 pistol pointing at his head who is asked to kill another

21 person is entirely conscious of his act. He has the

22 intent to kill another person. So the crime is unlike

23 justification of self-defence not the same, and the

24 reason why a particular jurisdiction may decide to

25 exculpate such a person is entirely because of moral

Page 76

1 considerations, reasonable of public policy, societal

2 expectations, whatever --

3 JUDGE McDONALD: I am sorry.

4 JUDGE STEPHEN: I was muttering to myself. I am sorry.

5 JUDGE McDONALD: We are all very passionate up here. Go

6 on.

7 MR AKHAVAN: Perhaps I am mistaken but that is my

8 understanding of the law. For that reason it would not

9 in theory be any serious injustice to any accused to

10 suggest this is not a crime of unlimited application --

11 I am sorry -- this is not a defence of unlimited

12 application. Excuse me.

13 JUDGE McDONALD: So if, therefore, the plea that was

14 asserted was the plea of duress, and if it did not

15 constitute a defence like self-defence a justification,

16 was the plea equivocal and need it be remanded to the

17 trial chamber?

18 MR AKHAVAN: Clearly not, your Honour. We have made this

19 submission in our brief that clearly since duress is not

20 a defence to killing innocent human beings, and since

21 the case involves the killing not only of one but of

22 between 70 and 100 human beings by the admission of the

23 accused, that clearly the plea was unequivocal in that

24 duress, even if it was raised as a defence, which it was

25 not, we submit, would not have been open to the accused,

Page 77

1 and I believe that we have included in our written brief

2 authority by way of example from a US Court Martial,

3 where the court held that the plea of guilty was

4 unequivocal and was valid in view of the fact that

5 duress was not open as a defence.

6 JUDGE McDONALD: The question that I now want to pose to

7 you relates to the hypothetical regarding the hostage

8 takers that the President referred to. I am not going

9 to take you through all the As, the Bs and the Cs, but

10 my question is really this: in the sentencing judgement

11 the trial chamber 1 refers to an incident where the

12 accused opposed the order of a Lieutenant Colonel to

13 participate in the execution of 500 Muslim men. He was

14 able not to commit this further crime because three of

15 his comrades supported him when he refused to obey. So

16 my question is: in a situation where you might have

17 hostage takers is it not possible that if you refuse to

18 obey that the in the process up might get some comrades

19 who might also refuse to obey? We are speaking

20 philosophically. Do you understand my question or is it

21 just a comment?

22 MR AKHAVAN: I think your question is exactly on point.

23 Part of the philosophical occasion of the

24 proportionality of evil is whether the law should

25 require of people that they be heroes and martyrs or

Page 78

1 whether the law will permit one to be, if you like, a

2 coward under the circumstances. The evil which is

3 involved is not simply a numerical equation, as you

4 point out. If the law permits duress as a defence, in a

5 sense it may encourage such behaviour. It may allow

6 people to submit to such pressure without fear of

7 criminal culpability. As you have pointed out the case

8 before us clearly indicates that when the accused did

9 refuse, that this was supported by his colleagues.

10 JUDGE McDONALD: It might not only encourage people to

11 follow up your argument, but it might encourage them

12 without justification, and I do not want to use that

13 word "justification" when we are talking about

14 self-defence, because the cases that I have read where a

15 defence -- where duress has been recognised as a

16 defence, it is rare -- I can think of one only but I am

17 sure there are others -- where the accused was able to

18 meet those very stringent requirements to establish that

19 defence. What you are doing is saying there is a

20 defence and following your argument encouraging or at

21 least perhaps not discouraging an individual from being

22 the first to say "no", and in the process what you

23 really have in the application is a defence that very

24 rarely succeeds because it is so very stringent. If we

25 are talking philosophically and talking about upholding

Page 79

1 the rule of law and discouraging the perpetration

2 particularly of crimes against humanity, it seems to me

3 that that argument regarding mitigation as opposed to

4 defence meets that concern you have expressed.

5 MR AKHAVAN: Yes, your Honour.

6 JUDGE McDONALD: Let me ask you this, though: is it your

7 position that duress can never be accepted as a

8 defence? I gather your answer would be no to that, that

9 it can be accepted as a defence in certain

10 circumstances?

11 MR AKHAVAN: Clearly our position is duress is recognised

12 in virtually every legal system in the world as a

13 defence.

14 JUDGE McDONALD: Let me interrupt you. Is it accepted as a

15 defence to a violation of international and humanitarian

16 law?

17 MR AKHAVAN: Well, I believe that we have reduced our

18 specific submission to the question of murder, because

19 --

20 JUDGE McDONALD: I understand that. I have read your brief

21 very carefully, but I want to ask you: is it your

22 position that duress can be accepted as a defence to a

23 violation of international humanitarian law, inhumane

24 treatment?

25 MR AKHAVAN: Once again by way of preliminary remarks I

Page 80

1 would submit that, yes, it can be admissible as a

2 defence to certain crimes. There is a very big

3 difference between, let us say, deportation or wanton

4 destruction of property, and killing 100 people. One

5 can clearly not by any standard of morality make any

6 equation between those two crimes, but for the specific

7 case before us we have only dealt with the question of

8 murder. As I explained, for example, in the United

9 Kingdom, other crimes such as, for example, sexual

10 assault, can be excused based on the defence of duress,

11 whereas in Canada it cannot. So this will be a problem

12 for the court to determine at some future point in

13 time. Where is the line to be drawn? What are the

14 limits of duress as a defence? One could envisage

15 murder, especially when it constitutes part of crimes

16 against humanity, as being clearly among the most

17 exceptionally serious crimes before this jurisdiction.

18 So that, we would submit, would clearly fall within the

19 area where duress should not apply as a defence.

20 JUDGE McDONALD: What is your position regarding the

21 Secretary General's report at paragraph 57 that refers

22 to coercion or lack of moral choice as a defence? Is it

23 your position that he was referring generally to the

24 existence of duress as a defence but not specifically

25 focusing on the instance when a person takes the life

Page 81

1 of an innocent human being?

2 MR AKHAVAN: I think it is a general proposition with which

3 we would not disagree. The general principles of law

4 recognise duress as an excuse. The International Law

5 Commission's report also recognises duress as an

6 excuse. But the paragraph 57 which you referred to

7 actually is in relation to superior orders, I believe,

8 in the report of the Secretary General, and I think the

9 formulation, if I may say, is somewhat ambiguous. It is

10 not clear what is actually being said there. One sees

11 even in the post-second world war judgements that a lot

12 of the cases dealt with duress in passing when dealing

13 with superior orders. So of course one sees in

14 Einsatzgruppen, High Command and other cases the court

15 acknowledges that superior orders can never be a

16 defence. In passing it says: "However, if accompanied

17 by duress, it may be a defence". That is why I think

18 maybe some of the decisions have not really reflected

19 carefully on the law. They have just made a statement

20 in passing by way of obiter dicta I think that the

21 Secretary General's report concedes a point which we

22 also concede, that duress is in general a defence, but

23 when one goes beyond the general principle and looks at

24 the particular application, the applicable case law

25 suggests the contrary.

Page 82

1 JUDGE McDONALD: So what you are suggesting is that in this

2 case we should focus on the issue of whether duress is a

3 defence when it is accompanied by a superior order?

4 MR AKHAVAN: You mean in paragraph 57 of the Secretary

5 General's report?

6 JUDGE McDONALD: Well, in your brief you say in 1.3:

7 "With respect to duress accompanying superior

8 orders, which is specifically at issue in the present

9 case ...".

10 Then you go on to say "the jurisprudence of the

11 international military Tribunal at Nuremberg", etc., etc.


13 JUDGE McDONALD: In other words, is there a difference

14 between how this Tribunal should treat a plea of duress

15 if it involves the killing of an innocent human being,

16 when that killing is not accompanied by a superior

17 order?

18 MR AKHAVAN: Clearly. Clearly the defence of duress, if it

19 was raised in this case, was in conjunction with

20 superior orders.


22 MR AKHAVAN: We would submit that since superior orders

23 categorically is not a defence under international law,

24 and there is very little doubt of that point, that when

25 it is combined with the defence of duress, that on the

Page 83

1 balance one should steer away from allowing that to be

2 used as a defence. I am not prepared here to make any

3 specific discussions as to what implications that may

4 have on evidentiary standards and so on and so forth,

5 but I think that duress, even when we are dealing with

6 cases not involving murder, duress accompanying superior

7 orders should only rarely -- I should say should be

8 admitted even more rarely than duress as a general

9 species should be admitted.

10 JUDGE McDONALD: But the issue before us is the question of

11 whether duress accompanying superior orders should be a

12 defence or mitigating circumstances. You are suggesting

13 we focus on that issue and not decide in the abstract

14 whether duress may be a defence in other circumstances;

15 is that correct?

16 MR AKHAVAN: Well, your Honour, our position is that duress

17 as such, irrespective of superior orders, can never be a

18 defence to murder.

19 JUDGE McDONALD: So you are going to bite off more than you

20 need to chew?

21 MR AKHAVAN: Yes. We believe the case law supports that

22 proposition.


24 MR AKHAVAN: We are prepared to submit in addition that the

25 accompanying superior orders makes it even more

Page 84

1 persuasive.

