Prosecuting War Criminals

An interview with Madame Justice Louise Arbour of the Supreme Court of Canada and former prosecutor of the Rwanda and Yugoslav War Crimes Tribunals

By Metta Spencer and Mr Justice Norman Dyson (interviewers)

JUSTICE NORMAN DYSON: Madam Justice Arbour, as you know, the United States rejected the Rome Treaty. I'm wondering how you feel this might impede acceptance of an International Criminal Court.

JUSTICE LOUISE ARBOUR: It's not encouraging to see a state that is otherwise positioned to be in a leadership role on human rights issues not on board on an issue of such significance. But the United States has a long history of not being a central player in major international instruments. If a permanent International Criminal Court could receive some of its mandate from the Security Council, that would be an indirect way of getting U.S. involvement and money when the U.S. is interested. So it's not fatal unless the U.S. Government starts taking a pro-active stance against the ratification process.

METTA SPENCER: But the Security Council itself hasn't been particularly cooperative in terms of hunting down criminals for the tribunals.

JUSTICE ARBOUR: That's true. But the Security Council created these tribunals. It has had difficulty understanding the role it should play as the enforcer for their orders, but it has never interfered at all, though as a political body it might have been expected to step in. It launched the tribunals and that's all it ever did, except when it was called on to increase the number of judges. It was a disappointment during my tenure that the Security Council was not willing to be pro-active to back up the tribunal. However, the means at the disposal of the Security Council are either overkill (that is, military intervention) or economic sanctions, which debatably may do more harm than good. So one has to defer to that political body, but I wouldn't write off the Security Council as a waste of time within the effort we were pursuing.

JUSTICE DYSON: With respect to the tribunal, how many cases do you think realistically can be tried by an international body in one year?

JUSTICE ARBOUR: It's premature now on the basis of the work of these tribunals to answer that question because it's the one issue, as I understand it, that the tribunal currently is trying to readjust. It took a long time for the cases that were in process to work their way through when I was there. The judges are extremely sensitive to the complaint that it is taking too long, so adjustments are being made now. It depends on how much money will be put in the system. But the volume will always be relatively small, even if we run 10 times as fast and if we have very imaginative arrangements, such as part-time judges who could be called in to fill a spot on a panel to augment the capacity of the court. Take Rwanda, for instance. When I was there we had 30 to 35 accused in custody. The Rwandan government had 130,000 in custody on similar charges. I hope nobody expects international justice to handle numbers of this magnitude. It has to focus on the most serious cases because it will always be complementary and act in partnership with domestic tribunals.

JUSTICE DYSON: Madam Justice Arbour, you were critical about the French U.N. forces looking the other way instead of arresting Karadzic and Mladic. How can such problems be resolved when indicted war criminals are allowed to go free? What are some solutions you would suggest to overcome this problem?

JUSTICE ARBOUR: We took the position that when an indictment is brought by the tribunal and an arrest warrant is issued, that arrest warrant becomes a court order. Under the statute all states are required to cooperate with the tribunal and to execute its orders. So we took the position that the NATO troops in Bosnia ---IFOR at the beginning and SFOR later on - were collectively required to enforce these warrants. I always put it to them that they were legally required to do so, not to mention that it was politically sound for them to discharge their obligations. But beyond that, the only thing that could be done was to report a non-compliant state to the Security Council. There's the pressure of public opinion; NGOs have a huge role to play. But the only ultimate remedy is airing this non-compliance issue in the Security Council.

JUSTICE DYSON: You certainly raised the level of public opinion against the French Government and military by your criticism.

SPENCER: Yes, and you raised the whole level of seriousness with which the prosecution effort was received. You intensified the success, did you not?

