The Tragedy of Dražen Erdemović
What happens when the prosecution’s star witness to genocide is a confessed mass murderer? What if he says he killed with a gun to his own head?
On July 16, 1995, Bosnian Serb soldier Dražen Erdemović, 23, stood on the edge of a field at a place called the Branjevo Military Farm in Eastern Bosnia and Herzegovina and helped shoot down busload after busload of Bosnian Muslim men and boys who had been captured over the previous days. It was genocide, and part of the worst episode of mass violence in Europe since the end of World War II.
When Erdemović arrived at the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) in The Hague, Netherlands, eight months later after having turned himself in,[1] he brought with him the secret of the Branjevo Farm massacre. This killing of around 1,200 prisoners was an incident then largely unknown to international prosecutors.[2]
He also carried with him the culpability of having personally shot at least 100 of those missing prisoners,[3] and the beginnings of a case that presented the new tribunal with a legal question novel to international criminal law: Can a man who admits to mass murder escape punishment by pleading that he had no choice, on pain of death, but to stand at the edge of a meadow for five hours and commit mass murder?
Twenty-five years later, Erdemović’s case still raises important questions about guilt, culpability, and redemption. To the men he murdered and their families, he was another unforgivable piece of a genocidal machine that chewed through Bosnian Muslims with ruthless efficiency for years. To a new institution facing growing impatience with the pace of its work, he was star witness willing to break, time after time after time, the Serb wall of silence surrounding the war’s most notorious incident.
The testimony of this corporal would help convict at least 14 men — including a former president, six generals, five colonels, one major and one police commander — on charges of Genocide, Crimes Against Humanity, and War Crimes.
How in the world do you calculate the right punishment for a man like Dražen Erdemović?
A Bosnian Croat among Bosnian Serbs
Erdemović’s journey to The Hague started on the morning of July 16, 1995, when he found himself among a group of eight soldiers of the Bosnian Serb Army (Vojska Republike Srpske or “VRS”) at the Branjevo Military Farm near the village of Pilica, 100 miles north of the town of Srebrenica. Erdemović had not been told why he had been sent there with his comrades in the 10th Sabotage Detachment,[4] only that the duty would be “tough”.[5]
Really, the whole of Erdemović’s short, circuitous military career had been “tough”. Driven, he said, mostly by a desire to avoid frontline duty, he jumped from the Bosnian ‘Muslim’, to the Bosnian Croat to the Bosnian Serb military as the country of his childhood tore itself apart. Erdemović was a Bosnian Croat[6] but there is no evidence that he was a nationalist. His military career was marred by insubordination, disobedience of orders he didn’t like, and disciplinary action against him. Ultimately, however, Erdemović will always be remembered for the one bloody order he should have refused.
Slaughter at Vukovar
A locksmith by training,[7] Erdemović did his obligatory military service with the Yugoslav People’s Army (Jugoslovenska narodna armija or “JNA”) from 1990 to 1992,[8] in a military police battalion in Belgrade, Serbia, and then in the region of Slavonia of Croatia. The kid from the village near Tuzla (in what was the Yugoslav republic of Bosnia and Herzegovina, or “BiH”), entered the JNA proud of his army, but left it shaken by the brutality he witnessed while manning a checkpoint 15 kilometres from Vukovar during the summer of 1991.[9] In one of the first battles of the war in the former Yugoslavia, the JNA laid siege to the Croatian border town from August to November 1991 (Croatia had declared its independence from Yugoslavia in June 1991).
The siege left behind ‘a landscape of burnt out cars and buildings reduced to rubble’. Civilians were forced to huddle in their cellars to survive the relentless shelling. Hundreds of people were killed, both during and after the siege.
The siege left behind “a landscape of burnt out cars and buildings reduced to rubble”.[10] Civilians were forced to huddle in their cellars to survive the relentless shelling.[11] Hundreds of people were killed, both during and after the siege. In a portent of things to come, at least 200 non-Serbs who had been taking shelter in the Vukovar hospital were taken out, detained in the hangar of a nearby pig farm, abandoned by their JNA guards and executed by paramilitaries, who buried them in a mass grave.[12]
No evidence suggests that Erdemović took part in the mass killing or the siege itself (he says he didn’t), but he was close enough to the events to see people being killed, soldiers burned, and hundreds of the injured passing through his checkpoint.[13]
Four armies in four years
Erdemović left the JNA in March 1992 to return home to Tuzla. But the war he’d seen in eastern Croatia found him in Bosnia, too, as Yugoslavia broke apart. Erdemović said he refused to register with the JNA.[14] Said he’d seen enough war.[15] But he was conscripted to serve in the new Army of Bosnia and Herzegovina (“ABiH”) (formed after Bosnia and Herzegovina declared its independence from the rest of Yugoslavia in the spring of 1992) after hostilities broke out in May 1992.[16] The ABiH would come to be associated with the cause of the Bosnian Muslims, who wanted to maintain the internationally recognized borders of BiH and fight against efforts by Bosnian Serbs and Bosnian Croats to create ethnically pure breakaway ‘statelets’ (Herceg Bosna for the Bosnian Croats and Republika Srpska or “RS” for the Bosnian Serbs).
Erdemović managed to find duty in an ABiH military police unit and with a mortar unit.[17] Three months later (in October 1992), when the Croatian Defence Council (Hrvatsko vijeće obrane or “HVO”), the army of the Bosnian Croats, formed, he was conscripted into that army, too.[18] Erdemović joined so that he could serve in the military police, so he could get away from the battlefield unit and so he could spend more time at home.[19] It was a good way, he figured, to avoid the combat that had injured and killed all those men at Vukovar. Military Police “stayed behind the front line and they were securing the control points, checkpoints,” he told the court later. And anyway, the ABiH and the HVO were on the same side at the time, united against the Bosnian Serbs.[20]
But Erdemović didn’t seem fit in the HVO either, even among fellow Bosnian Croats. Part of his job was to arrest men who had avoided conscription and send them to the frontlines.[21] He said he couldn’t bear to think about the curses of those men’s mothers if, God forbid, those men should die in the places to which he had forced them to go.[22] He finally washed out when he was caught helping to smuggle Bosnian Serbs villagers of Donja Dragunja, his former neighbours, into Serb-held territory. The HVO arrested him, beat him, harassed him.[23]
Now married to a Bosnian Serb woman,[24] Erdemović fled the HVO, and Bosnia, on 3 November 1993. He and his wife went to Serbia[25] until their money ran out and a general mobilization of Bosnians living in Serbia to return to fight made it harder to stay there.[26]
‘My wife is a Serb. It is not her fault that she is a Serb and I am a Croat, and it is not her fault that Serbs and Croats were waging war. Was I supposed to hate her because she is a Serbian or to hate a Muslim?’
