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2 J. Armed Conflict L. 193 (1997)
One Appeal, Two Philosophies, Four Opinions and a Remittal: The Erdemovic Case at the ICTY Appeals Chamber

handle is hein.journals/jcsl2 and id is 201 raw text is: ONE APPEAL, TWO PHILOSOPHIES, FOUR OPINIONS AND A REMITTAL: THE ERDEMOVIC CASE AT THE ICTY APPEALS CHAMBER Robert Cryer The author is a research student at the University of Nottingham. INTRODUCTION The facts of the case are relatively simple, the appellant (interestingly, a Bosnian Croat) was a soldier in the 10 Sabotage Detachment of the Bosnian Serb Army. On or near 16 July 1995, this detachment was sent to Banjevo collective farm, north of Srebrenica, in Bosnia. Around 1,200 Bosnian Muslim men who had surrendered or been captured after the fall of Srebrenica were bussed in, taken in groups of 10 and executed by firing squad. Drazen Erdemovic was a member of this firing squad. Erdemovic was transferred to the International Criminal Tribunal for Former Yugoslavia (ICTY) from the Federal Republic of Yugoslavia by order,' to give evidence against Radovan Karadzic and Ratko Mladic in Rule 61 proceedings held in July 1996.2 On 29 May 1996 the prosecutor submitted an indictment, charging Erdemovic with a violation of the laws and customs of war or alternatively a crime against humanity contrary to Articles 3 and 5 of the ICTY Statute respectively3 for his part in the killings.4 On 31 May 1996 he pleaded guilty to a crime against humanity.' This plea was accepted by Trial Chamber . Problems arose in relation to his plea. When he pleaded guilty he added: I had to do this, If I had refused, I would have been killed together with the victims. When I refused, they told me: if you're sorry for them, stand up. Line up with them and we will kill you too. I am not sorry for myself but for my family, my wife and son...and I could not refuse because then they would have killed me.7 The Trial Chamber seemed to accept the theoretical applicability of the defence of duress, but rule it out for crimes against humanity as the requirement of proportionality essential to a defence of duress could never be satisfied.' They also rejected his story as there was no proof of the relevant facts. The Chamber sentenced Erdemovic to ten years imprisonment, the maximum recommended by the prosecution.' Pursuant to Article 28 of the Statute and Rules 108-118 of the Rules of Procedure, Erdemovic appealed. He asked to be excused service of his sentence, or have it reduced as he had acted under duress.10 He did not assert the right to an acquittal on the basis of the alleged duress.

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