2 JUDGE McDONALD: On the question of proportionality, is it

3 your position that the Tribunal should take into

4 consideration the number of persons killed, the

5 circumstances surrounding the killing of innocent

6 persons, the position of the accused either in the

7 military or even in the political structure? Is that

8 something we should take into consideration in

9 determining whether or not duress is a defence when it

10 is accompanied by superior orders?

11 MR AKHAVAN: Your Honour, that would not be necessary if

12 duress is not a defence to murder. Then such an enquiry

13 may only be taken into consideration in mitigation of

14 punishment. Clearly if the accused killed one person to

15 save ten POWs, the court may decide to give a very light

16 sentence or to remit the sentence altogether as justice

17 requires under the circumstances, but this may be even

18 one of the reasons philosophically why duress should not

19 be admitted as a defence to murder, because one

20 immediately sees even from a philosophical point of view

21 the immensely difficult balancing which a court would

22 have to engage in in such a circumstance. It would be

23 really a case of a numbers game, if you like, of: "Is it

24 better to kill one person and save ten? Is it better to

25 save one small child, let us say, as opposed to two

Page 85

1 elderly people? Is it better to save a lawyer as

2 opposed to an accountant?" One could engage in all

3 sorts of highly problematical philosophical discussions.

4 JUDGE McDONALD: Let me ask you a question regarding the

5 report of the International Law Commission that you

6 referred to earlier. In that report it states that:

7 "The 1948 convention on genocide and the 1949

8 Geneva conventions and the most recent 1977 edition

9 protocol 1 provides for no possible defences to those

10 crimes".

11 How does that affect the issue that the appeals

12 chamber is faced with, if at all?

13 MR AKHAVAN: Well, the issue of genocide is, I would say,

14 somewhat different, because of the particular intent

15 requirement of the crime of genocide, but I believe that

16 -- I am not aware of this particular passage from the

17 report of the international law commission, and I would

18 like the opportunity to study it more carefully. Our

19 position is not that, at least with respect to ordinary

20 violations of humanitarian law as opposed to genocide,

21 which is a different case, our position is not there are

22 no defences whatsoever. I think that part of the

23 problem in the deliberations of the International law

24 Commission, of course, is that you have people coming

25 from very different jurisdictions with very different

Page 86

1 understandings of what criminal responsibility entails,

2 how defences relate. Our view is not that there are no

3 defences whatsoever to violations of humanitarian law in

4 general. So I would have to study more carefully that

5 passage. I am somewhat surprised that there would be

6 such a statement with the exception of the crime of

7 genocide, where many commentators have suggested that

8 even self-defence cannot be a justification for the

9 crime of genocide.

10 JUDGE McDONALD: Need the appeals chamber in the present

11 case reach issue of whether superior orders is a

12 defence?

13 MR AKHAVAN: It does not need to because it is conclusively

14 determined by Article 7.4 of the Statute. It can only

15 be pleaded in mitigation of punishment and I think

16 international law is decisive on that point. The only

17 question is that of duress accompanying superior orders.

18 JUDGE McDONALD: What you are saying is that it is clear

19 that it is not a defence but may only be used for

20 mitigating circumstances. My question is: is it an

21 issue? You are giving me the answer and what you are

22 telling me is that it clearly can be used only for

23 mitigating purposes and not a defence, but my question

24 is; is that something that we should even decide?

25 MR AKHAVAN: No, your Honour, it is not an issue at all in

Page 87

1 the present case.

2 JUDGE McDONALD: I am going to defer to some other judges

3 and come back.

4 JUDGE STEPHEN: I had a couple of enquiries.

5 THE INTERPRETER: Microphone please, your Honour.

6 JUDGE STEPHEN: First of all, you mentioned the decision in

7 the Einsatzgruppen case was against US military law. I

8 would be interested to know the details of that.

9 MR AKHAVAN: I suppose that since there was no

10 international precedent which the US Military Tribunal

11 could rely on that the most expedient source of law for

12 them would have been either US Military Law or US Common

13 Law. I am unaware of any decision in US Military Law

14 from 1896 up to the time of the Einsatzgruppen trial

15 which would support the proposition. Perhaps I have not

16 done my research as thoroughly as possible. The source

17 I have relied on is Winthrop's Military Law and

18 Precedents, which I understand to be, if you like, the

19 bible of American Military Law. That source, which is

20 reproduced in the book of authorities for you, indicates

21 no case in which duress was admitted as a defence to

22 murder. I believe that a line of cases from 1951

23 onwards in US court martials have specifically stated

24 that duress is not a defence to murder. Of course, that

25 is after the Einsatzgruppen decision, so I would not

Page 88

1 want to rely on that to speak about the state of the law

2 in 1948 when the decision was made, but the consensus in

3 general in US military law is clearly in support of our

4 position.

5 PRESIDENT CASSESE: But, again, I see a contradiction in

6 what you are saying, because the Einsatzgruppen case is

7 the only case where the American Military Tribunal

8 sitting at Nuremberg applied Control Council Law Number

9 10. You insisted on this fact. You said some courts

10 apply national law and others apply Control Council Law

11 Number 10, but unlike the cases you have mentioned

12 before American US court martials where US court

13 martials applied US national law, in the Einsatzgruppen

14 case Control Council Law Number 10 was applied. So

15 therefore in a way you cannot put them on the same

16 footing. Sorry to interrupt.

17 MR AKHAVAN: No, your Honour. I think I should draw a

18 distinction between Control Council Law Number 10 in

19 terms of -- I made a distinction by saying that Control

20 Council Law Number 10, like the Nuremberg Charter, may

21 be considered as international law. I wish to make that

22 distinction to say that the national courts in the

23 occupied parts of Germany were operating as

24 international courts as distinct from a decision such as

25 Touvier or Priebke, and on and so forth, which may or

Page 89

1 may not borrow from international law, as it may be

2 permitted to do, but clearly Control Council Law Number

3 10 did not involve an exhaustive penal code. It could

4 not have. There were many uncertainties as to what were

5 permissible defences. The same applies before this

6 court, as we see today. The Statute is not exhaustive.

7 So the court was left with limited options when Control

8 Council Law Number 10 did not provide any guidance and

9 international law could not provide any guidance. It

10 could decide to rely on German law, on French law, an

11 Anglo-American law. It could decide to do a survey of

12 all legal systems. So there were many options available

13 to it.

14 Now my problem with the Einsatzgruppen decision,

15 your Honour, is that the court cites no authority

16 whatsoever. It seems to be one sentence which seems

17 more like a sort of moral proposition. No court will

18 find a man culpable if he pulls a lethal lever with a

19 pistol loaded at his head. How much does that tell us

20 about the legal reasoning behind that statement? As I

21 said, in the context of a case dealing with the

22 Einsatzgruppen execution squad, I think the court would

23 have dealt with that in a way not spending any time, not

24 giving it any credence. So in that sense the holding of

25 the case is somewhat arbitrary. It is very well

Page 90

1 possible that based on one's moral conscience or one's

2 common sense one could come to that conclusion. The

3 judges sitting in that case may have said: "Clearly if

4 someone has a pistol loaded and pointed at one's head,

5 they should not be held guilty of killing others". Even

6 if that is not the case, we will just mention it in

7 passing. I would submit that statement in the

8 Einsatzgruppen case is stated by way of obiter dicta.

9 Even if it could be on point in that case, it was at no

10 point seriously considered. The reason why we have

11 relied so heavily on the Holzer, the Stalag Luft III

12 case, the Furstein case is because the court considered

13 at great length the issue. The issue was raised as a

14 credible defence. This was not a case of extermination

15 squads. One of them involved several defendants, up to

16 ten or fifteen defendants, who had killed some fifty

17 Royal Air Force Officers, who had been shot down and

18 captured as prisoners of war. It is conceivable in

19 those cases if duress was open as a defence to murder,

20 that they may have had a defence. Therefore, the court

21 considered that issue at great length. Having no clear

22 international precedent, it relied on Archbold's Regina

23 v Dudley and Stevens, and so on and so forth.

24 But at this point in time one can make all sorts

25 of hypothetical queries as to what may have happened,

Page 91

1 let us say, if that particular court sitting was a

2 Chinese court applying Chinese law. Certainly the

3 outcome may have been different. It is historical

4 circumstance which has created that body of law. I do

5 not think it is now open for us to question.

6 JUDGE STEPHEN: Going back to this question of

7 Einsatzgruppen being against US military law, I am right

8 in thinking all you are saying there is not that

9 military law says duress shall not be a defence in the

10 case of murder, but rather you rely on what is said in

11 Winthrop; is that so? You find no authority positive

12 acceding to the proposition that duress is a defence?

13 MR AKHAVAN: That is correct with respect to the US

14 military law.

15 JUDGE STEPHEN: That is what I am talking about. It was

16 your remark, you see, that elicited this query. I

17 wanted to then ask you: the passage that you cite from

18 Winthrop does not seem to deal with it at all. It is

19 dealing with compulsion of the enemy. It takes the view

20 that such a defence can be sustained by proof of an

21 immediate danger of death threatened by the enemy, which

22 rather suggests that at least treason, which is

23 compulsion, which is what is being discussed, is

24 excusable when duress of that nature is exercised.


Page 92

1 JUDGE STEPHEN: That is as far as you can go on military

2 law, is it?

3 MR AKHAVAN: Yes. Clearly, your Honour, we are

4 presupposing that were duress open as a defence to

5 murder that it would have been stated.


