THE TORONTO STAR, Saturday, February 21, 2004
The implacable face of justice
Arbour sent dictator Slobodan Milosevic to court – Faces new challenge as U.N. human rights commissioner
(We have added comments in bold italics}
The Albanian telephone line crackled and hissed, as I sat in my hotel room almost afraid to breathe for fear of muffling the voice on the other end of the phone. After a long pause, a calm, familiar voice said “yes. It is possible that Slobodan Milosevic will be indicted.”
It was the spring of 1999, and war was raging in Kosovo. Louise Arbour, chief prosecutor of the International Criminal Tribunal for the Former Yugoslavia – and the United Nations’ newly appointed human rights commissioner – was speaking to me from The Hague. What she was saying would echo around the world.
I had been in constant touch with Arbour’s office during long forays around the Balkans, always asking the same question, and getting no conclusive answer. Eager as she was to indict the Yugoslav leader whom she believedguilty of large-scale killing and ethnic cleansing, she was also determined to nail down an airtight case. [She completely failed to do this. The ICTY indictment was issued purely on the basis of allegations. By the time this article was written in 2004, the UN and others had long-since dismissed claims of Serbian atrocities before the Nato bombing, concluding that total deaths in the Kosovo war had numbered 4,000, not hundreds of thousands. The 4,000 total was split evenly between the sides, with 50% of the deaths caused by the Nato bombs.]
“Don’t forget,” she warned, “it’s not enough to visit personal criminal responsibility on a head of state simply because of his position …personal responsibility means that the perpetrator planned, instigated, ordered, aided or abetted the crime.”
Now, Arbour believed she was closing in on the dictator who thumbed his nose at her, and at the court. For the first time she was ready to act. And although no leader in modern history had been brought to justice for suspected war crimes, she was convinced that Milosevic would end up in thedock. [Milosevic challenged the legality of the court because it had been created illegally. As the Secretary-General of the United Nations had made quite clear to the members of the UN Security Council, there was no power in the UN Charter for the Security Council to create a criminal court.]
“I have no doubt that some day he will come to The Hague,” she said, as the line faded and died.
Three years later, on Feb. 12, 2002, Milosevic sat facing the court that would judge him on alleged war crimes throughout Kosovo, Bosnia and Croatia. The case, which set a precedent in international justice, established Arbour as one of the pre-eminent legal figures of the past century. But it was only one more step in the path that she embarked on in October 1996, when she walked through the chilly, sterile marble halls of a court that had steadily lost credibility because of its inability to get a grip on the suspects accused of some of the worst crimes since World War II. [The court lost credibility because it became increasingly evident that it was not a genuine court of justice. It had written its own Statute, disregarding all the constraints set down in the UN draft Statute, and gave itself powers to create new law which enabled the court to depart from all the cardinal principles of established International law. It was clear by February 2004 that the 2-year long prosecution case was failing dismally. Not a single claim made against Milosevic had been convincingly sustained. A string of ‘key’ witnesses failed to deliver in the witness box. This and other pieces of media coverage were designed to focus attention elsewhere.]
A year later, the diminutive, chestnut-haired prosecutor had become the implacable face of justice to those who had once openly scoffed at the court.
The “Arbour court,” as it was nicknamed, oversaw the arrest of dozens of suspects, increasing the volume of cases so much that additional courtrooms had to be dusted off, and schedules of hearings redrafted.
It was the force of Arbour’s personality that brought about themini-revolution, according to her colleagues: she herself called the effort a collective one. [Arbour was intent only on implementing the instructions of her US paymasters who wanted the court to reinforce the false narrative of events in the Balkans by using the ICTY to convict large numbers of Serbs.]
But, she admitted with a smile, “we’re on a roll. We’re shifting our work further away from the people on the ground and moving right up the chain of command.”
Commuting from Africa to the Netherlands at warp speed, to oversee both the Yugoslavia and Rwanda tribunals, Arbour was singleminded about the subject that obsessed her most: apprehending Yugoslav war criminals.
Probing the reasons for their evasion of justice, she discovered that the Western troops in former Yugoslavia were taking a too-passive role in arresting them.
“NATO had the mandate, and it could arrest indicted criminals if it encountered them,” she said bluntly. “But it was obvious they would never encounter them.”
Risking a diplomatic crisis, she denounced the inaction to the media. In private she delivered a tough message to Western diplomats, resulting in barely masked resentment, but a rash of arrests.
In Kosovo, where traumatized ethnic Albanians had despaired of justice, Arbour became a legend. [Far from being ‘traumatised’, the KLA-led Kosovars had long been the aggressors, brutalising and intimidating the Serb minority which remained in the Serbian province.]
Her determination to personally document war crimes in the strife-torn province brought her head-to-head with the Serbian authorities, who refused her a visa and barred her from Kosovo in the winter of 1998. Refusing to take no for an answer, she was later turned back from the Kosovo border. [Arbour and the ICTY were never interested in gathering hard evidence to support their allegations – they knew that it did not exist. Their efforts were entirely directed towards creating an illusion of evidence gathering.]
It was one of the few times I heard real anger in Arbour’s voice, as I called her from the Kosovar capital, Pristina, where Albanian rights activists anxiously awaited her latest move. “This is absolutely illegal and unacceptable,” she said. “I don’t need a special visa. I will not negotiate the terms of my entry.”
Arbour lost that round, although defeat was temporary.
But in Kosovo, many Albanians had not forgotten her actions. And as the war ended, her efforts inspired them to testify at The Hague.
“When my wife and my two little children were murdered by the Serbian paramilitaries I wanted only one thing, to kill as many Serbs as possible,” said Behar Hoxajavia, a Kosovar refugee. “But I realized that justice was a higher thing than killing. Seeing Milosevic in the court would be betterthan revenge.” [When you have no evidence, training ‘victims’ to trot out carefully rehearsed stories of this kind is all that can be done.]
Even before the indictment of Milosevic, Arbour’s reputation was reaching new heights. Appearing unruffled at the centre of a whirlwind of activity, she was inundated with calls from promoters of the new International Criminal Court, then in its formative stages. Arbour was mooted for its first president. [‘Rules-based’, not law-based international justice had quickly become very popular among the western powers. The appalling ICTY was seized on as a model and led to the rapid creation of a host of similar Tribunals.]
“The sad truth is that it’s much easier to murder thousands of people and get away with it than to kill just one,” she said. “If we’re going to have an international court it has to change that.”
Swamped with work at the Hague tribunal, Arbour rejected suggestions she’d move to the new court, eventually taking a post in Canada’s highest court.
Now, as the U.N.’s new High Commissioner for Human Rights, she’ll be pursuing justice from a different angle, and taking the greatest risks of her career in a job that’s often frustrating, and potentially dangerous.
Former Irish president Mary Robinson was sharply criticized by the United States for questioning its campaign in Afghanistan, and the bombing of Serbia.
Sergio Vieira de Mello, a long-term acquaintance of Arbour, barely began his term as human rights chief in 2002 when he was seconded to Iraq as the U.N. special representative, and died in a massive suicide bombing in Baghdad last August.
Arbour said in a statement she is “greatly honoured” by her new appointment, and “will devote all my energies to this extraordinary challenge when I leave the Supreme Court of Canada in June.”
But while at The Hague, she said, “amazing things happen. “I’m always looking forward to more amazing things. You can never know how your life andcareer unfold. You just do the best that you can.” [She did as she was told and was duly rewarded with a string of further humanitarian roles.]