We have over a million pages of documents about half of which come to us in
Bosnian, Serbian, Croatian languages that need to be translated. . So we manage
a huge amount of open source and self-generated information. The tribunal has a
budget for this year about 68 million dollars, which is a considerable growth,
certainly in UN terms. This is at a time of huge financial restraint in the UN,
so it's a testimony I think to the, the wide base political support that the
tribunal enjoys in the UN.
And the Registry, I think is worth mentioning, that it administers something
like a legal aid plan. It administers all the defense counsel, including
payment and financial support for the, for defendants who are indigent. It
operates a detention facility, so it's a correctional service. It has a court
management branch that supports all the court proceedings. And it provides for
the basic administration - personnel, finance, procurement and so on, for the
whole administration. So the total staff of the whole tribunal is going to be a
little over 500, for 1998.
Q: Why did the United Nations set up the war crimes tribunal?
Justice Arbour: Some said it was to appease its conscience, which frankly is
not as pejorative as it may sound. I think that's what criminal law does to a
large extent domestically. I mean by the time we have to trigger the criminal
process we've admitted to a monumental failure of all other social institutions
and so, in a sense that's very much the story of the creation of the tribunals
developed in the former Yugoslavia and in Rwanda. It's an 'after the fact'
recognition that massive crimes have been committed. Some might have been
stoppable but that's going to be for others to determine. So, in a sense, it's
very much an 'after the fact' method of conflict resolution and peace
restoration type intervention.
Q: And do you believe that by bringing justice to a situation, even after
the fact, you can actually help in some form of reconciliation?
Justice Arbour: Yes. But, again I think you've got to look at criminal justice
as a long-term investment in peace, and I think it's also important to
recognize that reconciliation-be it in a micro fashion- that the resolution of
disputes between individuals or more complex forms of reconciliation like
national reconciliation, reconciliation between groups and so on, doesn't
happen at a moment. It's a work in progress. There will not come a point where
people will say, the various ethnic groups in the former Yugoslavia have now
reconciled. they will work out their differences and the only hope that we
could bring to the process is that they will learn to work their differences
peacefully, through peaceful means of debate and conflict resolution.
Q: But isn't it a very difficult situation here where each of the three
sides may see justice in a completely different way and there is no consensus
as to what might constitute justice?
Justice Arbour: But that's what justice does you see, it sheds light on the
reality of a situation, in a modest way. We're not historians, we're criminal
lawyers. Again I think it's very important to understand it's a process whereby
if we are successful, we will assist a people in letting go of what it believes
to be its war heroes, by exposing them as criminals.
This is critically important I think for the long-term establishment of
peace, on both sides of the victims of war crimes committed during the
conflict, who could feel that there's no need to pass on to the next generation
their need for revenge, that their victimization has been recognized. It's
finished, that chapter is finished. And particularly when we talk about the
crimes committed by leaders. They tend to taint their supporters, the people
who elected them, or voted for them, or supported them politically. It's
important to permit these people to recognize that they made a very serious
error in judgment. In electing these people, they have to let go of them as
national heroic figures.
Q: The tribunal, especially at the beginning was often compared to Nuremberg
and it was thought to be a kind of successor of Nuremberg, do you see it in
that light, or are there important differences?
Justice Arbour: It is very much so. I think it's in the heritage of Nuremberg,
it's very much so in legal terms. It's the first enforcement mechanism for the
Nuremberg law, essentially the concept of crime against humanity. And for the
enforcement of all the important post-Nuremberg genocide conventions.
Mechanically, in many ways, it's a very different process than the Nuremberg
and Tokyo trials. I can elaborate on that. First of all, this is truly an
international tribunal. Nuremberg was a multi-national tribunal, but not truly
international. It was also, of course established as part of the terms of
surrender and so it operated in an extremely different sort of law enforcement
environment than we do. After the Allies seized power they had immediately all
the defendants in custody, obviously a dream from our point of view. They had
immediate access to virtually all the evidence that they could possibly need,
they had an army at their disposal, literally an army of very talented
prosecutors, lots of people to do their work. Thousands of people and they
operated under very just a couple of basic principles in terms of the guiding
rules, they operated in an environment where criminal law domestically in the
leading nations of the Nuremberg prosecutors had not developed the kinds of due
process requirements that we now face, in terms of the rights of the defense.
