They say only way Karadzic could have been granted immunity would be through a Security Council resolution.

By Simon Jennings for IWPR (*)

Prosecutors at the International Criminal Tribunal for the former Yugoslavia (ICTY) have rejected a claim by the former Bosnian Serb president, Radovan Karadzic, that he made an agreement with the former United States special envoy to the United Nations, Richard Holbrooke, in July 1996 granting him immunity from prosecution.

Even if such an agreement was made it could not be binding before the United Nations court as “only the Tribunal could speak for the Tribunal”, they said, quoting the words of the wartime US ambassador to Bosnia, John Menzies, in 1996.
 

The prosecution at the ICTY last week submitted its response to the former Bosnian Serb president’s request of May 25 for all the charges against him to be dropped on the basis of an agreement he says he reached with Holbrooke.

Karadzic alleges that Holbrooke proposed at a Belgrade meeting in 1996 that if he resigned as president of the wartime Bosnian Serb entity of Republika Srpska and did not participate in upcoming elections, then he would not face prosecution in The Hague. Holbrooke has strongly denied being involved in any such deal.

“At the time the agreement was entered into, I had no doubt that Richard Holbrooke had promised that I would not be prosecuted at the [Hague tribunal] and that he had the authority to make that promise,” Karadzic wrote in his motion.

“Dr Karadzic honoured his part of the agreement. He now seeks to require the tribunal to honour Holbrooke's part.”

But prosecutors say that the only way in which Karadzic could have been granted immunity - which is not provided for in the statute of the court - would be through a resolution from the court’s founding body, the UN Security Council.

“The [Security Council] has never specified that Karadzic, or any other named person, will be exempted from prosecution by this Tribunal. No [Security Council] resolution grants immunity from prosecution to Karadzic or confers on any person or entity the power to grant him immunity,” prosecutors wrote to judges on June 16.

They noted that the Security Council had in fact “repeatedly emphasised that Karadzic should be brought to justice before the Tribunal” and listed a number of UN resolutions and decisions seeking his arrest and transfer to The Hague since 1995.

According to the prosecution, in the event of any agreement being made, Karadzic has failed to show that Holbrooke was acting with the authority of the Security Council or, as claimed by Karadzic, that Holbrooke appeared to be acting on such authority.

“Absent a [Security Council] decision, there could be no reasonable basis for Karadzic to believe that it had granted authority to anyone, including Holbrooke, to provide immunity,” prosecutors submitted.

“At most, the facts Karadzic asserts show that Holbrooke was an influential negotiator who represented an influential state, which in turn played an important role in the [Security Council] and could often convince the other Security Council members to support Holbrooke’s work.”

Following the prosecution’s filing, Karadzic applied to judges for permission to respond to the issues raised, including that of Holbrooke’s actual authority to offer him immunity as well as the foundation for Holbrooke’s apparent authority to do so.

“Dr Karadzic believes that the filing of a reply is necessary to fully present his position on these issues to the Trial Chamber before it renders a decision on the motion,” the defendant, who is representing himself in the proceedings, wrote to judges on June 19.

Prosecutors also informed judges of their view as to how they should deal with Karadzic’s claim. Judges should first decide whether Karadzic’s claims to legal immunity on the basis of such an agreement would be valid at the court before going on to establish whether or not such an agreement was made, it was submitted.

“Before adjudicating factual matters that will consume time and resources, the Chamber should first determine whether the alleged agreement could be legally binding before this Tribunal,” prosecutors suggested.

In his request, Karadzic had demanded that the matter be dealt with the other way around with the evidence being heard on the existence of the alleged agreement followed by - if the agreement was found to have existed - a subsequent ruling on its legal ramifications before the court.

Prosecutors said this would take up court time and sidetrack the preparations for the trial, labelling it “an inefficient and inappropriate way to proceed”.

“Only if the alleged agreement could be legally binding would the Chamber have to conduct an evidentiary inquiry,” prosecutors suggested.

Karadzic is charged at the ICTY with 11 counts of war crimes and crimes against humanity, including two separate genocide charges.

The court’s indictment alleges the former leader is responsible for crimes of persecution, extermination, murder and forcible transfer which “contributed to achieving the objective of the permanent removal of Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory”.

Prosecutors are seeking to prove he was the political force behind the massacre of almost 8,000 Bosniak men and boys at Srebrenica in July 1995, as well as the 44-month campaign of sniping and shelling on the city of Sarajevo, which resulted in nearly 12,000 civilian deaths.

Notwithstanding the issue of immunity, the trial is expected to start at the end of the summer.
 

(*) This article originally appeared on the Institute for War and Peace Reporting (IWPR)