The New York Times

September 15, 1999

Proud but Concerned, Tribunal Prosecutor Leaves

By MARLISE SIMONS

THE HAGUE, Netherlands -- The head of the Bosnian Serb army was casually sipping coffee with colleagues in Vienna one morning in August when he was suddenly called away. The officer, Gen. Momir Talic, could not have expected what happened next: the Austrian police arrested him on charges of crimes against humanity.

The detention of Talic, the highest ranking suspect seized so far by the International War Crimes Tribunal for the Former Yugoslavia, did not make the splash of the court's earlier indictment of the Yugoslav president, Slobodan Milosevic, but it was stunning nevertheless.

Louise Arbour, the tribunal's chief prosecutor, had special reason to be pleased. By sending her arrest warrant to Austria, she had circumvented NATO officials, some of whom knew of the secret indictment of the general, a key commander during the 1992-95 war in Bosnia, but still held meetings with him in Bosnia without arresting him.

As Mrs. Arbour leaves her post to take a seat on the Supreme Court of Canada on Sept. 15, the general's arrest in Austria also provides a final, dramatic chance to underscore a near obsession: she is convinced that for an international tribunal to function, countries must carry out its edicts.

In the three years she has held the highly visible and complex office of chief prosecutor at the international tribunals for both the former Yugoslavia and Rwanda, Mrs. Arbour, 52, has drawn both wide applause and criticism. But even her critics concede that she has helped transform the institutions, long seen as weak and peripheral, into more credible forces that both law-abiding nations and outlaws must reckon with.

"When I arrived, there was this perception outside and inside that we had to be really nice to be effective, that we had to beg for witnesses and documents and be quite deferential and polite," she recalled in an interview. "We had to be in this cooperative mode. This struck me as totally incompatible with our mission."

The resolute Mrs. Arbour dropped the deferential mode, reminding governments that United Nations tribunals are not there to practice well-mannered diplomacy but to apply criminal justice.

The clearest evidence of this new assertiveness was the way she obtained the indictment of Milosevic this spring during NATO's bombing of his country. Mrs. Arbour has rarely discussed her strategy with outsiders, but in the interview she explained why she had sought the indictment before a peace agreement was reached, even as Western governments feared it could derail efforts to end the war.

"I was in a hurry," she said. "I thought we might miss out as peace was being discussed. I thought he might be able to negotiate a deal for his departure."

To gain time, she decided to set aside possible charges of genocide because they would have delayed the process. Such charges can be added later, she said. With the indictment in place, she added, any country that gives asylum to Milosevic will pay a "a very high price."

The indictment is now seen as a tribute to the tribunal's firmness. Still, there was a reason for the more cautious approach in the past. While the tribunal has a security council mandate to investigate and punish Europe's worst atrocities since World War II and the staggering 1994 genocide in Rwanda, it has no police force to arrest suspects, no arsenal of electronics to gather evidence.

The courts started off meek, she felt, because they are a curious hybrid, balancing at a "very uneasy spot" at the crossroads of international law and criminal law, two systems with very little in common.

"International law is quintessentially about political interests, the exercise of state power," she said. "International law is the aristocrat of law, practiced by people in limousines being polite.

"Criminal law is seen as rough, as street stuff with zero intellectual content. It's not about respecting state power. I sensed that to make a breakthrough, we had to shift more into the criminal mode."

She traveled, demanded and cajoled, prodding governments and military commanders into providing more data, including tightly held intelligence. And she did not mind a fight. At the Rwanda tribunal, which is based in Arusha, Tanzania, this meant confronting some staff members with accusations of corruption and mismanagement.

She crossed swords with France's defense minister, Alain Richard, who refused to allow French officers to testify in The Hague because, he said, the tribunal practiced merely "theatrical justice." While British peacekeeping troops in Bosnia were arresting suspects, French troops were looking the other way. But France eventually cooperated.

She continuously denounced Croatia as it kept refusing to arrest indicted suspects and hand over requested documents.

Her main quarrel, of course, has been with Yugoslavia. The Milosevic government, which has always poured scorn on the tribunal, last year barred investigators from Kosovo, infuriating Mrs. Arbour.

At the same time, American human rights groups and government officials complained that her office was too slow, particularly in 1998 as Serbian troops began violently emptying ethnic Albanian villages in Kosovo.

Several American lawyers and human rights groups in fact were uneasy when Mrs. Arbour was named. (At the time she was an appeals court judge in Ontario with little experience as a prosecutor.) Some still give her mixed reviews.

"She is very capable, with a no-nonsense style, but we were very disappointed about her slow response to the Kosovo crisis," said Nina Bang-Jensen of the Coalition for International Justice, a Washington-based lawyers group. "Unfortunately there was bureaucratic inertia."

Ms. Bang-Jensen and others have said timely, aggressive investigations of abuses could have been a deterrent to Serb commanders.

Prosecutors in The Hague disagree. The only true deterrents, they argue, are not investigations but arrests. Mrs. Arbour said that even before the bombing of Kosovo, as atrocities were reported she quietly visited NATO commanders, urging them to arrest more indictees in Bosnia, including the most wanted, like the former Bosnian Serb leader Radovan Karadzic.

"Evidently they were too busy," she said acidly.

She acknowledges that the indictments of Milosevic and four top associates resulted in large part from a coincidence of interest between her office and Western governments, which began to provide the necessary intelligence.

"This coincidence did not exist when I asked for information about the chain of command in the Bosnian war," she said.

American and European politicians, in contrast, have begun to use the tribunal as a political weapon, threatening to hold perpetrators of atrocities accountable in The Hague. "Suddenly we were on everybody's lips," said Mrs. Arbour.

One way Mrs. Arbour made the tribunal more effective was to keep indictments secret to avoid alerting suspects. She also began to focus on the most senior military and political leaders and introduced group trials, in which people in related cases are tried together.

In The Hague she has dropped charges against 18 people, considering the cases too weak. The Hague has 31 people in custody. Seven trials have been completed. The Rwanda tribunal holds 38 people and has handed down four sentences.

She said her decision to leave, a year before the end of her mandate, was difficult because she was offered the Supreme Court seat in Canada just as the tribunal was at the height of its involvement in Kosovo.

"When I realized that I would not do another four years, that I would not renew my mandate next year, it became easier," she said. Mrs. Arbour, who has three teen-age children, said she was looking forward to "a more normal family life."

Looking back on a job that was often frustrating and exhausting, she says that the commitment of governments to the tribunals has become ''firm and clear and generally more bold" and that the tribunals have set basic standards for a future permanent international court.

"I think we're moving in the right direction," she said. "I think the fear and paranoia about rogue prosecutors may be subsiding. We are not wild prosecutors, doing wild and irrational things."