Judgment

inthecaseofProsecutorvs.DrazenErdemovic

beforethetrialchamberjudgesSidneyMusserandVascoBrazo

Introduction
Historical Background
Following the breakup of former Socialist Federal Republic of Yugoslavia, in March 1992 the
federal republic of BosniaHerzegovina declared its independence. The Bosnian population
consisted of Bosnian Serbs, Croats, and Muslims who were disunited and soon came to war
over their differences. Their disputes culminated in the division of the territory into the
BosniaCroatFederationandtheRepublikaSrpska(VRS).

Facts About the Case

Drazen Erdemovic was a Bosnian Croat and was serving in the Bosnian Croat Army (HVO)
when hesavedagroupofSerbsbyhelpingthemescapetoRepublikaSrpskaandhadtofleeto
Serbia himself in order to avoid being persecuted by the HVO. He claims that, once in Serbia,
he was unable to fleetoSwitzerlandandchosetogoto theRepublikaSrpska,whereheserved
th
in the 10
Sabotage Detachment of the Bosnian Serb Army among Muslims, Slovenes and
Croats.

After a more nationalist commander was put in charge of Erdemovicsunit,theAccusedclaims

to have been demoted from the rank of Sergeant to soldier as a result of his refusal to kill
civilianMuslims.

During the conflict, the town of Srebrenica served as a refuge for Muslims and was declared a
safe area by the United Nations Security Council in 1993 and was subsequently protected by
Dutch Peacekeepers. Due to declining resources and legal obligations,thepeacekeeperswere
renderedincapableofdefeatingtheBosnianSerbArmy,whichcapturedthetown.

Consequently, the Muslim population attempted to flee to another UN safe area inPotocaribut
were captured by the Bosnian Serb Army. The Muslim men were separated from women and
forced onto busses (those who tried to escape were killedonthespot)andtakentoSrebrenica
andotherplaces,wheretheywereexecuted.

According to the testimony oftheAccusedandotherwitnesses,Mr.Erdemovicandseven other

soldiers in his detachment were instructed togotoafarmnearPilicawithout knowledgeoftheir
assignment. Once there, approximately 20 busses of 60 Muslim men each arrived at the farm,
where they were lined up in front of the Accuseds squad, who were then ordered to execute
them.

The Accused claims that his and his familys lives were threatened and was under the
impression that his refusal to kill the Muslim civilians would lead to the imminent death of the
Accused and his family. In his testimony Mr. Erdemovic claimed to have killed between10and
100(teenagetoelderly)men.

Following the massacre at the farm, Erdemovic and his fellow soldiers were instructed to
participate in an execution of 500 Muslim men at a schoolinPilica.TheAccusedstatesthathe
as well as several of his colleagues refused to participate but were able to hear the shootings
fromacaf,wheretheyweremeetingwiththeLieutenantColonel.

Several months after the massacres at and around Pilica, the Accused turned himself in tothe
International Tribunal and confessed his involvement of his own accord. His testimony was
instrumental to the Prosecution in that it identified the actions of Radovan Karadzic and Ratko
Mladic.

Thus far, all of the information that Erdemovic has provided on the killings (regarding the
location, approximate number of citizens, and nature of the murders) has been verified by the
Tribunal. The Court finds it pertinent to mention that the witness reports indicate Erdemovics
remorse,whichresultedinwithdrawalfromhisfriendsandheavydrinking.

Indictment

The accused is charged withhavingcommittedmurderasacrimeagainsthumanitypursuantto

article7clause(1)(a)oftheRomeStatute.

Merits of the Case

The Court will first establish whether what happened in Srebrenica and its surrounding areas
needs tobequalifiedas acrime againsthumanity.Then,we willturntodiscussMr.Erdemovics
roleandresponsibility.

Material Element

WastheattackatSrebrenicaacrimeagainsthumanityofmurder?

According to Article 7clause(1) (a)oftheRomeStatute,acrimeagainsthumanityisdefinedas

any of the following acts whencommittedaspartofawidespreadorsystematicattackdirected
againstanycivilianpopulation,withknowledgeoftheattack,inthiscase,murder.

The act, in the case of the Srebrenica massacre, is murder, as is shown by the evidence. No

sidedeniedthatthishappenedatSrebrenica.

An attack is defined as an act of aggression and violence against apersonorplace. Theactof

murderfitsthesecriteria.

A civilian population is composed of a group of people who are not involved in a conflict as
soldiers. The Muslim men targeted in the massacre were taking refuge in a UN declared
safearea and were being protectedbyDutchPeacekeepers.Theywerealsoofawiderangeof
ages (from teenagers to elderly men). The status of the Muslim men can thus be considered
civilian.

The Court defines a widespread attack as affecting a high number of people in multiple
locations. The incidents in Srebrenica match this description as the number of casualties
reached approximately 8,000 people, and the massacres occurred along several locations
within the Republika Srpska. Consequently, the killings at Srebrenica constitute a widespread
attack. Theattack wasalsosystematic,aswitnesstestimonydemonstratesthattheeventswere
premeditatedandexecutedinanorderlyfashion.