“My wife is a Serb. It is not her fault that she is a Serb and I am a Croat, and it is not her fault that Serbs and Croats were waging war. Was I supposed to hate her because she is a Serbian or to hate a Muslim?”[27]
So Erdemović and his wife, now pregnant,[28] made their way back to Bosnia, to the RS, in late 1993.[29] They went to Foča, in southwest Bosnia, where Erdemović’s wife had family. She could stay, a man there told them, but he warned Erdemović that it wasn’t safe in Foča for a Bosnian Croat, especially one who had fought in two enemy armies.[30] Foča was a Serb town, site of some of the most notorious Bosnian Serb “rape houses” of the war. So Erdemović made his way to town in the north-eastern corner RS, Bijeljina,[31] where he’d been promised by a Serb man that he would help Erdemović flee to Switzerland, where the man’s three sons were living.[32]
When that promise fell through, Erdemović found himself a man without status in what used to be his own country. In order to obtain proper identification and housing — and to prove he wasn’t a Croat spy — Erdemović joined the VRS in April 1994, his fourth army in as many years.
“[A] Croat, but even a Serb, if he was not in the army of Republika Srpska, he did not have freedom of movement,” Erdemović, said. “They could simply catch me in the street and say that I was a Croat spy and kill me without passing a verdict, nothing.”[33]
Before he joined the VRS, he told an ICTY Trial Chamber, he interviewed the man who would be his commander and exacted assurances from him that the unit, the 10th Sabotage Detachment, would not be assigned to frontline duties.[34] He learned there were other non-Serbs like him in the unit. He joined the VRS “to survive”, he said.[35] They made him a sergeant.[36]
Erdemović and his family moved into the house of a Bosnian Muslim family that had been expelled. He settled in and managed to avoid either the physical or moral peril that he had spent his peripatetic military career trying so desperately to avoid. But things changed, he said, when his new commander became more active in October 1994, the same month Erdemović’s son was born and his wife fell ill. This man, Lt. Milorad Pelemiš didn’t trust his Bosnian Croat subordinate. When Erdemović saved a civilian during an operation, Pelemiš reduced Erdemović in rank from sergeant to lance corporal.[37] Men Erdemović called Bosnian Serb “nationalists” also joined the detachment around this same time.[38]
From Srebrenica to the Branjevo Farm killing field
In July 1995, Erdemović and his unit were sent to the UN-designated “safe area” of Srebrenica, in eastern Bosnia. Bosnian Serb forces launched a military attack on the enclave on 10 July, quickly overcoming the lightly armed Dutch peacekeepers who had been stationed there and expelling thousands of Bosnian Muslim civilians out of Srebrenica Town and setting in motion the acts that would lead to the genocide of the Muslims of eastern Bosnia. A day after the attack began, Erdemović saw Pelemiš order another Bosnian Serb solider to slit the throat of a Bosnian Muslim prisoner. The soldier complied.[39] Erdemović also watched Gen. Ratko Mladić, commander of the VRS Main Staff, enter the town that same afternoon.[40] Generally, though, the unit found a town mostly emptied of the Bosnian Muslims who had sheltered there for the last three years.[41] On July 16, he learned why.[42]
After their time in Srebrenica, the group was sent back to its base in Vlasenica, then to another town for the funeral of a fallen colleague. On the evening of July 15, 1995, Erdemović and the others were ordered to travel from Vlasenica to Zvornik, 50 kilometres north of Srebrenica. There, a lieutenant colonel told them to follow him, and guided them out to the Branjevo Military Farm. Once they arrived, the man in command of Erdemović’s small unit that day, Brano Gojković, along with the lieutenant colonel,[43] explained to Erdemović and the others what the lieutenant colonel had ordered them to carry out.[44] Buses filled with Bosnian Muslim men and boys from Srebrenica, civilians, would arrive at the site.
The civilians would be removed from the buses and lined up in the meadow. Erdemović and the others were to shoot them and prepare themselves for the next busload of civilians to arrive.
‘If you do not want to [execute Muslims], stand with them so that I, so that we, can kill you too, or give them weapons so that they can shoot you.’
Erdemović told the Chamber later he was dumbfounded. “People, I do not want this, are you normal?” he asked his fellow soldiers. Only Gojković responded. “Mr. Erdemović”, Gojković told him. “If you do not want to, stand with them [the prisoners] so that I, so that we, can kill you too, or give them weapons so that they can shoot you.”[45]
The gravity of his situation, and its hopelessness, hit Erdemović; he felt “an enormous burden falling on my shoulders”. He thought of himself, and what would happen to him if he just ran away or was killed. Then he thought of his wife and infant son. How far would he get with a sick wife and small child? He was powerless. He explained this to the judges in November 1996:
On the one hand, I knew that I would be killing people, that I could not hide this, that this would be burning at my conscience. […] Then, on the other hand, how can I sacrifice my child which was only a few months old and my wife, and they were not to be blamed for anything. […] What happened happened; buses started coming in.[46]
The men on the first bus, the one he says he remembers best, were blindfolded and had their hands tied behind their backs.[47] Their heads were bent down. “So we started shooting at those people. I do not know exactly. To be honest, I could not follow. It was simply I felt sick. I had a headache.”[48]
It was the first time, during his entire time in the war, having served in four armies in four years, that he had ever killed another human.[49] He estimates that he would go on to shoot between 70 and 100 civilian prisoners over the course of the day. Even that might be low, though, given the magnitude of the mass killing.
