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Erdemovic's 'Informed' Guilty Plea

Tribunal Update 59: Last Week in The Hague (January 12-17, 1998)
By IWPR ICTY

Erdemovic first pleaded guilty to crimes against humanity on May 31,1996, and was sentenced to ten years' imprisonment for his participation in the killing of some 1,200 Muslim men captured after the fall of Srebrenica in July 1995.

On January 14, 1998 Erdemovic again admitted his part in the killing, but this time the crime has changed. It is now qualified as a war crime, or violation of the laws and customs of war, which, as the Appeals Chamber have ruled (with a majority vote of 4:1), is lesser than a crime against humanity.

Presiding Judge Florence Mumba, reminded Erdemovic of this before he entered his second plea, pointing out that "a crime against humanity is more systematic and more serious than a war crime and therefore carries a heavier penalty."

Rather than hearing from the newly "informed" Erdemovic, however, the judges were confronted with an unprecedented "plea agreement", jointly presented by the defence and the prosecution. They proposed that Erdemovic's sentence be reduced from ten to seven years. The defence pointed to the accused's guilty conscience, describing him as the "victim of war madness", who, by admitting his crime, "pays back a moral debt to the victims in whose killing he had partaken".

The prosecutor pointed to a high level of cooperation on the part of the accused, without whose confession one of the gravest crimes committed after the fall of Srebrenica may never have been discovered.

The Tribunal rules do not envisage a "plea bargain" and the judges are not obliged to follow the prosecution and defence joint recommendation. Confession, a sense of guilt, and significant co-operation with the prosecution, are acknowledged as mitigating circumstances when determining a sentence, however. This was taken into account in Erdemovic's case when the first sentence was passed by Trial Chamber I's Presiding Judge Claude Jorda.

It remains to be seen how all these circumstances will be assessed by the new Trial Chamber II-ter, which comprises Judge Mumba, Judge Mohamed Shahabuddeen and Judge Wang Tieya. Their decision is expected at the end of February or in March this year.