The trails of Louise Arbour

Barry Came May 24 1999

The trails of Louise Arbour

Barry Came May 24 1999

The trails of Louise Arbour


By Barry Came in Skopje

The house sits in the green hills above Skopje, nestled discreedy among the vineyards on the northern outskirts of the Macedonian capital. It is a large, Mediterranean-style villa, intended for occupancy, according to workers on the site, by NATO. When the new tenants move in next week, however, they will not be wearing military uniforms. Rather, they will be police investigators in plain clothes, all attached to the UN war crimes tribunal in The Hague. And if the tribunal’s chief prosecutor, Canada’s Louise Arbour, has her way, what those investigators uncover in the house in the hills could well be the beginning of the trail that eventually leads to an unprecedented indictment of Slobodan Milosevic for war crimes. “Our aim,” vowed Arbour last week, “is to follow the chain of evidence as high up the command-and-control structure as we can possibly go—and that includes the office of the Yugoslav president.”

The Canadian jurist delivered her pledge at the end of a week-long tour of the Balkans—three days in Bosnia and four more in Macedonia—while rumours swirled about her imminent departure from the tribunal to accept an appointment to Canada’s Supreme Court. During her travels, Arbour was dogged by questions about her future, which may have been responsible for the contrasting images she left behind. In her role as chief prosecutor, there was a new steel in her pronouncements, virtually devoid of the measured discretion that has been her trademark for the past 2V2 years. She minced no words about NATO forces in Bosnia, describing it as “scandalous” that the alliance’s troops have yet to arrest leading Bosnian Serbs accused of perpetrating atrocities in the former

Yugoslav republic, in particular former Bosnian Serb president Radovan Karadzic and his military chief, Gen. Ratko Mladic.

Moreover, she finally confirmed what has been an open secret for some time in many Western capitals. Under Arbour’s direction, the tribunal seems determined to create a potentially far-reaching legal precedent by making Milosevic the first sitting chief of state in modern history to be indicted for war crimes. It is a course the tribunal intends to pursue even at the risk of complicating Kosovo peace negotiations. “There is absolutely no connection,” Arbour declared last week, “between our quest for justice and any deals that may be worked out with the current Yugoslav leadership.”

But if a more outspoken chief prosecutor emerged last week, Arbour remained far less forthcoming about her own plans. The Quebec-born Ontario Appeals Court judge continued to avoid direct answers to questions about whether she is preparing to leave the tribunal before her four-year term expires at the end of next year. In late April, Prime Minister Jean Chrétien confirmed widespread reports that Arbour was one of a number of possible candidates in line to replace Justice Peter Cory, who retires from the bench at the end of May. Last week, Chrétien went further, saying Arbour’s current job was very demanding and “I’ve been informed that she finds it extremely difficult to carry on that way—she has a family and so on. So she might be interested to come back on her own.” When queried by Macleans in Macedonia about her intentions, Arbours reply was Delphic. “I remind you that I am still a member of the Canadian judiciary currendy on leave with the United Nations,” she said. “I understand there is a selec-

The UN war crimes prosecutor weighs a return to Canada for a seat on the Supreme Court

tion process now under way for an appointment to the Canadian Supreme Court. That process is not being conducted in the media so I regret that I am not in a position to answer your question.” But Arbour’s Australian second-in-command, deputy prosecutor Graham Blewitt, said that, as of last week, Arbour had not been offered Cory’s Ontario slot on the Supreme Court, nor had she yet made up her mind what she would do if the offer was made. Many court-watchers expect an Ottawa announcement to come some time in the summer.

This is clearly a difficult moment for Arbour, coming as it does just as the hunt for Balkan war criminals begins to gather momentum. Aides at the tribunal’s headquarters in The Hague report, as one privately confided, that she is “torn between the prospect of a really big job at home or staying on here, where the next two years are likely to be really interesting, maybe even offering the chance to prosecute Milosevic.”

At the same time, deputy Blewitt dismissed concerns voiced by U.S. officials and various non-governmental human rights

organizations about the damage her departure would inflict on the tribunal. “She will certainly be missed if she decides to go,” he remarked, “but the tribunals work will continue. Were a mature organization. We’ve been in business now for six years. All of our systems are up and running and they will continue to do so no matter who is in charge.”

In Arbour’s absence, Blewitt himself is the most likely candidate for the job, particularly if, as seems likely, the UN Security Council deadlocks over the choice of a new chief prosecutor. A rotund 51 -year-old, he has been a prosecutor for his entire career—21 years in Sydney, another four with the Australian National Crime Authority and four more prosecuting Nazi war criminals in his native land. He has been deputy prosecutor in The Hague since the International Criminal Tribunal for the former Yugoslavia was established by the Security Council in May, 1993 (Rwanda’s 1994 bloodbath was later added to its mandate). More to the point, Blewitt shares Arbour’s determination to move as high up the

Under Arbour, the tribunal is gathering evidence to indict Slobodan Milosevic

chain of command as possible in pursuing those responsible for the atrocities unfolding in and around Kosovo.

“From a legal point of view, we now have as good a chance as we’ve ever had to pin the blame for what is happening on Milosevic,” Blewitt argued while nursing a beer in the Macedonian capital last week. “In Bosnia, Milosevic could evade ultimate responsibility because he was then president of Serbia. In the early going in Kosovo, he could claim some kind of immunity because by then he had become president ofYugoslavia and Kosovo was a Serbian problem. But he no longer has any of those excuses now because the Yugoslav armed forces are involved and he is commander-in-chief of those forces.”

