Interview: Tribunal Chief Prosecutor Louise Arbour

When Tribunal Chief Prosecutor Louise Arbour arrived at the Office of the Prosecutor (OTP) at The Hague, it had only some forty investigators, at least half of today's number, while the budget of the entire Tribunal was only a third of what it is now.

Furthermore, at that time only one courtroom was functioning, with little need for more since there were then only seven detainees in the UN Detention Unit. But as Arbour says in her parting interview with IWPR's Tribunal Update, "it's not just numbers". Here are her comments.

Louise Arbour: There were only seven detainees, but it didn't seem to be a lot of prospect for many more. In fact, when I came here, I was very taken about the idea that was being considered very seriously - to hold trials in absentia. Rule 61 (Procedure in case of failure to execute a warrant) was a big thing, which I didn't like at all. I tried to stop using it, but there was a lot of commitment to it, because there was a sense that were going to be so few trials. The institution was already hooked on that Rule 61 which from my point of view had only disadvantages. First of all it shows the accused our hand, which is very bad. So, anyway, there was a lot of talk about just transforming all that and having trials in absentia and I thought if we go (down) this road we will never have enough detainees.

Mirko Klarin: When you came, your first priority was, as you said, "to break a blockade on arrests". In December 1996 you said at the ministerial conference, the Peace Implementation Council for Bosnia-Herzegovina, that the arrests of the accused for war crimes "is not a matter of debate, but a law". Nonetheless, the first arrest, that of Slavko Dokmanovic in June 1997, was not carried out by NATO forces in Bosnia, but by your investigators in co-operation with the UN forces in Eastern Slavonia (UNTAES). Did you break the "blockade on arrests" by shaming NATO?

LA: There were lots of factors. Fist, we had to find good partners. I think Jacques Klein in UNTAES was a wonderful, very respectful partner. Strategically, when we saw this opportunity, I certainly believed that shaming IFOR would not be a bad strategy and I am very keen that we pursue this initiative. There is no doubt in my mind that the change of government in the UK was a very critical factor.

MK: There was also a change in the US State Department.

LA: Yes, that's right, absolutely right. And, also, a change of attitude in the OTP which manifested itself by two important initiatives, but they both have their roots in the same idea. The idea was that we had to make our own luck. We had to start taking some initiatives. It wasn't good enough just to cry and talk to NGOs about how there is 'no political will' and 'nobody loves us' and 'nobody is supporting us'. I thought this discourse was becoming very sterile and contra-productive. I viewed this (the Tribunal) as a very powerful criminal law enforcement operation. All you have to do is read the Statute. I thought this was dreamland to be the Prosecutor under the regime that says "all states shall obey orders!" What more do you want? So I thought we have to start exploiting our power as opposed to pretending we didn't have any. That led to secret indictments, which then, of course, didn't drive the whole agenda on arrest, but they made a lot harder for SFOR to stay back on its position. They gave them a strategic advantage and I think they made very difficult for them not to be more proactive. That was one initiative. It's not the first one we had in mind. We had all kinds of ideas, some more crazy than others in retrospect. And, the other thing - which I believe was probably the most fundamental cultural change around the Tribunal - was the Blaskic subpoena litigation. (See Tribunal Update 50 and other reports before and after.) Some people may say cynically: "Well, you still did not get the documents in the Blaskic case." That's not the point! The point of that whole exercise was to persuade people internally and externally that we are entitled to more than "co-operation." That we were for real, that we have coercive power. Even if that does not work in every case, it changes the culture. It didn't make a state like Serbia any more compliant, but even the threat of bombing doesn't make them more compliant! So, we don't have to worry about that. But the key was to change the culture in states that are otherwise relatively compliant, and just have to be told that this (the handing over of evidence) was not a charity. From then on, I have never had to use explicitly the threat of the court order and everybody understands that I have it in my pocket. And, when I go, I don't go begging, as we did it in the beginning. As I said, it changes among states who understand the consequences. It's a very big difference. Even for prosecutors, it's a change of attitude, when you think that you have to be deferential in our investigation attitude we became more aggressive, we started using search warrants, or at least start thinking how to do that and where we can go to do that. So we started thinking much more aggressively. At the same time, without jeopardising our long-term relationship: you can bulldozer your way into these things and win one - but then you will never win again in the future.

