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The Appeals Chamber Judgment in the Erdemovic Case

Tribunal Update 47: Last Week in The Hague (October 6 - 10 1997)
By IWPR ICTY

Erdemovic was accused of participating in the killing of several hundred Muslim civilians on the Pilica farm in the region of Srebrenica, a crime he admitted to. This was qualified in the indictment as either a war crime or a crime against humanity. When Erdemovic was asked to plead, he pleaded guilty to the crimes against humanity

According to the majority of four judges (with Judge Haopei Li dissenting), Erdemovic was "not sufficiently informed" about the meaning and the consequences of his guilty plea. The appeals chamber ruled that Erdemovic should be given the opportunity for a retrial, this time with a new bench of judges. Judge Li, in contrast, believes that a charge of war crimes is no less serious than that of crimes against humanity. In his eyes, the appeals chamber should re-evaluate the Erdemovic case and decide whether the original sentence was fair and just.

What happens next will be down to Erdemovic. He could change his plea to a charge of crimes against humanity to that of war crimes. In that case the trial chamber will proceed to sentence, perhaps taking into consideration Erdemovic's claim that he acted under threats to his own life.

If he decides to continue to plead guilty to charges of crimes against humanity, the chamber will also proceed to sentence without a retrial. Only if Erdemovic chooses to change his plea to "not guilty" will there be a fresh trial.

Erdemovic will not be able to demand release from his sentence on the grounds that he acted on orders and under duress, however. In an important majority decision (3 to 2) which will no doubt have implications for further trials, the Appeals Chamber concluded that duress cannot be "a complete defence" for a soldier charged with a crime against humanity or war crimes involving the killing of innocent human beings.

Judges Gabrielle McDonald, Lal Chand Vohrah and Li voted for such a conclusion, explaining it at length in separate opinions enclosed to the decision. President Antonio Cassese and Judge Sir Ninian Stephen were in a minority, believing that - when strict conditions are met - duress may be admitted as a complete defence under international law for crimes involving the killing of innocent persons.

The court's decision disappointed Erdemovic, who was hoping to either have his sentence reduced. In a pre-appeal hearing he had demanded that his defence counsel withdraw all arguments that might lead to a retrial. He repeated his request during the appeal. Looking confused and upset, Erdemovic told the Appeals Chamber that he did not want to go through another trial and that he and his family were tired of the publicity his case has already attracted.

His counsel, Novi Sad lawyer Jovan Babic, has told the Tribunal that Erdemovic is likely to change his plea to that of guilty to war crimes. Babic hopes that this will result in a lower sentence.