02. For the estimated numbers, see The Prosecutor's Brief on Aggravating and Mitigating Factors, Prosecutor v. Dražen Erdemović, Case No. IT-96-22-T, 11 11 1996, p. 2, fn.8Google Scholar. The Prosecutor estimated that in ‘using a Kalashnikov automatic rifle, he might have killed up to a hundred people’. Trial Chamber, Prosecutor v. Dražen Erdemović, Sentencing Judgment, Case No. IT-96–22-Tbis, 5 March 1998, para. 15. For the accused's status in the Bosnian Serb Army, see the Prosecutor's Brief on Aggravating and Mitigating Factors, op cit. at para. 17. Erdemović is, in fact, a Bosnian Croat who had earlier served with the Bosnian Government Army and Bosnian Croat Army before joining the Bosnian Serb Army in April 1994. But see letter from Croatian Embassy of 21 November 1996 to foreign-desk editors in which the Croatian authorities state that ‘Mr. Erdemović is not a Croat by any recognizable standard’. The letter adds that Mr. Erdemović is ‘not a citizen of the Republic of Croatia nor of the Bosnian Croat-Muslim Federation. Nor is he a Croat by his own preferences. (…) Finally, from a banal ethnical point of view, he is, coming froma mixed marriage, only “half-Croat”.’ The letter concludes: ‘The description of Mr. Erdemović as a Croat only leads to further muddling of an already very complex problem and to diverting attention of the public from the true identity of the perpetrators of the genocide in Srebrenica.’ In the Sentencing Judgment of 5 March, the Trial Chamber stated that ‘The possibility of his [sic] being a soldier of fortune has not been suggested by any of the Parties.’ op.cit, para. 16.

03. The executions were carried out on or about 16 July 1995 at Pilica collective farm, in the Zvornik Municipality of Bosnia and Herzegovina. The victims were Bosnian Muslim civilian men from Srebrenica who had surrendered to Bosnian Serb military or police personnel. See Indictment, Case No. IT-96-2-I, para. 10.

04. See para. 8 of the Judgment of the Appeals Chamber in the Prosecutor v. Dra017E;en Erdemović. Case No. IT-96-22-A, 7 October 1997.

05. Prosecutor's Brief, supra n. 2, at p. 4. Erdemoviž was arrested in the Federal Republic of Yugoslavia (FRY) on 2 March 1996 and transferred to the ICTY on 30 March 1996 for questioning. His case was formally deferred from the FRY to the ICTY following an order for deferral issued by Trial Chamber II. Decision on Deferral Hearing, Case No. IT-96-22-D, 29 May 1996.

06. In an Indictment of 29 May 1996, Case No. IT-96-22-I.

07. During his initial appearance on 31 May 1996.

08. Prosecutor's Brief, supra n. 2, p. 6.

09. The Prosecutor of the Tribunal v. Dražen Erdemović, Case No. IT-96-22-D, Transcript of initial appearance hearing, 31 05 1996, p. 9, lines 7–11Google Scholar.

10. The Prosecutors. Draćen Erdemovž, Sentencing Judgment, 29 November 1996, Case No. IT-96-22-T. There were a number of features of the procedure adopted by the Trial Chamber which, along with an application to revise the sentence, led to the case being considered by the Appeals Chamber. The accused had, by his statement, set out above, indicated mat he might have a defence, such as duress (or compulsion), and, thus, his guilty plea might be considered to have been equivocal.

11. Ibid., at para. 111.

12. Ibid.

13. Appeal of the Counsel for the Accused Dražen Erdemović, 23 December 1996, Case No. IT-96-22-A; Appellant's brief, filed on 26 March 1997, Case No. IT-96-22-A; Defence's brief concerning preliminary issues, 16 May 1997.

14. Respondent's brief filed on 28 April 1997. Case No. IT-96-22-A; Respondent's brief on preliminary questions as required by the scheduling order of 5 May 1997, 20 May 1997.

15. Prosecutors. Dražen Erdemović, Case No. IT-96-22-A, supra n. 4. These issues are not considered further in this article. Erdemović reentered a plea on 14 January 1998, pleading guilty to a breach of the laws or customs of war. The alternative charge of a crime against humanity was withdrawn by the prosecutor.