MK: There was also a change in the political culture in the international community, or at least the western powers. At the beginning, they were very concerned about the political consequences of the Tribunal's indictments. Everybody, of course, was for justice, but not today, when they still have some "unfinished business" with Mr. Milosevic or Mr. Tudjman.

LA: There are a lot of explanations as to why it changed and why it took so long to change. One thing that is very clear to me is that in this kind of international conflict management there is a lot of the same players. And we were completely new. You look at the Tribunal, there is not a single person here who was from the 'old boys network' of diplomats who change hats - today they are in UN, tomorrow in some other organisation, they all know each other and they get reincarnated - so there are relationships of trust and reciprocity. And we were completely on the outside. Now we are not. When I wanted to go to Kosovo and I went to Skopje to talk with the man who is going to lead KFOR, it was General (Sir Mike) Jackson, whom I knew from two years back, when he was in Bosnia with SFOR. Now we had built a relationship, and a personal relationship. (See Tribunal Update 108 and later reports.) The same way, inside the Tribunal we now have investigators who come from the intelligence community and from military intelligence, so when we go knocking on doors there is always some familiar face. So, now we have become real players in the region. And, at the end of the day, they (the politicians) had never dealt with criminal justice. Basically, the only remedies that they always turn to were diplomacy, bilateral or multilateral pressures and economic sanctions, and eventually the big threat of military action. But, to use creatively something as imaginative as personal accountability ...had no kind of intellectual tradition or foundation, so even smart people were struggling to see how that could be done.

MK: What do you mean by "using"? By whom?

LA: Well, the SC (UN Security Council) is using it, it's in that sense. I said recently: "Criminal justice has become a weapon in the arsenal of peace". The Security Council manages threats to international peace and security and now it gave itself a new weapon: criminal justice intervention. So, we are used in that fashion. After we were triggered, we are independent, but to be launched it took this initiative which I think was rooted in their absolute despair that their traditional methods were yielding nothing after the most atrocious abuses of human rights. They were going nowhere with all those talking and threats, and sanctions, management, negotiations and cease-fires that were constantly broken. So, cynically or creatively - I don't know, historians will figure that they launched this enterprise about which they knew nothing. If you go back to the records at the launching of the Tribunal, what about a costs feasibility study? Did anybody ever put a price tag on it? Was anybody kind of painting how many people will work there, how long is it going to take, how many people will they try. It is quite bizarre when you think of it. When I came here, 74 people were indicted and there was one courtroom. So I asked immediately what's the plan here? Everybody had to learn and figure out where exactly it fits. And in my opinion what we have done is that we shifted from being in the "soft", human rights, monitoring, NGO community, into a criminal law enforcement military culture, which is where we belong. And, in three years, that's what we have done. Not that we have to abandon our human rights roots and interests, but we could not be effective as long as we are perceived as belonging to the "soft", monitoring, non-coercive environment, and we shifted ourselves where I think we are going to produce.

MK: The fewest changes over the last three years occurred in the "political culture" of the states under the Tribunal's jurisdiction. They continue to be, to put it mildly, not overly disposed to co-operate with you?

LA: I think this poses a very fundamental question. We still have a lot to learn about how to do things appropriately and what kind of questions the international community is ready to address. And maybe it is now on the eve of having to address a pretty fundamental one. Which is: whether, when so much energy is devoted to this kind of work, we can continue operating on the theory that all states are equal? Or, whether this is time to recognise that states that were belligerents in the conflicts, still run by people who were rooted in it, and are therefore not uninterested third party states, but immediately interested in the conflict, should not be treated differently? In fact, they are treated differently under the Statute. The Prosecutor, for instance, has the right to conduct on-site investigations. I believe that is a kind of prosecutor's coercive right that is more directed against these states, than against third party states. This is a concept that is very disturbing for the states in the region and so far it has not been explored before the court, but for the permanent court it's going to be very critical. When you work on the abstraction that all states are equal, all their entitlements are the same, but in reality some are completely disinterested and react objectively to our requests, and others are profoundly, by definition, hostile to our work. Maybe, we have to confront that reality through some procedural changes, but I am not sure that we are quite ready for that.