None of the elements that compose the crime against humanity of murder was put in question
byeitherside.

TheattackatSrebrenicaisthusconsideredbytheCourtacrimeagainsthumanityofmurder.

Mental Element

Did Drazen Erdemovic have the intent to participate in the crime against humanity of
murder?

Article 30 clauses (1) and (2) of the Rome Statute reads: (1) Unless otherwise provided, a
person shall be criminally responsible and liable for punishment for a crime within the
jurisdiction of the Court, only if the material elements arecommittedwithintentandknowledge.
(2) For the purposes of this article, a person has intent where: (a) in relation to conduct, that
person means to engage in the conduct (b) in relation to theconsequence,thatpersonmeans
tocausethatconsequenceorisawarethatitwilloccurintheordinarycourseofevents.

The Court finds the following points of information especially valuable and pertinent to the
question of the Accuseds desire to kill: Drazen Erdemovic hasbeenshownnottodemonstrate
nationalist values as exemplified by his choice of detachment and his two refusals to killSerbs
and Muslims, which caused him to leave the HVO and be demoted from Sergeant to soldierin
the Bosnian Serb Army respectively. Furthermore, Erdemovicsactions werenotpremeditated.
He was not awareofhisassignmentuntilhehadarrivedatthefarmnearPilicaandtooknopart
in the planning of the incident. TheCourtalsofindsitrelevanttomentionthe Accusedsstateof

remorseandhisimportanceinhelpingtheProsecution.

Following the testimonies and information presented, the Court finds that Drazen Erdemovic
would not have willingly, under his own accord, participated in the Srebrenica massacre.
However, the legal definition of intent is not merely based on a persons desire to cause the
consequence, but rather as the willingness to engage in the conduct with awareness of the
consequencesthatwouldensueintheordinarycourseofevents.

The conduct in this case liesinthe actofpullingthetrigger.Erdemovicwantedtoengageinthe

conduct since it was ameansofavoidinghisthreat.Thenatureofthesituationindicatesthat, in
the ordinary course of events, Erdemovics conduct would lead to multiple civilian deaths. The
Court establishes that the Accused was aware of the consequencesof hisactions,whichisthe
secondrequirementforlegalintent.

The Court recognizes that Mr. Erdemovic had no desire to kill the innocent civilians. However,
accordingtoArticle30,hehadintenttokill.

Responsibility

Drazen Erdemovic could be exculpated due to hisobligationtofollowordersorhisstate

ofduress.TheCourtwillnowdiscussthesereasons.

Obligation to follow orders

An argument raised by the Defense concerned the Accuseds obligation, as a soldier in the
Republika Srpska, to follow the orders of his superiors. In their position paper, they supported
this argument with the following statement by a Defense witness: That is the situation in
Republika Srpska, that orders have to be obeyed and carried out otherwise the consequences
werefatefulforthefamilyand,inthisparticularcase,theaccused,DrazenErdemovictoo.

According to Article 33, (1) The fact that a crime within the jurisdiction of the Court has been
committed by a person pursuant to an order of a Government or of asuperior,whethermilitary
or civilian, shall not relieve that person of criminal responsibility unless: (a) the person was
under a legal obligation to obey orders of the Government or the superior in question (b) the
person did not know that the order was unlawful and (c)theorderwasnotmanifestlyunlawful.
(2) For the purposes of this article, orders to commit genocide or crimes against humanity are
manifestlyunlawful.

Despite Erdemovics legal obligation to the Bosnian Serb Army, the order he received was a
crimeagainsthumanity,andthereforemanifestlyunlawful.

For this reason, the Court does not recognize Erdemovics position as soldier as exculpatory.
UndertheRomeStatute,itisnotanexcusetoclaimthatonewasjustfollowingorders.

Duress

The Prosecution argued that, although his superior told him that if he did not wanttoshoothe
could give him his gun and go stand in line with the prisoners, this wasnotanexplicitsignthat
he was going to be killed, and thus came to the conclusion that, Erdemovic was notexplicitly
threatened,andthattheconductwasnotcausedbyduress.

The DefenserespondedbysayingthatErdemovicwasunderduressby hissuperiors.Hedidnt

have the power to stop the massacre or the prestige to refuse the orders. His family was
threatened, he was threatened, and the Serbian army saw him asatraitorafterrefusingorders
that were given to him in a prior situation. Any person in this situation would obey the orders
givenbytheirsuperiorsoutoffearofwhatmightcomeiftheordersaredisobeyed.

Accordingly, Mr. Erdemovic might be excluded from criminal responsibility according to Art. 31
clause (1) (d), which reads: (1) In additiontoothergroundsfor excludingcriminalresponsibility
provided for in this statute, a person shall not be criminally responsible if, at the time of that
persons conduct: (d) the conduct which is alleged toconstituteacrimewithinthe jurisdictionof
the Court has been caused by duress resulting fromathreat ofimminentdeathorofcontinuing
or imminent serious bodily harm against that person or another person, and the person acts
necessarily and reasonably to avoid this threat, provided that the person does not intend to
cause a greater harm than the one sought tobeavoided.Suchathreatmayeitherbe:(i)made
byotherpersonsor(ii)constitutedbyothercircumstancesbeyondthatpersonscontrol.