16. Judges McDonald, Li and Vohrah. Quaere as to the significance of the term, ‘innocent life’. Civilians who have taken no direct part in the conflict are clearly ‘innocent’ but so is anyone (including a combatant) against whom an attack is prohibited (i.e., those who have surrendered). The phrase ‘innocent life’, so crucial to the majority, is, in fact, meaningless.

17. Supra n. 4, para. 16 of Separate and Dissenting Opinion of President Cassese.

18. Ibid., at para. 55 of their joint judgment. They also concluded that there was no consistent principle to be derived from the general principles of law recognised by civilised nations (with which Judge Li agreed).

19. Ibid., at para. 40 of his judgment.

20. Ibid., at para. 75 of their joint judgment.

21. Ibid., at para. 41 of his judgment.

22. As suggested by President Cassese when he argued that where the majority found a gap in the law, or where the law was genuinely ambiguous, they should have drawn upon the law applicable in the former Yugoslavia. Ibid, at para. 49 of his judgment.

23. Trial of Max Wielen et al. (Stalag Luft III) XI W.C.R. 31; Trial of Valentin Fuerstein and others XV W.C.R. 173; Trial of Gustav Jepson and others, XV W.C.R. 172; Record of Proceedings of the Trial by Canadian Court of Robert Holzer and others, ibid.; Trial of Otto Ohlendorf etal. (Einsatzgruppen Case) 4 Trials of War Criminals 499.

24. See Joint separate opinion of Judge McDonald and Judge Vohrah, supra fn. 4 at para. 42.

25. Trial of Otto Ohlendorf et al. (Einsatzgruppen Case) 4 Trials of War Criminals 480.

26. See supra n. 4, at para. 22 of the judgment of President Cassese. The separate trials of Valentin Feurstein, Jepson and Holzer (see n. 23) are not fully reported and are merely noted at pp. 172 and 173 of Vol. XV of the War Crimes Reports (WCR).

27. Ibid., at para. 26.

28. Ibid., at para. 27. Oppenheim, 's view of this case was that ‘there is … serious objection to the reasoning of the Tribunal’. International Law (London, Longmans 1952) Vol. 2 at p. 572Google Scholar. One reason for this severe criticism may be that the case did not clearly distinguish duress (as understood by all members of the Appeals Chamber in Erdemović) from superior orders as a defence. There has also been a tendency to fail to distinguish necessity from both duress and superior orders. There is therefore an obvious danger that if superior orders is rejected as a possible defence (as in Art. 7(4) of the Statute of the International Tribunal for the Former Yugoslavia) necessity and duress, if not properly distinguished, will go the same way. The British Manual of Military Law (Part III) (London, H.M.S.O., 1958) at para. 629Google Scholar, n. 1(a) draws attention to the fact that these concepts are ‘not easily distinguishable’. A large number of other cases are considered in President Cassese's judgment at paras. 32–39.

29. For the surveys of the law relating to particular states see Prosecutor's Briefon Aggravating and Mitigating Factors, supra n. 2 at Annex; Judgment of Judges McDonald and Vohrah, see n. 4, at paras. 59–68; Judgment of Judge Li, see n. 4 at para. 3.

30. See supra n. 4 at para. 29 of the judgment of President Cassese and para. 47 of the judgment of Judge Stephen. This argument had been advanced by Max Wielen (see n. 23) at p. 39 but it was rejected on the facts by the court.

31. Based on an unpublished decision of the Court of Assizeof L'Aquila of 15 June 1948. The Court accepted the defence of duress and explained that ‘the possible sacrifice [of their lives] by Masetti and his men [those who comprised the execution squad] would have been in any case to no avail and without any effect in that it would have had no impact whatsoever on the plight of the persons to be shot, who would have been executed anyway even without him [the accused]’, set out at para. 79 of the joint judgment of Judges McDonald and Vohrah. Judge Li thought ‘the absurdity of this argument is apparent’ (para. 16 of his judgment).

32. These are two of the conditions set out for the establishment of the defence of duress by President Cassese. It is likely that evidence of fact as to these matters would be required by a trial chamber in considering mitigation.