Like Arbour, Blewitt is convinced that hard evidence exists to build an airtight courtroom case against Milosevic. The problem: the evidence is now in the hands of various Western intelligence agencies, and it is precisely the kind of documented proof that most intelligence organizations are loath to disclose for fear of compromising methods, sources, even oldfashioned spies on the ground. While neither Blewitt nor Arbour will detail the evidence they are seeking, it is believed to include photographic imagery from satellites and surveillance aircraft as well as electronic intercepts and other forms of secretly recorded conversations between commanders in the field and ranking generals and political leaders, establish-

ing beyond doubt what orders were dispatched to whom and when. “We’re sure the proof is there,” said Blewitt, “but we don’t yet have access to it.”

In pursuit of that evidence, Arbour and Blewitt have been travelling almost incessandy for the past three weeks. Before journeying to the Balkans last week, the two visited Washington, London, Paris, Bonn and Brussels. In part, Arbour used the tour to discuss her possible resignation with key officials, including U.S. Secretary of State Madeleine Albright. But at each stop, she and Blewitt also lobbied for access to the intelligence. The British, German and French governments have been most forthcoming. But authorities in the United States, where the real treasure trove exists, have been less co-operative, motivated no doubt by the belief that any negotiated end to the Kosovo conflict might have to involve a deal with Milosevic, perhaps even guarantees of amnesty for the Yugoslav president and his immediate entourage. Yet as Arbour and Blewitt constandy stress, only their UN boss can put such a deal into effect. “Our mandate comes from the Security Council,” said Blewitt. “And that is the only body empowered to change our instructions.”

Even NATO’s forces, in theory, are not beyond the tribunal’s reach. Last week in Macedonia, Arbour conceded that the tribunal’s powers include the ability to investigate

complaints about war crimes committed by any participant in the Yugoslav conflict. She quickly added, however, that the tribunal was not likely to act unless the complaints “were credible and contained the real possibility of an indictment.” In NATO’s case, that is a farfetched assumption. The tribunal can launch prosecutions under four basic sets of offences— violations of the laws or customs of war, grave breaches of the Geneva Convention, genocide, and crimes against humanity. Given NATO’s rigid rules of engagement in the current conflict, legal action seems a distant possibility. Last week, Yugoslavia used another venue in The Hague to accuse 10 NATO countries, including Canada, of genocide, asking the International Court of Justice to order a halt to NATO’s bombing campaign. The 10 defendants challenged the world court’s jurisdiction.

For Arbour’s tribunal, there may be difficulties gaining access to top-level intelligence, but there have been no problems gathering information at the other end of the scale. The tribunal’s slim resources have, in fact, been taxed to the limit assembling and compiling eyewitness accounts of war crimes. Virtually all of the 700,000 refugees who have flooded across the province’s borders into Albania and Macedonia have been handed one-page questionnaires from the tribunal seeking firsthand accounts of possible war crimes—mass deportations, executions, rapes and other atrocities. “Approximately one in every 10 has responded,” noted Paul Risley, the tribunal’s Dutch-based information officer.

The painstaking task of delving further into those allegations is now under way. It is conducted by the tribunal’s staff of 70 investigators, aided by some 350 monitors from the Organization of Co-operation and Security in Europe. So far,

the OSCE’s monitors have carried out more than 850 interviews for the tribunal, most of them lasting at least an hour or two. But the real task still lies ahead, which is the principal reason why the tribunal has decided to rent that villa in the hills above Skopje and is in the process of opening a similar facility in Albania. “They’re basically safe houses,” said Risley, “a place where our investigators can take potential trial witnesses away from the prying eyes and ears of anybody who happens to be listening in the next tent.”

It is an exceedingly delicate task, especially in the case of Kosovar women who may have been raped. It is also time-consuming, a slow I process of building mutual trust I between the individual investigator I and often severely traumatized refugees that can take days, even weeks. The bulk of the tribunal’s investigators are experienced police officers, a few retired but most on leaves from police forces around the globe. The tribunal refuses to identify any of them. “They have to remain anonymous to do their job properly,” argued Blewitt. The specific crimes they are investigating are also confidential—in order, said Blewitt, “to prevent perpetrators from going back to destroy whatever forensic evidence may exist at crime scenes.” There are horrors aplenty to investigate, if a report issued last week by the U.S. state department is even marginally accurate. Entitled “Erasing History: Ethnic Cleansing in Kosovo,” it is a grim catalogue of atrocity garnered entirely from interviews with ethnic Albanian refugees. They report mass executions of at least 4,000 Kosovar men in 70 towns and villages. They also tell of the systematic rape of Kosovar women in the cities of Djakovica and Pec, where the local military commander reportedly used a roster of soldiers’ names to allow all of his troops evenings of forced sex with young Albanian women imprisoned at Pec’s Hotel Karagac. More than 300 Kosovar villages have been burned, many of them to the ground, the state department’s report claims. And it alleges that refugee accounts tend to support reconnaissance photographs showing as many as seven mass graves, including two large ones in Pusto Selo and Izbica. “Only when the fighting has ended,” declared Albright as she released the report, “will we know the full extent of the evil that has been unleashed.”

Despite the scale of atrocities described, the U.S. report does not disguise the fact that few efforts have been made to independently verify the refugees’ accounts. But those plainclothed investigators in their house on the hill may well accomplish the task. If they do, the war crimes tribunal is ready to act, with or without the leadership of Louise Arbour. E33