II. The international criminal tribunal for the former yugoslavia: The erdemović case

International and Comparative Law Quarterly

Volumn 47, Issue 2, 1998, Pages 461-474

  Turns, David ^a  

^a UNIVERSITY OF LIVERPOOL   (United Kingdom)

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EID: 84922930732     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300061959     Document Type: Article

References (90)

1. For the background to the Tribunal, which was created by UN Security Council Res. 827(1993)
2. see O'Brien, The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia” (1993) 87 A.J.I.L. 639
3. and Warbrick, “International Criminal Law” in Current Developments: Public International Law (1995) 44 I.C.L.Q. 466,468–472
4. Trial Chamber I: sentencing judgment in The Prosecutor v. Dra$en Erdemović (Case No.IT-96–22-T, 29 Nov. 1996) (hereafter “sentencing judgment”). The Trial Chamber was composed of Judge Jorda, presiding, with Judges Odio Benito and Riad.
5. Erdemovit was not, however, the first person to be arraigned before the ICTY: that dubious distinction belongs to Du$an Tactić, 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 CCI PIO/190-E, 7 May 1997.
6. (See also infra n.25.)
7. The Appeals Chamber of the ICTY has also given us a decision on the interlocutory appeal on jurisdiction in The Prosecutor v. Duian Tadii (Case No.IT-94-l-AR72, 2 Oct 1995). The text is available at (1996) 35 I.L.M. 32
8. 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 Tadii Case” (1996) 45 I.C.L.Q. 691.
9. See e.g. Leigh, The Yugoslav Tribunal: Use of Unnamed Witnesses Against Accused” (1996) 90 A.J.I.L. 235.
10. Appeals Chamber judgment in The Prosecutor v. Dra$en Erdemović (Case No.JT-96–22-A, 7 Oct 1997) (hereafter “appeal judgment”). The Appeals Chamber was composed of Judge Cassese, presiding, with Judges McDonald, Li, Stephen and Vohrah.
11. When he filed a provisional notice of appeal against the sentencing judgment on 23 Dec. 1996, Jovan Babić, Erdemović's defence counsel noted that the judgment of his client was “the first passed for a crime against humanity since the Nuremberg trials” and “may set a precedent for rulings in other proceedings and thus become a source of international criminal law”. See IC7Y Bulletin No.l4,27 Jan. 1997.
12. Erdemović's own testimony is confusing and contradictory on several points, including his precise rank in the Bosnian Serb army: in his statement in the rule 61 hearings in The Prosecutor v. Radovan Karad$ić and Ratko Mladić (Cases No.IT-95–5-R61 and IT-95–18-R61, hearing of 5 July 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 have some bearing on the acceptability of pleas of duress and superior orders.
13. The story subsequently made its way to the American ABC television network and to Le Figaro. See Tribunal Update No.4,18–22 Nov. 1996.
14. Tribunal Watch, 7 Mar. 1996
15. citing the New York Times News Service.
16. New York Times News Service, citing the official Yugoslav news agency Tanjug.
17. ICTY Press Release CC/PIO/053-E, 30 Mar. 1996.
18. Tribunal Watch, 12 Mar. 1996, citing Reuters.
19. The ICTY Rules of Evidence and Procedure are reprinted at (1994) 33 I.L.M. 484.
20. ICTY Press Release, I.L.M.
21. Tribunal Watch, 30 May 1996, citing Reuters.
22. 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
23. the Resolution and Statute are reproduced at (1993) 32 I.L.M. 1203.
24. ICTY Statute, Art.5.
25. Idem, Art-3. This charge was subsequently dropped by the prosecutor.
26. Tribunal Watch, 31 May 1996, citing Reuters.
27. The Prosecutor v. Radovan Karad$ić and Ratko Mladić (Cases No.IT-95–5-R61 and IT-95–18-R61, hearing of 5 Jury 1996).
28. The uniqueness of the sentencing judgment in Erdemovii did not last very long: in between the sentencing and appeal judgments in Erdemovii, the very first defendant to be arraigned before the ICTY, Du$an Tadić, was sentenced to 20 years' imprisonment See Trial Chamber II: sentencing judgment in The Prosecutor v. Duŝan Tadić (Case No.94-l-T, 14 July 1997).
29. That sentence is under appeal at the time of writing. (See also Trial Chamber II: sentencing judgment in The Prosecutor v. Duŝan Tadić)
30. 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 Nov. 1996.
31. 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)
32. 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/l9967319)
33. 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).
34. 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.
35. Report of the Commission of Experts, 27 June 1996. See sentencing judgment, paras.11–12.
36. 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
37. Sentencing judgment para.14.
38. United Nations, Secretary-General's Report on Aspects of Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (UN DooS/25704). The report is reproduced at (1993) 32 I.L.M. 1159.
39. Idem, para.57.
40. Sentencing judgment, para.20.
41. ICTY Statute, Art.7(4).
42. Sentencing judgment, para.85.
43. Idem, paras.92–95.
44. 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.
45. Idem, paras.96–98.
46. Idem, para.99. The prosecutor laid particular emphasis on the fact that Erdemovic ‘had, in his testimony against Karad$ić’ 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.
47. Idem, paras.102–111.
48. See ICTY Bulletin No. 14, Idem.
49. See ICTY Bulletin.
50. Appeal judgment, paras.11–12.
51. Idem, para.16.
52. Judge Li dissenting.
53. Judges McDonald and Vohrah, joint separate opinion, paras.7–9.
54. Idem, paras.10–13.
55. Idem, para. 16.
56. Idem, para. 18. From the transcript of the appeal hearing, it appears that Erdemovic'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 a war crime.
57. Idem, para.21.
58. Judge Li, separate and dissenting opinion, paras. 19–20.
59. Judges McDonald and Vohrah, joint separate opinion, para.27.
60. Judge Li, separate and dissenting opinion, para.27.
61. Judges McDonald and Vohrah, joint separate opinion, para.55.
62. Idem, para.72.
63. 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)
64. Lynch v. Director of Public Prosecutions for Northern Ireland [1975] A.C. 653 (per Lord Simon)
65. and Abbott v. R. [1977] A.C 755.
66. Judges McDonald and Vohrah, joint separate opinion, para.75.
67. Judge Cassese, separate and dissenting opinion, para.ll.
68. Idem, para. 16.
69. 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.471,48-M81
70. United States v. von Leeb et al (the High Command case) (1948) T.W.C VoL XI, p.507.
71. In re Wielen and Others (1947) XI L.R.T.W.C 31
72. In re Feuer-stein et al. (1948) XV L.R.T.W.C 173
73. and In re Hölzer (1946) V L.R.T.W.G 16. As might be expected, he also made liberal use of a large number of Italian, German and French cases.
74. Judge Cassese, separate and dissenting opinion, paras.43–44.
75. Idem, para. 50.
76. Judge Stephen, separate and dissenting opinion, para.25.
77. The main cases relied upon by Judge Stephen, apart from those mentioned separate and dissenting opinion, were R. v. Howe and Others [1987] A.C 417
78. and R. v. Gotts [1992] 2 A.C. 412.
79. A.C.
80. Judge Stephen, separate and dissenting opinion, para.65.
81. Pursuant to Rule 101(E) of the ICTY Rules of Procedure and Evidence, separate and dissenting opinion.
82. Sentencing judgment II, para.22
83. and see. Sentencing judgment.
84. Tribunal Watch, 5 March 1998, citing Associated Press.
85. Sentencing judgment II, pare.15.
86. Idem, para.16.
87. Idem, para. ll.
88. Idem, para.17.
89. Idem
90. Idem