33. Per President Cassese, see supra n. 4, at para. 4.

34. Art. 24 requires the Trial Chamber when sentencing to take into account such factors as the gravity of the offence and the individual circumstances of the convicted person. See also Rule 101 of the ICTY's Rules of Procedure and Evidence, where aggravating and mitigating factors must be considered. This is quite different from the enquiry that will need to be conducted if duress is raised as a mitigating factor. Moreover, a reasoned opinion need not be given in relation to the appropriate sentence to be imposed; compare Arts. 23 and 24.

35. See supra n. 4, at para. 34 (Joint Opinion of Judges McDonald and Vohrah). Bassiouni, , Crimes Against Humanity in International Criminal Law (Dordrecht, Martinis Nijhoff 1992) at p. 443Google Scholar shows how me civil law and common law systems take different views as to whether necessity can be separated from duress.

36. President Cassese was prepared to accept that the risk of the severe and irreparable harm may be to an accused's family, supra n. 4, at para. 50 of his separate and dissenting opinion.

37. Art. 7(4).

38. In a non-international armed conflict it may be dangerous todraw illustrations about military hierarchies and rank structures as if they were similar to those in armies engaged in an international armed conflict. For an example of a superior being threatened by a person of lower rank see Trial of Gozawa Sadaichi XV WCR 175 (note).

39. The common law may not be a good comparator as, in most systems, the penalty for murder is fixed and there is, thus, little scope for a judge to consider mitigation for duress (although it may affect the minimum term an accused will serve).

40. Despite Art. 21(3) of the Statute of the ICTY, which provides that an accused shall be presumed innocent until proved guilty. The better view, it is suggested, is that the Appeals Chamber in Erdemović did not intend to cast the burden upon the accused to prove these mitigating facts.

41. Strictly, since duress is not to be regarded as adefence but merely as grounds for mitigation, use of the term ‘duress’ is inappropriate. A sentencing judgment can take into account all mitigating facts, whether they would have been relevant to the defence of duress (had the minority view in the Appeals Chamber in Erdemović prevailed) or not.

42. Para. 13 of the Sentencing Judgment, Case No. IT-96-22-Tbis, 5 March 1998.

43. Questions that might have been relevant here would have been: Would his colleagues on the firing squad have supported him against their superior? How long before the actual killings did he know what was expected of him? Could he have run away? Did Erdemović know before he joined the unit that he might have been expected to carry out such atrocities? Did he believe that his family would also suffer if he had refused, and, if so, how? He had, however, given oral evidence as to his own actions in Rule 61 proceedings in The Prosecutor v. Radovan Karadžić and Ratko Mladić, IT-96-18-R.61.

44. Supra n. 42, para. 18. It is difficult to see why this was necessary given that, after the Appeals Chamber ruling in his case, it was virtually certain that he would subsequently plead guilty to a breach of the laws or customs of war rather than a crime against humanity. The only beneficiary of such an agreement could have been Erdemović in that the Prosecutor would not have challenged his statement about acting under ‘duress’.

45. Ibid., para. 21.

46. ‘“The collaboration of Dražen Erdemović has been absolutely excellent.” These are words rarely spoken by the Prosecution of an accused,’ Sentencing Judgment (1998) supra n. 42, at para. 16 (iv).

47. See Rule 85 C of the Rules of Procedure and Evidence. Rule 100 provides that the prosecution and defence may submit any relevant information that may assist the Trial Chamber in determining an appropriate sentence.

48. Sentencing Judgment, supra n. 42, at para. 17.

49. Supra n. 4, at para. 80.

50. This point is made forcefully by President Cassese in his judgment. Supra n. 4, at para. 3. The difficulty of lawyers facing procedures to which they are unaccustomed is illustrated by Defence Counsel's statement in Erdemović that ‘the institution of a plea of guilty by an accused … as formulated in common law systems, is foreign to the procedure applied in the former Yugoslavia as well as to the procedures applied in all the successor states established in the territory of the former Yugoslavia’, Defence Counsel's Brief Concerning Preliminary Issues, 16 May 1997, para. 2.

51. Art. 21 of the Statute of the International Tribunal for the Former Yugoslavia and Art. 20 of the Statute for the Rwanda International Tribunal. This is similar to the right given in the European Convention on Human Rights 1950 and other human rights treaties.