Erdemović and other soldiers who were with him remained at the meadow from 10 a.m. until around 3 p.m.[50] Enough time to shoot down maybe 20 buses worth of Bosnian Muslim civilians.[51]
Walking through the ‘ranks of the dead’
Ahmo Hasić, 58, was on one of the last buses that day. He’d been huddling in Srebrenica with his fellow Bosnian Muslims until July 11, 1995, when the VRS attack forced him and his family to flee under shell fire with thousands other Bosnian Muslims to the nearby town of Potočari.[52] Two days later, he was separated from his family, placed on a bus with other captured Bosnian Muslim men and boys, and sent to a school in the nearby town of Bratunac.[53] During his two nights there, Bosnian Serb soldiers and policemen steadily removed individual prisoners from the school and killed them.
“They were working in shifts,” Hasić later testified. “[A] single shift could not cope with that. It was a 24-hour process. There were people killed, moaning, screaming, outside.”[54]
He and the others were given little water and no food or medical treatment.[55]
Hasić and the others were then bussed to Pilica.[56] The room was so full of prisoners that nobody could even sit down properly.[57] Again, prisoners were periodically removed and killed outside.[58]
The next morning, Hasić’s hands were tied with strips of bedsheets[59] and he was ordered onto another bus,[60] which held around 50 prisoners.[61]
“When we reached the place where there was gunfire, the buses stopped and as soon as they stopped, the doors would open,”[62] Hasić testified later. He continued:
When everybody disembarked from the buses with their hands tied, including me, we formed a column and there were dead people in the column, there were dead people on the path, you could see them lying on the ground. They didn’t even reach the execution site. They were killed in between.[63]
Hasić and the others in his column walked 100 meters, “through the ranks of the dead”. [64] Along the way, one of the executioners asked Hasić for money, then kicked him in the stomach when Hasić told the soldier he had no money to give.[65] Hasić and the other prisoners were ordered to stop at the edge of the field and turn their backs to the VRS soldiers there. The soldiers fired immediately, and Hasić fell to the ground, unhurt.[66] An executioner called out for survivors, finishing off those who responded with single gunshots to the head.[67]
Hasić lay among the bodies, hands still bound, pretending to be dead while Erdemović and his fellow soldiers executed seven more groups of prisoners (maybe 350) on the spot.[68] After the shooting stopped, he heard the executioners shoot any survivors discovered among the dead.[69] A half hour after the last patrol of the executioners had departed, Hasić managed to free his hands and flee to some shrubbery nearby.[70]
“I jumped to my feet. I decided to risk it,” he testified. “I trod on dead people, on soil. I tried to avoid treading on dead people but I could not avoid it. And I was listening for a cry, ‘Look at him, he’s running away.’ I knew that if I were — was spotted, I would be dead.”[71]
‘I jumped to my feet. I decided to risk it. I trod on dead people, on soil. I tried to avoid treading on dead people but I could not avoid it. And I was listening for a cry, “Look at him, he’s running away.” I knew that if I were — was spotted, I would be dead.’
When dusk fell, Hasić and four or five other survivors of the massacre made their way to a nearby forest. The other men were younger, 16–25 years old, he estimated. Hasić was too slow, so they left him behind and made their own way.[72] Two days later, these men were captured and taken to a nearby VRS barracks. They were never seen again.[73]
Now on his own, Hasić evaded one Bosnian Serb patrol that same night.[74] The next day, while walking on a road drenched in blood, Hasić was spotted by men in a truck “filled with dead bodies up to the height of the driver’s cabin”.[75] The truck stopped, and somebody said “Look, there is the one who escaped yesterday.”[76] Hasić kept his cool, kept walking down the road so that the men in the truck might mistake him for a Serb rather than a Bosnian Muslim survivor of a bloody mass killing. It worked; the truck drove on.[77]
Hasić was captured by a Bosnian Serb patrol 10 days later and taken to a POW camp monitored by the International Committee of the Red Cross.[78] He was released in a prisoner exchange on December 24, 1995.[79]
‘Robot for killing’
By Erdemović’s reckoning, around 1,200 people were killed at the Branjevo Military Farm in all.[80] Ultimately, 1,751 bodies were exhumed from the Branjevo Farm killing field and related secondary graves.[81]
Gojković also made each bus driver shoot at least one prisoner, to ensure that these drivers would not testify against the soldiers.[82]
The lieutenant colonel had another assignment for the soldiers: come to Pilica with to kill 500 more Bosnian Muslim prisoners who were about to break down the door of a cultural centre and escape.
At around 3 p.m. on 16 July, the lieutenant colonel returned to Branjevo. By this time, Erdemović and his seven fellow members of the 10th Sabotage Detachment had been joined by VRS soldiers from Bratunac.[83] These men took glee in beating the prisoners with iron bars[84] and humiliating them by making them assume poses of Islamic prayer before killing them, Erdemović said. The lieutenant colonel had another assignment for the soldiers: come to Pilica to kill 500 more Bosnian Muslim prisoners who were about to break down the door of a cultural centre and escape.[85] Erdemović refused, telling the lieutenant colonel that he was nobody’s “robot for killing”.[86] This time, three of his colleagues backed him up, but the men from Bratunac volunteered.
Rather than take part in the killings at the Pilica Cultural Centre, Erdemović and his fellow 10th Sabotage Detachment soldiers sat at a café across the street, about 70 or 100 meters from the centre. From where he sat, Erdemović said, he could see soldiers shooting into the building, tossing grenades inside, and shooting any civilians who managed to escape.[87] There are no known survivors of that massacre.
To date, the combined killings at the Branjevo Farm and Pilica Cultural Centre remain the largest known massacre site of the war.
A life wrecked
Erdemović and the others in his unit returned to their base, then to Bijeljina, [88] but he couldn’t cope, he said, with what he’d seen and done. He drank too much, went to cafes. Couldn’t face his wife and child, and so he stayed away from them.
“I wanted so much to see my child and my wife and when I got home I simply could not, I do not know, I cannot describe it,” Erdemović testified. “I could not sleep. Those days after that I started drinking. I just hated myself. I went out. I did not want to be at home. I was afraid to be home. I wanted to be among people. I just wanted to drink.”
‘I knew what had destroyed my life. And that is what troubled me.’
A week later, on July 22, he encountered other soldiers from his unit in a bar, including one of those nationalists, Stanko Savanović, a man who had bragged about killing more Muslims at Branjevo (250, he said) than anybody else. Drinks were consumed, then words exchanged, then things escalated.
