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

Arbour had an ally, at least at first, in the new U.S. Secretary of State, Madeleine Albright, who had celebrated Arbour's appointment at the United Nations and had come to the Department of State with war crimes high on her agenda. Albright established the department's first Office of War Crimes. It was headed by an ambassador-at-large whom Albright trusted, David Scheffer, who would become the Clinton Administration's point man with the tribunal. The tribunal had a supporter in Kofi Annan, also new as Secretary-General of the United Nations, whose reputation had been sullied by his inaction as the UN's peacekeeping chief during the genocide in Rwanda in 1994. The tribunal was also aggressively backed by the new British government of Tony Blair.

After Dayton the former war zone in Bosnia was divided into three geographic peacekeeping sectors that overlay the political entities created by the accords. One sector each is commanded by U.S., French, and British officers, with troops of other nations under their command. In 1997 and 1998 a pattern began to emerge with respect to executing the tribunal's arrest warrants. The British were far ahead. Dutch, German, and American troops had picked up a few suspects. The French had no score—and they had Karadzic and Mladic, among other high-priority suspects, living in their zone.

The French were something of a special case here, as they have often seemed to be elsewhere. They had suffered far more casualties in the Balkans than any other non-Balkan nation—seventy-five soldiers killed. They had been stung by denunciations of pusillanimity, not only in the Balkans but also, in the spring of 1994, in Rwanda. French officials had reason to be worried about more casualties, and about the political consequences in France and, potentially, the prospect of French military officers being called to account in The Hague. [For a fuller discussion of France and the former Yugoslavia see "The Reluctant Gendarme," by Chuck Sudetic.]

The French attitude toward the tribunal in this period was framed indelibly by a single remark by the French Defense Minister, Alain Richard, in an interview in Le Monde in December of 1997. What Richard said, apropos of tribunal requests that French military officers testify in The Hague about events on the ground during the war, is that French officers would "never" go to The Hague to participate in any "justice spectacle."

The words are often translated as "show trial," but Richard's meaning was probably closer to "media circus." In any case, the remark brought down the house on Richard and the government of Prime Minister Lionel Jospin. French newspapers of every stripe denounced his attitude, wondering if France still believed officially in international justice. Arbour could not resist piling on, also in Le Monde, asserting, "In the French sector can be found lots of war criminals, and they feel absolutely secure there."

Relations between France and the tribunal have improved. French officers have been permitted to testify, and Arbour eventually pronounced France in "full compliance" with the tribunal's needs. Arbour says she regrets the incident. "It singled out the French as pariahs, which was not accurate. There were others who fit the bill." The issue was never really France—it was any major nation's commitment to the tribunal and its cause (or so she insisted). One U.S. official cannot resist pointing out, however, that Arbour's remark about the French zone remains accurate.

The French were, however, neatly on the side of the blessed—and the United States was on the other side, from the perspective of the international human-rights and justice communities—in July of 1998, when 160 nations, and roaming armies of well-briefed, well-funded representatives of humanitarian agencies, set to work in Rome on a treaty to create a permanent International Criminal Court.

Books will be written about the compromises made in Rome. It is enough here to say that in the closing days of the conference the future International Criminal Court nearly foundered over the power of an independent prosecutor to bring actions against suspected war criminals. Would a Security Council referral be required—or a veto permitted? Could a prosecutor choose to investigate anything, even without a state's referral?

The final text gave a prosecutor such power, in extremis. The treaty also insisted that the International Criminal Court could override the primacy of national courts if they were judged to be in default of their obligations to dispense justice fairly or adequately.

In the face of these two provisions, and whatever its own judgment, the Clinton Administration felt compelled to echo the reservations of Republican critics on Capitol Hill. Jesse Helms and others had vowed that any treaty permitting even the remote possibility that some future Lieutenant William Calley or Robert S. McNamara would stand trial in a "foreign" court would be dead on arrival. The Clinton Administration decided not to deliver the body. It has continued to work with other signatories to find ways of squaring the circle—"fixing" the treaty, from a U.S. perspective, without "changing" it, a task only a diplomat could envisage. As even the treaty's strongest supporters understand, an International Criminal Court without the United States will have neither credibility nor authority. After Rome, Arbour pointed out repeatedly that the treaty creates an institution in many ways weaker than the existing UN tribunal.

