## Facts

- Dražen Erdemović, a Bosnian Croat serving in the Bosnian Serb Army’s 10th Sabotage Detachment, participated in mass executions of Bosnian Muslim men at Branjevo Farm near Pilica on July 16, 1995, after the fall of Srebrenica.
- He stated he personally killed about 70 unarmed civilians.
- He claimed he initially refused but was threatened with death if he did not comply and feared for his family.
- He was indicted for one count of crimes against humanity (with an alternative count of war crimes).
- At his initial appearance, he pleaded guilty to crimes against humanity without obtaining legal advice at that time.
- Trial Chamber I accepted the plea, convicted him, and sentenced him to ten years’ imprisonment.
- On appeal, he challenged the sentence and the Trial Chamber’s treatment of duress; the Appeals Chamber also examined whether his guilty plea was valid.

## Issues

1. Whether duress can operate as a complete defense for a soldier charged with intentionally killing innocent persons as a war crime and/or crime against humanity.
2. What conditions must be satisfied for a guilty plea before an international criminal tribunal to be valid.
3. Whether Erdemović’s guilty plea was voluntary, informed, unequivocal, and supported by an adequate factual basis.

## Decision

- The Appeals Chamber rejected the claim that duress fully exculpated Erdemović for intentionally killing innocent persons; duress could be considered in mitigation but not as a complete defense.
- The Appeals Chamber held unanimously that the guilty plea, though voluntary, was not sufficiently informed.
- The Appeals Chamber set aside the conviction and sentence that rested on the uninformed plea and remanded to a differently composed Trial Chamber for a new plea and resentencing.
- Separate opinions reflected disagreement on duress: the majority excluded duress as a complete defense to such killings; a dissent would allow duress in principle under strict conditions.

## Legal Principles

- Duress is not a complete defense to charges involving the intentional killing of innocent persons by a soldier; it may substantially mitigate sentence.
- A valid guilty plea in international criminal proceedings must be voluntary, informed, unequivocal, and supported by a sufficient factual basis.
- “Informed” requires that the accused understand the nature of the charges, the consequences of pleading guilty, the rights being waived (including the right to trial and to counsel), and the existence and scope of potentially available defenses.
- When a plea is not adequately informed, the tribunal must not allow a conviction and sentence to stand on that plea and should provide an opportunity to re-plead before a properly constituted trial chamber.

## Conclusion

The Appeals Chamber limited duress to a sentencing consideration (not a complete defense) for intentional killings of civilians and required stringent safeguards for guilty pleas, vacating Erdemović’s conviction and sentence because his plea was not adequately informed and remanding for a new plea and resentencing.


Prosecutor v. Erdemović, Case No. IT-96-22-A (Int’l Crim. Trib. for the Former Yugoslavia App. Ch. Oct. 7, 1997)