interview louise arbour

Louise Arbour is the Chief Prosecutor of International War Crimes Tribunal, The Hague.

Q: Can you describe the institution, how big is the Tribunal, who works here?

Justice Arbour: The tribunal essentially has three organs. It has the Chambers, that's the judicial complement, the office of the Prosecutor and a Registry which is the administrative infrastructure that supports everything.

There are eleven judges -- we don't have juries of course--so they sit as Trial Chambers and an Appeal Chambers, so there's six trial judges, and they sit in Panels of three, so there are two Trial Chambers and then one Appeals Chamber made out of five judges and that institution. That Appeal Chamber is common to the Yugoslav and the Rwanda tribunal. So they will sit on appeal from the decision of the two Trial Chambers which are separate, which sit in Rwanda. In fact that's the only thing the two tribunals have in common, it's me as the chief prosecutor and the Appeal Chambers. So here we have these eleven judges, that's essentially the judicial branch. The office of the prosecutor as of this year, is going to grow to I think a total staff of little over 250 maybe 275 or something like that. And that is essentially criminal investigators, crime analysts, military analysts, lawyers, prosecutors. So, people with a criminal law background, experts in international law. We have a large component of staff that is dedicated to evidence management, computer entry and managing essentially the database.

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 resources.

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 to arrest?

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 bureaucracy...

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 perpetrators, thereafter.

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 him.

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 confirmation.

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 go?

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 will resist.

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 thing.

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 side'.

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'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 investigative strategy.



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