JUSTICE ARBOUR: I hope so. I came to this work with a background in criminal law, not as an international lawyer. You rely on your own expertise to fashion the means to do the work. When I first came to it I had been a judge for many years. I had no media experience and I had all the wrong instincts. Judges don't talk to the press, so when they called I said that I hadn't anything to tell them. It took me a while but eventually I started appreciating that the fundamental premises of criminal law, traditionally, were that it's public and local. The roots of the jury system and criminal law are the trial by one's peers in the middle of the village marketplace. That's how we can send messages of deterrence and justice in the community. When I applied that internationally it became apparent that the only way we could even remotely be public and local was through the use of the international media. We had to be out there. The Hague is not Sarajevo, Zagreb, Belgrade, Pristina, or Kigali. It's a long way from where the harm had been perpetrated, so we had to have our issues very vivid. And when I started being more proactive and media friendly, the public displayed interest and support, which encouraged politicians to fund the work appropriately.

SPENCER: Good. You've mentioned deterrence. I once read that Hitler actually said that because the Armenian genocide wasn't punished, he thought he could get away with whatever he wanted to do. If that is true it is an interesting comment on the importance of deterrence by prosecution. How much influence do you think the tribunals and the ICC will have on the ambitions of future dictators and tyrants?

JUSTICE ARBOUR: It is absolutely critical that we don't set up unrealistic objectives for these institutions because then they are doomed to failure. If anyone thinks this will end all wars or crimes within wars, that's delusional. Criminal justice can't do that domestically. We have spent a lot of money trying to enforce our own domestic laws in pursuit of a deterrent, but we still have murders and rapes. But at the same time, no one seriously suggests that we should abolish criminal law domestically because it doesn't deter everyone.

Deterrence is one objective - not the only one - and its effectiveness is difficult to measure. It's difficult to measure what did not happen. People say that the existence of a tribunal didn't prevent Srebrenica or Kosovo. That's true. It would be cynical to say that it would have been a lot worse if we hadn't been there. These tribunals can't deter in an environment in which they have no jurisdiction. They're very localized, so of course they wouldn't prevent East Timor or Chechnya or crimes committed anywhere else. We know from the way we operate domestically that if we project the same effects internationally, this would not deter all, but it would deter some. And that in itself is a worthwhile investment because the people targeted have the capacity to do so much harm that even if you deter only some of them, as an investment it saves a lot of human life. We're talking of attempting to persuade people who, because of their position of leadership, control the capacity to inflict tremendous damage on human life. So even a small amount of deterrence could have a lot of value.

But it cannot be done in a vacuum. By the time you activate a criminal sanction, there's already been failure by a lot of other mechanisms by which society maintains order, so we can't rely just on these institutions. But the personal calling to account of the mighty holds a lot of promise. I think that is a key.

SPENCER: Did you think of your role as an integral part of the process of developing a new international jurisdiction? Do you see the ICC as directly arising out of, and informed by, the experience of the tribunals?

JUSTICE ARBOUR: Very much so. And I was conscious of it. You know the history of the momentum toward the ICC. The effort had been dormant for many years. All of a sudden these two tribunals popped up. They were as close to the real thing as anything we had seen since Nuremberg, so if they had failed completely, I really believe we would not have seen an effort at constructing a criminal justice system on a larger scale - certainly not in my lifetime. Within the tribunal, people realized that there was a cost associated with pushing the agenda too far, too soon, in too risky an environment. There was a lot of debate internally as to whether we had a responsibility not to scare away those who marginally supported the idea, so as to not jeopardize the larger project. I, for one, thought that we shouldn't hold back. If we were going to have a permanent court, we may as well know what it would look like and what kind of obstacles it would face, and so I insisted that we shouldn't be unduly prudent so as not to scare away potential supporters. But that was a very live debate in my office while I was in The Hague.

SPENCER: You were able to get into the investigation of Kosovo immediately. Will the situation there be a better "dry run" for the ICC than the other Yugoslav cases or Rwanda?

