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
Robert Cryer
The author is a research student at the University of Nottingham.
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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