MK: The Security Council has coercive instruments at its disposal, but has not used them thus far in order to force "disobedient" states to carry out the orders of the Tribunal. To five reports against the FRY, it responded with a pretty mild Presidential statement, in which it "deplores" such behaviour by Belgrade.

LA: Let's see what is going to happen with Croatia. The FRY is probably the most hopeless case. When you see a state that will defy to the point of accepting bombing rather than compliance, there's no question that that is pretty hopeless situation.

MK: There are opinions that you made it even more hopeless by indicting President Milosevic, who now has no choice but to hold on to power at any cost, so that your action has objectively made the democratic transition more difficult?

LA: I don't believe that's the case. In fact, the history since the indictment proves exactly the opposite. After 80 days of bombing, he was still defiant; after eight days of the indictment he capitulated. And since then, I don't want to suggest for a minute that democracy has been restored, but I think it has taken a turn for the slightly better than it was during the bombing campaign. So, I would question that premise, but even if you are right - does that mean that criminal justice should refrain from asserting itself, should it be bullied out of the picture under the menace that it will do more harm than good? It's not a reason for not doing it, even assuming that it has that effect.

MK: But, even the opposition in Serbia is looking for some way out for Mr Milosevic?

LA: There is a very nice way out: it's right here.

MK: Any other way for the sake of peaceful transition?

LA: No, I don't think so. What other way? Any other way would compromise the past, and if you compromise the past you are compromising your future. You are pretending that it's different than it is, you pretend you were not lead by a criminal. If you want to build your future on that kind of lies, you future will be as tainted as the one before that lead you to that position. At some point you have to look at the reality in which you live right in the face. It's very difficult, it's very painful, but I still believe that that's the way it has to happen. And pretending that it is not that bad and that he should go to exile and live happily ever after, is what we have done through this whole century with every bad one of them. And what good has that done?

MK: How do you see the future of this Tribunal? When do you think its mission will be accomplished?

LA: There is no basis upon which we can set time frames for termination of the Tribunal. Its mandate is ongoing. If you had asked that question in 1994 or 1995 nobody would have predicted Kosovo and therefore any prediction would have been completely unrealistic. I don't want to have any catastrophic scenario in mind, but there are reasons to be concerned that whole region, and certainly some parts of it, are still fragile and on the mercy of people who still have a capacity to do a lot of harm. So, until we have that issue settled, essentially until the Security Council says OK, now the work of the Tribunal for the future ended, there is no longer a threat, I don't think we can predict how long we are going to be in business. Now, if the question is how long should it take if we froze today to do the work of the past, that's also very difficult to tell. But the one thing I would say is of course we have to perform as expeditiously as possible, but there is no panic. It's true it's a lot of money but it's nothing comparing to what it costs to use military forces. And it does a lot of good. Every day we tell the story, every day you tell the story, somebody else is arrested with the living memory of what happened in a society that's struggling to find itself and to understand what happened to it. So, I think, what we should do - should do exactly what we are doing: we should work, diligently, we can't work any harder than we are working.

MK: Could, one day, the ICTY grow into the ICJ - a permanent international criminal court?

LA: There cannot be a simple switch, because their jurisdiction is very different. The ICJ has no jurisdiction for the past, so there will have to be a lot of legal adjustment. But, frankly, I believe that the real case study for the permanent court is Kosovo. Because, it's the first time that an institution which was in place, poised, ready to go, when confronted with massive crime and reacted. The way we approached that, I think, will be a case study, good or bad - I think pretty decent for the first time - for the Permanent court which will be staffed, presumable, poised, equipped, ready to go when all of a sudden something will blow up in Asia or Africa. I think Kosovo would be a kind of model of how that court will be expected to act.

Mirko Klarin is one of the leading journalists covering events in The Hague. Tribunal Update is a component of IWPR's Tribunal Monitoring Project.