National Post

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Friday, June 11, 1999

Louise Arbour will be missed in The Hague
Judge has broken new ground at international criminal tribunal

William A. Schabas
National Post

Louise Arbour's long-awaited departure as prosecutor of the international criminal tribunals for the former Yugoslavia and Rwanda comes in the midst of a crisis few could have predicted when she was named to the job in mid-1996. For the first time since international criminal tribunals began operating, at Nuremberg in the aftermath of the Second World War, we have a court with prospective or "real time" jurisdiction. It has jurisdiction not only for past crimes in a war that is over, but also for future crimes in an ongoing conflict. And at the helm of the tribunal, threatening future offenders with prosecution and punishment, has been a spunky Canadian judge.

Judge Arbour can hardly be blamed for leaving to take up a seat on Canada's highest court, crowning a distinguished career as an academic lawyer and senior magistrate. With more than two decades to go before mandatory retirement at 75 years of age, she has a good shot at being chief justice. Some supreme courts may be tame and dozy institutions, but not Canada's, which is dynamic and controversial, as recent judgments remind us. Louise Arbour will shape the law, and our society, well into the next millennium.

Of course, the international tribunals will survive without her. Since their operations began six years ago, they have built up a staff of skilled prosecutors and investigators numbering several hundred. For a few months, sheer momentum will keep them operational. Over the long run, though, the institution needs a helmsperson. Judge Arbour's departure coincides with that of the court's president, American judge Gabrielle Macdonald. Indeed, Judges Arbour and Macdonald have often seemed to compete for the limelight.

Judge Arbour is not without her critics, including at the National Post, and particularly in Washington. For months they have snapped at her to put the Yugoslav tribunal at the service of the State Department's Kosovo policy. She answered that there were outstanding warrants for war crimes in Bosnia, and that NATO could have done far more to apprehend prime suspects like Radovan Karadzic and Ratko Mladic.

At last year's Rome Conference that laid the groundwork for the yet-to-be established International Criminal Court, the United States fought unsuccessfully against proposals, supported by Canada and other "like minded countries," for a truly independent prosecutor. The United States wanted a prosecutor who would be subservient to the Security Council. Louise Arbour has shown what an independent prosecutor might look like. She is open to suggestions and help from all quarters, but she takes orders from nobody but herself.

Her tenure was not without its ironies. As a justice of the Ontario Court of Appeal, she had set a very high threshold for proof of crimes against humanity in the Imre Finta case. It came back to haunt her at the Yugoslav tribunal when defence lawyers successfully invoked a precedent signed by their adversary, prosecutor Louise Arbour. She appealed the ruling, in effect challenging her own judgment.

Judge Arbour's successor must be appointed by the Security Council. With five States, including Russia and China, empowered to block a candidate, it seems unlikely that Louise Arbour's successor will look much like Louise Arbour. What is more probable is a garden-variety UN appointment, some sleepy, semi-retired diplomat, inoffensive and cooperative. This is the last thing justice in Kosovo or Bosnia or Rwanda needs.

The existence of an international tribunal in an ongoing conflict has provided a laboratory for the role of international criminal justice. Since the whole business began five years ago, proponents of international courts have chanted the mantra of deterrence. Back in 1939, Hitler told his generals, "Who remembers the Armenians?" Since that time, many have argued that the threat of prosecution would discourage and intimidate future offenders. The Kosovo experience seems to prove the opposite.

Of course, international justice probably has far more to do with the search for truth and clarification of the historical record than with deterring individual offenders who, at any rate, have accepted that they may lose their lives in their perilous endeavours.

Judge Arbour has been challenged to indict Yugoslav president Slobodan Milosovic. While the existence of an ongoing investigation has been no secret, to her credit she has resisted invitations to co-ordinate her work with the NATO bombing. Some have even urged her to look at NATO war crimes. What she has found, no doubt, is that there is little in the way of international law to prohibit aerial warfare, despite its terrible price on innocent civilians. In 1945 the victorious Allies refused to prosecute Nazi war criminals for bombing London, Rotterdam and Belgrade (because of their own exactions in Dresden, Hiroshima and Nagasaki) and can hardly now get exercised over some stray "smart bombs."

Louise Arbour has been surrounded by critics attempting to second-guess her efforts and to question the guidance she has given the tribunals. Nobody has ever done this job before. She has much to show for her work. Trials are proceedings in The Hague and Arusha, without too many missteps by the prosecutor's office. Under her leadership, those responsible for war crimes, crimes against humanity and genocide in Bosnia and Rwanda are inexorably being brought to book. When the dust settles, Louise Arbour will be sorely missed in The Hague. She too, will surely have moments when she regrets leaving the job of a lifetime.

William A. Schabas is professor of international law at the University of Quebec at Montreal and a Senior fellow at the United States Institute of Peace.

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