Savanović shot Erdemović twice, once in the lung and once in the stomach.
Gravely wounded, Erdemović spent a month in hospital, first in Biljeljina, then in Belgrade.[89] He returned home broke and despised. He feared that his fellow soldiers might take another shot at him, and found himself being called “Ustasha”, a reference to Croats and Bosnian Croats who supported the Croatian Nazi puppet government in World War II, when he walked down the street.[90] He had no money; strangers bought him the medicine he needed to recover from his injuries. Once the roads opened, he persuaded his wife to go to her family in Tuzla.[91]
He was wrecked. “I knew what had destroyed my life,” he testified. “And that is what troubled me.”
For a time, he considered suicide.
“I was wondering whether I should commit suicide, take five kilograms of explosives tied around me, walk into the office of Milorad Pelemiš and blow him up and myself.”
The Hague (finally)
Instead, he decided to tell the truth about what had happened to him, what he had done at Branjevo. In Belgrade, he tried reaching out to the U.S. Embassy, saying he wanted to go The Hague to testify. An embassy operator told him there was nobody there to speak to him.[92] It was suggested instead that he contact the media. So he contacted Vanessa Vašić-Janeković, a freelance journalist working for ABC, and told her his story (she also couldn’t get anybody from the U.S. Embassy interested in the story). He also attempted, through journalists in Belgrade and London, to contact the ICTY in The Hague. Erdemović told his story to the French newspaper Le Figaro.
Without Erdemović’s confession, the world might never have known about the extent of the killings at the Branjevo Military Farm and the Pilica Cultural Centre. As lead investigator Jean-Rene Ruez testified, these incidents were completely unknown to the prosecution until Erdemović told them about it.
The U.S. Embassy might not have been immediately interested in Erdemović’s story, but the Serbian secret service (who intercepted at least one of Erdemović’s calls while he was in Belgrade) certainly was. He was arrested two days after his interview with Vašić-Janeković, on March 2, 1996, in Novi Sad, northwest of Belgrade. Police seized the tape of his confession from the luggage of Vašić-Janeković. She was at the Belgrade airport, waiting to take a flight to London. After intense pressure by the ICTY Office of the Prosecutor and the United States government on Serbia to hand him over, Erdemović’s case was transferred from the court in Novi Sad to the ICTY.
Without Erdemović’s confession, the world might never have known about the extent of the killings at the Branjevo Military Farm and the Pilica Cultural Centre. As lead investigator Jean-Rene Ruez testified, these incidents were completely unknown to the prosecution until Erdemović told them about it.[93] Pilica is far from Srebrenica and from any places in which investigators were gathering evidence.[94]
“In essence,” ICTY prosecutor Mark Harmon told the Trial Chamber, “the information provided by Mr. Erdemović expanded the geographic range in which these killings took place and corroborate other evidence that the Office of the Prosecutor has showing that the executions of civilians from Srebrenica was well-planned, systematic and organised.”[95]
Holding Erdemović legally accountable for the crimes he says he committed, however, required the Prosecution had to establish that these crimes actually occurred. They had to establish the corpus delicti, or body of the crime. They found plenty of such evidence.
After hearing from Erdemović, investigators requested photographs of the area taken by security services at the relevant time and saw, plain as day, images of hundreds of bodies lying on the meadow just where Erdemović said they would be.
Investigators also went to the Branjevo Military Farm on April 5, 1996, and found evidence that corroborated Erdemović’s confession. They found shell casings and three “surface remains” including an adult torso clad in trousers and a belt. The remains had been scavenged by dogs. They returned five months later to conduct a full exhumation and found more remains. Most of the bodies had been bound “rendering them controllable and relatively helpless”, according to the exhumation report.[96]
ICTY investigators also went to the Pilica Cultural Centre. They discovered clear evidence of the massacre Erdemović described, including pockmarks on the walls from where bullets had stuck them and hair, blood and other tissue.
Overall, investigators would find remains of victims from the two killing sites in five secondary mass graves. In an attempt to cover up their crimes, Bosnian Serb authorities ordered the original grave exhumed in September 1995 and the bodies reburied in these other mass graves. Years later, villagers in Bosnia would talk about the stench of rotting flesh that following the army trucks leaving the mass grave sites in their midst.
Sceptical, at first, prosecutors and investigators also probed the veracity of Erdemović’s story in other ways. He had told them, for example, that he wasn’t anywhere near other execution sites because he was out of the area attending a funeral for a colleague. Erdemović said they left Vlasenica for Trebinje — a four-and-a-half-hour drive at the best of times — on July 13, buried their comrade on July 14, and drove back on July 15, just in time to be ordered to go to Branjevo.
This struck prosecutors and investigators as being a very convenient absence from the areas where Erdemović’s fellow soldiers were at the same time transporting, guarding, killing, and burying thousands of Bosnian Muslim men and boys. So Erdemović gave them specific directions, in a time before widespread use of GPS and in a country in which street numbers and road signs are not the norm, on how to find the grave. He said that a local reporter had also attended the funeral, too. To confirm Erdemović’s story, a prosecutor and an investigator flew to Bosnia, got a truck, and followed Erdemović’s directions precisely. At the end of what prosecutor Peter McCloskey would later refer to as Erdemović’s “treasure map”, they found a grave, relatively fresh, marked with the name of the man Erdemović said was his dead colleague. The man had died on July 12. The team found a newspaper from July 1995. Sure enough, there was a picture of Erdemović and his other colleagues, mourning the loss of the soldier from Trebinje.
Erdemović had told them the truth, in all its horror.
A star witness
Erdemović’s level of cooperation with the Prosecution has been extraordinary. At his initial appearance, he pleaded guilty to one count of murder as a crime against humanity, as charged in an indictment Erdemović effectively wrote with his confession. He did so without any promises from the Prosecution, without any plea deal. Overall, twenty people pleaded guilty before the ICTY; none but Erdemović did so without any agreement with the Prosecution. He was also the first person to plead guilty before the ICTY.