They had no right of appeal, they applied the death penalty. I mean, this was
under a regime where criminal law, domestically was very different than what it
is today. We have massive disclosure obligations and so on. We're very much a
paper court. So we, it was a very different era I think, in terms of our
understanding of criminal law and procedural fairness.
Q: In terms of the public perception of this court, I mean having once been
compared to Nuremberg, do you feel somehow at a disadvantage. I mean, they did
have all the big fish.The tribunal's now been in existence since19 93 and, even
though there've been more surrenders and more arrests recently, there's still a
kind of sense that there are many conspicuous by their absence here.
Justice Arbour: Yes, that's true. And I think it should have been perceived
virtually as inevitable right from the outset. I think the part that's
slightly disconcerting is when our work is compared to the speed at which the
Nuremberg prosecutors managed to wrap up their case. Arrest is obviously the
most critical issue. They did have everybody in custody from day one, but I
can assure you that if they had had to deal with the UN bureaucracy, they'd
still be at it.
There's no question in my mind that there's a considerable difference between
having the capacity to set yourself up with virtually unlimited resources. I
understand that there've been efforts made at coming up with the true cost in
today's dollars of the Nuremberg and Tokyo efforts and it would make our budget
look ridiculously minuscule compared to the kinds of resources that were put
into that endeavor. As I said, with thousands of people, there were four lead
prosecutors representing the four Allies and Justice Jackson the US prosecutor
I think, under his own authority had probably a couple of hundred prosecutors
and he was one of four. We're not exactly operating with these kinds of robust
Q: I understand that, but in the sense that the trial is here to write a
lesson for history in a sense, to right the wrongs in a way, in as much as
justice can do that, this is a much more difficult task as you said, than
Nuremberg. Are the resources commensurate to the task? Will you be able to
actually reach a stage where it can be said the work is completed to any
reasonable level of desirability?
Justice Arbour: Yes. This will always be a matter of judgment. I think,
theoretically one day the prosecutor --and I've every reason to believe that
it's not going to be me, because I only have a four-year term and I'm a year
and a half into it-- but the prosecutor will go to the Security Council to
report that in his or her opinion the mandate has been discharged. But that is
essentially a matter of judgment as I say, the mandate is to prosecute
violations of international humanitarian law on the whole territory of the
former Yugoslavia since 1991. And we know it can't mean all violations of
international humanitarian law. We know that just starting with the resources
we had at our disposal, how many trials we could realistically hold and so on.
So at some point, somebody will have to say enough of the task is done, that
is, the most serious perpetrators, the most serious offenders of the most
serious crimes have now been brought to account internationally. And, in my
opinion, it will also take a measurement of the capacity of the domestic court
to take their share of the rest. I mean not just physically processing cases
but having rebuilt enough of their own legitimacy and credibility domestically,
that an international presence will no longer be necessary to provide fair and
acceptable trials in the region.
Q: With such small resources, small compared to the task, how do you
prioritize? How do you decide who you're going to investigate, who you're going
Justice Arbour: I think at this stage after a little over four years in
existence, we are reasonably certain that there are no massive crimes within
our mandate that have been committed that we don't know about. I mean there's
not another Srebrenica out there that we haven't heard about. So, we have the
landscape I think of what we need to do pretty well mapped out.
Q: I don't suppose I should ask too many questions about the United Nations
Justice Arbour: Some illusions and ideals you don't want to let go of so
rapidly so, I just kind of vent my frustration occasionally and I'm still fully
committed. You know, it's a very frustrating place but there's no place like
it, this is it, this is the world community with all its short comings.
Q: Let's get back to why you choose the people that you choose. And whether
it's really in your control at times.