7 MR AKHAVAN: Because it is a crime of such exceptional

8 gravity that it would not have been ignored in such a

9 commentary. So the reason why we have cited that

10 relevant passage is to say that the only crime which

11 appears to be recognised as a defence -- I am sorry --

12 the only crime with respect to which duress can be a

13 defence is that of treason.

14 JUDGE STEPHEN: Is treason.

15 MR AKHAVAN: Of course the US military law cannot be

16 considered in isolation from US law as a whole. We

17 wanted to go through different stages in our analysis

18 and say let us reduce it purely to a US military law

19 since this was a US military Tribunal. They had no

20 authority to rely on, none whatsoever. Then if one

21 takes that analysis to the second stage of looking at US

22 law, then we have the Orb versus State again before the

23 Alabama courts I believe in 1893 and the subsequent case

24 before the Rhode Island courts in 1904. Of course, we

25 have would have made an exhaustive list of numerous

Page 93

1 other cases decided in the 1920s and 1930s that all

2 repeat the proposition that duress is not a defence to

3 murder.

4 JUDGE STEPHEN: I gather it varies state to state in the

5 United States subject to those states that have adopted

6 the model penal code.

7 MR AKHAVAN: My understanding, your Honour, is that

8 generally duress is not admitted as a defence to murder

9 and I believe that that is the law throughout the United

10 States.

11 JUDGE STEPHEN: Throughout, you say.

12 MR AKHAVAN: This is my understanding, but I do believe

13 that there is legislation in certain states which allows

14 for a partial defence such that murder may be reduced to

15 manslaughter where duress is present. So in that sense

16 one could say that it is recognised as a partial

17 defence, but I am not aware of any state in the United

18 States where either legislation or judicial opinion

19 recognises a complete defence.

20 JUDGE STEPHEN: Thank you. The next question I wanted to

21 ask you about is in the cases that you particularly rely

22 on, Holzer and Furstein, it is what the Judge Advocate

23 said to the Tribunal that you cite. We do not know at

24 all what credence was given by the Tribunal to the Judge

25 Advocate's argument, do we?

Page 94

1 MR AKHAVAN: No. This is the problem with many of these

2 cases, some of which are not reported. I believe the

3 Holzer trial is not -- I have not seen a copy of the

4 Holzer trial anywhere except in the UN War Crimes

5 Commission Report. I am sure President Cassese would be

6 one of the few people in the world who would have a copy

7 and would have may actually read through the whole

8 decision as well. It is the passion for international

9 law which I deeply appreciate, but my understanding is,

10 first of all, in those cases the defence was not

11 applied. It was never applied in any case, and that in

12 itself should give us a certain indication, but my

13 understanding is that the judge -- I would presume that

14 the opinion of the Judge Advocate general would be

15 applied by the court. I think that is a very reasonable

16 assumption to make.

17 JUDGE McDONALD: Was that a jury case, Holzer, and if it

18 were a jury case, perhaps does that explain the result,

19 that is the failure, absence of an explanation? At

20 least in the United States the judge would typically

21 charge the jury and you would have before you at least a

22 charge as to what the law is and then the jury would

23 apply the facts. I am not sure what the procedure is in

24 Canada, but it being a jury case, can that perhaps

25 explain why we would go to another source to look at a

Page 95

1 further explanation?

2 MR AKHAVAN: Yes. I believe to the best of my knowledge

3 that it is a variation of the jury system to the effect

4 that the Judge Advocate General is actually instructing

5 lay persons as to the applicable law. That gives me

6 reason to believe that that is the applicable law which

7 the court relied upon in arriving at its decision.

8 JUDGE STEPHEN: Thank you. Then does it come down in your

9 view to this, and I look at the report of the

10 International Law Commission in its 48th session in

11 1996, where it cites the Nuremberg Tribunal and

12 concludes, after dealing first of all with the

13 non-recognition of superior orders as a defence:

14 "The true test which is found in varying degrees

15 in the criminal law of most nations is not the existence

16 of the order but whether moral choice was, in fact,

17 possible".

18 Is that in substance what you are putting and, if

19 so, how do you apply it to the case where we have here,

20 according to the accused's statement, that he was going

21 to be shot together with the other ten if he did not

22 obey the order? Where is the moral choice there?

23 MR AKHAVAN: I would, first of all, say that that statement

24 in the judgement of the international military Tribunal

25 is somewhat ambiguous because they are speaking about

Page 96

1 superior orders. They say it is not a defence and then

2 they say the true test is whether or not, in fact, moral

3 choice -- it is not clear what they are saying. If we

4 give it the benefit of doubt and suggest what they are

5 saying is superior orders is not a defence but duress is

6 or may be, even so, that does not at all change what we

7 have already submitted. It is merely a recognition by

8 the international military Tribunal that duress a

9 species of defence which is accepted as such throughout

10 the legal systems of the world, but the specific

11 application of that defence is left entirely unanswered

12 by the Tribunal.

13 Now, the question of moral choice once again is a

14 moral question. It does not go to the mens rea of the

15 accused. It may be that I wilfully kill one person to

16 save the life of ten people. Of course, I would be

17 killing the accountant to save the lawyers, but this

18 does not in any way mean that I did not have the

19 requisite mens rea to commit the crime of murder with

20 malice aforethought, premeditated. So that statement of

21 the International Military Tribunal on moral choice does

22 not change the fact that the accused committed the

23 crime, in this particular case participating in the

24 execution of some 1200 people over a five hour period,

25 and that he possessed the requisite mens rea and the

Page 97

1 actus reus for crimes against humanity, but that because

2 of the circumstances, and I am not going to comment here

3 on what evidence is available to support those

4 circumstances, but because of the circumstances the

5 court may decide: "Well, he had no moral choice" or "his

6 moral choice was limited" and that should be taken into

7 consideration in mitigation of punishment up to and

8 including the remission of the sentence. But moral

9 choice -- I am not aware of any theory of criminal law

10 which makes lack of moral choice as opposed to lack of

11 mens rea a categorical defence to a crime.

12 JUDGE STEPHEN: I see. Thank you.

13 JUDGE McDONALD: Judge Stephen, may I just follow up on

14 that, because there is one sentence after that quote

15 that perhaps might explain it. What Judge Stephen read

16 is:

17 "The true test which is found in varying degrees

18 in the criminal law of most nations is not the existence

19 of the order but whether moral choice was, in fact,

20 possible".

21 The next sentence reads, however:

22 "Clearly an individual who was responsible in some

23 measure for the existence or the execution of an order

24 or whose participation exceeded the requirements thereof

25 could not claim to have been deprived of a moral choice

Page 98

1 to his course of conduct".

2 So I think that sentence has to be read with the

3 previous sentence. The previous sentence raises a

4 question. Then there is an answer which says that a

5 person who executed that order could not claim that he

6 was deprived of moral choice. Sorry. I just wanted to

7 throw that in at this point.

8 JUDGE STEPHEN: It is not quoted for some reason in the

9 1996. Two questions that I had which may be ones

10 directed to Mr. Niemann rather than to you. The first

11 one is a puzzling passage in the sentencing judgement on

12 page 9 at the top of the page. On that page it is said:

13 "Although the accused did not challenge the

14 manifestly illegal order he was allegedly given ...",

15 and so on.

16 That also appears in the French original, which I

17 have checked. Is that an error, because the whole point

18 of our discussion for the last couple of hours has been

19 that the accused did challenge?

20 MR NIEMANN: Well, your Honours, I think that) -- I do not

21 know that there is any evidence to suggest that he did

22 not challenge it at the time that he was given the

23 order. I think that what -- I do not think there is any

24 evidence there to say that when the order was given to

25 him, he then immediately did more than simply say: "I am

Page 99

1 not -- I do not wish to commit this crime", and he was

2 told: "Then you can line up". So I think that is the

3 state of the evidence. But I am not sure that he went

4 any further than that. It may be that what the

5 sentencing court was looking at at that point was the

6 references he made to the previous occasions, when he

7 manifestly refused to simply carry it out and challenged

8 the order to the full extent of refusal to carry it out.

9 JUDGE STEPHEN: I follow you.

10 MR NIEMANN: It may be that is what is being referred to

11 there.

12 JUDGE STEPHEN: The last thing I wanted to ask you about

13 was the obligation when an accused is represented by

14 counsel on the part of the court to state in detail the

15 ingredients of the counts that are alleged. Here, of

16 course, you had two alternative counts, a war crime or

17 crime against humanity. Was there any obligation to

18 state to an accused who was represented precisely what

19 the elements of those two crimes are, the alternative

20 crimes?

21 MR NIEMANN: Your Honour, I think when an accused is

22 represented it is not an obligation of the court to do

23 it. I think one of the points that I made earlier was

24 that because after he said that he had pled guilty to

25 the crime he did raise this question of saying: "I had

Page 100

1 to do it", I think the court was very anxious to ensures

2 that he knew the full ambit of what was involved. I

3 think in those circumstances it may be permissible, but

4 I do not think it is mandatory or necessary. Any court

5 confronted with a plea of guilty where an accused then

6 says: "But I did it because I had to" would probably be

7 approached to expand upon that in order to satisfy

8 itself that the accused was, in fact, pleading guilty in

9 order for it to accept the plea, because there is no

10 question that the court is not obliged to accept the

11 plea. So if the court is confronted with a plea that is

12 equivocal, it may refuse or decline to accept it. What

13 we say has happened here is that the issue was raised.