Beginning with the evidence Erdemović provided, investigators were able to piece together what happened in the Pilica area and identify those responsible. The “lieutenant colonel” described by Erdemović as being a Branjevo and Pilica, for example, was Vujadin Popović, Chief of Security for the Drina Corps of the VRS, who was convicted of genocide, crimes against humanity and war crimes and sentenced to life in prison for the essential role he played in these and other Srebrenica-related killings.
Erdemović also told investigators about two other killings that he witnessed: the execution of a man in Srebrenica on orders of Pelemiš, and the execution of another prisoner in Vlasenica. He told investigators the names of the men who were with him at Branjevo, and about the general structure of the VRS. He testified at proceedings against VRS Gen. Ratko Mladić and RS President Radovan Karadžić that played an important part in the Prosecution deciding to issue international arrest warrants against both men.
By November 1996, he said, he had told his story at least 12 times. He’d go on to tell it many more times for the next 16 years. Erdemović testified in person before the Tribunal in seven other Srebrenica-related cases, including Prosecutor v. Slobodan Milošević, Prosecutor v. Vujadin Popović et al., Prosecutor v. Zdravko Tolimir, Prosecutor v. Radovan Karadžić, Prosecutor v. Ratko Mladić, Prosecutor v. Radislav Krstić, and Prosecutor v. Momčilo Perišić. His testimony from Krstić was entered into evidence in Prosecutor v. Blagojević and Jokić.[97] Five men were convicted of genocide for the role they played in the Srebrenica murders. Erdemović testified against each of them. Altogether, he took the stand in The Hague 10 times, giving testimony that helped convict a former president, six former generals, five former colonels, a major, and a police commander.[98]
Other executioners in Erdemović’s unit were tried and convicted before the War Crimes Chamber in Sarajevo. Franc Kos was sentenced to 35 years; Zoran Goronja to 30 years; Stanko Kojić (formerly Stanko Savanović, Erdemović’s assailant) to 32 years and Vlastimir Golijan (who pleaded guilty) to 15.[99] Marko Boškić, a fellow Bosnian Croat from Tuzla, fled to the United States and lied about his involvement with the killings. He was found out and extradited to Bosnia and Herzegovina. He pleaded guilty to Crimes Against Humanity and was sentenced to 10 years in prison.[100] Aleksander Cvetković, was acquitted.[101]
Brano Gojković pleaded guilty before a court in Serbia and was sentenced to 10 years.[102]
Erdemović’s arrest and handover to the Tribunal came at a time when international support for the ICTY was already under scrutiny. Prosecutors had indicted 53 people, but had only two in custody.[103] His case gave prosecutors their first conviction and proved that the court succeed in the face of Serbian stonewalling and international scepticism. (Perhaps this is why Prosecutors accepted Erdemović’s mostly self-serving version of events so readily and without a great deal of corroboration about his actions that day.)
As the first direct perpetrator of a Srebrenica-related massacre to confirm that the genocide actually happened, Erdemović provided a crack in the wall of Serbian and Bosnian Serb denial.
Perhaps most importantly, Erdemović provided a crack in the wall of Serbian and Bosnian Serb genocide denial. He was the first direct perpetrator of a Srebrenica-related massacre to confirm that the genocide actually happened, in direct contradiction to the official Serb line that the killings either didn’t happen or were the result of legitimate combat operations. Erdemović’s account, along with the courageous reporting of journalists like David Rohde of The Christian Science Monitor, shattered both myths, and giving the family members of the missing men a clue about what had happened to them.
Guilty, but not culpable?
Helpful as Erdemović’s candour and forthrightness was for the ICTY, his particular way of expressing it presented the Tribunal with another problem: how to assess his culpability and punishment. For the first time since the end of World War II, an international tribunal was faced with the question of whether a soldier charged with murder can be acquitted on the grounds of duress, even on charges as horrific as Erdemović’s.
Pleading duress, or the related defence of ‘extreme necessity’, Erdemović’s counsel asked the Trial Chamber to acquit his client despite the fact that his client pleaded guilty to a crime of extreme gravity.
Duress is a defence that nullifies criminal responsibility. If successful, the defence of duress renders the perpetrator blameless due to circumstances that robbed him of any agency or free choice. Pleading duress, or the related defence of “extreme necessity”, Erdemović’s counsel, Jovan Babić asked the Trial Chamber to acquit his client despite the fact that his client pleaded guilty to a crime of extreme gravity. In the alternative, Babić asked for a one-year prison sentence for Erdemović.
Calling Erdemović a “victim of the whirlwind of war and the victim of his own deed”,[104] Babić argued that his client acted “[a]gainst his own will” when “he obeyed the order of his Commander and fired in the direction of the innocent Muslim civilians who had been brought and lined up there.”[105] Erdemović was a Croat fighting in the Bosnian Serb army, and therefore always viewed with suspicion, and a man who wanted to save his life and that of his wife and child. Anyway, Babić said, defying the order would have meant throwing away these lives for nothing. In the end, the Bosnian Muslim civilians from Srebrenica would have been murdered by the seven other executioners at the meadow at Branjevo, regardless of whether Erdemović was pulling triggers alongside them or lying dead in the meadow with a bullet hole in his head.
“[T]he accused Erdemović in a specific situation was exposed to an unavoidable, psychological type of duress which was beyond his capacities and which he could not resist,” Babić argued.[106]
The Trial Chamber instead accepted the Prosecution’s suggestion of 10 years’ imprisonment. It found that, in some circumstances, duress can be a complete defence negating criminal liability. It laid out a three-part test, taken from a United Nations War Crime Commission survey of 2,000 military tribunal decisions in nine countries: 1) the act charged was done to avoid an immediate danger, both serious and irreparable; 2) there was no adequate means of escape; and 3) the remedy was not disproportionate to the evil.[107] In finding that Erdemović’s case did not merit acquittal, the Chamber noted in particular the relative weight of the lives in balance in a case of crimes against humanity: the violation here, it said is directed at humanity, not at the physical welfare of the victim alone.[108]
Erdemović appealed, in a case that would come to be emblematic of the novelty of a court such as the ICTY, the difficulties in defining what constitutes “customary international law”, and the divisions between common law and civil laws judicial philosophies that would continue to reveal themselves for the rest of the tribunal’s existence. It would also presage the codification of the defences of duress and necessity, which were being debated by the drafters of the Rome Statute to establish the future International Criminal Court at the time of Erdemović’s appeal.