The argument of duress under article 31 clause (1) (d) of the Rome Statute has the following
components: a crime must have occurred under duress, meaning under the threat of imminent
death or serious bodily harm to oneself or others the act committed under duress must be
necessary and reasonable to avoid the threat and the intent of the act must not be tocausea
greaterharmthantheonesoughttobeavoided.

Given the acceptance of the Accusedslackofdesire,theCourt findsthatthecrimewasindeed

committed under a state of duress assuggestedbytheDefense.Fromwitnesstestimonies,the
Court finds that the threat to the Accuseds family wasnotimminent,howeverErdemovicacted
under the threat of his own imminentdeath.WhenaskedwhetheritwaspossibleforErdemovic
to avoid executing the killings, a witness answered, The only way to avoid this killing was for
him to stand in line with them, for him to be a victim too as well as his family [...] That wasthe
onlyway.Giventhecircumstances,theCourt findsthattheactiontakenbyErdemovicwasalso
necessary,asithasbeendeterminedtohavebeentheonlywaytoavoidthethreattohislife.

The Courtdefinesreasonableasthemostlogicalmeasuretobetakeninresponsetothethreat.

Neither the Prosecution nor the Defense presented a sufficiently convincing argument on this
issue. However, the Court findsthattheactiontakenbyErdemovicwasreasonablebecausehe
believedthatitwastheonlyandmostdirectwaytoavoidthethreat.

In regard to whether Erdemovic intended to cause a greater harm than the one sought to be
avoided, theProsecutionargued,selfpreservationisimportant,butno onehastheright totake
[up to] 100 lives in exchange for his [own...].Inanswertoaquestiononthistopic,theDefense
claimed that the killings would have continued, regardless of Erdemovics participation. This,
however, is a hypothetical argumentinthattheprojectedsituationcannotbeverified.Moreover,
the Court at present is trying the actions that took place and not those that did not. For these
reasons,theCourtcannotaccepttheDefensesargument.

Henceforth, the Court determines that the state of Erdemovics duress, according to article 31
clause (1) (d), does not meet the grounds for excluding criminal responsibility because the
criteriaofnotcausingagreaterharmthansoughttobeavoidedisnotfulfilled.

Summary
Thus far, the Court has established that the material,mental,andresponsibilityelementsofthe
casearefulfilled.

For the material element and according to the produced evidence, the Court has come to the
conclusionthatacrimeagainsthumanityofmurderhasbeencommitted.

The Accuseds intent and knowledge have also beenverifiedsinceErdemovicwillingpulledthe

trigger knowing that, in the ordinary course of events,hisparticipationintheactionsatthefarm
near Pilica would lead to multiple deaths. He was also aware of the crime being committed at
thetime,thereforefulfillingthementalelement.

There are no legal reasons to exclude the Accused from responsibility. The argument of
following orders does not apply to crimes against humanity and the criteria of not causing
greater harm than sought to be avoided is not fulfilled, thus ruling out the argument of
exculpatory duress. Hence, according to the law, the accused mustbeheldaccountablefor his
actions.

Verdict (all rise)

Having considered all the evidence and arguments brought forward by the Office of the
Prosecution and the Defense Council, this Robert College Model International Criminal Court
findstheAccused,DrazenErdemovic,

onthecountofmurderasacrimeagainsthumanity,


GUILTY.

Conclusion
Several conclusions can be drawn from the verdict of the Erdemovic case. This verdict,
according to the law as it stands, determines that Drazen Erdemovic, having been given the
choice between saving his own life or the lives of others, should have chosen to sacrifice his
own life for the greater good. This raises the question of whether the law has the power to
institutesuchacall.

In cases such as Erdemovics, where the perpetrator of a crime is placed into situation that
forces him to make a decision betweentwodevastatingchoices,theaccusedbecomesavictim
himself. This may then suggest that the case is above the law. In order to remain a state of
fairness in the Court, however, therulingsweremadebasedontheRomeStatuteasitexistsat
thispointintime.

Furthermore, the Court sees it pertinent to state that the preexisting regulations of war should
have prevented the situation that transpired in the case of Drazen Erdemovic. The Court thus
calls upon member nations to institute policies within their respective nations to maintain order
withintheirarmiesandmilitaryhierarchies.

Sentence

In finding a just sentence, the Court takes the following mitigating circumstances into account
(fromleasttomostmitigating):

Erdemovic lacked nationalist tendencies had helped Serbs and Muslims in the past showed
authentic remorse was very instrumental to the Prosecution and was under strong
psychologicalstressatthetimeofthecrime.

For these reasons, this Robert College Model International Criminal Court sentences the
Accused,DrazenErdemovic,

tofiveyearsofimprisonment.

(BangtheGavel)