14 The court then at great length went into it and

15 satisfied itself that the plea was not equivocal and it

16 could be accepted in the circumstances.

17 JUDGE STEPHEN: Thank you.

18 PRESIDENT CASSESE: We have still five minutes. May I

19 follow up on the question Judge Stephen has just

20 raised? I have two questions. Now assuming your theory

21 whereby duress cannot be urged as a defence in case of

22 murder is right, so therefore it could only be urged as

23 a mitigation, however it is a fact that it is apparent

24 from what the defence lawyer has said in previous

25 hearings as well as today that he in a way advised his

Page 101

1 client that duress might be urged either as a defence or

2 as a mitigating circumstance. So he advised his client

3 along those lines. So could one then infer from that

4 that actually the client was wrongly advised and

5 therefore his guilty plea was ambiguous, was

6 inconsistent, because his defence lawyer was clearly

7 under the influence of the Yugoslav law where, as I say,

8 as he pointed out today repeatedly, duress can be urged

9 both as a defence and as a mitigating circumstance,

10 whereas if we were to stick to your view in

11 international law duress could not have been invoked in

12 this case as a defence but only as a mitigating

13 circumstance?

14 Now could we infer from that that therefore the

15 guilty plea was invalid? I have a second question

16 relating to this one. Again it is very clear from what

17 the lawyer, defence counsel said to us today that he in

18 a way wrongly advised his client on the issue of war

19 crimes versus crimes against humanity. One could say --

20 I am not saying that he was wrongly advised, but I could

21 say that one might argue that his client was wrongly

22 advised because his client was not offered with a choice

23 between war crimes or crimes against humanity. He was

24 told: "Look, in this case because of the particular

25 circumstances of the case, no war crime could be

Page 102

1 pleaded" or we could not accept any charge of war

2 crime. The only crime which may be in issue is a crime

3 against humanity. Therefore, could we argue because

4 Mr. Erdemovic was wrongly advised when he chose to plead

5 guilty to crimes against humanity, his plea was not

6 valid and should be invalidated; his guilty plea should

7 be invalidated?

8 MR NIEMANN: Dealing with the first part of your Honour's

9 question first, we would submit that even if counsel for

10 the accused was mistaken, and I do not think we can

11 assume that, then any ambiguity or uncertainty that may

12 have existed was certainly put to rest by the remarks of

13 the presiding judge in addressing the accused himself,

14 and specifically addressing questions to the accused

15 himself including the question: was he satisfied with

16 his representation. In my submission, should there have

17 been any difficulty there, then that was resolved

18 clearly on the transcript.

19 But, your Honours, I do not think that we should

20 assume that this is an issue, because it certainly has

21 not been raised by the Defendant, that he has been

22 inadequately represented. Defence counsel may employ a

23 number of strategies in how they may go about the

24 process of representing their clients. It may be, and

25 we are entitled to assume, that counsel for the defence

Page 103

1 was well aware of the position at common law. He was

2 well aware of the position at international law. He was

3 well aware of the Rules of the Tribunal and how this was

4 being dealt with. He heard what the Presiding Judge had

5 to say. He was aware of all those, but he may have

6 chosen to still pursue the strategy which says:

7 "Nevertheless, notwithstanding everything that has been

8 said, this is the position that I am going to take on

9 this matter".

10 Now, it is pure speculation, in my submission,

11 your Honour, on this matter to say perhaps it got it

12 wrong or perhaps he did not understand. His position is

13 stated. He presents it as two alternatives. It does

14 not mean to say he did not know about the other

15 alternative, and that is to say the law that was to be

16 applied and the law the sentencing judge said he was

17 going to apply.

18 Dealing with the question of advice, I am afraid I

19 cannot assist your Honour with that, other than to say I

20 can only assume that the advice that he gave to his

21 client was correct and again I emphasise that it has not

22 been brought into question here by the accused and

23 certainly not by his counsel. So in my submission, your

24 Honour, it is very difficult for the Prosecution to

25 respond to this in circumstances where it is not an

Page 104

1 issue that is being raised on the appeal, and it is

2 merely a hypothetical question which we may pose as a

3 result of some answers that have been given to certain

4 questions, but there is nothing, your Honour, to suggest

5 that Mr. Erdemovic has not been adequately, properly and

6 fully represented in these proceedings from beginning to

7 end, and that that adequate representation continues to

8 now.

9 JUDGE McDONALD: Just on this point, it seems to me that

10 the Trial Chamber 1 agreed with the position that

11 Mr. Babic has taken, and that is that duress may be both

12 a defence and a mitigating circumstance, if I understand

13 the sentencing memorandum correctly. So if that is what

14 Mr. Babic advised his client, at least as far as the

15 Trial Chamber is concerned, that Trial Chamber agreed

16 with him, the way that I read the sentencing memorandum.

17 MR NIEMANN: That certainly seems to be the case.

18 JUDGE McDONALD: If we were to remand this case -- I will

19 ask this of Mr. Babic as well as you, Mr. Niemann --

20 should it be remanded to the Trial Chamber consisting of

21 the same judges who imposed the sentence?

22 MR NIEMANN: I would not have thought that was necessary,

23 your Honour. It is certainly an option that is

24 available to the court, but I do not think that there is

25 anything to suggest that that has to be the case. I

Page 105

1 would think, however, that considerations of who

2 confirmed the indictment and other such matters might

3 need to be taken into account, but I do not know of any

4 principle that says it has to go back before the exact

5 same judges to be determined.

6 JUDGE McDONALD: My question is not must it but should it.

7 I will ask Mr. Babic that question. Maybe it is Mr. Babic

8 that should respond.


10 JUDGE McDONALD: Mr. Babic, if the Appeals Chamber were to

11 remand this case back to the trial chamber should it

12 appropriately remand it to the Trial Chamber consisting

13 of the same judges who sentenced?

14 THE INTERPRETER: Microphone.

15 MR BABIC: Throughout the proceedings I had absolutely no

16 remarks regarding the course of the proceedings. I have

17 no special reason, therefore, if this distinguished

18 chamber were to decide to remand the case for retrial

19 not to do so to the same Trial Chamber that passed the

20 first judgement. Therefore, I have no objections in the

21 case of this case being remanded for retrial that it go

22 back to the same Trial Chamber.

23 PRESIDENT CASSESE: Thank you. Before -- sorry.

24 MR NIEMANN: I am sorry, your Honours. There was just a

25 couple of matters I wonder if I could very quickly clear

Page 106

1 up, because it was raised, and I fear it might be

2 important.

3 Your Honour, the reference to the word "acquitted"

4 as it appears in the transcript in the English version

5 in our submission it does not bear the same meaning in

6 different languages. We have had that word checked some

7 considerable time ago. Our advice from the translation

8 people is the word used was a Serbian term and if I can

9 perhaps try and pronounce it, "oslobodjenje od kazne",

10 and I am informed, your Honours, that does not mean

11 "acquitted" as the term is understood in the English

12 language. In fact, it means discharge from punishment.

13 So in our submission, your Honours, it can be misleading

14 if great emphasis is put on that word "acquitted" and we

15 would submit it is a mistake as appears as such. .

16 I think there was only one other matter I would

17 seek to clear up quickly, if I may, your Honour. That

18 is that when I spoke of the question of whether or not

19 he was concerned for his own life, and your Honour was

20 curious about my comment on that, I simply make

21 reference to the transcript, and I will just give your

22 Honours reference to it, if I may, the transcript of

23 19th November 1996, page 36, line 1 he speaks of the

24 possibility of escaping if it had not been for his wife

25 and child. Also a reference on 19th November 1996, page

Page 107

1 40, line 18.

2 Just concluding that, your Honours, it is our

3 submission that his wife and child was nowhere present

4 at the time. So there was no immediacy at all in the

5 suggestion he raised.

6 PRESIDENT CASSESE: Mr. Babic, would you like to add a few

7 things?

8 THE INTERPRETER: Microphone, please. Microphone.

9 MR BABIC: May I please explain my position a little

10 further? Our positions regarding the plea of guilt are

11 not in opposition against one another, because when

12 sentence is passed according to the Yugoslav Criminal

13 Code and the law on criminal proceedings, which is

14 modelled on the French criminal law, the sentence is

15 passed in such a way that the accused is proclaimed

16 guilty for the commission of such and such an act and

17 after that he may be discharged from punishment for such

18 and such reasons. Therefore, the plea of guilt

19 remains. It is verified, but the punishment is not

20 carried out, because of certain reasons. That is one

21 point.

22 Secondly, I think that our positions regarding

23 duress and the way in which it is dealt with in national

24 legislations and the repercussions it has on

25 international criminal law do not differ also. It is

Page 108

1 either accepted as defence or as mitigating

2 circumstance. The only question is whether this

3 specific case is such as to require relief from

4 responsibility or is it just a mitigating circumstance.

5 Of course, that is up to the honourable judges to

6 decide.