Justice Arbour: Well, there's a big difference between who turns up here and
who we investigate. And there's a very big strategic difference between here
and the Rwanda tribunal. Here, I'm absolutely determined that we must
concentrate our efforts in investigating cases that hold the promise of taking
us as high up the chain of command as the evidence will reveal. So, even though
we may have cases which in which we know by field work that quite horrible
crimes have been committed, if by analyzing the case, these cases hold very
little promise of opening up an investigative link up the chain of command,
we'll put them aside, to try to identify cases that will take us to the highest
level of responsibility in the most persuasive and conclusive fashion.
Now that of course, that's the hard part of the work, particularly with
police and police investigators and prosecutors who are trained to do work
domestically where, unless you've done a lot of organized white collar crime,
it's very theatre oriented, it's very scene-of-the-crime oriented. And still by
training, people always return to what they do best, they're comfortable, they
know how to do that. So that's pretty easy to wrap up, field work, eye-witness
accounting and so on. What's very hard is to take it from there and start
working on the hidden part of the iceberg, the chain-of-command type
investigative work. That requires tremendous skills in analysis, military
analysis really -- a very, very sophisticated understanding of the political
machinery that was in operation, and an understanding of the activity of
paramilitary groups which are not necessarily as predictable and well organized
as traditional army structures. That's the hard work, that's the one I think we
have to do.
Q: In that respect, what do you think has been learned from the cases that
have already taken place here?
Justice Arbour: Well, at this point, very little of the trial work that we have
done here has been pointing very high up in the chain of command. And that I
think is the work that we have to continue to develop through the current
investigations. I think, when you open up this kind of investigation you start
with the field work and you lay charges as you move along. But I think we've
now reached a stage where we realize how long these trials take, how much of
our resources has to be deployed to prosecuting and so I think we have to be
very prudent with the use of resources. By holding back, if we need to, cases
even where we have the evidence against what I would call low-level
perpetrators, until we can bring the case further up.
Q: So, although it may appear to be plodding and slow, your target is
absolutely firmly set on the top people in the commands?
Justice Arbour: Well, essentially the strategy is when you find a crime has
been committed by persons who are responsible through a chain of command, I
think it's imperative that we explore how far up the chain of command was there
either knowledge, control and so on, of the activities that were perpetrated at
the bottom. And it's usually not all that hard to move say, up one link, you
know, from a prison guard to a prison to a camp command --that's not all that
challenging. But when you start moving from events that are perpetrated on the
ground through trying to uncover the amount of real knowledge or imputable
knowledge, that you could bring way, way, way up a chain of command to the very
highest level where political and military decisions were being made.... I
believe that that is our mandate; that's what we have to do. And we have to,
one day, either conclude that the evidence is just not there, which I think you
have to consider as a possibility, but we also have to be able to say that
we've explored it through all avenues possible.
Q: Looking at it from the other direction, from the top down rather than the
bottom up, what is command responsibility? How does command responsibility
operate within the framework of the indictments?
Justice Arbour: Well, essentially a form of all the work we do is based on
personal criminal liability, but that doesn't mean in criminal law only the
liability of the actual perpetrator of an offense. We know in very basic
criminal law, and the same applies here, that a person can be personally
criminally responsible for acts that were actually committed by somebody else,
and that's the whole theory of complicity. The accomplices, before the fact, at
the scene of the crime, the person who drives the getaway car, the supplier of
materials for the commission of crimes, all kinds of co-conspirators can be
embraced in a doctrine of personal criminal liability.
What this statute actually provides is the fact that these acts-- genocides,
crimes against humanity, violations of the laws in customs of war--thought they
were committed by a subordinate does not relieve his superior of criminal
responsibility, if the superior knew or had reason to know that the subordinate
was about to commit such acts, or had done so and the superior failed to take
the necessary and reasonable measures to prevent such acts, or to punish the
So that, in a nutshell, is the doctrine of command responsibility. It's the
responsibility of superiors, it's a concept that originates in army settings,
in military settings. But in a civil administration setting it would apply to
any person who has control over a subordinate (who committed crimes). He can be
personally criminally liable if he knew, or should have known that the
subordinate was committing crimes and failed in his duty of supervision to stop
Q: So, taking it to its logical conclusion, that means that anybody who is
the president of a country and claims to be the chief of the armed forces of
that country, is responsible for the actions of all the people underneath him.
Is that right?
