Karadzic: Moral Obligation to Public

“Regardless of the decision the Trial Chamber will render in response to this motion, Dr Radovan Karadzic considers it his moral obligation to deny, in front of the general public and history, the legal validity and legitimacy of this Court,” Karadzic’s motion says.

The UN Security Council adopted a resolution on May 25, 1993 establishing the International Criminal Tribunal for the former Yugoslavia to try war crimes committed on that territory. However, Karadzic says the Security Council “did not have the authority to establish the Tribunal” because there were no legal grounds for this.

“Legal grounds were ‘found’ in a broad interpretation of the provision contained in Chapter VII of the UN Charter, which says that the Security Council can undertake measures aimed at maintaining or establishing peace and security after having determined that a threat to peace or an aggression existed. In other words, the term ‘court’, referring to an appropriate institution, actually meant ‘measure’. This has never been done before,” the motion says.

Karadzic added that the Security Council, as per its mandate, can only form “subsidiary bodies for performing its affairs”.

“A court, as an institution, and particularly a valid and independent one, can in no way be considered as a subsidiary body of some other body, including an executive one. Therefore, using the term ‘court’ instead of ‘subsidiary body’ or ‘measure’, with the aim of creating legal grounds for establishing the ICTY, represents a wrong interpretation of the purpose and scale of the determined competencies of the Security Council,” the motion argues.

The motion argues that in this case, “some conflicts are forcedly and wrongly qualified as a threat to world peace”, and cites examples such as the armed conflict in Bosnia and Herzegovina, which it argued “was obviously a civil war”.

Karadzic, former President of Republika Srpska and supreme Commander of the RS armed forces, is charged with a number of crimes committed in Bosnia and Herzegovina, including the genocide in Srebrenica and ten other Bosnian cities and crimes committed in 27 municipalities, with particular mention of the siege of Sarajevo.

His trial began on October 26 this year, when the Prosecution presented its introductory arguments. The trial is due to continue on March 1, 2010.

The indictee contends that, by its existence, the Hague Tribunal breaches the Geneva Convention on the Protection of Human Rights and the Convention on Genocide Prevention and Punishment.

“The international court has the task to apply existing humanitarian laws. However, this is not true. By executing its non-existing legislative authority, the Security Council suspended the implementation of the Conventions (…), which give local courts the competency for trials, by entrusting the competency for crimes committed on the territory of the former Socialist Federative Republic of Yugoslavia to the ICTY,” Karadzic argues.

Karadzic maintains that the fact that the Hague Tribunal passed the Regulations for Proceedings and Evidence by itself means that the Tribunal is “its own legislator”.

“Once it usurped the right to pass laws, the Security Council presumed another step: it transferred its non-existing legislative competencies to its creation – the International Criminal Tribunal at the Hague,” the indictee says.

The motion argues that the Hague Tribunal accepted the authority to pass its own laws on February 11, 1994, setting out rules that had been “changed 42 times” by February 2008.

“Worst of all is the fact that the Tribunal has changed the rules which are supposed to be used at trials, bearing in mind some practical problems that appeared during the course of their application in ongoing cases. Unfortunately, it did so despite its own rule saying that amendments cannot be applied to the detriment of the indictee’s rights,” Karadzic says.

In March this year, Karadzic, who was arrested in Serbia on July 21, 2008, after having been on the run for more than a decade, challenged the competency of the Hague Tribunal to try him.