7 Regarding the question of moral choice and orders,

8 I have tried to elaborate that in my brief and I wish to

9 avoid all repetition, but I think that moral choice in

10 this specific case and in the concrete circumstances as

11 described by the accused Erdemovic, and we have no other

12 description of the act nor the circumstances surrounding

13 it, except that given by Erdemovic, we cannot avoid but

14 conclude that the accused had no other moral choice, and

15 when we are talking about the equivalence of principles,

16 what is the equivalence? All those innocent Muslims, on

17 the one hand, plus one Erdemovic, or was it just that

18 those 1,000 Muslims minus one Erdemovic, be he hero or

19 not? So if we had Erdemovic executed as well, which

20 would be inevitable, or in this case he made a different

21 choice. Actually he sacrificed his own dignity at that

22 moment in the interest of saving his life. What he

23 stated here and before the Yugoslav authorities, that is

24 that he wanted to go for trial and he told the Yugoslav

25 authorities: "Yes, I participated in that execution" and

Page 109

1 that was the same statement that he made here at his

2 initial appearance. That is obviously probably his

3 unconscious attempt to explain his position at the time

4 of the commission of the crime.

5 I think that this distinguished chamber has many

6 elements and facts at its disposal as the first instance

7 in international criminal law to provide a precise

8 answer regarding the responsibility of an ordinary

9 soldier when committing a criminal offence under

10 superior orders, and that also in that context the

11 question of coercion, extreme necessity and superior

12 orders in such cases.

13 Also the question has been raised whether I gave

14 the wrong advice to my client. A war crime and a crime

15 against humanity are treated in the Statute as the same

16 criminal offences. When we had to take a decision,

17 President Jorda asked which of these offences we opted

18 for. At that point it seemed to us the same, because

19 the gravity of the offences were equal, but the grounds

20 were different, and that is what determined our choice.

21 Thirdly, according to Yugoslav law, and I repeat

22 it is modelled on the criminal proceedings of France,

23 the court is not bound to the legal qualification given

24 by the Prosecution or the defence. The Trial Chamber

25 can itself characterise a certain act and draw

Page 110

1 conclusion on guilt or innocence at its own discretion.

2 Those would be my additional comments, your

3 Honours.

4 PRESIDENT CASSESE: Thank you very much indeed. Since it

5 is late --

6 JUDGE McDONALD: I have a question that goes to the

7 preliminary question, and that is in order to be found

8 guilty of a crime against humanity certain nexus has to

9 be established. Either Mr. Niemann or Mr. Akhavan. If an

10 individual acts under duress, can it be said that he is

11 acting for purely personal reasons and thus the elements

12 would not have been met, or do you want to answer this

13 after lunch?

14 MR NIEMANN: Perhaps I might answer it after lunch.


16 PRESIDENT CASSESE: So we adjourn until 2.45.

17 (1.10 pm)

18 (Luncheon adjournment)

19 (2.45 pm)

20 PRESIDENT CASSESE: Good afternoon. I apologise for the

21 slight delay. It is my fault. We now go on with

22 questions to the prosecutor. Judge McDonald?

23 MR NIEMANN: I had a question which I promised to deal with

24 at the resumption this afternoon.

25 JUDGE McDONALD: I am sure I have a very good answer. You

Page 111

1 had, what, an hour and a half to think about it?

2 MR NIEMANN: Your Honour, on the question of intent in the

3 context of duress, where duress is raised, it is our

4 submission that the issue is not the distinction so much

5 between a crime against humanity and a war crime but

6 between an international crime against humanity and a

7 domestic crime. Perhaps if I could assist by giving an

8 example. Assume, for example, that a German soldier

9 during World War II at a bar participates in a drunken

10 brawl and he is insulted and as a consequence of that he

11 then proceeds to murder somebody. In our submission, if

12 it is later subsequently found out that that person

13 happened to be a Jewish person, that does not make the

14 crime a crime against humanity or, in our submission, a

15 war crime, nor in our submission should one's motives be

16 conclusive as to why a person participates in a crime.

17 In our submission, on the facts of this case there can

18 be no question that the crime involved is a widespread

19 or systematic attack against a civilian population. In

20 our submission there is no question that the accused

21 knew this at the time that he participated in this

22 event. In our submission there is no question that the

23 accused formed the intent to kill these persons knowing

24 full well of the broader context in which his acts

25 occurred, and that he knew of these broader contexts.

Page 112

1 Indeed, it is our submission that the actual

2 number of killing of people just in this one incident

3 would be sufficient to satisfy the criteria of

4 widespread or systematic, but there is no reason to

5 assume that he did not have a broader knowledge than

6 that, having regard to his participation in the events

7 of the war, and in particular having regard to the fact

8 that he had participated in effect on armies on both

9 sides of this particular conflict.

10 Your Honours, even if he did have purely personal

11 reasons for participating in the commission of a crime,

12 it is our submission that the fact that he may himself

13 have had personal reasons for doing something does not

14 of itself exclude the fact that he intended to

15 participate in a widespread and systematic attack such

16 as to make it a crime against humanity.

17 So it is our submission that the facts of the case

18 are very instructive as to the circumstances in which

19 this accused found himself and the state of knowledge

20 that he had. In our submission, your Honours, there

21 could be no doubt that he knew that he was participating

22 in this broader context when he committed these

23 murders.

24 JUDGE McDONALD: Thank you.

25 PRESIDENT CASSESE: Any further questions?

Page 113


2 PRESIDENT CASSESE: All right. We might move on to the

3 merits, but before we do so, may I just pick up a point

4 which has been raised this morning by Judge Stephen

5 concerning the Holzer case? Actually I happened to get

6 from the Canadian authorities the record of proceedings

7 and I would just like to tell you in a few minutes the

8 facts of the case. There were three German members of

9 the Wermacht, the German army, who killed one of three

10 Canadian airmen who had been taken prisoner. Two

11 Germans participated in the killing of the Canadian and

12 both of them pleaded not only superior order but also

13 duress, and one of them said, and I am quoting from the

14 proceedings:

15 "The Lieutenant pulled his pistol, held it against

16 me and said: "Do you want to or don't you want to?""

17 Then he had to kill. There I think Mr. Akhavan is

18 right in saying that actually it is clear from the whole

19 case that duress was rejected as a defence because both

20 the Prosecutor and the Judge Advocate excluded the

21 vocation of duress for the killing of an innocent

22 person, and actually the court sentenced the two men to

23 death, while the third German, who had not participated

24 in the killing, was sentenced to 15 years'

25 imprisonment.

Page 114

1 So much for the case, but again I would like to --

2 the reason why I mentioned the facts of this case is

3 that again we are here in one of these situations which

4 I mentioned this morning, namely again a Lieutenant

5 menacing two people, two soldiers, to kill them if they

6 did not execute the airman. So for each of them the

7 choice was between his own life and the life of a POW.

8 So, therefore, it is quite different from the situation

9 to which I tried to draw your attention this morning,

10 where in any case the person under duress knows that the

11 people to be killed will be killed whatever his own

12 position.

13 MR NIEMANN: It is a very difficult issue, especially when

14 a gun is being held at one's head. All I can say, your

15 Honour, is that this was an issue that was looked at.

16 Specifically that sort of scenario was looked at by the

17 House of Lords in Abbott's case, the one I quoted from

18 at length. Indeed, that is the argument that was

19 advanced by the defence counsel in that case. The

20 defence counsel in that case says: "This calls for

21 heroism which exceeds anything which should be required

22 of ordinary human beings in the circumstances of the

23 modern environment". When his Lordship, Lord Salmon,

24 was addressing the problem, he specifically referred to

25 a hypothetical situation where it was a person who was

Page 115

1 forced to commit the crime, where he knew that he and

2 his family would be killed for failure to do so. Yet,

3 notwithstanding that, the House of Lords said that it

4 was still contrary to the law of England and it could

5 not be contemplated to be part of the law of England

6 that the killing of an innocent human being could be a

7 justification -- duress involving a crime which involved

8 the killing of a human being could be admitted in these

9 circumstances. So the House of Lords, if it is of any

10 assistance to your Honours, did actually consider that

11 very fact scenario that your Honour raised and,

12 notwithstanding it, rejected it, but that is the only

13 authority that I can refer your Honour to but it was

14 certainly considered in that case.

15 JUDGE McDONALD: May I ask this one question as a

16 follow-up? It seems to me that if we begin to discuss

17 this whole notion of whether someone should be required

18 to give up their life rather than take another life, and

19 if we come to the conclusion that -- the transcript is

20 not working, is it? Let us wait a moment. (Pause.)

21 I will withdraw my question. I think that was a

22 sign, that the transcript stopped working.

23 MR NIEMANN: I think it stopped before that, your Honour.

24 I just hope it is not necessary to repeat everything I

25 have said.

Page 116

1 PRESIDENT CASSESE: I think we have come to an end of our

2 discussion of the preliminary issues raised by the

3 Appeals Chamber in its Order. We can now move on to

4 what I would term the merits of the appeal. I wonder

5 whether the defence counsel and the Prosecutor have

6 anything to add to their written briefs. If this is so,

7 then I would like to ask them to confine themselves to

8 ten minutes each. Mr. Babic, have you anything to add to

9 what you wrote in your written submission?

10 MR BABIC: Your Honour, what I have written and what I have

11 said today, I do not have anything much to add to that.

12 One question that arose from our discussion here today

13 is the issue of the principle of reformatio in pjus if

14 it comes to the remand of this case. If such a decision

15 were to be made by this Chamber, then we would have to

16 also obey the principle of reformatio in pjus, that it

17 cannot be any worse for the accused.