Justice Arbour: Well this would be, I think, so blatantly unfair that it can't
be right. Just intuitively you can answer that question. For example you can't
take the president of a country who is the ultimate chief of all the armed
forces and have a doctrine of objective foreseeability of crimes to impute to
that person a knowledge, artificial as it might be, of all the deeds committed
by the smallest little person in the unit. The statute speaks of the personal
liability of the commander being triggered if he knew or ought to have known.
Well, how do you determine that he ought to have known? Well, you look at the
information that was on his desk, did he read it? "Ought to have known" means
if you had taken all reasonable precautions that a prudent person in the
circumstances would take, you would have known. So it prevents, in a sense,
willful blindness as a defense. To say, 'well I didn't know because I didn't
read my mail'. But at the same time, you can't impute, it would be actually
grossly unfair. Other measures could be taken for a negligent general who
doesn't do quite enough... You know, if a commander is simply negligent, he may
need to be disciplined and relieved from his functions, but to be personally,
criminally responsible for serious crimes, such as the ones we prosecute,
obviously you have to have a higher threshold of personal involvement.
Q: But judging from the outcome of the Rule 61 hearing for example, it would
appear the judges there thought that Karadzic had a case to answer.
Justice Arbour: Yes. I think one has to be again, prudent with the
conclusions of the Rule 61 hearings. Even coming out of that kind of procedure,
the accused is still the full beneficiary of the presumption of innocence.
Essentially these proceedings were designed, they're not used virtually at all
anymore, because the courts are over-burdened with trial work, but they were
essentially designed to bring to the attention of the public in part, the
failure of the states to execute the arrest warrants.
So, it was a process through which the prosecutor could show publicly the
strength of his or her case, and against that, measure the enormity of the
non-compliance of various governments with their obligation to arrest people.
So at the end of a Rule 61 hearing was a procedure by which the, the failure to
execute existing arrest warrants was demonstrated. And at the end of it, an
international arrest warrant would be issued, the full strength of the
prosecution's case having then been more widely publicized, if I could put it
this way. But at the end of the day it is what's called an 'Ex party' hearing,
there's nobody on the other side, by definition, the accused not having been
arrested, he's not there and he's not represented.
There's a bit of a dilemma in a Rule 61 Hearing for the prosecution, because
on the one hand you want to show you have a good case, so as to generate
support for arrest, but you don't want to show all your case because Mr.
Karadzic can be sitting at home watching it at home on TV, and you prefer to
show your case to an accused who's actually ready if not in court, at least in
custody, waiting for his case to start.
Q: Where does Karadzic actually stand in relation to those Rule 61 charges?
You would say that, the court has demonstrated to some degree of satisfaction
that this charge does have substance?
Justice Arbour: Well, we have to make this demonstration. The difference
between the indictment process and the Rule 61 hearings, that the Rule 61
hearing is public, it's the only difference essentially. But, essentially when
the prosecutor presents an indictment in our tribunal the indictments have to
be confirmed by a judge. So we have to draft an indictment with what we call
supporting materials, so that's all the evidence, excerpts from witness
statements, documentary evidence and so on. We package all that and we have to
go to a judge, now of course, again it's ex-party in the absence of the
accused, and it's not a public hearing, and we have to present that for
So we have to have enough evidence at this point to persuade a judge that
these charges, at least on a prima facie basis, provide reasonable and probable
grounds to believe that the accused has indeed a case to answer. It's not a
standard of proof beyond a reasonable doubt, but it's a standard of probable
cause... there are various ways of articulating it. Now, when that's done, the
indictment is confirmed and the arrest warrant is issued. If the arrest
warrant's not executed after a certain period of time, the judge can call this
public hearing, under Rule 61, essentially to show to the world the seriousness
of the prosecution's case and a commensurate defiance, if I could put it this
way, of states not executing a warrant on the strength of that case. But, it's
the prosecutor's case from the beginning essentially, that then continues to be
developed towards trial. But again, in a Rule 61 hearing it's shown publicly as
opposed to the way it's done. But every single one of our arrest warrants, even
those that have not been the subject of Rule 61's hearing, have been the
subject of a confirmation hearing before a judge. So, we've had to show our
case, not in that elaborate fashion of calling the evidence, but on paper.