Duress as an absolute defence for the murder of innocent civilians
The resulting Appeals Chamber judgment was the first ever issued by the ICTY. It produced a judgment and a series of separate and dissenting opinions. Of the five judges on the panel, three wrote individual opinions. The others two wrote a joint opinion. Everybody, it seems, wanted their say.
By a vote of three to two, the Chamber ruled that duress does not afford a complete defence for a soldier charged with crimes against humanity or war crimes that involve the killing of innocent civilians. This is the law in most common law countries; the Majority decision was written by judges from two common law countries: Judge McDonald from the United States and Judge Vohrah from Malaysia (though they were joined by Judge Li from China, which has a system that is more civil that common law in nature). This Majority found that there was no rule of customary international law that permitted the defence of duress, and that there existed a split in major global legal systems (common and civil). To resolve the question, the Majority noted that the purpose of the ICTY was to protect innocent life and it would therefore be dangerous to permit the defence of duress for the slaughter of innocents. The Majority relied on policy considerations that underpin the general common-law prohibition on the use of the duress defence for murder.
To resolve the question, the Majority noted that the purpose of the ICTY was to protect innocent life and it would therefore be dangerous to permit the defence of duress for the slaughter of innocents.
The dissent was written by the imminent jurist and scholar Antonio Cassese from Italy, a civil law country (though he was joined by Judge Stephens from Australia, a common law country). Cassese, whose very presence at the ICTY lent the institution significant credibility, argued that, contrary to the Majority view, there is a general rule in international law that permits the defence of duress for murder; the Majority’s resort to the specific rule in common-law jurisdictions that prohibit this defence was therefore improper and (he implies) even chauvinistic. An international tribunal, he said, should “refrain from relying exclusively on notions, policy considerations, philosophical underpinnings of common law countries while disregarding those of civil law countries or other systems of law.”
Cassese posited a four-part test that he said was dictated by customary international law, a test that is substantially similar to that test articulated in Art. 31(d) of the Rome Statute, which was then being drafted and deliberated upon.[109] In the end, it was the dissent in Erdemović that the world will remember more than the Majority opinion.
Though the common law faction won the day in Erdemović’s case, it was the power of his story that seemed to really have driven the decisions. Though the Appeals Chamber used his case to set a hard-and-fast rule against allowing soldiers who murder innocent civilians to avoid punishment on the grounds of duress, it also handed the Trial Chamber a way to further mitigate his sentence and clear instructions to do so. Ultimately, Erdemović’s punishment looked more like the one year his lawyer advocated than the 10 sought by the Prosecution.
Though the Appeals Chamber used his case to set a hard-and-fast rule against allowing soldiers who murder innocent civilians to avoid punishment on the grounds of duress, it also handed the Trial Chamber a way to further mitigate his sentence and clear instructions to do so.
Under the Appeals Chamber decision, Erdemović was be permitted to withdraw his guilty plea on the somewhat contrived grounds that the Trial Chamber had never informed him that one of the charges in the indictment (murder as a crime against humanity) was considered more serious that the alternative charge (murder as a war crime). Properly “informed”, Erdemović appeared before a different trial chamber, withdrew his guilty plea to crimes against humanity and pleaded guilty instead to war crimes.
Following the guidance of the Appeals Chamber, the new Trial Chamber halved Erdemović’s sentence from 10 years in prison to five. In a well-reasoned separate opinion, the esteemed international jurist Judge Mohamed Shahabuddeen of Guyana (which has a common law legal tradition) wondered how a chamber can weigh the relative seriousness of a war crime against that of a crime against humanity where the underlying facts are identical. “The Trial Chamber has sought to take account of the holding of the Appeals Chamber, the effect of which is that today’s sentence has to be less than that for a crime against humanity in respect of the same acts,” he wrote. “The sentence now imposed is in fact much less than that previously awarded in respect of the crime against humanity, and this for a number of reasons; but I myself cannot with confidence say to what extent those reasons reflect that holding.”[110]
As was often the case with his separate opinions, Judge Shahabuddeen has the better argument, just as Judge Casesse had in the Appeals Chamber. It is difficult to understand, on any level, how the summary execution of so many civilians is any less serious, let alone 50 percent as serious, for having been labelled a “war crime” rather than a “crime against humanity”, especially where the elements of the latter (murders as part of a widespread or systematic attack on a civilian population) have undoubtedly been met.
Erdemović’s resentencing is best understood, rather, as a victory of the power of his extraordinarily sympathetic, if self-serving, story over strict legal reasoning.
In August 1998, a little more than three years after the killings at the Branjevo Military Farm and Pilica Cultural Centre, Erdemović was transferred to a Norwegian prison to serve his sentence. He was released less than a year later, having been given credit for the time he had already spent in jail pending trial and appeal, and having been deemed by the ICTY “rehabilitated to the extent possible”. He entered the Tribunal’s witness-protection program.
‘Faceless, nameless’ no more
Until Erdemović stepped forward, he was, in the words of ICTY Prosecutor Mark Harmon at Erdemović’s first sentencing hearing, like “one of the faceless, nameless executioners depicted in Goya’s famous painting, The Executions of May 3rd.”[111]
Harmon’s reference to the Francisco Goya masterpiece is apt. “El tres de mayo de 1808 en Madrid” (“Third of May 1808 in Madrid”) depicts French soldiers dealing violent reprisals on unarmed citizens of Madrid after a short, brutal and futile uprising against the occupation of Spain by armies of Napoleon. On the right of the painting stands a group of (perhaps as many as eight?) soldiers in uniform, hunched over bayonet-tipped muskets. As Harmon notes, we cannot see their faces. Their guns are pointed at a figure on the left of the painting. He stands illuminated, helpless and Christ-like (his right palm somehow bears the stigmata of crucifixion), arms outstretched toward a weighty and ominous black sky. At his feet lie the bodies of the execution squad’s previous victims; to his left stand a line of anguished future victims awaiting their fates. The painting catches the split-second before the executioners pull their triggers to complete the prisoner’s martyrdom.
The painting is as powerful as it is unsubtle. By focusing so much on the victims, Goya excuses us from having to consider the humanity of the killers. They are mere “robots for execution”, on whom we needn’t waste our sympathy.
