Prosecutor v. Karadzic (ICTY, Case No IT-95-5/18): the indictment, English language and Holbrooke Agreement decisions.

• Author: Ventura, Manuel

Introduction

During the 1992-95 Bosnian conflict, Radovan Karadzic was the highest military and political authority of the Bosnian Serbs. He had been one of the founders of the Srpska Demokratska Stranka (Serbian Democratic Party of Bosnia and Herzegovina--'SDS') and its President from 12 July 1990 until 19 July 1996. He also served as the Chairman of the National Security Council of the Serbian Republic of Bosnia and Herzegovina ('Republika Srpska'), the sole President of Republika Srpska and the Supreme Commander of its armed forces from 17 December 1992 to 19 July 1996.

For events that took place during this period, Karadzic has been indicted on 11 counts of war crimes, crimes against humanity and genocide before the International Criminal Tribunal for the former Yugoslavia ('ICTY'). This case note discusses the final pre-trial Indictment ('Indictment') (1), including his alleged forms of criminal responsibility and the charges, together with two decisions of the ICTY Appeals Chamber. The first appeal decision dealt with an application by the Prosecution for a determination that Karadzic, as a self-represented accused, understood the English language for the purposes of disclosure and translation ('Language Decision'). (2) The second appeal decision concerned Karadzic's allegation of the existence of a secret agreement between his representatives and the United States diplomat Richard Holbrooke that Karadzic would not face prosecution at the ICTY if he resigned from political and public life ('Holbrooke Decision'). (3)

1. Procedural background

In 1995, Karadzic was indicted by the ICTY for crimes allegedly committed during the war in Bosnia and Herzegovina. After resigning from his political posts in July 1996, Karadzic spent the next 12 years on the run. However, this came to an abrupt end on 21 July 2008 when a very peculiar-looking Karadzic was arrested on a bus by Serbian authorities. On 29 July 2008, he was transferred into the custody of the Detention Unit of the ICTY in The Hague, The Netherlands, where he currently resides.

At his initial appearance, Karadzic chose to represent himself, (4) although he now has four legal associates, two case managers, an investigator and a number of international pro bono advisers and interns who assist him in the preparation of his case. (5) He subsequently refused to enter a plea and, thus, pursuant to rule 62(A)(iv) of the Rules of Procedure and Evidence of the ICTY, (6) the Trial Chamber entered a plea of 'not guilty' on his behalf. (7) To date, Karadzic has filed in excess of 270 motions covering a wide range of legal and factual issues, effectively swamping the Tribunal in paperwork.

After the Appeals Chamber rejected Karadzic's motion for a delay of 10 months for the commencement of his trial, (8) the trial opened on 26 October 2009, with Karadzic refusing to appear in court on the grounds that his team had not been given adequate time to prepare and was not ready for trial. (9) Nonetheless, the Trial Chamber proceeded in his absence, with the Prosecution concluding its opening statement on 2 November 2009. After a status conference was held the following day, the Trial Chamber appointed 'standby counsel' for Karadzic and adjourned the trial until 1 March 2010. (10)

2. The final pre-trial Indictment

   1. Introduction

      On 25 July 1995, Richard Goldstone, then Prosecutor of the ICTY, confirmed the initial Indictment against Karadzic and his military commander Ratko Mladic. The Indictment charged Karadzic with 16 counts of genocide, crimes against humanity and war crimes relating to events throughout the territories of Bosnia and Herzegovina. (11) On 16 November 1995 a separate Indictment was confirmed, which charged Karadzic with a further 20 counts of genocide, war crimes and crimes against humanity for events in the Srebrenica enclave. (12) These two separate Indictments would later be consolidated on 28 April 2000. (13)

      After Karadzic's capture, a new Indictment was issued. It removed a number of crime sites, included two separate genocide charges and removed the complicity to commit genocide charge. (14) After the Trial Chamber reconsidered its decision regarding one killing incident in Susina Camp, a Third Amended indictment was issued. (15) During various subsequent pre-trial status conferences, the Trial Chamber urged the Prosecution to further reduce the Indictment so as to decrease the length of Karadzic's trial. After submitting proposals for reductions, the Prosecution stated its position that it could not further reduce the Indictment 'without sacrificing a core component of its case'. (16)

      Pursuant to the Prosecution's proposals, the final pre-trial Indictment, filed on 19 October 2009, lists 22 municipalities where crimes allegedly took place, 115 specific incidents, 51 detention facilities and the destruction of 92 cultural and sacred sites. (17)