Q: It's pretty clear that Yugoslavia hasn't jumped to fulfill the arrest
warrants that have been made to turn over the indicted war criminals. How do
you feel now about the international community's, SFOR's, (NATO-led
"Stabilization Force") enthusiasm for carrying out these arrests? Do you think
the situation is improving or do you think they've still got some way to
Justice Arbour: Well, I think it has improved and, and this is not just a
continuum, there has been a critical moment which is the first arrest, that was
performed by SFOR troops in Prijedor last July. this was an absolutely
critical turning point, I think, in the history and fate of the tribunal,
because SFOR and prior to it, IFOR had the identical mandate of to apprehend
and transfer to The Hague any indictees that they encountered. The reality was
that these encounters were not taking place. Without being unduly cynical,
there's no question that when you have two parties who theoretically may be
trying to avoid an encounter it's extremely unlikely that it will happen.
So...we have posters all over Bosnia with indicted war criminals knowing that
they're wanted, and at the same time you have SFOR troops who may have various
degrees of enthusiasm about encountering anybody. The chances of an encounter I
think, are pretty minuscule. So, we decided to bring sealed indictment so you
could modify the equation to the extent that at least one of the parties who
may not be very enthusiastic about an encounter would not be in a position to
avoid it if he doesn't know that he's wanted. So that inevitably gave, I think
a considerable strategic advantage to SFOR. Also giving it what law enforcement
officers take for granted all over the world, which is you need an element of
surprise if you want to apprehend someone that you have every reason to believe
It's an indictment under which we obtain a non-disclosure order. So when we
get the indictment confirmed by a judge, we obtained an order from the court
that the indictment and the attached arrest warrant not be disclosed to
anybody, or given back to the prosecutor who could then share that information
only with appropriate states, entities and so on, who she presumes will be
willing partners in effecting the arrest. So essentially, it keeps the
information away from the target - the accused, and other members of the
public, and the information then is shared only with those who are ready,
willing and able to execute the arrest warrant. So we put that in place and I'm
sure lots of other factors came into play but then last July, in the British
sector SFOR apprehended two indictees, one was killed after having opened fire
and the other one was arrested and brought to The Hague.
Now, this had a massive impact on the work of the tribunal. It put enormous
weight against diplomatic effort to encourage voluntary surrenders. All you
need is to show that this can happen, this has happened and could happen again,
to encourage people to come voluntarily and, sure enough, we've had many, many
volunteer surrenders. Then it was important that it be shown that this was not
an isolated token gesture on the part of SFOR and sure enough, other arrests
and transfers to The Hague were performed and, and again, it fed into this
momentum of voluntary surrenders.
So, I mean some would want it to happen more rapidly, but to me, the critical
part was to break this log-jam that we had with respect to arrests. We now have
24 people in custody. We had 3 more that we released by withdrawing
indictments. It's very clear to those in the field that it's just a matter of
time now, and circumstances for all indictees to be brought to The Hague,
either by surrendering voluntarily or being arrested.
Q: All indictees.
Justice Arbour: Absolutely.
Q: Including the most senior.
Justice Arbour: Absolutely.
Q: What are the reports in the field about the impact of the sealed
indictments and the snatch at Prijedor? Did you get a sense that it spread a
ripple of fear there or--?
Justice Arbour: Well, the arrest, as I said, certainly yielded exactly what we
had hoped for, which is a a sense of realism and desire in some cases to come
forward voluntarily rather than face the considerably less pleasant alternative
of being arrested by military troops. So that, that was I think a very positive
and extremely realistic response to that initiative. The sealed indictments I
have to say, are rather poorly received, which is exactly what you'd expect as
well. There was early on a sense frankly, of absolute bizarre paranoia with
rumors circulating that there was a secret list, with presumably hundreds of
targets, and so on. I've never given any information about how many indictments
we have had confirmed with a non-disclosure order kept under seal.