However reluctant he seems to have been about his actions, Erdemović remains, by his own words, a mass murderer.
Twenty-five years after the Srebrenica genocide, our gaze, too, should remain fixed on the victims. In obeying an illegal order at Branjevo Farm, Erdemović did a monstrous and evil thing, standing at the edge of a field for five hours and mechanistically shooting at helpless men and boys, men like like Ahmo Hasić. The men whose bodies Hasić hid beneath and then crawled over are never coming back, and their families will always suffer, regardless of how many times Erdemović expresses his sorrow or testifies against his former commanders.
But we should acknowledge that we cannot fully understand what happened at Branjevo by averting our gaze from Erdemović’s story. He forces us to confront the forces that brought him to the edge of that meadow on July 16, 1995. He threw open a window onto the moral impossibilities of the wars in the former Yugoslavia.
Finally, Erdemović’s story reminds us of our moral obligation to hold accountable those most culpable for causing the greatest harm. Both Dražen Erdemović and Ahmo Hasić, afterall, were at Branjevo Farm on the orders of the same men.
Notes
[1] Prosecutor v. Dražen Erdemović, Case No. IT-92–22, Transcript of hearing, 19 November 1996, p.122.
[2] Erdemović, Transcript of hearing, 20 November 1996, p.315.
[3] Erdemović Sentencing Judgement, 29 November 1996, para.85.
[4] Erdemović, Transcript of hearing, 20 November 1996, p.292
[5] Erdemović, Transcript of hearing, 19 November 1996, p.183.
[6] Prosecutor v. Vujadin Popović et. al., Case No. IT-05–88, Transcript of hearing, 4 May 2007, p.10928; Prosecutor v. Radislav Krstić, IT-98–33, Transcript of hearing, 22 May 2000, p.3066.
[7] Popović et al., Transcript of hearing, 4 May 2007, p.10929; Krstić, Transcript of hearing, 22 May 2000, p.3066.
[8] Popović et al., Transcript of hearing, 4 May 2007, p.10929.
[9] Erdemović, Transcript of hearing, 20 November 1996, pp.261, 306.
[10] Prosecutor v. Mile Mrkšić et al., Case No. IT-95–13/1, Trial Judgement, 27 September 2007, para. 56.
[11] Mrkšić et al. Trial Judgement, para. 57.
[12] Mrkšić et al. Trial Judgement, para. 494.
[13] Erdemović, Transcript of hearing, 20 November 1996, p.262.
[14] Krstić, Transcript of hearing, 22 May 2000, p.3069.
[15] Erdemović, Transcript of hearing, 20 November 1996, p.262.
[16] Krstić, Transcript of hearing, 22 May 2000, p.3069.
[17] Popović et al., Transcript of hearing, 4 May 2007, p.10931.
[18] Popović et al., Transcript of hearing, 4 May 2007, p.10931.
[19] Popović et al., Transcript of hearing, 4 May 2007, p.10932; Krstić, Transcript of hearing, 22 May 2000, p.3071.
[20] Popović et al., Transcript of hearing, 4 May 2007, p.10932.
[21] Erdemović, Transcript of hearing, 20 November 1996, p.263.
[22] Erdemović, Transcript of hearing, 20 November 1996, p.263.
[23] Erdemović, Transcript of hearing, 19 November 1996, p.189. See also Popović et al., Transcript of hearing, 4 May 2007, 10932; Krstić, Transcript of hearing, 22 May 2000, p.3072.
[24] Erdemović, Transcript of hearing, 20 November 1996, p.264.
[25] Erdemović, Transcript of hearing, 19 November 1996, p.180.
[26] Erdemović, Transcript of hearing, 20 November 1996, p.264. See also Popović et al., Transcript of hearing, 4 May 2007, 10931, 10933; Krstić, Transcript of hearing, 22 May 2000, p. 3074.
[27] Erdemović, Transcript of hearing, 19 November 1996, p.223.
[28] Erdemović, Transcript of hearing, 20 November 1996, p.265.
[29] Erdemović, Transcript of hearing, 20 November 1996, p.194.
[30] Erdemović, Transcript of hearing, 20 November 1996, p.265; Krstić, Transcript of hearing, 22 May 2000, p. 3075–3076.
[31] Erdemović, Transcript of hearing, 20 November 1996, p.265.
[32] Erdemović, Transcript of hearing, 19 November 1996, p.194; Krstić, Transcript of hearing, 22 May 2000, p. 3073.
[33] Erdemović, Transcript of hearing, 19 November 1996, p.195.
[34] Erdemović, Transcript of hearing, 19 November 1996, p. 181.
[35] Erdemović, Transcript of hearing, 20 November 1996, p. 266.
[36] Erdemović, Transcript of hearing, 19 November 1996, p. 181.
[37] Popović et al., Transcript of hearing, 4 May 2007, p. 10963.
[38] Erdemović, Transcript of hearing, 19 November 1996, p.182.
[39] Popović et al., Transcript of hearing, 4 May 2007, 10947; Krstić, Transcript of hearing, 22 May 2000, p. 3091.
[40] Popović et al., Transcript of hearing, 4 May 2007, p. 10948.
[41] Popović et al., Transcript of hearing, 4 May 2007, p. 10953.
[42] Popović et al., Transcript of hearing, 4 May 2007, p. 10953.
[43] Popović et al., Transcript of hearing, 4 May 2007, p. 10970.
[44] Erdemović, Transcript of hearing, 20 November 1996, p.231.
[45] Erdemović, Transcript of hearing, 20 November 1996, pp. 231, 293. See also Erdemović, Transcript of hearing, 19 November 1996, p.186; Popović et al., Transcript of hearing, 4 May 2007, 10971.
[46] Erdemović, Transcript of hearing, 20 November 1996, pp.293–294.
[47] Popović et al., Transcript of hearing, 4 May 2007, pp. 10971–10972.
[48] Erdemović, Transcript of hearing, 19 November 1996, p.186.
[49] Erdemović, Transcript of hearing, 20 November 1996, p.306.
[50] Popović et al., Transcript of hearing, 4 May 2007, p. 10972.