WHEN the framers of the International Criminal Tribunal's 1993 statute designated the tribunal "for the former Yugoslavia," they were thinking of a clear and general rubric to encompass the conflicts of the day: Croatia and Bosnia. Some of the framers say now that they understood even then that the rubric might come to include Kosovo, the 600-year-old cauldron of Serb-Albanian animosity and the place where Milosevic initiated his campaign of ethnic domination. Louise Arbour and Gabrielle Kirk McDonald, the federal judge from Texas who was the presiding judge of the tribunal's court, read the founding statute to mean every part of the former Yugoslavia.

In early 1998, as reports of Serb police atrocities against Kosovar Albanian civilians began to trickle into the news, Western officials at increasingly high levels began to threaten the Milosevic government with a tribunal investigation and possibly war-crimes trials. Governments in the West understood that Milosevic's own forces were beginning to carry out exactly what his Bosnian Serb proxies had carried out in the early 1990s. But now there was a tribunal up and running, and expressly charged with investigating such crimes, without any statute of limitations.

Arbour and her staff began to study possible indictments. "It was apparent to anyone that we had a chain-of-command approach that was a lot easier," she told me, the comparison being to Bosnia and Croatia, where proxy forces responsible for atrocities were insulated from the ultimate source of authority, in another country. According to Graham Blewitt, the Australian deputy prosecutor, who had arrived in The Hague even before Goldstone, "Everybody knew Milosevic had the real power over the Bosnian Serbs, but his de jure power was very difficult to establish. If we were going to indict Milosevic, then Kosovo would be the direct route, because he had clear de jure power there."

To establish the chain of command, Arbour needed help. Just as the tribunal does not have its own police unit (although some at the tribunal believe that it should), it also lacks its own intelligence service. To know who was giving orders to whom, as atrocities and ethnic cleansing spread in Kosovo in 1998, Arbour required the sort of information that only modern spying can provide: agents on the ground overhearing conversations, drones in the sky taking pictures of vehicle traffic and killing fields, high-tech telephone intercepts of command-and-control conversations.

The United States, with the biggest arsenal of intelligence technology, presumably had much to offer tribunal investigators. Getting their hands on this material would come to obsess Arbour and her staff as the Kosovo investigation neared the indictment phase. The chief prosecutor has always had access to what is called "lead" information from the United States and other countries—information that the tribunal can use to develop evidence on which indictments can be brought. But the sources of that information are too sensitive ever to be used as proof in open court, so it cannot be used to obtain a conviction.

These constraints reflect not just a clash of interests but an occupational divergence. The intelligence community is used to thinking that the value of intelligence lies in the finished product. "For them," Arbour says, "it's the analysis that's important, the conclusions they've drawn from the information. For a prosecutor, it's the proof of the information—otherwise the defense can say it's unverifiable."

Arbour was still looking for intelligence, and making no secret of her determination to indict Milosevic, when the NATO bombing campaign began. The Western governments—the British most unreservedly—gave powerful endorsements to the war-crimes process. Robin Cook, Britain's Foreign Secretary, laid out the legal test plainly for Milosevic and his associates on March 29, 1999: "Anyone who carries out atrocities against the civilian population, anyone who gives orders for them to carry it out, or is complicit in those orders being given, and anyone who fails to prevent such orders or to prevent those orders being carried out—anyone in any of those categories is liable to face indictment." Cook also released a list of the likely suspects, with Milosevic at the top.

At about the same time, Arbour announced the existence of an eighteen-month-old sealed indictment against one of Milosevic's most infamous disciples, Seljko Raznatovic, usually known by his nom de guerre, Arkan. Arkan had been responsible for a notorious paramilitary force that had carried out atrocities against Muslims in Bosnia; his thugs were now reputedly doing the same thing in Kosovo. After receiving the news, Arkan appeared on ABC's Good Morning America, protesting his innocence and repeatedly calling Arbour "a bitch." (Arkan was assassinated last January 15, in Belgrade.)

