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He ceased to cite duress as a complete defence - which, if proved at trial, would have meant the acquittal of his client. Instead, he asked for the duress under which Erdemovic committed the crime for which he was sentenced (participation in the execution of about 1200 Muslim civilians after the fall of Srebrenica) to be taken into account as mitigating circumstances.
Babic did this on the insistence of Erdemovic, after the latter had understood that accepting duress as a complete defence would in his case mean a completely new trial, with an uncertain outcome.
This turnaround was preceded by an interesting legal-philosophical debate about the limits of the responsibility of a soldier who, under orders and duress, commits a crime against humanity. The boundaries of the debate were delimited by preliminary questions for the defence and the prosecution set by the Appeals Chamber, composed of Judges Antonio Cassese (presiding), Haopei Li, Ninian Stephen, Gabrielle Kirk McDonald and Lal Chand Vohrah. There were three such questions:
* may duress afford a complete defence to a charge of crimes against humanity? * was the guilty plea entered by the accused equivocal (in that the accused, while pleading guilty, invoked duress?) * and was the acceptance of a guilty plea valid in view of the mental condition of the accused at the time the plea was entered?
The appellant (defence) and the respondent (prosecution) presented different replies to the Appeals Chamber. The appellant, naturally, insisted that duress can afford a complete defence and cited legal resolutions in about ten countries with civil law systems. According to the appellant, Erdemovic had no choice; he had to follow orders and participate in the execution of civilians, otherwise he and his family would have suffered.
The respondent, however - Grant Niemann (Australia) - said that this was not acceptable as a defence to a charge of crimes against humanity or war crimes, when the underlying offence is the killing of an innocent human being. The examples he cited came exclusively from countries with common law systems. To accept duress as a complete defence would, according to the respondent, mean "to encourage such behaviour", i.e., the obedient fulfilling of orders to commit war crimes.
In answer to a question from the Chinese judge, Li, the respondent asserted that no military tribunal after World War II released a defendant from punishment because they killed under duress; to which the appellant replied that those courts were trying those primarily responsible for crimes in World War II, not ordinary German soldiers.
The prosecution and the defence did agree on one thing, albeit for different reasons: Erdemovic's guilty plea was unequivocal. According to the defence, this was because he was accepting his "moral responsibility" for participation in a crime, while at the same time invoking duress as a complete defence and mitigating circumstance. The defence sees no contradiction in this.
According to the prosecutor, the guilty plea was unequivocal in that the accused invoked duress only in mitigation of his sentence and not as a defence. The judges expressed no opinion, but from their questions it could be deduced that they consider Erdemovic's plea of guilty while invoking duress as equivocal.
For, as Judge McDonald noted, if the Appeals Chamber accepts duress as a complete defence, the accused would have the right to a trial. This means that he would again be asked if he feels guilty, and then - if he invokes duress and states that he is not guilty - he would have to go through a full trial in which the defence would try to prove, and the prosecution would try to disprove, the existence of duress.
In that case the Tribunal would rule on the existence or otherwise of duress that relieves Erdemovic of responsibility, and if it decides that there was no such duress it could perhaps pass a harsher sentence than the one already passed on him. For that sentence, as president Cassese warned Babic at one point, was passed without a "proper trial", after a hearing in which, given that the accused had pleaded guilty, only the mitigating and aggravating circumstances were considered, so the principle under which a longer sentence than the one under appeal cannot be passed would not apply.
However, if the Appeals Chamber accepts duress as a complete defence, there would be a chance of acquittal in a new trial. Erdemovic was not prepared to take that risk, and instructed his defence to play safe, that is, for the reduction rather than the abolition of the original sentence.
Closing the hearing, president Cassese did not say when the chamber would announce its decision on the first appeal against the Tribunal's first sentence.
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