JUSTICE ARBOUR: I think so. A lot will depend on how much financing the ICC will have as a permanent institution. Early in the talks in New York about the ICC there were naive views that the ICC could be a kind of "virtual" court that could be activated as needed. First, I think it's going to be needed all the time, unfortunately, and I would like to think that it will have a physical place and core staff so that when conflicts start developing and humanitarian law is likely to be engaged, preparations could be made to intervene.

In that sense, one would hope that Kosovo would be a better model than the other cases, when we were creating the police force after the crime was committed. First you hire the chief of police, then you recruit people, you train them, you rent space. But crime scene investigation requires immediate intervention. The reconstruction of facts as they fade into history is more and more difficult to establish - particularly at the standards of evidence required for a criminal trial. So I think Kosovo is going to be the best test case. Some people already have quite a bit of knowledge about that area. We had been monitoring the paramilitary groups there for several years. And a few years into the life of the ICC, it's also going to be in the same favorable position.

SPENCER: Will the ICC have a constabulary that will be able to go in and carry out police actions?

JUSTICE ARBOUR: Eventually. But I don't think it matters all that much because, if the system works as it's currently conceived, the prosecutor is entitled to call upon local states for such matters as executing a search warrant. The statute says that all states shall cooperate with the prosecutor and shall comply with the tribunal's orders. So if the system works, I could go to Vienna and say to the Austrian authorities, "I have an arrest warrant. Will you be so kind as to go and arrest Mr. Talic?" In that particular example, they did and the tribunal didn't need its own police force. When a state, on the territory of which one of our orders has to be executed, is unwilling, there's no police belonging to a tribunal that could do it. You would need an army if a sovereign state is reluctant to cooperate. So the real question is not: Should the court have a police force? It would be: Should it have an army? And that is a considerably bigger legal issue. It is extremely unlikely that there would be that kind of force attached to the court.

SPENCER: Would there be any kind of witness protection system?

JUSTICE ARBOUR: There would have to be. This is one of the most critical issues that we face. Many witnesses were minorities living in a territory where the tribunal had no police presence and where the authorities were unsympathetic to their cooperating with us. Our only means of protecting them were not always very efficient - such as protecting their identity, which we could only do to a point. In the context of the ICC, one approach must be to work out refugee laws in various countries to absorb the people in domestic witness protection programs through immigration. It is a high cost to pay. A lot of them don't want to go into exile, but in some cases that has to be provided for them. The machinery has to be put in place and it's critical.

SPENCER: The United States gave as its reason for not signing the Rome Treaty that its soldiers might be charged or arrested, possibly for political reasons. Now that has happened with respect to Kosovo. Some Canadian experts have argued that NATO itself should be charged with war crimes. I think your successor, Carla Del Ponte, has taken that claim seriously to some extent. What do you think will happen with respect to those charges? And will that kind of incident impede the prospect of the ICC?

JUSTICE ARBOUR: I cannot comment on that particular question - as to whether or not there were any actions by NATO air strikes that could constitute crimes within the jurisdiction of the tribunal.

The resistance in some circles within the United States to the ICC is based on a claim that the United States has a particular vulnerability because it plays a pre-eminent role in a lot of military interventions and because its political enemies would try to manipulate the system. The premise is that U.S. citizens would be vulnerable to unjust prosecution. That should not be a fear uniquely for U.S. citizens. We should construct a court where no one would be vulnerable to an unjust, unfounded conviction - a court in which U.S. citizens, like all other citizens, could have confidence.

SPENCER: What other measures could you see that might induce the United States to go along with and participate in the ICC?

JUSTICE ARBOUR: The U.S. is not monolithic. No country is. There are profound differences of opinion within the United States as to whether they should endorse an international institution under any circumstances. So there are some views in the United States that could never be accommodated - period. Some believe that no citizen of the United States should ever be tried by a foreigner. End of discussion. In that case there is nothing to negotiate. But then there is another realm where guarantees can be built into the system to make it more attractive to skeptical American scholars and politicians. One has to build up the institution itself and articulate it as concretely as possible.