52. See for example, Mann, K., ‘Harsay Evidence in War Crimes Trials’, in Dinstein, Y. and Tabory, M., eds., War Crimes in International Law (The Hague, Martinus Nijhoff 1996) p. 351 et seqGoogle Scholar.

53. Elected on 19 November 1997, Press release, CC/PIO/264–E&F.

54. Press release CC/PIO/272–E, 9 December 1997.

55. The Prosecutor v. Dusko Tadić. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction. Case No. IT-94-1-AR72, 2 October 1995.

56. Art. 4 of the Statute of the International Tribunal for Rwanda, however, gave that Tribunal jurisdiction over serious violations of common Art. 3 and of Additional Protocol II. This is not coextensive with a breach of the laws or customs of war. For an excellent discussion of the arguments for and against Article 4 of the Rwanda Tribunal Statute see Meron, T., ‘International Criminalization of Internal Atrocities’, 89 AJIL (1955) p. 554CrossRefGoogle Scholar. See also Greenwood, C., ‘International Humanitarian Law and the Tadić Case’, 7 EJIL (1996) p. 265, at p. 281CrossRefGoogle Scholar.

57. See n. 55 at para. 92. Emphasis supplied. For a decision that a defendant's actions occurred during an international armed conflict due to the ‘significant and continuous military intervention of the Croatian Army’, see Swaak-Goldman, O., ‘Prosecutor v. Rajić, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, No. IT-95-12-R61,’ 91 AJIL (1997) p. 523Google Scholar.

58. During an international armed conflict, it is clear that members of the armed forces of an enemy state are so immune, see Public Prosecutor v. Koi [1969] 1 All ER 419, 427Google Scholar.

59. As opposed to an innocent civilian.

60. Indeed, it envisages the rebels also being able to set up courts for the same purposes.

61. See Gasser, H.-P., ‘Armed Conflict within the Territory of a State’ in ‘Im Dienst an der Gemeinschaft—Festschrift fur Dietrich Schindler zum 65 Geburtstag (Basel/Frankfurt am Maine, 1989) p. 225 at p. 229Google Scholar; Plattner, D., ‘The Penal Repression of Violations of International Humanitarian Law Applicable in Non-International Armed Conflicts’, 30 IRRC (1990) p. 409, atp. 414CrossRefGoogle Scholar; Meron, T., ‘War Crimes in Yugoslavia and the Development of International Law’, 88 AJIL (1994) p. 78 at p. 80CrossRefGoogle Scholar; M. Bothe, ‘War Crimes in Non-International Armed Conflicts’, in Dinstein and Tabory, loc. cit. n. 52, at p. 294. In the Decision on Jurisdiction in the Tadić Case, Judge Li quoted the view of the ICRC that ‘the notion of war crimes is limited to situations of international armed conflict’. Para. 9 of his judgment. See also Fenrick, W., ‘International Humanitarian Law and Criminal Trials’, 7 Transnational Law and Contemporary Problems (1997) p. 23 at pp. 37–41Google Scholar.

62. The argument would not have been based solely upon a lack of jurisdiction but upon the non-applicability of international criminal law to him for acts committed during a non-international armed conflict.

63. Compare Judge Li at para. 11 of his Separate Opinion with President Cassese at para. 134 of his Separate and Dissenting Opinion. For a disagreement as to whether a rule of customary international law existed in Erdemović, see the prosecution argument concerning the status of duress as a defence under customary international law and the view of that taken by President Cassese and in the Separate Opinions of Judges McDonald and Vohrah. The UN SG had concluded that ‘the International Tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary international law’, Report of the Secretary-General Pursuant to para. 2 of SC Res. No. 808 (1993) (Presented 3 May 1993) (S/25704) at para. 34. In ICTY Basic Documents 1995 at p. 175, para. 34, reprinted in 32ILM at para. 1170 [emphasis supplied]. The view of the US Ambassador to the UN expressed at the Security Council as to the extent of the laws or customs of war, is, with respect, relied upon too strongly by Meron, loc. cit. n. 56, at p. 560 and by Greenwood, loc.cit. n. 56, at p. 281 as evidence of customary international law.