But, I think it's not very difficult to figure out that if, in its first
,say, three years of existence, the tribunal brought out publicly, about 19 or
20 indictments, totaling 74, 75 suspects, it's rather unlikely that since I
came here, in one year, with all the rest of the work we had to do, Rule 61
trials and so on, that all of a sudden we would have managed to indict
thousands of people. Whether they're indicted publicly or under seal, we need
exactly the same evidence, we still need to persuade a judge on a
credibly-based case, that there are grounds to proceed. So, it's just as
cumbersome a process. So, I think this paranoia is now considerably more
subdued that it was at the beginning. There are still many who say that, it's
unfair. Well, it's not unfair it's, first of all it's perfectly legal and
secondly it's smart. It's not unfair, it's what any law-enforcement officer
would do with perfectly legal mechanisms if he or she had to apprehend a person
who, there's every reason to believe, will not come forward voluntarily. You
don't send them a message ahead of time that you're coming.
Q: But your problem is that you have these indictments sealed or otherwise,
and you haven't really got the law-enforcement officers under your control to
go and actually make the arrests. That's surely still remains a major obstacle
in the work on the tribunal.
Justice Arbour: Well, you know, I sort of do. If you follow the legal kind of
reasoning, I sort of do, it's just that the system is not mature enough, I
think, to take itself seriously. It's true, I don't have a police force or an
army at my disposal, but the tribunal is a subsidiary organ of the security
council of the United Nations, that's as powerful as you can be, right?
Q: It's only powerful if you choose to act.
Justice Arbour: Well, that's right. But it's the same as if domestically you
had a police force that was not prepared to do its job and if they received
arrest warrants and they said, 'well all those are too dangerous,' or 'we'll do
that next week' and they put it off, it wouldn't work, right?
Q: The perceptions from Republica Srpska (Bosnian Serb controlled
territory within Bosnia) is that, Karadzic is the only leader to have been
indicted. Given that there were war crimes on all sides, why haven't there been
an indictments of the other leaders as well?
Justice Arbour: Well, I think there are many ways of approaching that.
First of all, you can't do an accounting of the work of the tribunal while it's
still a work in progress. I mean the day the prosecutor and as I said, it won't
be me, will go to the Security Council and say 'we've done our work' that will
be the time, I think to determine whether the work of the tribunal was true to
the historic reality of what happened in the conflict. That's one
The second thing is it's not enough to work on public perception. I mean,
if there is, out there, somewhere a public perception that crimes were
committed by all sides, it would then have to follow that the perception is
that an equal number of crimes were committed by all sides, and then it would
have to follow that an the level of command responsibility was the same in all
sides. All of these propositions need to be tested by reliable evidence, and
that's what we do. So, nothing follows from the fact that Karadzic has been
charged and that nobody of his caliber has been charged on the so-called 'other
Our mandate was not to investigate sides, it's to investigate the most
serious violations of international humanitarian law and we take it to mean, at
the most senior level of personal criminal liability and that's what we do. And
the day we say we've finished, the world will be welcome to judge whether we've
done it in a comprehensive and accurate fashion. But I think to be called upon
to answer that as the work in unfolding...it's obviously unanswerable.
Q: But is it reasonable to suppose from that the Tribunal is testing the
proposition? In a sense looking for evidence to see whether those war crimes
that were committed by the Muslims or the Croats or whomever, do also go right
to the top?
Justice Arbour: Yeah. We use exactly the same working assumptions. And
again, we select targets for investigation on the promise that it may allow us
to explore the doctrine of command responsibility wherever we find it. I mean
we don't have working hypotheses that are dictated by ethnicity or religion. I
mean I could say that, others may not believe it. The reality of it is also
that you couldn't run an office like my office here with a political agenda.
First of all, it'd be extremely visible to those who work here. They're very
privy to the investigative strategy, you know, by the time we've finished this
budgetary exercise, there'll be 250 people in the prosecutor's office, coming
from 55 different countries. You'd be very hard-pressed to impose an unethical
and politically driven investigative agenda and get away with it. I mean it's
so ridiculous. I mean we're professionals. We investigate on the basis of the
evidence, not only the evidence that is voluntarily made available to us. We
very aggressively pursue evidence where we believe it exists and our charges
will yield the product of this extremely forceful and straightforward