JUSTICE DYSON: Madam Justice Arbour, apparently there is a section in the proposed legislation that is going to be ratified that allows the Security Council to veto the Chief Prosecutor's or the Court's indictment with respect to a war criminal. But they can only have this veto proceed for one year. How effective do you think this is going to be with respect to the work of the prosecutor and the International Criminal Court when it is actually in operation?

JUSTICE ARBOUR: I am hesitant to comment on that, but my recollection, which may be deficient, is that it is not actually phrased as a veto but as a request for a deferral by the prosecutor. It would seem to me that if it is relatively short term deferral (and in any event these investigations take a long time to bear fruit) the prosecutor might be able to gather a lot of background materials while the request to defer was in place.

SPENCER: Five years or so ago I was hearing a lot of comments about the existence of "rape death camps" in the former Yugosla ia. I haven't heard anything about that in a long time. Your investigations would have reached some conclusions about how extensive this sort of phenomenon was. Was it exaggerated or were there many such cases?

JUSTICE ARBOUR: There were such charges. I am hesitant to be too specific because I'm no longer confident about how many of these cases are still under sealed indictment and how many are in the public domain pursuant to some of the accused having been arrested. I am wary about revealing information that is still in a non-public indictment. But there have been arrests and the indictments reveal evidence of sexual violence that we have been able to document. Some of that was taking place in detention camps - sort of hotel-type environments. Both in the war in Croatia and Bosnia and in Kosovo, allegations have been made that the tribunals may never be able to document to the level of proof required to bring criminal charges. Our mandate was not as a commission of inquiry. Whether the full scale of these ever will be revealed through the criminal process, only history will tell. You need first-hand evidence, you need willing witnesses.

SPENCER: Women might not want to make allegations, even though they were victims?

JUSTICE ARBOUR: Lots of factors could sometimes complicate a criminal investigation. In some cases sexual violence internationally is similar to what it has been domestically. It's a crime that historically has been under-reported. There's a perception that there would be further victimization through the process that would be public and adversarial, so in many cases there is reluctance on the part of the victims. Many of them are living back in their communities, have reconstructed their lives, and are not terribly involved in the longer-term pursuit of justice. But in some cases it is more basic than that. You might have a credible witness who was prepared to testify as to what was done to her, but she can't identify the perpetrator, so you don't have a criminal case. You can have a sociological report about what happened but you can't have a criminal case if you don't have a defendant. A lot of these crimes were committed either anonymously or repeatedly by different people. We tried to target cases that we could trace up the chain of command to orders given by commanders with responsibility for acts done by their subordinates. Very often in these cases we couldn't even identify the actual perpetrator, let alone who was the commander of his unit.

SPENCER: I get the tribunal updates by e-mail. Something puzzled me in one of the cases; a lot seemed to hinge on whether the accused is a military officer or a civilian politician giving directions to the military. Why is that relevant?

JUSTICE ARBOUR: A lot of issues might turn on that. One is the doctrine of command responsibility. A commander who may not have perpetrated any crime himself will be responsible for the acts of his subordinates if he knew or should have known that these acts were being committed and failed to prevent or punish them.

SPENCER: A military commander?

JUSTICE ARBOUR: Or a civilian commander as well, assuming that you can establish that there was a relationship of command. In the military environment it is sometimes easier because there is a military structure which is hierarchical, with established rank and chain of command. When you start moving from that kind of warfare environment into, for instance, paramilitary groups, there is a blur between traditional military responsibilities and political parties. You can have politicians who have no military rank commanding - ordering the deployment of troops and the commission of certain acts. If that's the reality, you have to prove it.

SPENCER: So the question isn't whether the person is military or civilian officially but whether the person was truly in command?

