United Nations Security Council Resolution 819, passed on April 16th, 1993, established “safe areas” in the Srebrenica area of the Republic of Bosnia and Herzegovina amidst fighting in the former Yugoslavia. On July 6th, 1995, the Bosnian Serb army launched a five day attack on the Srebrenica “safe area” created by the United Nations.
As a result, thousands of Bosnian Muslims fled Srebrenica and took refuge at the nearby Potocari United Nations compound. On July 11th, a second group of Bosnian Muslim men, numbering approximately 15,000, fled in Srebrenica, heading towards Tuzla through the woods. Many surrendered or were caught by Bosnian Serb forces.
July 11th through July 13th 1995, the Bosnian Serb army executed an undetermined number of Bosnian Muslims in both Srebrenica and Potocari. During this time, Bosnian Muslim men were separated from Bosnian Muslim women and children in Potocari and sent to separate collection centers in Srebrenica. At many of these collection sites Bosnian Muslim men were summarily executed by Bosnian Serb forces between July 13th and July 22nd, 1995.
On approximately July 16th, 1995, Drazen Erdemovic along with other members of the 10th Sabotage Detachment of the Bosnian Serb Army took orders to go to the a collection site on a farm near Pilica. Buses of Bosnian Muslim men who had surrendered to the Bosnian Serb army arrived at the farm throughout the day. As the buses arrived, the Bosnian Muslim men were taken in groups of 10 to a field were member of Erdemovic’s unit was waiting.
They were lined up with their backs facing Erdemovic and other members of the 10th Sabotage Detachment. These unarmed Bosnian Muslim men were then summarily executed by Erdemovic and other members of his unit. Hundreds of Bosnian Muslim men were killed on the farm in Pilica.
When charged with crimes against humanity and violating the laws or customs of war, Erdemovic pleaded guilty. The charge of violating the laws or customs of war was dropped after the guilty plea was accepted and Erdemovic made this statement:
Your Honour, 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 are sorry for them, stand up, line up with them and we will kill you too.”
In his testimony, Erdemovic claimed that he received orders to go to the farm in Pilica from Brano Gojkovic, the commander of operations at the Branjevo farm. Before proceeding to the farm, Erdemovic claimed he and his unit had no idea of the purpose of their mission. Upon arrival they received instructions to summarily execute hundreds of unarmed Bosnian Muslim men.
Erdemovic claimed that he initially refused to carry out the executions, but when threatened with his own life he carried out his orders, trying to spare elderly men who had said they had saved Serbs in Srebrenica. However, despite his attempts to spare some, Brano Gojkovic ordered that all the Bosnian Muslim men be killed so there would be no witnesses to the crime.
The Trial Chamber accepted Erdemovic’s guilty plea for the charge of crimes against humanity. He was sentenced to 10 years in prison. The court cited “the extreme gravity of the offence.”
There exists in international law a standard according to which a crime against humanity is one of extreme gravity demanding the most severe penalties when no mitigating circumstances are present.
The court also explained how the mitigating circumstances of the case factored into their decision. The Trial Chamber determined that the pressure felt by Erdemovic from his superiors and subordinates to commit the crime was not sufficient to excuse his actions as it was unable to corroborated. The court also took into account Erdemovic’s young age, 23, at the time of the crime, low rank in the Bosnian Serb army, feelings of remorse, willingness to surrender to the tribunal, his cooperation with the Prosecutor, his guilty plea, and “the fact that he now does not constitute a danger and the corrigible character of his personality.”
After the judgment was made, Erdemovic filed an appeal asking the court to reconsider the Sentencing Judgement:
by pronouncing the accused Erdemovic guilty as charged, but excusing him from serving the sentence on the grounds that the offences were committed under duress and without the possibility of another moral choice, that is, in extreme necessity, and on the grounds that he was not accountable for his acts at the time of the offece, nor was the offence premeditated.
[by upholding] the Appeal and, taking into consideration all the reasons stated in the Appeal and the mitigating circumstances stated in the Sentencing Judgement, [by revising] the Sentencing Judgement…by significantly reducing the sentence of the accused Erdemovic.
Erdemovic claimed that there were several errors made in the sentencing of his crime. First, he argued that there was no evidence that he, or his unit, had participated in the summary executions committed in the Pilica public building. Second, Erdemovic accused the court of committing an error in believing him when he admitted to executing Bosnian Muslims but not believing his statement that he did so under pressure from superiors.
Next, he claimed that the court failed to recognize his lack of a “moral alternative” in a situation where he was threatened by superiors where “extreme necessity as a generally accepted category in national legislations