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II. The International Criminal Tribunal for the Former Yugoslavia: The Erdemović Case

Published online by Cambridge University Press:  17 January 2008

Colin Warbrick ,
Dominic McGoldrick  and
David Turns
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Extract

On 29 November 1996 Trial Chamber I of the International Criminal Tribunal for the Former Yugoslavia (“the ICTY”) handed down its sentence in the case of Dražen Erdemović. This was a decision of historie significance for a variety of reasons, the most obvious being that it was the first sentence passed by an international war crimes tribunals, applying international law, since the International Military Tribunals which sat at Nuremberg and Tokyo between 1945 and 1948; it was also the first time a truly international tribunal bas concluded the trial of a minor war criminal, as opposed to a senior military commander or political leader. In addition, it was the first sentence handed down by the ICTY, which has been plagued sincc its first days of operation by problems in securing evidence and witnesses, not to mention the presence of the accused. Now the ICTY has shown, in the face of widespread criticism and accusations of impotence, that it can actually perform the task assigned to it. The doubt about such a judgment is that the Erdemović case is not perhaps the best basis on which to assess the ICTY's performance, so singular were the accused's conduct and, indeed, the circumstances in which he found himself before the Tribunal. Essentially, had it not been for the accused's voluntary surrender and his extensive co-operation with the Office of the Prosecutor, and the co-operation of the judirial authorities in the Federal Republic of Yugoslavia (Serbia and Montenegro) in transferring Erdemović to The Hague, the case would probably never have happened at all.

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 47 , Issue 2 , April 1998 , pp. 461 - 474
Copyright
Copyright © British Institute of International and Comparative Law 1998

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References

1. For the background to the Tribunal, which was created by UN Security Council Res. 827(1993), see O'Brien, , “The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia” (1993) 87 A.J.I.L. 639Google Scholar, and Warbrick, “International Criminal Law” in Current Developments: Public International Law (1995) 44 I.C.L.Q. 466, 468–472.Google Scholar

2. Trial Chamber I: sentencing judgment in The Prosecutor v. Dražen Erdtmović (Case No.IT–96–22–T, 29 11 1996) (hereafter “sentencing judgment”). The Trial Chamber was composed of Judge Jorda, presiding, with Judges Odio Benito and Riad.Google Scholar

3. Erdemović was not, however, the first person to be arraigned before the ICTY: that dubious distinction belongs to Dušan Tadić, a former guard at the Bosnian Serb detention camp at Omarska, who was initially indicted on 13 Feb. 1995 (after which the German authorities, who had arrested him to begin with, deferred proceedings against him in accordance with Art.9(2) of the ICTY Statute and transferred him to the custody of the ICTY in The Hague), arraigned on 26 Apr. 1995 and sentenced to 20 years' imprisonment on 7 May 1997. For a full chronology of proceedings in the Tadić case, see ICTY Press Release CC/PIO/190–E, 7 05 1997. (See also infra n.25.)Google Scholar

4. The Appeals Chamber of the ICTY has also given us a decision on the interlocutory appeal on jurisdiction in The Prosecutor v. Dušan Tadić (Case No.IT–94–1–AR72, 2 10 1995).Google ScholarThe text is available at (1996) 35 I.L.M. 32Google Scholar; for a very useful analysis, see Warbrick and Rowe, “The International Criminal Tribunal for Yugoslavia; The Decision of the Appeals Chamber on the Interlocutory Appeal on Jurisdiction in the Tadić Case” (1996) 45 I.C.L.Q. 691.Google Scholar

5. See e.g. Leigh, , “The Yugoslav Tribunal: Use of Unnamed Witnesses Against Accused” (1996) 90 AJ.I.L. 235.Google Scholar

6. Appeals Chamber judgment in The Prosecutor v. Dražen Erdemović (Case No.IT–96–22–A, 7 10. 1997) (hereafter “appeal judgment”). The Appeals Chamber was composed of Judge Cassese, presiding, with Judges McDonald, Li, Stephen and Vohrah.Google Scholar

7. Judges McDonald and Vohrah appended a joint separate opinion to the judgment; Judges Cassese, Li and Stephen all entered separate and dissenting opinions.

8. When he filed a provisional notice of appeal against the sentencing judgment on 23 Dec. 1996, Jovan Babić, Erdemović's defence counsel, noted that the judgment of his client was “thefirst passed for a crime against humanity since the Nuremberg trials” and “may set a precedent for rulings in other proceedings and thus become a source of international criminal law”. See ICTY Bulletin No.14, 27 01 1997.Google Scholar

9. Erdemović's own testimony is confusing and contradictory on several points, including his precise rank in the Bosnian Serb army: in his statement in the rule 61 hearings in The Prosecutor v. Radovan Karadžić and Raiko Mladić (Cases No.IT–95–5–R61 and IT–95–18–R61, hearing of 5 07 1996) he described himself as a lieutenant and the commander of a small unit, whereas in his statement in the later hearings on his own case he claimed to be only a sergeant See sentencing judgment, para.79, nn.72–74. His precise rank could nave some bearing on the acceptability of pleas of duress and superior orders.Google Scholar

10. The Srebrenica massacre generally and the specific atrocity in which Erdemović participated are described in the sentencing judgment at paras.2 and 76–78.

