Arbour, Louise

[FEBRUARY 10, 1947–]

Chief Prosecutor for the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, 1996–1999

Louise Arbour was joint Chief Prosecutor for the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) from October 1996 to September 1999. She was the second person to hold the position at the ad hoc tribunals, having replaced South African judge Richard Goldstone. The highlights of her term of office include the first indictment in history of a sitting head of state—Yugoslavian president Slobodan Milosevic—and the first prosecution of sexual assault and rape as crimes against humanity.

Background

Arbour was born in Montreal, Quebec, Canada. She studied law at the Université de Montreal, where, in the 1960s, she first encountered Quebec nationalism—an idea that appealed to her at that time, but one that she revisited more critically in the late 1990s, during her investigations into the consequences of nationalism in the former Yugoslavia.

After being called to the Ontario bar, Arbour worked principally in Toronto, as a professor and then as associate dean at Osgoode Hall Law School. She was appointed to the Supreme Court of Ontario in 1987 and was then assigned to the appeals division of the same court in 1990.

Finta Decision

On the appeals bench, Arbour was one of three judges on a five-member panel who voted to uphold the controversial acquittal of Imre Finta, a former captain in the Hungarian gendarmerie who was charged with deporting 8,617 Jews to their deaths during World War II. The majority of the appeals court judges had upheld several rulings of the trial judge, among them the judge's decision to allow the trial jury to consider Finta's defense that he had been following orders.

The Finta trial was a landmark case in the history of Canada's response to Nazi war criminals who were residing in the country. Legal scholars and human rights activists argued that the courts had interpreted Canadian law too narrowly in acquitting Finta, and were setting such a high standard for conviction that it would become virtually impossible for anyone to successfully prosecute war criminals in the country.

Arbour's Controversial Appointment

Justice Goldstone recommended Arbour as his replacement at the international tribunals (ICTY and ICTR). Arbour's appointment was then guided through the United Nations (UN) Security Council approval process by Madeleine Albright, the U.S. ambassador to the UN, who favored the appointment of a woman and argued that a Canadian citizen with few affiliations would help to prevent politicization of the tribunals. But there was much international opposition to Arbour's candidacy, owing to her lack of profile in the field of international human rights and because of her role in the Finta decision. Tribunal activists were also alarmed that, in 1987, Arbour had been counsel in a successful legal challenge to Canada's rape shield law. The rape shield law had been introduced in Canada in order to prevent defense lawyers from challenging the credibility of a rape victim by presenting allegations on the subject of her past sexual history as evidence. Given the numbers of rape cases that were expected to come to the fore at the tribunals, Arbour was considered by some to be the wrong choice for Chief Prosecutor. But Arbour's consistent record of defending the rights of the accused appealed to members of the Security Council who worried that the ad hoc tribunals were already balanced against the accused, specifically the Serbian suspects. The Arbour appointment was approved by the Security Council on February 29, 1996.

International Criminal Tribunal for the Former Yugoslavia

As Chief Prosecutor at the ICTY, Arbour faced a formidable obstacle. Goldstone had issued fifty-two indictments and had issued arrest warrants for the accused, including two wartime military and civilian leaders of the Bosnian Serbs, Ratko Mladic and Radovan Karadzic. But Goldstone was stymied by the absence of a practical way to serve the warrants. As part of the Dayton Agreement, the national leaders of Serbia, Croatia, and Bosnia had agreed to surrender anyone in their jurisdictions who had been indicted by the ICTY, but their commitment proved to be inadequate, particularly in the case of the Serbs, who considered the tribunal to be biased against them. The members of the North Atlantic Treaty Organisation (NATO)–led peacekeeping force that patrolled Bosnia and Herzegovina were also under an obligation to arrest suspects—if they found them and if the arrests did not endanger their mission. Despite ample evidence that some of the "mostwanted" suspects, whose names and photographs had been distributed to NATO troops along with the warrants, were freely crossing checkpoints, the peacekeepers had not detained anyone prior to Arbour's appointment.

Arbour continued to issue indictments, but unlike Goldstone, who had made the indictments open and very public (in part to put pressure on the recalcitrant NATO leadership), Arbour took the privilege of sealing many of her indictments—allowing NATO soldiers the advantage of covert action. This, along with the added political incentive that was provided by the general awareness that the United States and the United Kingdom were monitoring changes in government in Bosnia and Herzegovina, allowed NATO forces to apprehend two men who were under secret indictment—Slavko Dokmanovic and Milan Kovacevic.