64. At para. 13 of his judgment. Judge Li was, it is assumed, drawing a clear distinction between the criminality of Tadić's acts and the jurisdiction of the Tribunal. See generally, Meron, loc. cit. n. 56, at p. 561. Judge Li might also have relied upon SW v. United Kingdom (Series A, No. 355–B); (1996) 21 EHHR, 363, which eschewed extensions to criminal liability which did not amount to the ‘gradual clarification of the rules of criminal liability through judicial interpretation from case to case’ and which were not ‘reasonably foreseeable’ (at para. 36/34).

65. At para. 74 of his judgment.

66. See SC Res. No. 955, 8 November 1994.

67. Judge Li draws inferences from the absence of jurisdiction over a breach of the laws or customs of war in the Rwanda Tribunal that customary international law had not extended its liability to non-international armed conflicts.

68. See generally, A. Eser ‘“Defences” in War Crime Trials’ in Dinstein and Tabory, eds., loc. cit. n. 52, at p. 251; Bassiouni, loc. cit. n. 35. This is a real issue also at the national level since States Parties to the Geneva Conventions 1949 and Additional Protocol I have a right to try grave breaches of the Conventions or Protocol. They would, presumably, apply their own laws relating to defences to criminal charges. These will vary from state to state and no inter-state consistency could be achieved. Thus, in defence to a charge of a grave breach of the Geneva Conventions, an accused may be able to rely upon the defence of duress in some states but not in others.

69. See the Defence: Notice of Appeal, Dražen Erdemović at p. 9 where Erdemović is described as ‘an ordinary, used and abused soldier who was driven by the winds of war’.

70. Some tribunals can be ignored on the grounds that they applied national law. See for instance, President Cassese at para. 26 of his judgment and Judges McDonald and Vohrah in their joint judgment at para. 52. In any event, the decisions relied upon by the majority and minority would, in common law systems, be considered to be weak authorities since they consisted merely of the summing up of a judge—advocate at first instance.

71. See the Secretary-General's Report, supra n. 63, at para. 58.

72. Judge Cassese at para. 11 of his judgment. See also Judge Stephen at para. 24 of his judgment. Supra n. 4.

73. See for example, Fenrick, W., ‘Attacking the Enemy as a Punishable Offence’, 7 Duke Journal of Comparative and International law (1997) p. 539 at pp. 558–559 (and the authorities cited therein)Google Scholar; Cassese, A., ‘The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts’, 30 ICLQ (1981) pp. 417, 437CrossRefGoogle Scholar.

74. Such as where a combatant is attacked by a non-combatant, an event, perhaps, likely in an armed conflict more similar to a non-international than an international armed conflict. Of a similar nature is the issue of whether certain circumstances can mitigate a sentence. Apart from superior orders, this might include action in furtherance of a judicial sentence (although this might be considered to be a mistake of fact) or a mistake of international law.

75. The principle is being used here to refer to uncertainty over the extent of defences and not over the otherwise criminal liability of an accused. The UN Secretary-General concluded that the principle ‘nullum crimen sine lege demands that the International Tribunal should apply principles of international humanitarian law which are beyond doubt part of customary law’, loc. cit. n. 63 at para. 34. This would meet the concerns of the European Court of Human Rights in interpreting Art. 7 of the Convention, SW v. United Kingdom (Series A, No. 355–B), (1996) 21 EHRR 363, which recognises the need for ‘the gradual clarification of the rules of criminal liability through judicial interpretation from case to case’, at para. 36/34, but not changes that could not be reasonably foreseen. This same principle may be argued to apply also to the extent of defences.

76. Art. 13(4) of the Statute.

77. Art. 38 of the Statute of the International Court of Justice. A decision of the Appeals Chamber might, in theory, be ‘overruled’ by a Security Council resolution since the Statute of the Tribunal is the product of such a resolution. A multilateral treaty to change a ruling is unlikely and the other sources of international law are also unlikely to be proved.

78. See supra n. 1. See also V. Morris and Scharf, M., An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia (New York, Transnational Publishers Inc. 1994) at p. 354Google Scholar, where the authors state, ‘whether the international community seizes the opportunity [to establish a permanent criminal court] may depend to a large extent on the success or failure of the international tribunal’.

79. The ICRC now supports the view that ‘the international criminal court must have jurisdiction over war crimes committed in international and non-international armed conflicts alike’, Statement by the ICRC to the UN General Assembly, 23 October 1997.