Should ICTY Probe Karadzic Immunity Deal Claims?

No consensus among experts on whether court should look into alleged secret agreement to save him from prosecution.

By Simon Jennings in The Hague (TU No 569, 19-Sep-08)

Tribunal watchers are divided as to whether the court should investigate Radovan Karadzic’s claims that he struck a deal with a senior American diplomat to escape trial.

This week, the former Bosnian Serb president repeated his allegation that in 1996, the then United States ambassador to the United Nations, Richard Holbrooke, offered him immunity from arrest for war crimes if he abandoned political life. Holbrooke was an architect of the Dayton agreement, signed in December 1995, which brought eventual peace to the region.

While some legal experts believe the allegations could have a bearing on Karadzic’s trial at the Hague tribunal and should be thrashed out in court, others fear an investigation could take the focus off the trial itself.

After evading arrest for 13 years, Karadzic is now in custody at the tribunal, charged with 11 counts of war crimes and crimes against humanity, including genocide, committed in Bosnia between 1992 and 1995.

In his third appearance in court, Karadzic told Judge Iain Bonomy, who is presiding over pre-trial proceedings, that the alleged agreement had been sanctioned by the UN Security Council.

“Mr Holbrooke wasn’t speaking only in the name of America, but it was agreed upon by all the members of the Security Council,” said Karadzic.

In a submission to tribunal judges last month, Karadzic outlined the conditions of the alleged deal.

He was to “withdraw not only from public, but also from party offices and completely disappear from the public arena … [and] become invisible long enough for the Dayton agreement to be implemented in full”, he said in the submission.

Karadzic has asked to call a number of witnesses, including Holbrooke himself, to “declare under oath whether or not there was such an agreement”. He also wants the tribunal’s former chief prosecutor Justice Richard Goldstone to testify as to whether he was asked to suspend the indictment against Karadzic.

Although Holbrooke has long denied the existence of any deal, Karadzic’s sudden withdrawal from politics in 1996 and reports of the existence of certain documents on the subject meant speculation has persisted.

This week, Karadzic told the trial chamber that he wants to find evidence to back his allegation that Holbrooke made an agreement on behalf of the tribunal’s governing body, the Security Council – not just on his own or US authority.

Judge Bonomy said that while he and his fellow judges would consider the request, he warned Karadzic that his efforts might be in vain.

“There is a legal issue involved in your submission and that goes to the power of a person such as Holbrooke to give undertakings on behalf of a tribunal,” said Bonomy.

Tribunal prosecutors, meanwhile, say that even if a deal did exist, it would carry no weight with the tribunal and have therefore asked judges to reject Karadzic’s request to introduce evidence on the subject.

“None of the factual allegations made in the submission, even if proved, could provide a basis for a legal remedy,” said prosecutors.

Observers are now divided as to what extent the court should pursue this matter, as well as whether it will affect the trial or not.

Most agree that any alleged immunity agreement made with Holbrooke would have no legal bearing at an international court.

“In an international tribunal, those guarantees are meaningless because no country … can give that sort of a guarantee against prosecution in an international court,” said Michael Karnavas, a defence lawyer at the tribunal

John Jones, another Hague tribunal defence lawyer, said judges were unlikely to be impressed by any claims of a deal made 12 years ago.

“As far as the tribunal is concerned, it will say, ‘We don't care who promised you what, since no-one but the tribunal can give you immunity. So we're going to deal with you,’” said Jones.

“In my view, any [alleged] deal with Holbrooke would be a complete red herring.”

He does, nevertheless, believe the tribunal should establish the facts.

“Was there a deal? That's important for the historical record. But unless it emerges that the tribunal was somehow a party to the deal, they should dispose of it, and make clear that no one but the tribunal has any business promising immunity to anyone,” he said.

According to Sir Geoffrey Nice, the prosecutor in the trial of former president Yugoslav president Slobodan Milosevic, an investigation is needed because the details of a reported agreement, depending on how Karadzic presented them, could have ramifications before the court.

“In a trial of this kind, had there been any such deal as referred to, the nature of the agreement might still have some effect on the substantive trial,” said Nice.

Jones says the former Bosnian Serb leader could try to make a case that he should not stand trial, using an argument known as an abuse of process. Karadzic may argue that because of any deal, the procedure to bring him to The Hague was improper, or has disadvantaged him in his efforts to prepare a defence case. Jones, though, does not believe any such argument would work.

According to Nice, the tribunal needs to investigate Karadzic’s claims or risk losing credibility.

“If it tries to sweep [the allegations aside], it might expose the court’s record to conspiracy theorists later on, whose theories might be completely wrong,” he said.

“In my view, it would be very unfortunate if this was in any way suppressed. It would be a good thing to have it explored.”

Others, however, ask whether Karadzic’s trial for war crimes is the correct forum for a prolonged investigation into an alleged immunity deal – especially after the protracted Milosevic trial backfired.

Prosecutors took two years to present evidence against Milosevic in Croatia, Bosnia and Kosovo, meaning the case dragged on until his death in 2006.

Jim Hooper, managing director of Public International Law & Policy Group, a non-profit global pro-bono law firm, told IWPR he would like to avoid this happening again.

“I’d hate to do anything that gives Karadzic a chance to play the nationalist card with his nationalist audience back in Serbia and try and get any kind of justification for his situation,” he said.

“I’m not in favour of letting Karadzic get away with things that distract people from his role in Srebrenica and a whole range of other terrible events that took place that he had as significant responsibility for.”

However, if the tribunal shelves Karadzic’s claims of a deal, the substance of the allegations and even the effectiveness of international courts could be questioned later, some observers believe.

“If these courts fail to deal with certain issues for short term advantages, even as understandable as shortening the trial, all they will do is store up problems for another day,” said Nice.

Simon Jennings is an IWPR reporter in The Hague.