INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA DECISION ON THE ACCUSED'S SECOND MOTION FOR INSPECTION AND DISCLOSURE: IMMUNITY ISSUE TRIAL CHAMBER DECISION OF 17 DECEMBER 2008

摘要

In Decision on the Accused's Second Motion for Inspection and Disclosure: Immunity Issue of 17 December 2008 a Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (hereinafter 'the Court' or 'the Trial Chamber') considered the legal significance of an alleged agreement between Richard Holbrooke and Radovan Karadzic to immunize the latter from prosecution before the ICTY. The Court granted the defendant's Motion and ordered the Prosecution to disclose any notes, writings or recordings in its possession pertaining to the alleged agreement, but noted that it was 'well established that any immunity agreement in respect of an accused indicted for genocide, war crimes, and/or crimes against humanity before an international tribunal would be invalid under [customary] international law.'2 This decision is the second ruling of the ICTY adopting the position that an amnesty covering a crime prohibited by international law is invalid before an international court, and the first to consider the issue where the grant of immunity is allegedly attributable to the ICTY itself. After giving a brief summary of the legal background to the ICTY and the Karadzic Immunity Decision, the following comment will critically examine the legal reasoning employed by the Court in arriving at its conclusion.