11. The story subsequently made its way to the American ABC television network and to Le Figaro. See Tribunal Update No.4, 18–22 11 1996.Google Scholar

12. Tribunal Watch, 7 03. 1996, citing the New York Times News Service.Google Scholar

13. Ibid, citing the official Yugoslav news agency Tanjug.

14. ICTY Press Release CO/PIO/053–E, 30 03 1996.Google Scholar

15. Tribunal Watch, 12 03 1996, citing Reuters.Google Scholar

16. Tie ICTY Rules of Evidence and Procedure are reprinted at (1994) 33 I.L.M. 484.Google Scholar

17. ICTY Press Release, supra n.14.Google Scholar

18. The Office of the Prosecutor was aware of Erdemović's confession to the Serbian authorities, and this led to Judge Goldstone investigating him.

19. Tribunal Watch, 30 May. 1996, citing Reuters. The indictment was on the same date formally confirmed by Judge Sidhwa, in accordance with Art.19 and r.47 of the ICTY Statute and Rules, respectively. The ICTY Statute is annexed to Security Council Res. 827(1993), establishing the ICTY; the Resolution and Statute are reproduced at (1993) 32 I.L.M. 1203.Google Scholar

20. ICTY Statute, Art.5.

21. Idem, Art.3. This charge was subsequently dropped by the prosecutor.

22. Tribunal Watch, 31 05 1996, citing Reuters.Google Scholar

23. The Prosecutor v. Radovan Karadžić and Ratko Mladić (Cases No.IT–95–5–R61 and IT–95–18–R61, hearing of 5 07 1996).Google Scholar

24. The chronological procedure of the case before sentencing is laid out in the sentencing judgment at paras. 1–9.

25. The uniqueness of the sentencing judgment in Erdemović did not last very long: in between the sentencing and appeal judgments in Erdemović, the very first defendant to be arraigned before the ICTY, Dužan Tadić, was sentenced to 20 years' imprisonment. See Trial Chamber II: sentencing judgment in The Prosecutor v. Dužan Tadić (Case No.94–1–T, 14 07 1997). That sentence is under appeal at the time of writing. (See also supra n.3.)Google Scholar

26. The “unique character” of the pre-sentencing hearing was already commented on in early reports of the proceedings: see e.g. Tribunal Update No.4, 18–22 11 1996.Google Scholar

27. Observers of the ICTY are by now excessively familiar with the contradictory statements that emanate regularly from Belgrade on the question of co-operation with the ICTY, especially on the question of surrendering suspects or indictees. For a flavour of the exchanges on the subject, the following episodes are illustrative: the Yugoslav authorities' statement that they would co-operate fully with the ICTY except in relation to the extradition of Yugoslav nationals to The Hague to stand trial (Tribunal Watch, 24 Jan. 1996, citing United Press International); ICTY President Cassese's letter to the Security Council of 24 Apr. 1996, formally reporting the refusal of Yugoslavia to co-operate with the ICTY in defiance of Res. 827 and the Dayton Agreement (S/1996/319); the consequent statement of 8 May 1996 by the President of the Security Council, strongly deploring the Yugoslav failure to co-operate (S/PRST/1996/23); and the reiteration by the Yugoslav authorities that they would not extradite suspects to The Hague, but might be prepared to try them in Yugoslavia (Tribunal Watch, 1 July. 1997, citing Reuters).

28. Art.20(3) of the ICTY Statute and r.62 of the Rules of Evidence and Procedure provide for the possibility of a defendant pleading guilty.

29. Report of the Commission of Experts, 27 06 1996. See sentencing judgment, paras.11–12.Google Scholar

30. The twin defences of superior orders and duress, as raised by Erdemović, are briefly stated by the Trial Chamber in its sentencing judgment at para.80.

31. Appeal judgment, para.4. Rather surprisingly, the Trial Chamber did not go into detail at all in its consideration of these statements by the defendant.

32. Sentencing judgment, para.14.

33. United Nations, Secretary-General's Report on Aspects of Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations national Humanitarian Law Committed in the Territory of the Former Yugoslavia (UN Doc.S/25704). The report is reproduced at (1993) 32 I.L.M. 1159.Google Scholar

34. Idem, para.57.

35. Sentencing judgment, para.20.

36. The phrase “in connection with” is quite possibly a drafting error, as the context of the sentence in para.57 suggests that it may have been mistakenly used in lieu of “in conjunction with”. The former suggests a connection between the pleas in terms of their applicability to a given offence, whereas the latter implies more that the pleas may be used in conjunction with each other (i.e. arising out of the same set of circumstances) without necessarily referring to the exact same act or omission.