The following week Arbour began touring Western capitals, to push the governments to deliver more evidence that would help her build her indictments, always reminding them that arresting Karadzic and Mladic in Bosnia would be a potent signal to Milosevic and his allies that they themselves could not escape justice. The British, whose special forces were already providing help on the ground, were the most lavish in what they bestowed.

In May of last year, as the bombing campaign at last began to take its toll, talk of a peace deal with Milosevic was suddenly in the air. Arbour feared that the tribunal might be sold out, perhaps with a grant of protection for Milosevic and the Serb leadership. It would be best to remove that option from the table, she decided, before the talks got serious. Holbrooke and others had been glad to have the tribunal indictments of Karadzic and Mladic, as a reason to exclude them from the Dayton conference. Arbour thought that a Milosevic indictment might prove to be just as useful—and the lack of one might prove hazardous to the tribunal itself.

Many if not all U.S. officials seemed to agree. A U.S. diplomat involved in the Kosovo negotiations during this period told me, "It would have been unconscionable not to indict this guy. It would have looked ridiculous."

During the second week of May, Arbour and her staff began negotiating with U.S. and British military authorities about giving tribunal investigators access to Kosovo in the immediate aftermath of a bombing halt and a Yugoslav military withdrawal from the province. She didn't want to be "sneaking in," she told me. "I want to be on their shoulders when they roll into Kosovo." Again counting on the self-interest of her partners, she told them, "The Serbs will say [that all the damage and killing] was from NATO air strikes. If they do, you need me in there to prove otherwise."

The Primacy Precedent

ON the night of Saturday, May 22, Arbour and her staff in The Hague asked Judge David Anthony Hunt, of the International Criminal Tribunal, to sign indictment papers and arrest warrants for five men: Slobodan Milosevic, the President of Yugoslavia; Milan Milutinovic, the President of Serbia; Nikola Sainovic, the Deputy Prime Minister of Yugoslavia; Colonel General Dragoljub Ojdanic, the military leader of Serbia's Kosovo forces; and Vlajko Stojiljkovic, the Interior Minister of Serbia and the head of its police forces. Early the following week the tribunal began passing the word to Washington and other capitals that the indictment, sealed until Thursday at Arbour's request, was forthcoming. It was a notification, not a request for approval.

The most obvious concern in Washington was that the indictment might enrage Milosevic and harden his refusal to come to terms in the extremely delicate negotiations being carried out by Finnish and Russian envoys, or might quicken his fear of the consequences. Some at the White House and the State Department were taken aback that the indictment was so sweeping. In the view of one diplomat, by indicting the top leadership of Yugoslavia and Serbia, the prosecutor was depriving negotiators of important interlocutors—or plausible successors should Milosevic be forced from office. There was talk of trying to persuade Arbour to keep the indictment under seal until the cessation of hostilities.

Arbour says she heard none of this at the time. But she did receive word that Madeleine Albright was trying to reach her in the hours before the indictment was to be announced. Arbour sent word back that "she should think long and hard before making that telephone call." It never came. "We were in a mild withdrawal-of-affection phase," she recalls, "until the press said bravo. Then it was okay to love me."

Arbour could only acknowledge that the indictment put Milosevic and those who dealt with him in a significantly more awkward position. "The evidence upon which this indictment was confirmed," she said on the day she announced her action, "raises serious questions about [the indictees'] suitability to be the guarantors of any deal, let alone a peace agreement. They have not been rendered less suitable by the indictment; the indictment has simply exposed their unsuitability."

The war-crimes indictment, analysts and diplomats now concur, tightened the pressure on Milosevic to capitulate, in a withdrawal agreement brokered by third parties. They believe Milosevic knows that he cannot hide from the indictment, that his country is his prison, and that within the country his position is highly vulnerable. Some diplomats believe that he will one day actually stand trial, if he doesn't take his own life first. Arbour's promise, in the announcement of the indictment, to pursue Milosevic through asset seizures in offshore banks was designed not just to intensify his isolation but to remind all the objects of his corrupt largesse over the years that they, too, are implicated in this web.