JUSTICE ARBOUR: Well, if you have someone who is an active, serving colonel, for example, you can make a lot of assumptions. If he was in a combat situation with troops under his command, you can draw inferences about what he should have known. When orders are issued in writing, they are numbered, and you can trace them. When you start alleging the criminal responsibility of civilian commanders you have to trace either a paper trail or testimonials that show that, even though he may not appear to be the official commander, he was calling the shots. It's very difficult.

SPENCER: There are sometimes other political considerations that affect the feasibility of prosecuting perpetrators of crimes against humanity. For example, the Chilean government gave immunity to Pinochet as a way of getting him out of office. To your mind is there ever any legitimacy in granting amnesty to a person against the possibility of prosecution for war crimes or crimes against humanity, in exchange for a political improvement?

JUSTICE ARBOUR: In a lot of such cases, these persons grant amnesty or pardon to themselves while they are still in power. I suppose one could question the legality of a self-granted immunity. This would vary from country to country, whether legislative acts could be challenged under their constitution. It could become very complicated. It's a profound moral dilemma. There's a wonderful book that I'm looking at again by Lawrence Weschler calledA Miracle, a Universe: Settling Accounts with Torturers. It asks, what is the moral and realistic thing to do in emerging democracies after the fall of dictators with torturers still among their ranks? We start thinking "truth and reconciliation." There are plenty of options. The extraordinary thing, it seems to me, is that now - 50 years after Nuremberg - the idea of accountability and the rejection of impunity is starting to take root. What forms will it take? Is it going to be a multiplicity of interplays between states such as Spain, the U.K. and Chile? We may see more of that in the future. Is it going to become more difficult for domestic governments to grant immunity to their own oppressors? All the signs are encouraging. We are moving toward a world of accountability. I can see that we have done more about that issue in this past decade than we had before in this entire century.

SPENCER: I assume that the truth and reconciliation approach is incompatible with the tribunal approach, the ICC approach. Am I wrong?

JUSTICE ARBOUR: I think they are incompatible. When I was in The Hague there were some who promoted the idea of launching a truth and reconciliation commission in Bosnia while our work was still ongoing. These were reasonable people who were advocating that this would expedite the reconciliation process - that the tribunals were too clinical and too slow, and so there had to be an alternative, but concurrent with our model. I was adamant that in that environment, the two were alternative to each other but they couldn't exist together. It wouldn't work. It was hard enough just to assess the criminal functions and if there was any alternative, everybody would jump on that bandwagon.

SPENCER: Can you see any situation in which the truth and reconciliation approach would be preferable?

JUSTICE ARBOUR: Yes. In South Africa, for example, there was to be an accounting of a regime that had lasted over several decades. The standard of proof for criminal cases is very high - it's proof beyond a reasonable doubt. It relies on a series of eye witnesses, which means it is not particularly well suited to go too far back into the past. So in that case, the truth and reconciliation commission, which encourages acknowledgment at personal cost, may make it more likely that the truth will be told, even if the consequences are less severe. I think it takes at least a modicum of political will to reconcile. Bosnia has yet to produce a Nelson Mandela - an indigenous leader of peace and reconciliation. It has not happened yet in the whole of the former Yugoslavia. The truth and reconciliation commission is a more subtle model, suited for an environment in which both the leadership and an important segment of the population embraces the idea of that kind of compromise. When you work in a society that has depended for centuries on revenge and vengeance, the criminal law route may be required.

SPENCER: You indicted Milosevic. When do you think we'll ever see him in the dock?

JUSTICE ARBOUR: If you had said to me, "Do you think we'll ever see him there?" I would be more confident. The crystal ball is just too hard to use. I really, genuinely believe that the work of the tribunal has always moved forward. When I went there they were a modest institution without a lot of financial or political backing. And by the time I left two years later I was confident they had reached a point of no return. There was no way it would be dismantled. And so I have no reason not to be confident that all these warrants will eventually be executed. Political fortunes change; people become more vulnerable. A consensus seems to have formed internationally that he couldn't go anywhere outside Serbia because some countries would execute the warrant.

