A New Kind of Justice

The International Criminal Tribunal for the former Yugoslavia is the world's first war-crimes tribunal since Nuremberg. The major powers have accepted the tribunal's jurisdiction and submitted to its authority, which is far broader than most people understand. Although not even idealists would have predicted it a decade ago, something like this tribunal may soon become a permanent feature in the world
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THERE is a living monument to one possible fate for international justice in a world of sovereignty. It is the Peace Palace, home of the International Court of Justice. The court sits in The Hague, the charming Dutch city, in soaring chambers within an eclectic 1913 brick palace in a campus of fountains and tidy gardens. More often called the World Court, it has been weighing claims among nations and dispensing opinions of right and wrong since just after World War I. It is a vestige of Wilsonian idealism, a burst of conscience and good intentions that opened the brackets on the twentieth century, just as another burst has closed them.

The World Court adjudicates civil disputes among nations—quarrels over borders, or fishing rights, or the meaning of treaties, or the right to deem another country an aggressor. It has no power of enforcement or credible threat of punishment for noncompliance. Its only leverage is moral gravitas. The court weighs in, and lets opprobrium or vindication fall where it may. Many states ignore it when they wish. The United States sharply restricted its conditions for accepting the court's jurisdiction after Reagan-era decisions against it in a dispute with Nicaragua.

Powerlessness is insidious, as the history of the United Nations reminds us. And powerlessness is the constant menace threatening another, entirely separate and much younger world court: the International Criminal Tribunal, which is responsible for prosecuting and judging war crimes committed in both the former Yugoslavia and Rwanda. It, too, sits in The Hague, down a wooded avenue from the Peace Palace, in a heavily guarded V-shaped office building that once housed a big insurance company. The tribunal's home is a cold, functional, secretive place, staffed not only by judges but also by hundreds of prosecutors and investigators and translators and clerical workers and security guards.

In the fall of 1996, three and a half years after the tribunal was established, a new chief prosecutor arrived. She was Louise Arbour, a Canadian law professor and jurist, and she knew little of the substance of her enormous dossiers, or of the uncharted international law she would be seeking to define and then to enforce. But she understood what the real agenda was: to establish the war-crimes tribunal as an institution of truth and consequence.

The truth was far from easy to discern, given the vastness of the crimes Arbour was prosecuting—a quarter of a million people slaughtered in a three- or five- or seven-headed ethnic conflict in the Balkans that has lasted through much of the nineties (and is not over); more than half a million massacred in 1994, in the space of a few weeks, in Rwanda.

Making the tribunal effective and credible meant not just establishing the historical record and determining where justice lay. It meant delivering. It meant testing, in the real world, the question of whether acts of genocide, crimes against humanity, and violations of the code of war would have real consequences for the people responsible.

Unlike the World Court, which judges states, the International Criminal Tribunal judges individuals. But in practice, this is a distinction without a difference. Individuals acting in the names of states perpetrate war crimes. Individuals acting in the names of states decide whether or not to cooperate with the war-crimes tribunal. Getting states to cooperate with the tribunal became Louise Arbour's daunting task. The unfolding horrors in Kosovo brought matters to a head.

"The Bottom of the Pit"

ON Friday, January 15, 1999, in the Kosovar village of Racak, forty-five ethnic-Albanian men, women, and children were rousted from their homes, driven into the nearby woods, and executed at close range by hooded Serbian security forces. Some were mutilated; one was decapitated. News of the Racak massacre reached Arbour in The Hague on Saturday morning, when she got home from grocery shopping to find a message asking her to call William Walker, the head of the international unarmed monitoring force—under the aegis of the Organization for Security and Cooperation in Europe—known as the Kosovo Verification Mission.

"Turn on your TV," Walker said when she reached him. "It's even worse than what you'll see."

On Monday morning Arbour flew to Macedonia, next door to Kosovo. There she and Walker's deputy, Gabriel Keller, boarded a bright-orange armored vehicle and headed to the border to make plain Arbour's determination to investigate the grisliest single atrocity in nearly a year of Serbian repression.

