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Erdemovic Sentence Halved

Tribunal Update 66: Last Week in The Hague (March 2-7, 1998)

Presiding Judge Florence Mumba, Judge Mohamed Shahabuddeen and Judge Wand Tijea decided on 5 March that Erdemovic, a young Bosnian Croat who "strayed" into the Bosnian Serb army, should receive five years' imprisonment for his participation in the mass execution of over 1,000 Muslim men captured after the fall of Srebrenica in July 1995.

Since the time he spent in detention counts towards his sentence, Erdemovic will be free by March 2001, at the latest. By then he will be 29 years old, and as the judges stressed "still young enough to start his life afresh." According to them he is "reformable...and should be given a second chance."

Erdemovic will serve his sentence in one of the ten countries that have offered the Tribunal use of their prison services. Of these only Finland and Italy have so far concluded an agreement with the Tribunal.

The Erdemovic sentence greatly surprised not only those who were following the trial, but also the defence and the prosecution teams. On 8 January, they filed an unprecedented joint motion for consideration of plea agreement, suggesting a seven-year sentence might be appropriate. While stressing that they were not bound by this motion, the chamber took it into consideration and then lowered the sentence still further.

The judges decision was taken on the grounds of the need to protect the rights of the accused while not overlooking the tragedy of the victims and the suffering of their families.

The nature of the crime in which he had participated, and in which he himself admitted killing between 70 and 100 people, were the only aggravating factors in the Erdemovic case. "No matter how reluctant his initial decision to participate was, he continued to kill for most of that day", the Trial Chamber pointed out.

A number of mitigating factors outweighed the scale of Erdemovic's crime. His youth (he was 23 at the time); his background (he was an unwilling soldier in all three armies that fought in Bosnia); his admission of guilt; his sincere and consistent remorse were all taken into consideration.

His "excellent" co-operation with the Office of the Prosecutor was also important: Erdemovic provided them with details of four crimes of which they were previously unaware; identified those involved; and gave significant testimony in the Rule 61 hearing of the case brought against Radovan Karadzic and Ratko Mladic.

Even though the Appeals Chamber had ruled that "duress does not afford a complete defence to a soldier charged with a crime... involving the killing of innocent human beings," the Trial Chamber accepted duress as a significant mitigating circumstance, concluding that on that 16 July 1995 Erdemovic found himself in the situation "to kill... or be killed".

Most decisive, however, was the wish to encourage other suspects or unknown perpetrators to come forward, confess and co-operate in establishing the truth about events in the former Yugoslavia.

When an ever larger number of accused are surrendering voluntarily in order to avoid the risk of arrest, the mercy demonstrated by the Tribunal towards Erdemovic could encourage a number of unwilling participants in war crimes to relieve their conscience by confessing. This would help to establish exactly what took place and who was responsible.

Erdemovic's tried not to cry as he listened to his sentence. Prior to this he had cried whenever he had to talk to the judges about what happened on the Pilica farm near Srebrenica on 16 July 1995, and this time, no doubt, he shed tears of relief.

His defence, led by the Yugoslav Jovan Babic, told reporters that he was "very satisfied" with the sentence and that he did not believe his defendant would want to appeal.

The prosecution is also unlikely to appeal. Deputy Chief Prosecutor, Graham Blewitt, told Tribunal Update, that "the judgement reflects the balance between the victims and the accused." This balance, Blewitt suggested, "is always difficult to find, and criminal judgements are always discussed, and in national systems as well." The Judges, Blewitt concludes, "gave due consideration to the suffering of the victims and, pending full assessment of the reactions on this judgement in Bosnia, I would hope that the victims and survivors see that justice has been done."

This brings to a conclusion Erdemovic's two-year odyssey in the uncharted waters of international justice. It started in March 1996, with his public confession (in an interview with the Paris daily Figaro and the American TV-network ABC). Then followed his arrest in Yugoslavia, transfer to The Hague at the Tribunal's request, and appearance in court, first as a witness, and then as a defendant.

During his initial appearance on 31 May, 1996, Erdemovic pleaded guilty to charges of crimes against humanity, and was sentenced to ten years in prison on 29, November 1996. On 7 October, 1997, the Appeals Chamber found that his initial plea was "not informed" as he "did not understand the nature of the charges".

Given the opportunity to plead a second time, Erdemovic entered a guilty plea to a charge of a violation of the laws or customs of war ("war crimes") on 14 January, 1998.

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