   2. The Indictment

      Individual criminal responsibility: Article 7(I) of the ICTY Statute (18)

      The Indictment alleges that Karadzic is criminally responsible for crimes that 'he planned, instigated, ordered, committed and/or aided and abetted'. (19) It clarifies that the term 'committed' did not allege that Karadzic physically carried out any crime himself, but that his commission manifested itself through his participation in joint criminal enterprises ('JCEs'). (20)

      Participation in joint criminal enterprises

      The Prosecution claims that Karadzic took part in three separate JCEs--each with a different objective, but which were all related to another overarching joint criminal enterprise ('overarching JCE'). That is, Karadzic was a member of four separate, but linked, JCEs. It alleges that members of the JCEs implemented their objectives either by personally committing crimes or by using others to carry out the crimes.

      (i) Crimes committed to permanently remove Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territories (overarching JCE)

      According to the Indictment, Karadzic was a key member of this overarching JCE that existed from at least October 1991 until 30 November 1995. (21) Its objective was to 'permanently remove Bosnian Muslim and Bosnian Croat inhabitants from the territories of Bosnia and Herzegovina claimed as Bosnian Serb territory' by means that included the commission of genocide, persecution, extermination, murder, deportation and inhumane acts (forcible transfers). Karadzic is alleged to have shared the intent for the commission of these crimes; that is, responsibility via JCE commission of the first category ('JCE I commission'). (22)

      Alternatively, the Prosecution asserts that together with other JCE members, (23) he shared 'at least' the objective of the crimes of deportation and inhumane acts (forcible transfers). (24) In carrying out these crimes, the Indictment claims, it was foreseeable that the crimes of genocide, persecution, extermination and murder might have been perpetrated and that Karadzic willingly took the risk of their occurrence (25)--responsibility via JCE commission of the third category ('JCE III commission').

      The Prosecution also lists a number of acts carried out by Karadzic that it claims were significant contributions to this JCE: (26)

      (i) participation in Bosnian Serb governmental policies that advanced the JCE;

      (ii) establishing and supporting Bosnian Serb political and governmental organs and forces through which the JCE was implemented;

      (iii) dissemination of propaganda engendering fear and hatred of Bosnian Muslims and Bosnian Croats or otherwise in order to rally support for the JCE;

      (iv) directing Bosnian Serb political and governmental organs and forces to carry out acts in furtherance of the JCE;

      (v) formulating the acts carried out by Bosnian Serb political and governmental organs and forces in furtherance of the JCE;

      (vi) obtaining and encouraging the participation of the Yugoslav Army and Serbian paramilitary forces in furtherance of the JCE;

      (vii) failing to ensure that Bosnian Serb political and governmental organs and forces protected Bosnian Muslims and Bosnian Croats under their control;

      (viii) encouraging the commission of crimes by Bosnian Serb political and governmental organs and forces in furtherance of the JCE by failing to investigate and punish;

      (ix) providing misleading information to the public about the role of, and the crimes committed by, Bosnian Serb forces in furtherance of the JCE;

      (x) restricting humanitarian aid to Bosnian Muslims and Bosnian Croats so as to create unbearable living conditions in furtherance of the JCE.

      (ii) Crimes committed to spread terror among the civilian population of Sarajevo through a campaign of sniping and shelling

      Karadzic allegedly participated in this JCE between April 1992 and November 1995 in order 'to establish and carry out a campaign of sniping and shelling against the civilian population of Sarajevo, the primary purpose of which was to spread terror'. (27) The Prosecution claims that this was carried out through unlawful attacks on civilians, murder and the crime of terror, with Karadzic and others sharing the intent for these crimes (JCE I commission). (28)

      Karadzic's significant contributions to this JCE are the same as those of the overarching JCE with the exception of act (vii) above regarding failure to ensure protection of Bosnian Muslims and Bosnian Croats.

      (iii) Crimes committed to eliminate the Bosnian Muslims in Srebrenica

      In the days immediately preceding 11 July 1995 and until 1 November 1995, the Indictment claims that Karadzic 'participated in a joint criminal enterprise to eliminate Bosnian Muslims in Srebrenica by killing the men and boys ... and forcibly removing the women, young children and some elderly men'. (29) This objective allegedly amounted to, or included, the commission of genocide, persecution, extermination, murder, deportation and inhumane acts (forcible transfers), with Karadzic sharing the intent with other members of the JCE (JCE I...