Louise Arbour is the Chief Prosecutor of International War Crimes Tribunal, The Hague. (Excerpted from FRONTLINE's interview)
Q: How do you see the relationship of this court to a possible permanent
Justice Arbour: At the rate at which it's going, I think this court's going
to be a considerably better court. I'm very concerned about the direction that
the discussions are going. I think now we've reached the point where I would
say that the chances of an permanent international criminal court being created
are very high. I think there's a real momentum, there's a real sense that it's
now or never. We've tried so many times before, this is as close as it ever
got, and so on.
So there's a sentiment that it's just around the corner. Come June, in
Rome it's going to happen. Now, as part of this momentum, I think,
unfortunately is a will to compromise. It's a great dream and it's so much
around the corner that anybody who's too greedy and too ambitious is put to the
side for the sake of bringing a consensus and bringing into the fold the ones
who are viewed as indispensable partners in the enterprise and who are looking
for a very low threshold. So, at this point I find it extremely troubling,
we'll get a court and I'm not sure it's going to be worth much if we water it
....If we could duplicate this tribunal and the tribunal for Rwanda and
create that as a permanent institution with universal jurisdiction, I would
have thought that we have truly realized the dream of Nuremberg, and we are the
true heirs of the Nuremberg concept. There's no sign at this point, that the
dream of this magnitude is about to be realized. This question of
complementarity with national courts... The way we work now national courts are
our partners, we count on them, we rely on them, but we have primacy over them.
We can seize ourselves any case within our jurisdiction in the former
Yugoslavia or in Rwanda. So we then control our own agenda.
What is being contemplated in the permanent court is exactly the opposite.
That the tribunal would be complementary to domestic jurisdiction, so as long
as someone, somewhere is prepared to take the case, the international court is
out. Well, I think that this in itself ... is extremely problematic and one
that is perceived as virtually non-negotiable.
Q: By whom? By which governments?
Justice Arbour: By many governments except, frankly I have to say at this
point, I don't follow enough of their progress to tell. There's been a prep-com
that finished just last week... I don't know where everybody is lining up on
that. Then there's the question of the trigger mechanism.
Who's going to decide where and what to investigate? Will it be by
mandate of the Security Council? That's one model. Will it be by so-called
states concerned asking the prosecutor to come and intervene? Or could it be by
as it should, an independent decision of the prosecutor to go and launch an
investigation? Well, that independent ex-officio prosecutor launching an
investigation at this point, is the least-favored option. It's promoted only by
progressive states who have a clear vision about how this kind of court should
So what you have in the alternative is the launching of investigations
that is likely to always be perceived as being tainted by political objectives.
You can't have a court that's going to be perceived either in reality or in
perception, that will give the appearance of being in the puppet of some
political interests. I think that's such a fatal flaw. You can't have a
criminal court that would survive, that would have any kind of legitimacy if it
was tainted by this kind of perception. So that this trigger mechanism,
triggering the jurisdiction of the court is also an absolutely critical feature
that is still long way from being firmed up.
Q: So effectively you think that the permanent court, as is being
envisaged at the moment, those nations on the Security Council for example,
would never have any reason to fear the jurisdiction of the court because they
can more or less take it or leave it at their own discretion?
Justice Arbour: Well that's right. If you look at the Security Council
trigger mechanism, it's pretty clear that certainly under one model, if it took
an actual referral by the Security Council for the prosecutor to be empowered
to act, any of the five permanent members could veto any investigation. Now,
there've been reversed formulas that have been proposed and are considerably
more attractive, such as the proposal that the prosecutor should always be able
to go ahead unless the Security Council ordered the prosecutor to stop. In
which case, one veto could defeat the order to stop, so you would need only one
of the five permanent members of the security council endorsing the decision of
the prosecutor to go forward to permit it to go. That's called the Singapore
Formula. It was a formula that was promoted by Singapore, which is attracting a
tremendous amount of support.
So, you know, there's a lot of room for negotiations. The worst possible
model is the state consensus model. I'd prefer I think, a trigger by the
Security Council, certainly under their Singapore formula, which is a pretty
generous model rather than the model where you could only launch a prosecution
if you had the combined consensus of the state where the offense was committed,
the state where the accused is, the state where the victims are. Under that
model I cannot think of a single conflict, since the Second World War where you
could realiztically imagine that you would have had a criminal
Q: You were talking abou how a system couldn't survive the idea of being
politically tainted or appearing to be politically tainted. That really is what
many in the Republic of Srpska and many in Serbia for example, feel about the
Yugoslav Tribunal. For them, it would be impossible for Karadzic to come here
and have a fair trial. What kind of assurance can be given to such
Justice Arbour: Well, you see, the difference between the fears I have for
a permanent court and the situation you've described, is that the situation
you're describing is just plainly wrong. People who say that Karadzic cannot
get a fair trial are wrong and they are perceived as wrong by virtually
everybody else but themselves. And they're wrong in part because their
assessment of the fairness of the court is motivated by their own political
agenda, and also, in part I believe because they're terribly mis-informed.
A lot of that sentiment, which is starting to yield I think, to the
reality as Republic of Srpska and a Federal Republic of Yugoslavia is opening
up, I think to being more receptive to again a free media, more information and
so on. I mean there are always criminals who say that the judge was biased and
the court was biased and they didn't get a fair trial, you know, prisons are
full of people who still have that sentiment, although interestingly enough,
it's not unanimous.
There are lots of people in prisons all over the world who will concede
that you know, they made a mistake, they got caught and they got a perfectly
fair trial and they can live with the consequences. What matters is not that to
a person, including the criminal, they all embrace the court, is that they be a
generally accepted kind of majority consensus that the court is a fair and
decent institution.... There's always going to be somebody to raise the bar,
you're never going to do enough to satisfy your target that he or she should be
tried. The important thing is where's the consensus? And I think if you work in
a transparent, credible, fair fashion you will generate a consensus.
So when I say I'm afraid about the permanent court being perceived as
being politically driven, I mean where most people who would agree that that's
either the case or that there's a reasonable apprehension of political bias.
And I'm not talking just about the people who would be targeted, I'm talking
about people like you and me who'd be sitting around looking at how this court
is operating and would shrug their shoulder in disbelief. That's what I think
very troublesome. And I don't think there is that sentiment about these
tribunals, I think most people, looking at the way we operate, would say that's
a perfectly decent and acceptable criminal justice system.