Arbour did not think it likely that she could get past the frontier, but the Racak massacre had, she felt, compelled her to demand the access the Yugoslav government had been refusing her investigators for months. Launched on this effort, she wondered if the world was behind her, and she had good reason to wonder. Arbour had been frustrated for much of 1998, as the Serb-led government of what remains of Yugoslavia persisted in driving out and killing Kosovo's ethnic Albanians. These were war crimes, and the International Criminal Tribunal had asserted its jurisdiction over Kosovo early on. Western governments hoped that the threat of a tribunal investigation might cause Slobodan Milosevic, the President of Yugoslavia, to desist. The United Nations Security Council, the tribunal's sole institutional superior, had backed up the tribunal's authority in three resolutions, which were bolstered by tough pronouncements from Western leaders.

The tribunal's obvious agenda was to bring war-crimes charges all the way up to Milosevic. Arbour's slow, methodical compilation of a case against the Yugoslav President, and her stated desire to meet the toughest standards of evidence, had sometimes drawn scorn from impatient humanitarian organizations and Western governments. She had heard them say that she was moving too gingerly on the Kosovo dossier, that she ought to "go to Kosovo." She mocked the assumption that it fell to her to "take soil samples and witness testimony."

But in her two and a half years at the tribunal Arbour had discovered the great extent to which international decision-making was driven by the news media. She had also learned, after what many observers thought was a clumsy start, to use the media. Racak was the provocation she needed.

After Racak, Arbour had asked the NATO high command—the so-called extraction force, known to insiders as "the dentists"—to take her over the border to Racak under its protection, without visas or border formalities. As she put it later, dryly, "We wanted the insertion of the prosecutor by the extraction force." By diplomatic norms the request had been an outrageous one; Arbour had been refused. So she set out on her own.

Arbour and her team handed their official authorizations from the United Nations to enter Yugoslavia to the border guard, who took them away for inspection. Later she would see Serb state-run-television footage of the guard holding her passport open to show that she had no visa. The team was, of course, denied entry, despite Arbour's aggressive confrontation with the sergeant in command. Arbour is five feet tall, and she had left her body armor behind in the car. "Do you know who I am?" she asked the sergeant. He said he did. Arbour later told me, "I asked if he had instructions from Belgrade to refuse me, and he said no. I did not believe him for one minute." She and her party turned back.

The week after Racak was Arbour's lowest moment—"the bottom of the pit," as she put it in one of the conversations we had last year, while events in the Balkans and in The Hague unfolded. I had been covering the International Criminal Tribunal for The Washington Post, and had met Arbour socially a few times during a previous assignment, in Canada, where she was an Ontario appeals-court judge. I had not gone along on the trip to Racak, so pointless did it seem to my editors and to me—as a few days later it seemed to Arbour, too. "I felt very abandoned," she recalled. "I felt very alone. The pictures told the story: I had in a physical sense gone as far as I could, and I had to turn back."

But when Arbour returned to The Hague, she was surprised to find that the incident had crystallized the work the tribunal had been doing for six years. It framed the issues squarely: evidence of crimes, international condemnation, refusal of the sovereign authority to permit an investigation that its membership in the UN required. The foiled effort to enter Kosovo in January had propelled the tribunal from the sidelines into the center of the action—and toward the first indictment of a sitting chief of state: Slobodan Milosevic.

It would be the International Criminal Tribunal's agenda, in the broadest sense, that provoked and then justified the first full-scale military operation in Europe in half a century, and the first operation of its magnitude to address a humanitarian disaster—the killing of thousands of Kosovar Albanians and the deportation of nearly a million. NATO and the allied powers may have had other reasons to launch the bombing campaign against Milosevic, but the humanitarian argument was the one they advanced most aggressively. That they made the argument constituted an endorsement, not entirely witting, of an idea: The humanitarian imperative can transcend sovereignty.

This confluence of justice and power politics was at times turbulent, and remains deeply uneasy. Regardless, an extraordinary amount of rhetoric as well as of ordnance was deployed over Kosovo on behalf of the human-rights precept that undergirds the philosophy of the tribunal: There can be no real peace without justice.