[51] Popović et al., Transcript of hearing, 4 May 2007, p. 10983.
[52] Popović et al., Transcript of hearing, 6 September 2006, 1175. See also Popović Trial Judgement, para.272.
[53] Popović et al., Transcript of hearing, 6 September 2006, p. 1178.
[54] Popović et al., Transcript of hearing, 6 September 2006, p. 1180.
[55] Popović et al., Transcript of hearing, 6 September 2006, p. 1189.
[56] Popović et al., Transcript of hearing, 6 September 2006, p. 1190.
[57] Popović et al., Transcript of hearing, 6 September 2006, p. 1193.
[58] Popović et al., Transcript of hearing, 6 September 2006, p. 1192.
[59] Popović et al., Transcript of hearing, 6 September 2006, p. 1195.
[60] Popović et al., Transcript of hearing, 6 September 2006, p. 1200.
[61] Popović et al., Transcript of hearing, 6 September 2006, p. 1198.
[62] Popović et al., Transcript of hearing, 6 September 2006, p. 1201.
[63] Popović et al., Transcript of hearing, 6 September 2006, p. 1201.
[64] Popović et al., Transcript of hearing, 6 September 2006, p. 1202.
[65] Popović et al., Transcript of hearing, 6 September 2006, p. 1202.
[66] Popović et al., Transcript of hearing, 6 September 2006, p. 1203.
[67] Popović et al., Transcript of hearing, 6 September 2006, p. 1203.
[68] Popović et al., Transcript of hearing, 6 September 2006, p. 1203.
[69] Popović et al., Transcript of hearing, 6 September 2006, p. 1204.
[70] Popović et al., Transcript of hearing, 6 September 2006, p. 1205.
[71] Popović et al., Transcript of hearing, 6 September 2006, 1205.
[72] Popović et al., Transcript of hearing, 6 September 2006, 1206.
[73] Popović et al., Trial Judgement, paras.584–589.
[74] Popović et al., Transcript of hearing, 6 September 2006, 1206–1207.
[75] Popović et al., Transcript of hearing, 6 September 2006, 1207.
[76] Popović et al., Transcript of hearing, 6 September 2006, 1207.
[77] Popović et al., Transcript of hearing, 6 September 2006, 1208.
[78] Popović et al., Transcript of hearing, 6 September 2006, 1214.
[79] Popović et al., Transcript of hearing, 6 September 2006, 1215.
[80] Popović et al., Transcript of hearing, 4 May 2007, 10983.
[81] Popović et al. Trial Judgement, para.550.
[82] Popović et al., Transcript of hearing, 4 May 2007, pp.10972–10973.
[83] Erdemović, Transcript of hearing, 19 November 1996, p.186; Popović et al., Transcript of hearing, 4 May 2007, p.10974.
[84] Erdemović, Transcript of hearing, 19 November 1996, p.186; Popović et al., Transcript of hearing, 4 May 2007, p.10975.
[85] Popović et al., Transcript of hearing, 4 May 2007, p.10982.
[86] Erdemović, Transcript of hearing, 19 November 1996, p.186; Erdemović, Transcript of hearing, 20 November 1996, p.222; Prosecutor v. Radovan Karadžić & Ratko Mladić Rule 61 Hearing, Case No. IT-95–18-I, Transcript of hearing, 5 July 1996, p.49.
[87] Erdemović, Transcript of hearing, 19 November 1996, p.187.
[88] Popović et al., Transcript of hearing, 4 May 2007, pp.10986–10987.
[89] Erdemović, Transcript of hearing, 19 November 1996, p.188.
[90] Erdemović, Transcript of hearing, 20 November 1996, p.298.
[91] Erdemović, Transcript of hearing, 20 November 1996, p.299.
[92] Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal, Joe Hagan, p.75. University of Chicago Press, 2003.
[93] Erdemović, Transcript of hearing, 19 November 1996, pp.128, 135; Erdemović, Transcript of hearing, 20 November 1996, p.317. See also Erdemović, Transcript of hearing, 20 November 1996, p.328.
[94] Erdemović, Transcript of hearing, 20 November 1996, p.317 (“MARK HARMON: As you may recall, your Honours, from the large map, Exhibit №1, and the location of the Pilica farm and the Branjevo, in the hall, in the cultural hall, in Pilica, your Honours are aware that those areas are far north of the other areas that were at the time known to the Office of the Prosecutor.”).
[95] Erdemović, Transcript of hearing, 20 November 1996, p.317.
[96] Forensic Investigation of the Pilica (Branjevo Farm) Gravesite, Vol. I, June 15, 1998, p.ix., Exhibit P00622, Prosecutor v. Vujadin Popović et al.Transcript of hearing
[97] Popović et al., Transcript of hearing, 4 May 2007, p.10929.
[98] https://iwpr.net/global-voices/former-soldier-recalls-branjevo-farm-killings (last visited 16 June 2020)
[99] http://www.sudbih.gov.ba/predmet/2697/show (last visited 16 June 2020)
[100] http://www.sudbih.gov.ba/predmet/2692/show (last visited 16 June 2020)
[101] http://www.sudbih.gov.ba/predmet/3130/show (last visited 16 June 2020)
[102] https://balkaninsight.com/2016/02/04/serbia-jails-bosnian-serb-soldier-for-srebrenica-02-04-2016/ (last visited 16 June 2020)
[103] “War Crimes Tribunal Faces New Challenge”, Radio Free Europe/Radio Liberty, March 9, 1996 (https://www.rferl.org/a/1080088.html, last visited October 17, 2019).
[104] Erdemović, Transcript of hearing, 20 November 1996, p.320.
[105] Erdemović, Transcript of hearing, 20 November 1996, p.324.
[106] Erdemović, Transcript of hearing, 20 November 1996, p.333–334.
[107] Erdemović Sentencing Judgement, 29 November 1996, para.17.
[108] Erdemović Sentencing Judgement, 29 November 1996, para.19.
[109] Article 31: Grounds for excluding criminal responsibility: 1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct: (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing 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 to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control.
[110] Erdemović Sentencing Judgement, Separate Opinion of Judge Shahabudeen, 5 March 1998, p.9.
[111] Erdemović, Transcript of hearing, 20 November 1996, pp.314–315.