Dokmanovic had been the Serbian president of the municipality of Vukovar during the siege of that municipality in 1991. During the siege hundreds of civilians were killed and thousands driven from their homes by Serbian forces. Dokmanovic was arrested by NATO soldiers in eastern Slavonia and charged with crimes against humanity.

On July 10, 1997, British Special Air Service troops under NATO carried out a far more daring commando-style capture and arrest of Kovacevic, the commander of the Omarska camp in Prijedor where Muslim and Croat men had been tortured and murdered by Bosnian Serbs during the Bosnian war. For the first time, NATO had made an arrest in the former Yugoslavia without permission from the local authorities.

Both men would die in the UN compound at the Scheveningen Prison in the Hague before their cases could be concluded, but their captures represented a breakthrough in the "non-arrests" issue at the courts. More arrests, and many surrenders, followed. The UN was compelled to add two more courtrooms to the one that existed in order to accommodate the cases. A number of "big fish" (as the indictees were called in tribunal jargon) joined the ranks of the detained, but the two most-wanted Serbian suspects, Karadzic and Mladic, remained at large.

International Criminal Tribunal for Rwanda

The ICTR was a far more troubled organization than the ICTY. Arbour first visited the Rwandan tribunal in the fall of 1996 at its headquarters in Arusha, Tanzania. She came up against an organization in which the telephones and computers did not function, and in which the most common complaint was of a lack of basic supplies. The ICTR had its own financial officers, but Arbour reported to the UN in New York that funds had been misspent and accounting procedures were nonexistent. (She had been warned of the possibility of gross corruption.)

A UN audit of the tribunal in the winter of 1997 averred that "not a single administrative area functioned effectively." Karl Paschke, the UN auditor, reported that much of the ICTR staff was incompetent and that funds had been misused, but he stopped short of making charges of criminal activities.

Arbour was also perturbed by the location of the Office of the Prosecutor (OTP). It was based, not in Arusha, but in Kigali, the capital of Rwanda. In Kigali, Arbour discovered that Paul Kagame, the president of Rwanda (who had been the commander of the Rwandan Patriotic Front [RPF] during the Rwandan civil war), would not allow her to investigate any criminal charges against the RPF. She reported to the UN that Kagame threatened to shut down the OTP whenever he was dissatisfied with its proceedings. Although the overwhelming bulk of the indictments of the ICTR were of the perpetrators of the Rwandan genocide and their slaughter of Tutsis, Arbour uncovered much evidence of atrocities committed by members of the RPF against Hutus. But the UN insisted that the OTP remain in Kigali (where the prosecution of former members of the RPF would be most difficult).

Despite privation and all manner of adversity, Arbour had the kinds of successes while presiding at the Rwandan tribunal that had evaded her at the tribunal for the former Yugoslavia. She was able to persuade Kenyan authorities to participate in an arrest sweep of suspected perpetrators of genocide who were hiding in Nairobi, Kenya. On July 18, 1997, ICTR prosecutors, along with Kenyan police, apprehended many who had been the heart of the Hutu leadership, including Jean Kambanda, the former Prime Minister of Rwanda; Hassan Ngeze, a newspaper editor accused of having incited genocide via his paper's inflammatory prose; and Pauline Nyiramasuhuko, the Rwandan government's Minister of Family and Women's Affairs—and the first female to be arrested by either tribunal. Also in custody was Theoneste Bagosora, the military leader of the génocidaires, who had been arrested under Goldstone and transferred to Arusha in January 1997. Guided by Arbour, the ICTR was able to gain custody of many of the highest-level planners of the genocide (who were, as well, former members of the Rwandan government).

The tribunal also set a number of precedents. On May 1, 1998, Kambanda became the first person in history to plead guilty to the crime of genocide. Despite allegations of irregularities in the evidence-gathering process, the conviction of Kambanda was considered a major breakthrough for the ICTR. Later, Jean-Paul Akayesu, the former mayor of the Rwandan village of Taba, became the first person ever to be convicted of rape and of inciting others to commit rape as crimes against humanity. Akayesu had directed a "rape camp" in his village, where women were sexually assaulted and killed. Arbour admitted in interviews that rape cases were not, for her, a priority, given the gravity of the genocide charges. She also stated that rape, as a crime against humanity, is extremely difficult to prosecute.

