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.
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."
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."
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."
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."
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.