What flabbergasted Arbour, and still incenses her staff, was a public attempt by the Clinton Administration to imply that the U.S. government had in the nick of time delivered the intelligence that made the indictment possible. "Everyone in the office was throwing up," said a prosecutor who worked on the case. The United States had given the tribunal very little that was not openly available. When Arbour was asked by an American diplomat if the indictment's confirming materials—which the judge has seen, but which remain under seal—included any of the last-minute information the United States turned over, she said no. Tribunal sources confirmed that it had arrived too late, it wasn't necessary, and it consisted largely of a collection of videotapes of Milosevic's public speeches.

When the trials take place and the evidence comes out, "history will know who had it and who gave it to us," Arbour says. "I think some people will be put to shame for taking credit."

The bombing of Yugoslavia ended on June 10, 1999. And the tribunal's investigators did indeed go rolling into Kosovo with NATO's armed contingents. The tribunal's work now had international priority and media exposure, as it had not in Croatia and Bosnia. The U.S. government had put a bounty of up to $5 million each on the heads of Milosevic and his fellow indictees. What is more, the tribunal had an unprecedentedly full and fresh trove of war-crimes evidence: photographs, marching orders, soil samples, blood samples, gunpowder samples, eyewitness statements, and all manner of intelligence delivered by Western governments, by humanitarian groups, by journalists.

The prosecutors had to perform triage—focusing on Racak and six other villages that had provided the existing indictment with its core accusations. They concentrated on leadership structures to bolster their case about the chain of command, and on particularly heinous acts of murder, torture, rape, and other savagery. The perpetrators of crimes that might have constituted a major focus in the early years of the tribunal are being consigned to the jurisdiction of local courts, yet to be established. Arbour's successor, the Swiss Attorney General, Carla del Ponte, has followed suit, saying that the Kosovo investigation would concentrate on the five indicted leaders.

Louise Arbour was appointed to the Canadian Supreme Court the day after the bombing stopped. By early September she was in Ottawa, living in temporary quarters. We talked there for a couple of days, going over her work at the tribunal. At one juncture she mentioned her surprise that "no one" had paused to consider that the world had crossed a threshold in Kosovo or was willing to admit it.

Actually, she herself had paused to consider it, though her remarks were not quoted widely. Her observation was delivered expansively, and tartly, in a speech given in The Hague on May 13—seven weeks into the NATO bombing campaign: "On 24 March, 1999, nineteen European and North American countries have said with their deeds what some of them were reluctant to say with words. They have voluntarily submitted themselves to the jurisdiction of a pre-existing international tribunal, whose mandate applies to the theater of their chosen military operations, whose reach is unqualified by nationality, whose investigations are triggered at the sole discretion of the prosecutor, and [which] has primacy over national courts."

Arbour told me, when we talked in Ottawa, that she would bring up this issue of jurisdiction in private meetings during the bombing campaign, just as a friendly reminder, and draw blank stares, or confused frowns, "as if they didn't understand what I meant." To the diplomats this surrender of sovereignty was a non-issue, or one too preposterous or threatening to examine closely. When Jamie Shea, the NATO spokesman in Brussels, was asked about it during the air war, he said of course the tribunal had jurisdiction over everyone, but no one believed that NATO would engage in war crimes.

Graham Blewitt, at the tribunal, told me that the whole matter was taken seriously in-house. "After the attacks started, the high-level bombing campaign caused us a real problem. If they didn't see what the targeting was, it might come down to some kind of negligence. We assume the targeting was subjected to a rigorous internal legal process, to be sure they were appropriate military targets. But we were urging them to make statements indicating that they themselves would bring legal actions against anyone suspected of war crimes, reminding them that the tribunal's jurisdiction is triggered only when the state judicial system has failed. They refused to make such a statement." Apparently, to do so might have dignified the idea that the tribunal could investigate what it chose.