37. ICTY Statute, Art.7(4).

38. In particular, Judges McDonald and Vohrah in their joint separate opinion at paras.34–36 took the view that superior orders and duress are quite distinct as legal concepts, although they recognised that they are often linked factually in armed conflict situations. Judge Cassese, who otherwise disagreed sharply with his colleagues, makes the same point in his separate and dissenting opinion at para.15.

39. Sentencing judgment, para.85.

40. Idem, paras.92–95. While accepting Erdemović's low rank in mitigation, the Trial Chamber nevertheless rejected arguments based on his mental condition and the situation of extreme necessity arising from duress and the order of a superior, noting that “the Defence has produced no testimony, evaluation or any other elements to corroborate what the accused has said”: idem, paras.88–91.

41. Idem, paras.96–98.

42. Idem, para.99. The prosecutor laid particular emphasis on the fact that Erdemović had, in his testimony against Karadžić and Mladić, divulged certain crimes of which the prosecutor had previously been ignorant, notably a massacre of about 500 civilians at Pilica and two summary executions of Muslim prisoners.

43. Idem, paras.102–111.

44. See ICTY Bulletin No. 14, supra n.8.

45. Sec supra n.42.

46. Appeal judgment, paras.11–12.

47. Idem, para.16.

48. Judge Li dissenting.

49. Judges Cassese and Stephen dissenting.

50. Judges McDonald and Vohrah, joint separate opinion, paras.7–9.

51. Idem, paras.10–13.

52. Idem, para.16.

53. Idem, para.18. From the transcript of the appeal hearing, it appears that Erdemović's defence counsel did not understand the legal nuances of these types of crime, either he suggested at one point that the killing of civilians in an armed conflict cannot be regarded as war crime.

54. Idem, para.21.

55. Judge Li, separate and dissenting opinion, paras.19–20.

56. Judges McDonald and Vohrah, joint separate opinion, para.27.

57. Judge Li, separate and dissenting opinion, para.27.

58. This substantial, if confusing, body of jurisprudence was analysed in far greater detail and with much greater impact by Judge Cassese in his separate and dissenting opinion.

59. Judges McDonald and Vohrah, joint separate opinion, para.55.

60. Idem, para.72.

61. These policy considerations were derived almost exclusively from Anglo-Saxon commentators and common law principles, most notably Stephen's History of the Criminal Law of England (1883), Lynch v. Director of Public Prosecutions for Northern Ireland [1975] A.C. 653Google Scholar (per Lord Simon) and Abbott v. R. [1977] A.C. 755.Google Scholar

62. Judges McDonald and Vohrah, joint separate opinion, para.75.

63. Judge Cassese, separate and dissenting opinion, para.11.

64. Idem, para.16.

65. The number of decisions is very substantial; among the most important ones cited by Judge Cassese were United States v. Ohlendorf et al. (the Einsatzgruppen case) (1948) T.W.C Vol.IV, pp.471, 480–481Google Scholar, United States v. von Leeb et al. (the High Command case) (1948) T.W.C. Vol.XI, p.507.Google ScholarIn re Wielen and Others (1947) XI L.R.T.W.C. 31Google Scholar, In re Feuerstein et al. (1948) XV L.R.T.W.C. 173Google Scholar and In re Hölzer (1946) V L.R.T.W.C. 16. As might be expected, he also made liberal use of a large number of Italian, German and French cases.Google Scholar

66. Judge Cassese, separate and dissenting opinion, paras.43–44.

67. Idem, para.50.

68. Judge Stephen, separate and dissenting opinion, para.25.

69. The main cases relied upon by Judge Stephen, apart from those mentioned supra n.61, were R. v. Howe and Others [1987] A.C. 417Google Scholar and R. v. Gotts [1992] 2 A.C. 412.Google Scholar

70. Supra n.65.

71. Judge Stephen, separate and dissenting opinion, para.65.

72. Trial Chamber II-ter. sentencing Judgment in The Prosecutor v. Dražen Erdemović (5 03 1998, no case number allocated as at 10 March) (hereafter “sentencing judgment II”). The Trial Chamber was composed of Judge Mumba, presiding, with Judges Shahabuddeen and Wang.Google Scholar

73. Pursuant to Rule 101(E) of the ICTY Rules of Procedure and Evidence, supra n.16.

74. Sentencing judgment II, para.22 and see supra n.17.

75. Tribunal Watch, 5 03 1998, citing Associated Press.Google Scholar

76. Sentencing judgment II, para.15.

77. Idem, para.16.

78. Idem, para.11.

79. Idem, para.17.

80. supra n.55.

81. supra n.68.