The
Appeals Chamber made yet another groundbreaking interpretation of
the Geneva Conventions. Article 4 protects civilians who find themselves
"in the hands of a Party to the conflict or Occupying Power of
which they are not nationals". The Geneva Conventions were codified
to regulate wars between nations and this is how they have been used
traditionally. But according to the ICTY Appeals Chamber, in certain
circumstances Article 4 may encompass victims possessing the same
nationality as the perpetrators of the crimes. In other words, conflict
can be so ferocious that it rends the bonds of nationality. Consequently,
Bosnian Muslim victims were deemed to be persons "protected"
by the 1949 Geneva Conventions even though the crimes were committed
by a Bosnian Serb; therefore the grave breach protections afforded
by the conventions could be enforced.
The Appeals
Chamber Judgment also stressed that under customary law regarding
crimes against humanity, persecution can be committed for purely personal
motives. It further emphasized that to prosecute crimes against humanity,
it is not necessary to prove a discriminatory intent – that is,
persecution for racial, ethnic, or religious reasons – unless
the controlling statute makes this intent a requirement.
Prosecutor v. Erdemovic
This case
focussed particularly on criteria for accepting a guilty plea and
the legitimacy of claiming duress as a defense to accusations of war
crimes or crimes against humanity.
The defendant, Drazen Erdemovic, a member of the Bosnian Serb Army,
was accused of having participated in the execution of thousands of
unarmed Bosnian Muslim men shortly after his unit took over the UN
"safe haven" of Srebrenica. He was charged with one count
of murder as either a crime against humanity or a violation of the
laws or customs of war. Erdemovic pleaded guilty to murder as a crime
against humanity, but claimed in his defense that he had only killed
under duress. He stated that if he had failed to execute the Bosnian
Muslims as ordered, he not only could not have prevented the executions,
but he would have been killed as well. In the initial Trial Chamber
Judgement (November 26, 1996), his guilty plea was accepted and Erdemovic
was sentenced to 10 years' imprisonment.
Erdemovic appealed, arguing that his guilty plea had not been adequately
informed – that he had not understood the difference in pleading
guilty to a crime against humanity versus pleading guilty to a war
crime. He also asserted that his duress was not taken into account
either as a defense or in mitigation of the sentence. In its Judgment
(October 7, 1995), a majority of the Appeals Chamber agreed that the
guilty plea had not been informed, and it remanded the case back down
to a new Trial Chamber to allow Erdemovic the opportunity to replead
and to determine the appropriate sentence. Establishing criteria for
accepting a guilty plea, it was held that 3 pre-conditions must be
satisfied: the plea must be voluntary, informed, and unequivocal.
The Appeals Chamber also held, by a majority, that "duress does
not afford a complete defence to a soldier charged with a crime against
humanity and/or a war crime involving the killing of innocent human
beings." The Joint Separate Opinion of Judges McDonald and Vohrah
emphasized that despite there being no corroboration of the duress,
the Trial Chamber could have taken the duress into account in mitigation
of the sentence.
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