The tribunal is an awkwardly growing institution without clear judicial parentage. No one lets the Yugoslavia tribunal forget that to date it has tried only a handful of mostly low-level war criminals. How this institution does its work will have a powerful bearing on whether a permanent International Criminal Court comes into existence. A hundred and twenty nations voted in Rome in 1998 to establish such a court—the United States not among them.

In her first interview with The Washington Post after arriving in The Hague, Arbour referred to "what diplomats do." She said, "They try to get others to act in their own self-interest. I can't imagine that it's that hard." What she said of the diplomats' role could be said of what she herself set out to do—but she found it very hard. Arbour, who had spent most of her career in law-school classrooms and judges' chambers, would soon be deeply immersed in criminal investigations, legal strategies, and international jurisprudence. She would also find herself daily, hourly, lobbying governments or the United Nations for money, for personnel, for classified information about her targets, for resources to exhume mass graves, and, most important, for acts of courage and political will: the arrest of indicted war criminals.

Enforcement and apprehension are the realms in which friendly states show their true colors. The tribunal has no police powers, no high-tech swat team responsible for snatching architects and agents of mass murder. In effect, the tribunal serves at the pleasure of the major powers—especially the United States. "If I were in her shoes and I wanted the tribunal to work, I'd feel compelled to go along with the United States," observes M. Cherif Bassiouni, a war-crimes scholar who helped to lay the basis for the tribunal in work he did for the United Nations. "How far is a question each one of us must decide."

The tribunal can complain that it doesn't get enough help from its powerful friends, but Serbian leaders or any others who might come under the scrutiny of a permanent international court in the new century can ask themselves, reasonably enough, whether a court that is essentially the creature of their enemies can dispense justice fairly. The appearance of justice, as well as the reality of it, hangs heavily on the tribunal. Every assertion of jurisdiction, every move to prosecute, every procedural appeal, every sentence—all these things may be decided on the merits, but always with the burden of knowing that the tribunal is also, and always, setting precedent.

UNTIL the outbreak of hostilities in disintegrating Yugoslavia no one but scholars and a few idealistic or zealous public figures had thought much about the need for a war-crimes tribunal. The post-World War II trials of Nazi and Japanese leaders had set a precedent, but one hobbled by the nature of the justice being done: however fairly, victors were trying the vanquished. The United Nations after the war had sought to codify crimes against humanity, genocide, violations of the customs of war, and the like. But during the Cold War the documents embodying these ideas, which would provide the legal and political underpinnings for the tribunals of the 1990s, existed in the realm of pure theory.

The International Criminal Tribunal for the former Yugoslavia was established in 1993, two years after the conflict in the Balkans began. Western nations had been confounded by this southeastern European crisis, and they had been roundly accused of spinelessness and dithering as mounting numbers of casualties—in particular, civilian fatalities—were reported on global television.

The cynical view still propounded by some diplomats is that the tribunal was established to give the appearance of doing something—anything—when economic sanctions, arms embargoes, armed intervention, and negotiations were either ineffective or impossible. "I've heard it all," Arbour told me, commenting on this view. "But as a lawyer I find it difficult to believe that those who voted for [the tribunal] didn't realize what they were launching. On its face, they were launching a pretty robust and well-equipped institution, and one that is very difficult to recall. If it was a cynical act, my God, was it ever stupid." One evening, to describe what the tribunal stands for, she touched the lapels of her suit jacket and said, "When criminal law puts on its Sunday suit."

The first chief prosecutor, Richard Goldstone, had enjoyed a distinguished career as a judge in South Africa. He had headed up investigations, just before the collapse of the white-minority government, into atrocities committed against black civilians by agents of the South African state. He had a sure sense of media relations, a fine pedigree with respect to worthy causes, and a determination to put the tribunal on the map. When the Security Council, in 1994, added war crimes in Rwanda to his brief, Goldstone already enjoyed a good reputation—for a white jurist—in black Africa. (The story of the International Criminal Tribunal for Rwanda, which Arbour also headed subsequently, is a separate, vexing case that will not be covered here.)

