Judge Investigates Karadzic Deal Allegations

The Hague judge in charge of preparing the war crimes trial of Radovan Karadzic has asked Sweden’s foreign minister to speak with the former Bosnian Serb president’s legal representatives about an alleged agreement which the accused says leaves him immune to prosecution.



Judge Iain Bonomy called the Swedish ambassador to The Netherlands, Hans Magnusson, to a court hearing this week to ask for Sweden’s help in getting to the bottom of Karadzic’s allegations.



The accused insists that in 1996, the former US special envoy to the United Nations Richard Holbrooke agreed to grant him immunity from prosecution at the Hague tribunal in return for for standing down from Bosnian Serb politics.



Karadzic has repeatedly sought to interview Swedish foreign minister Carl Bildt on the matter as he alleges the former Bosnian High Representative was a close aide to Holbrooke during that year and was involved in negotiations for him to step down as president.



The accused filed a motion on May 25, asking the court to dismiss all charges against him on the basis of the deal he says he struck with Holbrooke 13 years ago.



According to his motion, both eyewitness and documentary evidence confirm that Holbrooke offered Karadzic immunity from prosecution at the tribunal at meetings in Belgrade on July 18 and 19, 1996, in return for Karadzic withdrawing from public life.



Holbrooke – who was the architect of the 1995 Dayton accord which brought peace to the region and is now the US special envoy for Afghanistan and Pakistan – has repeatedly denied making any such agreement with Karadzic.



This week, Judge Bonomy suggested that Bildt should convey anything he knows about any agreement to Karadzic’s legal team.



“What would be helpful would be an indication of Mr Bildt to disclose the full extent of his knowledge of these matters to those assisting Mr Karadzic [in his defence],” Judge Bonomy told Magnusson in court on June 3.



Karadzic alleges that Holbrooke proposed at the 1996 meetings 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.



“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,” wrote Karadzic in his motion, dated May 25.



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



The former leader claimed that it would be a miscarriage of justice for the tribunal to prosecute him following the alleged agreement.



“The indictment should be dismissed, or the proceedings should be stayed, so that the hands of the tribunal are not stained with Holbrooke’s deception,” wrote Karadzic in the motion.



Olga Kavran, spokeswoman for the tribunal’s office of the prosecutor, OTP, said that prosecutors would be filing a formal response to the motion in due course, but reiterated the office’s previous position that such an agreement as described by Karadzic would have no legal standing at the tribunal.



“Even if there was such an agreement, and the prosecution does not accept that there was, even if there was, [the OTP’s position is that] it would not be legally valid before the tribunal, [and] that only the [United Nations] Security Council can issue a resolution by which it would affect the tribunal’s jurisdiction and this has not happened,” Kavran told IWPR.



Speaking in court this week, Magnusson confirmed that “there were no legal obstacles” to Bildt giving evidence about the agreement.



However, he said that an interview with Karadzic’s legal advisers would serve no purpose as, according to him, any such agreement would have no legal effect before the tribunal.



But Judge Bonomy said Karadzic should be given an opportunity to investigate his claim.



“[Karadzic] is entitled to cooperation of all states throughout the world for at least establishing [any] factual basis for what he presents,” said the judge.



Magnusson said that he would communicate Judge Bonomy’s request to the Swedish government and that it would comply if judges were to order Bildt to appear.



“If the trial chamber would deem it necessary, Mr Bildt will be made available,” he said.

Judge Bonomy asked that the Swedish government respond to Karadzic’s request before the end of the week, noting the necessity of moving forward with the case as it approaches trial.



“We are anxious to make progress on this issue,” he said. “It needs to be determined speedily now. There will always be anxiety about the starting date for the trial being maintained as long as this issue remains outstanding.”



While a final pre-trial meeting has been scheduled for July 20, no start date has yet been set. It is thought unlikely that proceedings will get underway before the court’s summer recess from July 27 to August 17.



Although Karadzic submitted his motion on May 25, judges are allowing him to supplement this with additional evidence of an agreement as it is made available from various parties.



Judge Bonomy confirmed in court that a response to the accused’s request to the UN to disclose any information relating to its involvement in the alleged agreement had not yet been received.



Karadzic is trying to show that the Security Council – which passed a resolution establishing the tribunal – was a party to the alleged agreement granting him immunity and that the court is therefore bound to uphold it.



“You can take it that the matter will be pursued urgently,” said Judge Bonomy.



“And if this cannot be resolved... then the chamber will... have to decide whether to make an order [for the UN to respond to the request] or not.”



Karadzic was arrested in Belgrade on July 21 last year, having lived under an elaborate disguise and evaded capture for 13 years since the end of the war in the former Yugoslavia. He is charged with 11 counts of war crimes and crimes against humanity, including two separate genocide charges.



The court’s indictment alleges Karadzic 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.



Karadzic refused to plead to the charges on March 3, citing the agreement he claims he made with Holbrooke, which prompted the judge to enter a plea of “not guilty” on his behalf.



“I have a general position in relation to the entire indictment,” Karadzic told Judge Bonomy in court.



“I’m challenging it on the basis of my agreement with the international community, whose representative at that time was Mr Richard Holbrooke.



“This tribunal does not have the right to try me.”



Judges in The Hague have already held that any alleged agreement granting Karadzic immunity would not hold water before the court.



In a decision from December 17, 2008, they ruled that “any immunity in respect to an Accused indicted for genocide, war crimes and/or crimes against humanity before an international tribunal would be invalid as a matter of international law”.



In order to support their decision, judges referred to statutes and conventions which said heads of state were not immune from prosecution.



However, Karadzic claims in his motion that he should not receive immunity due to his position as a former head of state, but as someone who has cooperated with the international community on that basis.



Although judges ruled that the mandate of the tribunal’s prosecution would not be affected by any alleged deal made by Holbrooke, Karadzic argues that because he believed the US diplomat was acting either on behalf of the Security Council, or appeared to be doing so, the court is in fact bound by the claimed agreement.



The next status conference in scheduled for July 1.



Simon Jennings is an IWPR reporter in The Hague.