Prosecuting evil

A Canadian judge pursues international war criminals

BRUCE WALLACE February 24 1997

Prosecuting evil

A Canadian judge pursues international war criminals

BRUCE WALLACE February 24 1997

Prosecuting evil


A Canadian judge pursues international war criminals


There is something too clinical about the sterile Dutch office building where prosecutors are compiling their cases against men who resurrected the evil art of ethnic murder. Given the barbarity of the crimes, a medieval rack would seem a more appropriate investigator’s tool than The Hague’s humming fax machines, where indictments arising from the 1990s Balkan wars are spit out in prose as grey as this government town’s cheerless skyline. “The building doesn’t even have any of the physical trappings of justice that I associate with Osgoode Hall,” acknowledges Ontario’s Justice Louise Arbour, who taught at the eminent Toronto law school for 17 years and now heads the UN war crimes prosecutions unit at The Hague. So shortly after taking over the job last October, before winter arrived to seal the trove of evidence below frozen Balkan mud for another few months, Arbour went to watch the excavation of a mass grave site near the rubbled city of Vukovar. Just to make the crimes more personal.

It takes some prodding to get this stream of eloquence from Arbour, who still seems more comfortable in the measured language of the judge she was for the past decade. That can be a drawback in the role of chief prosecutor for both the Yugoslav and Rwandan war crimes tribunals, where a large part of the job is to keep rubbing the world’s conscience in the wounds of the two genocides. Montreal-born Arbour is widely regarded in Canada as a brilliant criminal jurist, lauded by former students as an entertaining teacher and remembered by court colleagues as “one of the boys.” But she also has her critics, who fear that her judge’s temperament lacks the fire in the belly required for the tribunal task. “She doesn’t have a background in international human rights, and human rights groups are dubious that

“My mental image of a mass grave was that it would be more of a trench, where the bodies would be lined up almost in file,” she recalled last week. “But these bodies were thrown together indiscriminately in a hole. Then I noticed their clothes. They were young men,

and the first thing I thought about was their mothers.” Arbour is a mother of three herself, although “it would be too corny, too sentimental, to suggest that you go back to work suddenly fired up. But it made the tragedy very human, and that’s not something you get here in the office every day. I watched the bodies come out of the ground and it was like they were coming alive again. They were demanding to be identified. They were demanding,” she said, and there was not even a hint of sentimentality in her voice, “that their mothers be told.”




Srebrenica). Even from the sidelines, the 5 feisty Goldstone continues to deride the in% ternational community’s refusal to make arrests as “pusillanimous.” The tribunal’s senior judge, Antonio Cassese, was so frustrated over how few cases he had to hear that he exclaimed last summer: “Go ahead!

she is the one for the job,” says Jerome Shestack, incoming president of the American Bar Association and honorary chairman of the International League for Human Rights. “She still has to create the appearance of a vigorous prosecutor.”

Arbour’s predecessor had no such problems. There may be mutterings among tribunal lawyers about South African Richard Goldstone’s lack of interest in the grit and detail of their cases, but no one disputes that he used the media to give the court a high profile that pried badly needed resources out of reluctant governments. But the tiny, turbocharged woman Goldstone nominated to succeed him does not want to be seen peering into a pit of bodies on the evening news. “Our dilemma is that we have to be publicly active to sustain interest in our work, particularly in the case of Rwanda where genocide is quickly fading from memory,” says Arbour. “But if we could be just left alone for a couple of years, we’d be a lot more effective.”

The difference in style and strategy is most apparent over the gravest issue facing the Yugoslav tribunal: the ongoing refusal by both the NATO-led peacekeeping force and the governments in Belgrade, Yugoslavia, and Zagreb, Croatia, to arrest indicted suspects. The tribunal has filed 74 indictments but has only seven suspects in custody (one low-ranking soldier in the Bosnian Serb army has received a 10-year sentence for massacring unarmed men in «

Kill, torture, maim! You may enjoy impunity!” Cassese has since declared that if key suspects are not in custody by this fall, the tribunal should simply be shut down.

Arbour, too, can summon up outrage over the number of suspects still at liberty. But she contends that Cassese and Goldstone are pushing a flawed strategy. “The message I want to send is: I don’t care how long it takes, we will fulfil our mandate,” she says.

‘To suggest the lack of arrests could be fatal to the tribunal in the short run plays exactly into the hands of those who would like nothing better than to see it go away.”

And the list of those to whom the tribunal is “inconvenient,” as Arbour puts it, is long.

Cautious political advisers in Washington, worried about NATO casualties in any arrest operation, ask how troops would even know where to find the suspects. “I’ll show you where [Radovan] Karadzic gets his hair cut,” sneers one Hague lawyer in response.

And the tribunal clearly unsettles the British and French governments, which regard it as an American-led exercise to embarrass Europeans over their failure to halt another genocide in their backyard just 50 years after the Nazi crimes.

The watchword for London and Paris is “stability.” They argue that peace in the Balkans depends on economic reconstruction, and that nabbing alleged war criminals—most of whom are Bosnian Serbs— would poison the atmosphere. Last year,

European governments admitted Croatia to

the Council of Europe, even though the country had ignored its pledge under the Dayton peace agreement to hand Croatian war crimes suspects over to the tribunal. Hague prosecutors are furious that European governments missed an opportunity to get custody over Croat suspects as the price of admission.