After a slow start, Goldstone began to issue indictments, making prosecutorial decisions that would be fateful for the early years of the tribunal. By 1996, when he left, seventy-six people had been indicted—most of them Bosnian Serbs, for crimes against Bosnia's Muslims. In what some critics inside and outside the tribunal believe was a mistaken signal of moral equivalence, Goldstone also brought indictments against Croats (reasonably enough, given evidence of their violence against Serbs and Muslims alike) and against Bosnian Muslims, who at the time were by far the most victimized of the ethnic populations in the Balkans.

In 1994 the tribunal received its first prisoner, when the German police arrested Dusan Tadic, who was living in Munich. In 1995 the tribunal issued indictments against two Bosnian Serb leaders for organizing the ethnic-cleansing and extermination campaign against Croats and Muslims during the war—the political leader Radovan Karadzic and his military chief, Ratko Mladic. At this writing Karadzic and Mladic are still at large and remain the most wanted men in the Balkans, symbols of the impunity that the tribunal is struggling to expunge.

In 1996 the tribunal began to try Tadic, whose small-fry status and agonizingly ponderous trial (appeals of his conviction stretched into this year) would come to epitomize the shortcomings of justice in The Hague. In April of 1996 a bigger fish, the Bosnian Croat general Tihomir Blaskic, surrendered less than voluntarily to the tribunal, to face charges of command responsibility for atrocities. By the time Goldstone left, in September, only one trial had been completed, and only one confession had been recorded. Of the seventy-six indicted suspects only eight were in custody, and only one of them was a Serb.

Justice is slow in The Hague for many reasons. Some involve the hybrid form of law that the tribunal practices. Its adversarial proceedings and rules of evidence are borrowed largely from British common law. But, as in the continental European tradition, defendants have no right to a jury, defendants can be questioned, and all cases are decided by a three-judge bench, with two votes sufficing to convict. In The Hague prosecutors may appeal acquittals (and have done so). Hearsay is permissible; so is a diluted form of trial in absentia.

This mishmash of legal traditions is made all the more troublesome by simultaneous but not always perfect translation into the three languages of the court—French, English, and Serbo-Croatian. In the Goldstone era only a single courtroom was available; the judges heard two cases alternately, slowing whatever trials were under way to half speed. (The tribunal now has three courtrooms.)

Goldstone, who knew Arbour from the legal circuit, invited her to dinner one day in late 1995 when he was visiting Ottawa. Arbour recalls that he asked her point-blank, "How would you like my job?" The thought had never crossed her mind. He urged her to consider it. In December, Boutros Boutros-Ghali, then the UN Secretary-General, called her and asked if she would accept the appointment.

Arbour had no experience in international law or as a prosecutor. She had taught criminal law and law relating to her passion for civil and human rights, and had recently chaired a commission investigating conditions in Canadian women's prisons. She had been a law-school student in Montreal when Prime Minister Pierre Trudeau suspended civil liberties during a notorious crackdown on radical Quebecois separatists. She clerked for a Canadian Supreme Court judge, though at the time she spoke only a few words of English. (She is now fluent.) She says she was no more a Quebecois nationalist than her peers, but she grew up and trained and thought about the law in a place that had experienced a mild version of the ethnic passions that roil the Balkans.

In The Hague, Arbour focused her attention on two broad areas: getting surrenders or arrests, and culling the indictments. She had an untested tool at her disposal, one that was both enormously valuable and enormously frustrating: NATO's Stabilization Force (SFOR), the multinational peacekeeping force that succeeded one brought into being by the Dayton Accords—the 1995 agreement that ended four years of strife in Bosnia. Its mandate to arrest war-crimes suspects had been the subject of some of the most difficult negotiations during the three weeks of talks in Dayton, Ohio, that were brokered by the U.S. diplomat Richard Holbrooke.