18 PRESIDENT CASSESE: Thank you. You know, it is not a

19 question of reformatio in pjus, P-J-U-S. Why? Because

20 again if the Appeals Chamber decides, if it were to

21 decide to remand the case to the Trial Chamber, there

22 would be a proper trial. So, therefore -- not a

23 sentencing procedure, a proper trial. Then, of course,

24 it would be for the Trial Chamber to decide whether the

25 accused is guilty or innocent, and if he is found guilty

Page 117

1 what sort of sentence he should be given. So,

2 therefore, I do not see any question of reformatio in

3 pjus. Normally the question of reformatio in pjus

4 arises with regard to any sentence passed by the Appeals

5 Chamber. Is that clear to you?

6 MR BABIC: Absolutely clear. I just wanted you to bear

7 this principle in mind in some way.

8 JUDGE STEPHEN: I wonder -- with the disadvantage of a

9 Common Law background, that Latin tag and its meaning is

10 not clear to me. Would you like to translate

11 "reformatio in pjus"?

12 MR BABIC: According to the Yugoslav Criminal Code and the

13 law on criminal procedure and according to the European

14 laws and criminal procedure, when the accused is

15 appealing the judgement, if the case is retried, the

16 sentence handed down cannot be more serious, nor can his

17 offence be classified as more serious. This is the

18 essence of the principle of reformatio in pjus.

19 JUDGE STEPHEN: Thank you.

20 PRESIDENT CASSESE: I understand that you do not have

21 anything to add except for what you just said to your --

22 MR BABIC: No.

23 PRESIDENT CASSESE: I wonder whether the Prosecutor has

24 anything to add to his written Respondent brief?

25 MR NIEMANN: Just very shortly, your Honour, yes. Your

Page 118

1 Honours, just dealing with the --

2 THE INTERPRETER: Microphone, please.

3 MR NIEMANN: And it is relating to what might happen,

4 depending on the decision of the Appeals Chamber, I just

5 note that in Article 25 of the Statute of the Tribunal

6 the authority given to the Appeals Chamber is to affirm,

7 reverse or revise the decision taken by the trial

8 chambers. So if the matter was to be remitted back, it

9 would have to be somewhere in the context of that, I

10 would imagine, but it is not specifically spelt out, but

11 that is an authority of the Appeals Chamber.

12 The only other matter that I wish to draw your

13 Honours' attention to is this, that it is not, in our

14 submission, appropriate to argue that it is somehow an

15 error of law or fact that when a party to a proceedings

16 advances a particular point of view, and in this case in

17 our submission particularly duress as mitigation, to

18 then say that the Trial Chamber or the sentencing

19 Chamber failed or erred because it did not pick up that

20 point and then call for further evidence at the time.

21 It is up to the parties to persuade the sentencing

22 Chamber that there are grounds for mitigation. If a

23 party fills to do that, then that does not, in our

24 submission, give rise to an appeal. So the burden is

25 carried by the party to do that.

Page 119

1 Now in the context of the trial obviously if a

2 defence is raised obviously the burden rests on the

3 Prosecution to carry it from the beginning to the end.

4 The Prosecution must prove beyond a reasonable doubt

5 that the person did not come within the terms of that

6 defence, for example, self-defence, that the person did

7 not act in self-defence. The Prosecution carries that

8 burden. Once one reaches the stage where there is a

9 plea of guilty or indeed a verdict entered and the

10 accused is convicted, then if the defence wish to raise

11 matters in mitigation, then the defence carries that

12 responsibility to convince the court on the balance of

13 probabilities that they were acting in circumstances

14 that would justify mitigation of the penalty. In our

15 submission the Prosecution is entitled to refute that or

16 to call evidence to suggest that that is not the case,

17 but it does not remove from the fact that the party that

18 advances that proposition at that particular point in

19 the proceedings carries that responsibility. It cannot

20 assist the party to subsequently appeal if there is

21 further evidence that could have been called or other

22 submissions that could have been made which would have

23 convinced the Chamber that those circumstances existed.

24 Your Honours, finally, and although I feel it is

25 probably a matter that the Chamber is fully aware of,

Page 120

1 having regard to our submissions, it is our submission

2 that, of course, mitigation of the penalty can amount to

3 the various matters that have been raised by counsel for

4 the defence in the sense that no penalty at all can be

5 imposed in terms of any prison sentence, so that if it

6 is being suggested by counsel for the defence in the

7 course of his submissions that what he is, in fact,

8 seeking is a mitigation of the penalty to the point

9 where no sentence in terms of a prison sentence is

10 imposed, then, of course, that is available to the court

11 at the time. He failed to do that in the circumstances

12 of this case, but in our submission that does not

13 detract from the fact that that was available to be

14 argued and was available to be applied by the court.

15 The court could have said: "We impose no prison

16 sentence".

17 Unless there are any other matters, those are our

18 submissions, your Honour.

19 PRESIDENT CASSESE: Thank you. If you do not mind, on the

20 first point you made concerning Article 25 of our

21 Statute, Article 25 (2), you are right, but may I draw

22 your attention to rule 117C:

23 "In appropriate circumstances the Appeals Chamber

24 may order that the accused be retried according to law".

25 So it is covered by our Statute, by our rules of

Page 121

1 procedure.

2 MR NIEMANN: Yes, your Honour.

3 PRESIDENT CASSESE: Thank you. I wonder whether there are

4 any questions from judges? No questions on the merits.

5 Judge McDonald?

6 JUDGE McDONALD: I have a few questions, some to both

7 counsel. Let me ask you first, Mr. Babic, if I may. Is

8 it your position that Mr. Erdemovic lacked the mental

9 capacity or that there was diminished mental capacity at

10 the time that the offence was committed or offences were

11 committed by him?

12 MR BABIC: I presented this position in the appellant's

13 brief and in the appeal. In the absence of a competent

14 evaluation of experts from forensic psychiatry, I could

15 not have been as categorical as I wanted to be, although

16 I did submit that he was at least in a state of

17 diminished mental responsibility. I did not want to go

18 that far as to say that he lacked mental responsibility,

19 because I did not have appropriate medical evaluation to

20 be able to make such a categorical statement.

21 JUDGE McDONALD: The Trial Chamber found that one of the

22 mitigating circumstances refers to, and I will quote:

23 " ... is the state of mental incompetence claimed

24 by the defence".

25 That is at page 46, paragraph 86, I believe. Now

Page 122

1 I read that as saying that the Trial Chamber was

2 determining that one of the mitigating circumstances was

3 the mental capacity of the accused when he committed the

4 offence. The report that was requested, the examination

5 of the accused was requested by the Trial Chamber, but

6 the Trial Chamber did not ask, I gather, the

7 psychiatrists and psychologists to answer that question,

8 and that was what was the accused's mental state at the

9 time. Yet the Trial Chamber rejects this. It says that

10 is one of the mitigating circumstances, but seemingly

11 concludes that there has been no showing that the

12 accused even suffered from diminished mental capacity at

13 the time that the offence was committed.

14 So my question is: was it incumbent upon the

15 Trial Chamber to include in its request of the

16 psychiatrists and the psychologists when they examined

17 the accused that that question be answered as well as

18 the other ones that they asked, and I believe that is

19 the position that you take in your brief, or was that

20 option not open to you, that is you could also have

21 requested that that question be put to the psychiatrists

22 and the psychologists. So the question is: whose

23 responsibility is it? What is the effect of the failure

24 of the psychiatrists and the psychologists to reach a

25 conclusion on this question, since it was not asked,

Page 123

1 considering that the Trial Chamber finds that one of the

2 mitigating circumstances was the mental competence at

3 the time that the offences were committed, yet no

4 psychiatrist or psychologist was asked and, of course,

5 they did not comment on that issue. So what effect, if

6 any, does that have on the whole proceedings, including

7 the plea as well as the sentence?

8 MR BABIC: As for the psychiatrists, I cannot lay the blame

9 on them for failing to respond to this question. The

10 psychiatrists and the psychologists responded to the

11 questions that the Trial Chamber asked. As for whether

12 this question was raised at all during the trial, this

13 question put in this precise manner was not asked by the

14 Prosecutor, by the defence and by the Trial Chamber, so

15 that we did not receive an answer. It was my opinion on

16 the basis of the elements presented by the psychiatrists

17 and the psychologists that I have enough foundation to

18 make a legal conclusion that we were dealing with

19 diminished mental capacity, and I presented that as a

20 mitigating circumstance.

21 I now propose that additional examination by

22 experts be conducted, but I must say in this context

23 that during the break in today's proceedings I explained

24 to my client what the quashing of the first instance

25 judgement would mean, and my client is absolutely opposed

Page 124

1 to another proceedings, he says that he could simply not

2 bear that. He wants to know what his fate will be, even

3 if it means that all this that I have said so far be

4 considered as advocating mitigating circumstances and

5 that these circumstances are such that a reduced

6 sentence could be imposed. I refer now to a minimum

7 sentence which is imposable according to the Yugoslav

8 Criminal Code, and that is the sentence of five years'

9 imprisonment. I think that if we take all these

10 circumstances into account altogether, I think that they

11 are so special, so peculiar, that I think that even this

12 Trial Chamber could make a decision to that effect. Of

13 course, that decision as regards the punishment could be

14 changed. This is against my will, because I still

15 advocate the legal and factual points, but since I have

16 been mandated by my client, I have to present this

17 before this Trial Chamber.