Increasingly, the tribunal staff believes that it will have to resort to more inventive ways to bring the accused to court. “Some of these guys will eventually want to leave Bosnia to shop, to go for a holiday in the sun, to visit a girlfriend in Rome, and then they’re vulnerable,” says one lawyer. “Or, we could lure them out.” Others suggest bluntly that Western governments could bribe Bosnian politicians to hand over suspects. The tribunal has also let the Croat government know that ongoing investigations are beginning to reach into the upper echelons of its current leadership, with a case building


against Gojko Susak, a former Ottawa pizza parlor owner turned Croat defence minister. “We know the Croats are worried about this because they complained to the Americans about us,” says one lawyer. Arbour says she would never trade one indictment in return for custody of other suspects, but adds with a smile that she can “be very creative” when it comes to new tactics for making arrests.

Arbour’s critics are watching closely to see just how creative she becomes. Washington was initially reluctant to endorse her appointment because she has never prosecuted a case (“Neither had I,” Goldstone, who was originally a commercial lawyer, pointed out to Maclean’s last week). And some human rights critics worried that her record as a jurist showed a bias for the rights of the accused— laudable for a judge, perhaps, but not a sign of the “killer instinct and burning desire to get convictions that you want in a prosecutor,” notes prominent Calgary human rights lawyer Kathleen Mahoney.

Some of the griping about Arbour’s appointment lies with the fact that she was a surprise choice, an outsider to human rights circles. She was the one and only name Goldstone offered to the UN secretary general as a successor when the South African decided to return to his country’s new constitutional court. The two judges first met at a conference in South Africa in 1990 and became friends. At another conference in Ottawa in September, 1995, Goldstone asked Arbour if she would consider replacing him. He steered her appointment past obstacles, taking Arbour to meet Madeleine Albright, then the U.S. ambassador to the United Nations, to ease Washington’s concerns. Ottawa’s Liberal government may now invoke Arbour’s appointment as a symbol of its moral revulsion at war crimes (although Canada is not funding any staff positions on either tribunal), but Foreign Affairs officials did not know about Arbour’s impending appointment until the Russians told them it was coming.

Goldstone told Maclean’s that Arbour was the best person for a job that demanded fluency in French and English (much of the Rwandan proceedings are in French) and, ideally, a woman, because of the tribunal’s determination to try rape cases as a crime against humanity. “Well, Louise Arbour is no friend of women,” counters Mahoney. She cites Arbour’s controversial 1987 intervention on behalf of the Canadian Civil Lib-

erties Association in the Seaboyer rapeshield case in Toronto. Arbour argued that a male defendant’s rights would be infringed if judges were not permitted, in some cases, to allow certain aspects of a rape victim’s sexual history to be questioned. “She trucked out all those old male arguments,” says Mahoney. But Arbour’s colleague at the civil liberties association, Alan Borovoy, disagrees. “Louise took a principled view that struck a balance on rights,” he says.

Arbour’s appointment also encountered hostility from Jewish war crimes activists, who complained that her only judicial decision on a war crimes case sided with an accused war criminal. In 1992, Arbour co-wrote the Ontario Court of Appeal judgment that limited the jurisdiction of Canadian courts to try alleged war crimes committed by Hungarian Imre Finta, who was accused of sending 8,617 Jews to death camps during the Second World War. “She took a narrow, procedural view that showed no sensitivity to war crimes justice,” contends Montreal lawyer Irwin Cotier. Jews were shocked by the decision, adds Bernie Färber, community relations director for the Canadian Jewish Congress. “Her ruling made it virtually impossible for the Crown to get a conviction and brought war crimes trials in this

country to a grinding halt. It is ironic,” says Färber, “that this is the person the United Nations has chosen to prosecute war crimes.”

Arbour shrugs off the criticism, noting that most nations have encountered legal barriers to using their domestic laws to prosecute decades-old war crimes committed in foreign countries. She notes that The Hague tribunal is “filled with talented trial lawyers,” so she does not expect to be arguing many points in court anyway (her Dutch gown has not been tailored yet). And she makes no apologies for defending the rights of the accused. She still remembers coming out of the University of Montreal one night in October, 1970, to find soldiers taking up positions around a police station after Pierre Trudeau invoked the War Measures Act during the FLQ hostage crisis. She was a young Quebec nationalist \ then, though she says her politics 3 have “evolved” since and she never s knew anyone jailed that nerve1 wracking October. “But it stuck I with me just how easily, even in 3 safe Canada, rights can be taken 3 away,” she says.

Arbour turned 50 last week, a birthday she said she always expected to spend sitting in the sun on an exotic vacation. Instead, she was in The Hague, a city where if it is not raining it looks as if it should be, dealing with an internal UN report slamming the Rwandan tribunal for gross mismanagement. Despite those problems, the Rwandan tribunal currently has 13 of its 21 indictees in custody at the court in Arusha, Tanzania, including many top Hutu commanders. “We’ve got important people to try in Rwanda, but it’s hard to get that across to people,” she complains. “If only we had the resources that were put into the TWA plane crash investigation. And don’t even talk to me about O.J.”

On that score, American legal commentator Benjamin Ferencz can offer Arbour encouragement. Ferencz was an assistant prosecutor at the 1945-1946 trials of Nazis at Nuremberg, and recalls that “the court was full at first, of course, but after two weeks, journalists stopped coming. And we were trying mass murderers. We didn’t even bother with people who had killed in the hundreds. But it doesn’t matter,” Ferencz continues. “Law is not supposed to be entertaining. It is a slow and difficult process to create a humane world, and we’re getting there.” But Ferencz knows, too, that the new Hague prosecutor needs public support to bring this generation’s war criminals to justice. And for Louis Arbour, that requires listening for the voice of the victims, amplifying the cries that call out to conscience from beneath all the dry legalese. □

She can be Very creative' on tactics