Today the Trial Chamber of the ICTY presiding over the Karadzic case rendered its decision on the defense challenge to the ICTY’s jurisdiction on the basis that Karadzic had entered into an agreement with Richard Holbrooke that promised that he would not be prosecuted. This is the latest of Karadzic’s attempts to invoke this alleged agreement between him and Holbrooke, albeit now with the help of two theories, the first being that Karadzic was an agent or acted with actual or apparent authority of the UN Security Council or the ICTY Prosecutor, and the second that it would be an abuse of process to try Karadzic who could have reasonably relied on the putative agreement.
The Chamber quite rightly (despite what my friend Kevin Heller might say), and unsurprisingly, rejected Karadzic’s motion. It also rejected his request to hold an evidentiary hearing on the disputed facts regarding the alleged agreement, stating at para. 46 that ‘If the Accused cannot obtain the relief he seeks as a matter of law, then the issue of whether the Agreement was ever made is irrelevant to any issue other than sentence, on which evidence may be led at trial. The Trial Chamber rejects the Accused’s submission that not having an evidentiary hearing at this stage would be a disservice to history. The Chamber’s purpose is not to serve the academic study of history.’
Did Holbrooke promise Karadzic that he would not be prosecuted? Probably. But so what? It simply boggles the mind that a reasonable war crimes suspect (if we grant Karadzic the ‘reasonable’ part) could rely on a purely oral, furtive promise by a US envoy as a binding legal guarantee, or indeed that he saw Holbrooke as an agent of the UNSC or, even less so, of the Prosecutor. Even assuming that Karadzic saw Holbrooke as acting on behalf of the UNSC, Karadzic could only come up with a strained agency theory plucked from domestic law in support of his argument that an agreement between Karadzic and the UNSC would bind the ICTY even in the absence of a subsequent UNSC resolution, as the Chamber correctly points out at para. 58.
However, don’t expect that this decision will put an end to the Holbrooke agreement matter. This is Karadzic’s favourite theme, and it will keep coming up. Indeed, the Trial Chamber has allowed Karadzic’s legal advisers to continue with their agreed-upon interviews of Carl Bildt and UN officials, stating that this might have relevance for Karadzic’s eventual appeal and sentence.