The reasons for Western unease about arrests were several. First, American and other NATO military leaders feared that arrests would lead to violence—against their own troops. "Force security" has been an obsession of the U.S. military's high command since the Somalia debacle. Second, they worried that with substantial numbers of Bosnian Serbs still owing fealty to Karadzic, the peace that SFOR was in Bosnia to keep might be shaken apart by arrests. Third, there were the sensitivities of the leaders in the area, notably Milosevic and Franjo Tudjman, then the President of Croatia (he died in December). However complicit in the horrors that had come before, these two men were now signatories to the Dayton Accords, and as such were guarantors of the new order in the Balkans. Western military commanders knew (and still know) very well where Karadzic and Mladic were. But they didn't have the say-so of their governments to "encounter" them and then pick them up for dispatch to The Hague.

Arbour was impatient with SFOR's nervousness, and became downright skeptical and even contemptuous over time. But in some respects momentum was shifting her way. In July of 1997, with SFOR better rooted, the peace more durable, and the power of the suspects shrinking, the first SFOR arrest took place.

Other arrests followed, one upon another, by British, Dutch, and American forces, and "World War Three didn't happen," as Arbour put it later. This was the first message that got through to the tribunal's hesitant military partners. The second message was that the threat of arrests, made credible by actual arrests, persuaded guilty parties to turn themselves in, in the hope of avoiding a violent confrontation and perhaps of getting a better deal from prosecutors. In the year and a half that followed, 46 percent of those who came into custody in The Hague did so by surrendering.

Arbour had a complementary strategy that, she now believes, was even more effective in fostering arrests: she disclosed that there were suspects facing criminal charges whose identities had not been made public. This policy of issuing sealed indictments became, intermittently, a cause for outrage among officials of the targeted countries and of Russia, and, strangely, among NATO commanders, too. They all railed against "secret" indictments, as if the procedure somehow amounted to a suspension of fair play. Arbour argued that she was simply using a strategy that any criminal prosecutor in North America uses routinely.

Arbour's sealed-indictment strategy had a utilitarian purpose: to strike fear in suspects who might well worry that they were under indictment and might conclude that surrender would be preferable. Its larger purpose was "to put lead in SFOR's pencil," as one of Arbour's prosecution staff told me. A secret arrest warrant gave SFOR troops an advantage against the target and a better chance of effecting a bloodless arrest. And the secret warrant itself carried the implicit threat of exposure if military commanders and their political superiors failed to act on it. Arbour was essentially telling SFOR, "Arrest so-and-so, or I will say publicly that you didn't when you could have." An American diplomat put it to me this way: "It gave [SFOR] an excuse, or took away their excuse."

Meanwhile, she scrutinized the viability of existing indictments, and in May of 1998 she announced that charges had been dropped against fourteen people. The move was read at the time as a repudiation of Goldstone's indictments policy, and as a symptom of disarray. But mainly it marked a shift in the priorities of the tribunal. Henceforward the prosecutor meant to concentrate her resources on fewer and more-important suspects. "We had to regain control of the agenda and curtail our exposure," she told me, "so that we could decide who to try and in which order."

"Withdrawal of Affection"

ARBOUR was learning that an independent prosecutor could not afford to be a passive prosecutor. The job required charm and bravado and endurance, and the wise use of spare resources, untested influence, and the power of public statements and private warnings.

The exertion of influence went in both directions. Everyone involved in the relationship between The Hague and Washington insists that no unseemly political pressure was ever put on the prosecutor or her senior staff. But U.S. officials had ways of steering investigations by simply turning on or off the faucets of information and cooperation sought by the tribunal. In the minuet of information-sharing and prosecutorial shoptalk the United States made sure that it always knew what was going on in The Hague, and that its preferences were known. When Washington was unhappy with her, Arbour would get treatment that she calls "withdrawal of affection"—gentle reminders that she could be part of the inner circle, but only if she behaved. One of her aides described the dynamic between the prosecutors in The Hague and the bureaucrats in Washington: "It's better to have a dance partner than none at all, even if he's stepping on your feet. Yes, they were uncooperative, but they can do more to help us than anyone else."

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