18 PRESIDENT CASSESE: Thank you. I wonder whether the

19 Prosecutor -- sorry.

20 JUDGE McDONALD: I need to understand what you have just

21 said. I thought you were going to comment on that. I

22 do not know that I fully understand, Mr. Babic. Let me

23 see if I can repeat to you what I understand. Are you

24 saying that Mr. Erdemovic has been sentenced to ten years

25 and that there has now been an appeal, but does he wish

Page 125

1 to go forward with this appeal, recognising the fact

2 that this case may be reversed and remanded and that

3 either the Trial Chamber could ask the accused to

4 re-plead or perhaps there would be a trial, and in

5 either circumstances unless the Trial Chamber considered

6 itself bound to the principle that you just stated in

7 Latin and then you kindly translated for us, your client

8 may incur a heavier penalty, and are you now saying that

9 that is something that your client has told you that he

10 does not want to face, and what does that mean therefore

11 with respect to this appeal? Maybe I misunderstood

12 you.

13 MR BABIC: My client has asked me and he requested, despite

14 the fact that I have drawn his attention to the possible

15 consequences of all this, he asked me to request from

16 this Trial Chamber not to reverse and remand this case

17 for retrial. He thought that this Chamber should once

18 again consider all these facts that I presented and to

19 re-evaluate all the mitigating circumstances and our

20 opinion is that it is possible to take this appeal into

21 account and to reduce his sentence.


23 JUDGE STEPHEN: I wonder if I can tell you what I

24 understand you to be saying and see if you agree with

25 me. Your client has instructed you that he does not

Page 126

1 wish to have a trial as a result of a not guilty plea

2 being entered, but he would wish to have this court

3 consider the sentence that has been imposed and

4 presumably to consider the reduction of it. Is that

5 correct?

6 MR BABIC: Yes, that is correct.

7 JUDGE McDONALD: If the Chamber were to determine that

8 duress is a defence and not a mitigating circumstance,

9 it may be then that the Appeals Chamber would have to

10 determine therefore that the plea was equivocal and

11 would therefore have to return it to the Trial Chamber,

12 and at that point it would be up to the accused to

13 decide whether he wished to enter a plea of guilty

14 again, or go forward with a trial. Now you have said he

15 would not want to go forward with a trial, but if this

16 Appeals Chamber were to determine this were a defence,

17 our conclusion would be that you cannot plead guilty if

18 you continue to assert your plea of duress, and I hope

19 he understands that. He would then -- I do not want to

20 get too much further. It is hard enough trying to be a

21 judge; I do not want to try to be a lawyer as well.

22 That is what you are considering.

23 If we can move beyond that, let me ask you another

24 question, though, and that is that apparently the Trial

25 Chamber at page 47 rejected the plea of duress of the

Page 127

1 accused because it found that it will require

2 corroboration of his statements by independent

3 evidence. What is your position regarding that? We do

4 not have any rules of procedure that require

5 corroboration and a trial Chamber has just issued an

6 opinion and judgement finding that corroboration is not

7 required, independent corroboration is not required, but

8 apparently at least from reading Trial Chamber 1's

9 decision or judgement, it finds that they reject -- it

10 rejects his statement regarding duress because there was

11 no corroboration. Seemingly the Trial Chamber accepts

12 his testimony regarding the commission of the offences

13 because they had evidence that it received during the

14 Rule 61 proceeding, but the rule 61 proceeding is a

15 proceeding where persons testify without being subjected

16 to cross-examination. So for whatever value it was, the

17 Trial Chamber accepted a portion of the accused's

18 testimony but rejected his plea of duress because it

19 said at least that there was no corroboration. What is

20 your position regarding that?

21 MR BABIC: My position has been stated before to this

22 effect. The Trial Chamber evaluated the statements

23 given by the accused Erdemovic in two manners. In

24 places where his statement was evidence for the

25 commission of the offence it was accepted by the Trial

Page 128

1 Chamber and in parts where the statement of the accused

2 Erdemovic was his defence, it was not accepted, not only

3 as defence but also as mitigating circumstance, and also

4 in this case again they did not treat the rest as a

5 mitigating circumstance. This is why I say that all

6 this that the foundation on which I have built the case

7 for duress, if I am to accept the position of my client,

8 which I have to, I would ask this Chamber to accept this

9 as a mitigating circumstance and to reduce the

10 sentence.

11 JUDGE McDONALD: Mr. Niemann, would you respond to that

12 question?

13 MR NIEMANN: Yes, your Honour. Your Honours, in our

14 submission what the Trial Chamber was doing when it went

15 into this question of corroboration was that it was

16 wearing its Tribunal fact hat and was not dealing with

17 it as a matter of law. In our submission what the

18 Chamber, the sentencing Chamber was expressing here, is

19 acceptance or non-acceptance of the question of fact.

20 What it is saying is: "We were not persuaded, we were

21 not convinced, as a jury might, but we do not hear the

22 reasons for a jury. We were not persuaded or convinced

23 this was made out on the basis of the evidence that has

24 been presented to us. As a consequence of that there

25 was no corroboration of it or supporting evidence".

Page 129

1 In our submission, it is not the use of the

2 technical term "corroboration" as it is understood in

3 some jurisdictions. In our submission it is merely the

4 evidence itself was not strong enough to persuade them

5 as a Tribunal of fact that they had been persuaded, and

6 they expressed their reasons for coming to that factual

7 conclusion.

8 JUDGE McDONALD: That is not what the Trial Chamber says in

9 paragraph 91. Let us see. I may have the wrong one. It

10 is on page 47. Let me see if I can find it. It is page

11 48. It is paragraph 91 on page 48:

12 "The defence has produced no testimony, evaluation

13 or other elements to corroborate what the accused has

14 said. For this reason the judges deem that they are

15 unable to accept the plea of extreme necessity".

16 So I really have two points. One, if the Trial

17 Court does not explain its basis for reaching a

18 conclusion, it is very difficult for an Appellate Court

19 to evaluate the correctness or the soundness of its

20 decision. So if the Trial Chamber was not explaining

21 itself, it puts us in a very difficult situation because

22 we do not know why they reject it. Typically trial

23 chambers would say: "Well, we have assessed credibility

24 and we believe him" or whatever, but the only thing that

25 is said is "they produced no testimony, evaluation or

Page 130

1 other elements to corroborate what the accused has

2 said".

3 It seems to me if that is what the Trial Chamber

4 was looking for, it may have made an error of law, if

5 there is no corroboration required in trials before this

6 Trial Chamber, and so that is really my enquiry.

7 MR NIEMANN: Yes, I understand your Honour's point, but in

8 my submission, your Honour, the situation is really no

9 different to where one finds themselves in the context

10 of a jury trial, where we never know what motivates a

11 jury to decide one way or the other. If there was a

12 clear statement, and I submit that I do not think it is

13 clear, but if there was a clear statement which said:

14 "As a matter of law we require corroboration and we

15 instruct ourselves accordingly that in the determination

16 of this question of fact that corroboration is a

17 requirement and we are satisfied that that matter of law

18 has not been established", then I would say yes, there

19 is a problem, because even though the rules of the

20 Tribunal in terms of evidence are very wide and broad, I

21 think there does become a serious question whether

22 evidentiary requirements such as corroboration can be

23 imported in. I think there is an argument that that

24 should not perhaps happen.

25 JUDGE McDONALD: You say there is an argument what should

Page 131

1 have happened?

2 MR NIEMANN: You should not import evidentiary requirements

3 of law such as corroboration in those circumstances. It

4 would certainly be an arguable point that that is an

5 error of law, but I am submitting, your Honour, that

6 that is not the case here. I am suggesting to your

7 Honours that the word "corroboration" used in the

8 context in which it appears is really an expression of

9 satisfaction of the state of the evidence. Just as a

10 jury might do the same thing but not tell us why, it is

11 the same issue, and that is: "This point has been raised

12 but we have not been convinced. There is no

13 corroboration. There is no other supporting material to

14 suggest that this is the case and we have not been

15 persuaded by the evidence". That is, in my submission,

16 the context in which it has been raised. I say that in

17 particular because when looking at paragraph 87 which

18 also deals with that, your Honours, first of all, say,

19 before it analyses mitigating circumstances:

20 "The Trial Chamber wishes to recall sub-rule 89C

21 of this Rule, which says it may admit any relevant

22 evidence which it deems to have probative value. In

23 respect of this the Trial Chamber will require the

24 corroboration of the accused's statement by independent

25 evidence".

Page 132

1 In my submission that is dealing with the question

2 of admissibility of evidence and those matters that go

3 to convince the Chamber of a particular point that has

4 been raised by a party in the proceedings. I can go

5 further, your Honours, and say there is a difference of

6 approach between some jurisdictions between what is

7 corroboration in its technical meaning. I mean, there

8 are some jurisdictions that say, for example, that you

9 cannot proceed to a conviction on a confession or a plea

10 of guilty alone. There needs to be further evidence.

11 THE INTERPRETER: Could you please slow down?

12 MR NIEMANN: Further evidence is referred to as

13 corroboration, but it is not strict corroboration.

14 JUDGE STEPHEN: They want you to be slower.

15 MR NIEMANN: It is not strictly corroboration in the same

16 way as that term is understood as a strict evidentiary

17 requirement as it is in some Common Law jurisdictions.

18 So, in my submission, their Honours have not erred.

19 They have not introduced a new rule of evidence that

20 must be satisfied. They have merely expressed

21 themselves as to why they have reached a conclusion of

22 fact.