Arbour was celebrated for her successes at the tribunal, but she, herself, was dubious about the ongoing feasibility of the ICTR. She maintained that the tribunal was "a by-product of shame"—the collective shame of the international community—and an attempt by that community to make amends for its failure to intervene to stop the genocide. In an interview she stated that "there were too many fault lines" at the ICTR, principally consisting of the limitations that had been placed on her field investigations in Rwanda.

Slobodan Milosevic

In the fall of 1998, Slobodan Milosevic accelerated his ongoing military campaign against Albanians living in the Serbian province of Kosovo, where the Kosovo Liberation Army (KLA) was resisting his efforts at "ethnic cleansing" in the Albanian regions of the province. In January 1999 a massacre of forty-five people in the village of Racak caused an international outcry. Only nine of those murdered were KLA fighters. Up until that point the ICTY had been investigating crimes that were several years old. For the first time Arbour turned the focus of her prosecutors to war crimes happening in real time.

Two days after the Racak massacre Arbour was refused entry into Kosovo from Macedonia. She warned Milosevic that she was monitoring events in Kosovo for possible war crimes prosecutions. In February 1999 the United States opened talks with Milosevic in Rambouillet, France, where diplomats from many countries attempted to find a solution to the Kosovo conflict before it became another Balkan war. Milosevic refused to withdraw his troops. On March 24, 1999, thirteen NATO member countries began to bomb Yugoslavia, without permission from the UN or even much consultation with the Security Council.

Seven hundred thousand Albanians fled the country, under attack from Serbian forces who had accelerated the ethnic cleansing campaign, and from NATO bombing. Arbour gathered evidence from the field wherever possible and attempted to persuade foreign governments to give her the documents she needed to issue war crimes indictments. She did not tell these governments, until after the indictment was signed, that she was pursuing Slobodan Milosevic. World leaders were wary of any such indictment. It would mean that they would no longer be able to negotiate with Milosevic, something that seemed increasingly necessary as the NATO campaign stretched into weeks.

On May 22, 1999, Arbour signed an indictment against Milosevic for crimes against humanity, and against four other sitting members of the Yugoslavian government: Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic, and Vlajko Stojiljkovic. The indictments were for the murder of 340 people in 16 villages, including Racak.

The following day, an ICTY judge also signed the indictment. Arbour offered the UN and NATO three days in which to state any reasons why the indictment should not be issued. The United States and the United Kingdom accepted the indictment, albeit with some reservations. France and Russia rejected it. Nonetheless, the indictment proceeded, making Milosevic the first sitting head of state to be charged with war crimes.

Milosevic became an international pariah overnight. Madeleine Albright, the U.S. Secretary of State and a major supporter of the ICTY at the UN, announced, "[W]e are not negotiating," when asked about the chances for a negotiated settlement to the NATO war. Three weeks after his indictment, Milosevic agreed to a ceasefire.

Just shortly after the Milosevic indictment, Arbour was asked by her government to return to Ottawa and join the bench of the Supreme Court of Canada, a position she accepted. On February 25, 2004, the UN General Assembly "approved by acclamation" the appointment of Arbour as the new UN High Commissioner for Human Rights. She replaced Brazil's Sergio Vieira de Mello, who, along with twenty-one others, was killed in a terrorist attack in Baghdad in August 2003.

SEE ALSO Del Ponte, Carla; Goldstone, Richard; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia

BIBLIOGRAPHY

Abella, Irving, and Harold Troper (1982). None Is Too Many: Canada and the Jews of Europe, 1933–1948. Toronto: Lester and Orpen Dennys Limited.

Cushman, Thomas, and Stjepan Mestrovic, eds. (1996). This Time We Knew: Western Responses to Genocide in Bosnia. New York: New York University Press.

Holbrooke, Richard (1998). To End a War. New York: Random House.

Morris, Virginia, and Michael P. Scharf (1995). An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia. Irving-on-Hudson, N.Y.: Transnational Publishers.

Off, Carol (2000). The Lion, the Fox and the Eagle: A Story of Generals and Justice in Yugoslavia and Rwanda. Toronto: Random House Canada.

Taylor, Telford (1992). The Anatomy of the Nuremberg Trials. Boston: Little, Brown.

Carol Off