SPENCER: Wonderful. However, inside the former Yugoslavia the status of the tribunal is not so high. That's even true in Bosnia among government supporters, who seem to brush it off. I can see why that would be so among Milosevic's supporters, but why would it be true of public opinion in general?

JUSTICE ARBOUR: It's very complex. For a long time I thought that this was just a product of lack of any free press in that region to speak of. There's a lot of state-controlled propaganda. It's hard enough for courts, who often perform complex tasks and adjudicate on subtle, complex issues, to be portrayed in simplistic ways or caricatured. It's hard enough even in an alert democracy, much less in an environment in which your work cannot be portrayed accurately. But now I think it's more complicated than that. You can't just say, "Oh, well. If they could all read The New York Times they would see the light of day." Even if they did read the Western press - and some do, or have access to Western television - people see the world from their own point of view. And there's not a huge amount of trust even within the international community generally. This is more profoundly true in the Rwanda tribunal. Rwanda has a long history of disappointment with international intervention, so when they see this new institution coming, why should they feel confident that this is finally the answer? There is distrust, lack of information, and in some quarters there is disappointment because the expectations were too high and totally unrealistic.

This is an extremely difficult process of reconstruction. People come in who don't speak the language. It's inconceivable that we could conduct the kind of investigations that we carry on in Canada, which feed on networks of criminal intelligence and informants. It's a challenge of immense proportions to arrive in a society traumatized by war and even more traumatized by crimes perpetrated during that war. We arrive as outsiders, take the crash course in geography, history, language, and then start collecting information and trying to make sense of it. In a society where people don't cooperate with the police all that well, it's such difficult work that it disappoints people who had faith in it. They give up because they think it is too slow. None of these obstacles are insurmountable, but they show that we have to work hard to keep people from feeling that they have become disenfranchised.

SPENCER: About the development of the ICC, there have been six preparatory committee sessions working on the elements of crime, the rules of procedure, and so on. That's a lot. Some people say that the ICC will be handicapped later on because the specification of rules will be too complex. Do you worry about that - that the prepcoms are trying to get too specific?

JUSTICE ARBOUR: Yes, what is important is not to articulate every rule but to put in place an acceptable framework through which which rules can be enacted on the basis of need, as the institution develops and finds its way. What is needed is a flexible process of amendment, an appropriate forum to articulate the rules, and a process that is transparent, open, and participatory. This is going on now because, after the Rome Treaty, some people got cold feet. This thing is now happening, and everybody thinks that the way to alleviate every concern they have is to make sure the rules are now air-tight and that all their concerns can be addressed at the outset. And I think, frankly, it's an environment in which some of the clashes of legal systems are declaring themselves. It's not easy to construct a hybrid institution that will be recognizable and acceptable by people trained in the common law tradition, in the civil law tradition, and in all the rest of the world where they have indigenous legal models. Now everybody is trying to construct a creature that they will be comfortable with.

SPENCER: If there is a lack of coherence, how is that going to be resolved? Will it be through the intervention of progressive judges who will make decisions as they go along?

JUSTICE ARBOUR: That's the way legal systems work generally. I would assume that, unlike the tribunals, which were created by the Security Council, this court will be in the hands of the assembly of state parties to the treaty. It would be for them to make any legislative modifications that could be required. And we've learned enough from the tribunal, so that I don't think it will be an agonizing process. The tribunal rules were defined in the abstract at the beginning. There have had to be a lot of amendments. Some people were concerned about too frequent amendments; I was more concerned about making sure we had the right rules, no matter how long it took to get them right. Now that we have learned from that, I think it should be feasible to put in place a mechanism that will be flexible and allow for growth and for input from judges and from the academic community, which is going to become a more important voice in the development of doctrine.

Peace Magazine Spring 2000

Peace Magazine Spring 2000, page 16. Some rights reserved.

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