23 PRESIDENT CASSESE: If I may raise an issue which does not

24 relate specifically to this question of corroboration,

25 but still to the question of whether or not evidence was

Page 133

1 produced to the effect that the Defendant acted under

2 duress, I would like to have your views on the fact that

3 actually the Trial Chamber discussed the matter of

4 whether or not evidence had been provided on this point

5 in the section on the validity of the guilty plea. I am

6 referring to paragraph 20 of the Trial Chamber's

7 sentence. Would you feel that in a way here the Trial

8 Chamber dealt with an issue which is a typical issue for

9 a Trial Chamber proceeding in a trial proper, and not in

10 a sentencing proceeding? The issue whether or not

11 evidence has been produced by defence counsel to the

12 effect that the Defendant acted under duress, would you

13 not feel that this was a proper matter for a trial, not

14 for a sentencing proceeding, so that in this case

15 actually, while considering the question of a guilty

16 plea, actually the Trial Chamber behaved as a Trial

17 Chamber conducting a trial?

18 MR NIEMANN: Your Honours, there is some element of the

19 judges in the sentencing court perhaps importing into

20 the procedures that they followed some aspects of the

21 procedures that apply in their domestic jurisdictions.

22 I must say that that is a fault that all of us suffer

23 from from time to time, that we tend to look back upon

24 our own jurisdictions. I think there is an aspect of

25 that, and particularly when the court went on to

Page 134

1 determine the issue of whether or not duress was a

2 defence or not. Perhaps it did not go that far, and

3 perhaps that is not an appropriate course to be followed

4 or perhaps it is. I do not know that there is any

5 precise prescription as to how a court should handle a

6 plea of guilty.

7 I myself in my submissions have made reference to

8 a decision in the United States and to one in England

9 where -- particularly the one in the United States --

10 where the accused said: "I am not guilty of this

11 offence" and the judge specifically said: "Do you plead

12 guilty or not guilty?", and the accused said: "I am not

13 guilty of this offence", but nevertheless the Supreme

14 Court of the United States found that was not equivocal,

15 that was appropriate and did not interfere with the

16 resulting decision that followed.

17 It seems to me, your Honours, that there is one

18 understanding of how these matters should be dealt with,

19 but when confronted with what might be or appear to be

20 an equivocal plea, one can understand why a sentencing

21 court may wish to explore and go further into the matter

22 in order to satisfy itself whether or not the plea ought

23 to be accepted in the circumstances.

24 In my submission mostly this is what occurred in

25 these proceedings. The sentencing court was very

Page 135

1 careful, was very concerned about the situation and

2 wanted to be satisfied. It did go a little further than

3 what some jurisdictions would go, but in my submission

4 that does not give rise to an error of law which would

5 justify the interference in the decision by this

6 Chamber, in my respectful submission.

7 JUDGE STEPHEN: The American case you refer to is Elford's

8 case, is it?


10 JUDGE STEPHEN: Thank you.

11 JUDGE McDONALD: If, of course, the plea of duress, though,

12 is a defence, then, of course, the accused would be

13 entitled to a trial on that. That is not something that

14 could be resolved by way of a plea of guilty. It is

15 your position that it may only be used for mitigation

16 purposes. So, therefore, there was no error.

17 MR NIEMANN: Your Honours, I am searching for my materials

18 here, but there is also another case in the United

19 States, which I could refer to and I will find the

20 reference to in a moment, where the court was satisfied

21 that the accused was insane at the time of the

22 commission of the crime, yet he pleaded guilty, and even

23 though on no understanding of the law as it then

24 applied, the court held that nevertheless the plea was

25 validly entered and could be accepted. I also made

Page 136

1 reference to the decision of Sullivan in the House of

2 Lords in England, where although the court itself did

3 not deal with this issue of an equivocal plea, what it

4 was dealing with was the circumstances where a person

5 had raised the issue of it. It had been found that he

6 was insane and he immediately entered a plea of guilty.

7 The matter went on appeal to the House of Lords and the

8 House of Lords did not see fit to interfere with it,

9 even though it had been established that the accused

10 could not have been guilty of the crime in that sense,

11 because he technically had a defence. All the rationale

12 for all of this is there are times when although it may

13 appear obvious that defences are available, that a party

14 may elect to take a course of action which on some

15 assessment may seem to be inappropriate. For example,

16 in the case of Elford, the accused took the course he

17 did because he feared the imposition of the death

18 penalty. In the case of Sullivan he took the course he

19 did because he was an epileptic and did not want to have

20 the stigma of being insane. Those courses were taken

21 and the courts saw fit not to interfere. In our

22 submission, the principle is the same. There are fact

23 situations which may differ, but in our submission that

24 principle applies.

25 JUDGE McDONALD: Just one other question. What is the

Page 137

1 effect of the Trial Chamber erroneously, according to

2 the defence, finding that the accused participated in

3 the execution of 500 Muslims at -- what was the

4 building? Pilica building? The accused has argued that

5 the Trial Chamber made an error of fact and perhaps it

6 infected its finding as far as mitigation or defence,

7 however it was proceeding, because it erroneously

8 concluded that he had participated in that execution,

9 whereas, in fact, he had not. If it is an error, is it

10 a serious enough error for this Appeals Chamber to

11 reverse and remand and give the Trial Chamber an

12 opportunity to reconsider its sentence in light of the

13 true facts?

14 MR NIEMANN: Well, in our submission, your Honour, we deal

15 with this in particular in our written brief. In our

16 submission, we still maintain the same position that the

17 court was dealing with the question in terms of the

18 overall factual situation of the events that occurred,

19 but we submit there is nothing there to suggest that

20 they considered that he had participated in the killing

21 of the 500, and that they took that into account when

22 they imposed the sentence.

23 JUDGE McDONALD: Mr. Babic, do you wish to comment on that

24 point? Do you understand my question? The question is

25 whether or not even though the Trial Chamber says that

Page 138

1 -- it concludes that the accused participated in the

2 killing of the 500 Muslims, that really that did not

3 play a part in its sentence, I guess. That is the

4 position of the Prosecutor. What is your position?

5 MR BABIC: I, too, wish to repeat the position I took in my

6 brief on page 3 of the Serbo-Croatian text, in which I

7 allege that such a statement on the part of the court

8 necessarily reflected upon the sentence.

9 JUDGE McDONALD: Is it serious enough so that the Appeals

10 Chamber should reverse it? Is it what is called

11 reversible error or is it just a mistake they made that

12 you have really not addressed?

13 MR BABIC: I think it is not of such a magnitude that it

14 cannot be corrected, and that this Appellate Chamber can

15 put it right by the mitigation of the sentence.

16 JUDGE STEPHEN: One question arising out of that: is it

17 not the fact that the Appellate Chamber merely said that

18 the unit to which the accused belonged took part in the

19 killing of 500 in the hall, not that the accused did?

20 That is so, is it not?

21 MR BABIC: Not even the unit. The 10th Sabotage detachment

22 did not participate in that. Another unit did. That is

23 why we are contesting the whole matter.

24 JUDGE STEPHEN: Yes, I realise that, but your complaint is

25 only that the Trial Chamber said that the 10th Sabotage

Page 139

1 Unit did the killing of the 500, not that the accused

2 did the killing of the 500. That is so, is it not?

3 MR BABIC: The accused belonged to the 10 Sabotage

4 detachment. This detachment has several units. On that

5 day there was a certain squad, to which the accused

6 belonged. Out of the eight of them, not one

7 participated in the killing of 500 Muslims in Pilica,

8 and therefore Erdemovic did not either. That is why I

9 contested this.

10 JUDGE STEPHEN: Yes. Thank you.

11 PRESIDENT CASSESE: I wonder whether the parties would like

12 to add anything? Mr. Babic, would you like to add

13 anything before we wind up our hearing?

14 MR BABIC: Your Honours, Mr. President, I must say that

15 against my will I appeal to this Chamber to take into

16 consideration the statement of my accused, which I have

17 tried to convey literally, that psychologically he could

18 not go through another trial, and we feel that this

19 Chamber has all the elements necessary to correct any

20 errors that may have been made by the First Instance

21 Chamber. That is all that I wish to ask. I repeat

22 again that this is against my will as a professional,

23 just as during the testimony of the accused and when he

24 was asked whether he pled guilty or not, I told him:

25 "There is no evidence that you had committed the

Page 140

1 criminal offence. You should not plead guilty", but he

2 said to me: "No, I cannot lie to the Yugoslav

3 authorities. I cannot lie before this court. I cannot

4 lie to anyone. It is my moral position that I must

5 admit that this happened and it happened under the

6 circumstances that I described". So he did not listen

7 to me then.

8 PRESIDENT CASSESE: Thank you. Prosecutor?

9 MR NIEMANN: Thank you, your Honour. Your Honour, the only

10 submission I would wish to make at this stage is that --

11 THE INTERPRETER: Microphone, please.

12 MR. NIEMANN: The only submission I would wish to make at

13 this stage is that during the course of the sentencing

14 hearing the Prosecutor expressed a view on appropriate

15 penalties and said that a penalty of no more than ten

16 years should be, in their submission, imposed. We wish

17 to make no submissions on the issue of the penalty that

18 is being suggested by the appellant today.

19 PRESIDENT CASSESE: Thank you. I think that now the

20 Appeals Chamber will retire and we will deliberate. So

21 the hearing is adjourned.

22 (3.45 pm)

23 (Hearing adjourned)