After the accidental bombing of the Yugoslav railway car, and then the accidental bombing of the Yugoslav television station, and then the accidental bombing of the Chinese embassy in Belgrade, the tribunal had little choice, in Arbour's view, but to open an internal review of potential war crimes on the part of NATO countries. Investigators prepared a report on their findings and turned it over to Del Ponte in December. The mere fact that such an investigation is going on has already provoked the tribunal's enemies on Capitol Hill. One does not have to be a cynic to expect that no NATO leaders will be indicted for the conduct of the Kosovo operation. But one does not have to be naive to believe that, like it or not, the major powers are now accountable to justice bigger than they are.

"I was not appointed to make politicians' lives miserable or happy," Arbour said in Ottawa. "I was paid to make sure nobody escapes scrutiny." Going after NATO leaders for war crimes is hardly the point. The essential matter is simply this: that the nations of the world, including the United States, are already living under a system of international criminal justice that they themselves created. Their words have simply not caught up with their deeds.

On July 24 of last year, six weeks after the bombing stopped, Arbour left one of her last marks on the tribunal by making the same point in still another way. She opened an investigation into the killing of fourteen Serbs near Lipljan, Kosovo, which the evidence indicated was an act committed by Kosovar Albanians doing their own ethnic cleansing. The tribunal "has jurisdiction over all serious violations of international humanitarian law committed in the territory of the former Yugoslavia, including Kosovo, since 1991," the prosecutor said through her spokesman, Paul Risley. "This jurisdiction includes offenses committed before and after the formal end of the NATO bombing campaign on 20 June, 1999."

"Just Another UN Program?"

AT a meeting with her staff one day in October of 1998, when the Bosnia and Croatia prosecutions were dragging and the pressure to investigate Kosovo war crimes was intensifying, Arbour detected a certain lack of determination in the room. Everyone seemed tired, even broken, by the frustrations of the tribunal. Perhaps sensing a reflection of her own frustration, Arbour exploded at her staff: "What's gotten into you? When I got here, everyone was dripping with mud, just back from Sarajevo, begging to be sent back in.... Why aren't you banging on my door? Do we want to be just another UN program?"

Just another UN program is what, in the bleakest scenario, the proposed International Criminal Court might become. The court will not exist officially until sixty states have ratified the treaty (so far seven have). Yet already, in the wake of Kosovo, there is political movement to create more ad hoc international criminal tribunals—for East Timor, for Cambodia, for Iraq, for Chechnya.

Whether a war-crimes court can work will depend on whether powerful nations are willing to commit themselves to an ideal that carries risk and requires humility. We create democracies and laws and creeds because we believe in something that transcends national interests. What distinguished Kosovo from the other wars of the past half century is that the West was acting on behalf of rights and standards that are not ethnic or national but simply human. And, as Arbour points out, the West acted knowing full well that an independent prosecutor had an eye on NATO, too.

Kosovo revealed two, perhaps three, things. First, the commission of atrocities and the pursuit of ethnic cleansing are now accepted justifications for military intervention, sometimes rendering state sovereignty irrelevant. Second, war-crimes charges have been shown to be powerful weapons, although they are necessarily unmanageable ones. Third, international criminal justice may have become integral to what the civilized world believes and does.

Louise Arbour had a matter-of-fact assessment of how the tribunal's place in the world had shifted: "When I arrived in The Hague, all the commentary—the praise, the suspicion, all of it—came from a circle of humanitarian organizations, from Human Rights Watch and others. They were our friends. When I left The Hague, all the evaluations and assessments came from the politicians, the military, the national-security thinkers. I'm not saying they were always our friends, but the tribunal was inside a new circle."

The tribunal's role in the last war of the century constituted a remarkable passage for the countries involved. I was tempted to believe Arbour when she declared, at a press briefing in Sarajevo last July, "We have moved international criminal justice to the point of no return. We made this process entirely irreversible." Knowing her, and knowing the odds, I understood this to be a dare.

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Charles Trueheart is a correspondent for The Washington Post based in Paris.

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