Q: So the strategy involves three ladders ... to the top of the three commands?

Justice Arbour: More than three, because I don't see the world in ethnic terms, I see the world as a prosecutor, I see it in examining military chains of command, paramilitary chains of command, political and administrative, civil administrative chains of command. Many, many ways, and that then is reflected through, not only ethnic groups but various compositions of the conflict. The combination in the conflict in the former Yugoslavia between groups of perpetrators and groups of victims changed throughout the conflict. So you could have had at some point, Croatian perpetrators on Serb victims and vice versa, then Croatian perpetrators on Muslim victims and then Serb perpetrators.

Q: There seem to be two arguments against actually making arrests .... One--it was dangerous and SFOR troops might get hurt. And the second was it might have been deleterious to the peace as a whole, by stirring up people and making the rest of the peacekeeping operation that much more difficult. How do you see the force of those arguments?

Justice Arbour: I think that argument was a self-fulfilling prophecy. It became more and more true the less they were doing it, because if you built up expectations of inertia, that you're not going to arrest anybody for years and months and then you change your strategy, it's rather disconcerting. And I think people could say that they then had a genuine expectation that this would not happen, that SFOR would not see it in its mandate.

I believe that if IFOR had walked into Bosnia as it should have, from day one, putting right on the table its own interest in acting as a peacekeeper was that they would take out all indicted war criminals--this would have been a perfectly acceptable stance to take. I think military persons in the military sector are perfectly entitled to say that they are fully committed to the enforcement of international humanitarian law. It's the law that allows them to distinguish themselves from common murderers. It's their body of law, it's the law that justifies everything they do. They would have been, in my view, perfectly justified from day one to say, 'we are acting as peace keepers, we are neutral as between the parties, but one thing is absolutely clear, there's one side we take, the side of justice. We will support the international criminal tribunal when a judge confirms an indictment and serves us with an arrest warrant, we'll execute it.'

If they had done that from day one

I think that this whole argument that it would have de-stabilized their mission and they would have been perceived as taking sides, would have thoroughly disappeared. Having made the strategic mistake, in my opinion, of not being prepared to do it at the beginning, there's no question they dug a pretty uncomfortable hole for themselves, because when do you start being a little more pro-active? You know, when is the time where you're prepared to so-called put your mission in danger? It's never the right time. From the moment I came in here, it was never the right time, it was always going to be later. Why, there was always an election around the corner or something else that had to be preserved, a more cherished democratic value than justice always had to come first, which I think is a completely unacceptable approach.

Q: But what about the other part of the argument which is that people will get hurt, soldiers would get shot at, as indeed happened at Prijedor?

Justice Arbour: Taken to its extreme, this was the so-called US 'no body bag' policy which I think made a giant hostage to a very ill-advised stance. If you're going to send troops to operate in a theater that is very volatile, and you make it known right from the beginning that you can't take a casualty, I think you become a prisoner of a policy that makes you profoundly ineffective.

So this is very dangerous work, there's no question about it. Criminal law enforcement, domestically is very dangerous. Police officers get killed all over the world, all the time, and I understand the argument that soldiers are not policemen, they don't have the same training, that the peace keeping mission is not a law enforcement mission. I've heard that many times, I understand it. I think that since the first time after Nuremberg there was a willingness to give it teeth and to enforce the war of law, that these peace keepers should have made it their business, and they have now, to side with the international criminal law enforcement, and to train themselves and equip themselves to perform that function.

And it doesn't take much you see, that's what history has shown us after Prijedor. You make one arrest, you get a huge pay off in non-violent voluntary surrenders. There were some who had predicted that if there was an arrest such as Prijedor, it virtually would have the third world war start again in the Balkans, that this was going to be so, there were going to be such a catastrophe. There were others, like myself who predicted in fact that if it was conducted properly, it would yield exactly what it did yield which is a sense that this law was there to be enforced.

Q: Let's go back on the argument that you are aiming get at the very top people. The one the tribunal has spent most time actually identifying is Karadzic. He's surrounded by SFOR troops, they know where he is, what are they waiting for?

Justice Arbour: Well, this is a process. And I early on I said to you I think that the criminal justice process that we're using for the first time as an instrument in the arsenal of peace, is a process. The tribunal had to also establish its own credibility and legitimacy which I think it's done well. I mean, if six months ago, a year ago, somebody had predicted that there would be Bosnian Serbs who would come voluntarily to The Hague to stand trial, and express their confidence that they would get a fair trial, you would have thought this was absolutely impossible.

It has happened, it is happening now. As this process moves forward I think that the possibility of people like Mr. Karadzic saying that they will not come to The Hague because they think the tribunal is anti-Serb and they don't expect justice and so on, becomes less and less tenable as an argument. I think if he could come to The Hague in a peaceful, non-violent manner he will do himself and others a service, and that's the way it should happen. I'm perfectly willing to wait, not for ever but to wait in the expectation that either a voluntary surrender or an arrest by his own government, which is what international law require, will be the process that will bring him here.

And at the same time, I'm encouraging SFOR to consider alternatives that it has been prepared to employ elsewhere. The mix in international criminal law is the same mix that you have domestically. It's a mix of consensus and coercion all the time, and you can only use coercion when you have a really good solid base of consensus to back you up. Judges in our domestic jurisdiction don't have an army, they don't have a police force at their own disposal, but when they sign an order it is obeyed, and it is obeyed by the force of the order. It's obeyed because most people in our societies believe that it's worth obeying, even when they don't like it. Because most people believe that judges, for the most part, not all of them, but for the most part, are fair, reasonably intelligent, unbiased and represent a value to society, and that's the consensual part.

Q: But I've just come back from Serbia and none of those things apply in relation to the criminal court amongst most of the Serbs I was talking to, for example. They don't think it's fair, they think you're partisan, they think you're prioritizing in favor of investigations against the Serbs to a great degree.

Answer : Yeah, but the progress that has been made on that issue is massive compared to the strength of that sentiment even a year and a half ago. And, of course, it's a particularly difficult task to build that kind of consensus when you're deprived of your other partners in democracy, like a free press. It's a pretty hard task to show that you're a transparent, fair, decent process when there's nobody on the other side to see it happen. So, we have a real uphill battle, but the bottom line is, it's happening. You know, the legitimacy of the tribunal and the building of consensus is, even though you still hear these things, undeniable.

Q: I've heard it said that there is no statute of limitations on war crimes, or it might have been no statute of limitation on genocide. What is the implication of that for the people who are still in hiding?

Justice Arbour: In our particular case, the mandate of the tribunal is on-going. So we have the mandate to investigate the crimes within the statute on the territory of the former Yugoslavia since 1991 and it's on-going. Now, it's pretty clear that one day, I don't know when, the Security Council will put a sunset clause, a kind of a deadline for the tribunal to complete its work. But until that happens, everybody is vulnerable to a prosecution if the investigations yield the evidence.

Q: So there's no way in which they can see these charges out, simply by staying put.

Justice Arbour: Well again, the tribunal is a statutory creature. It was created by the Security Council to be abolished by the Security Council. Security Council could pass a resolution tomorrow, presumably, abolishing the tribunal and voiding all the existing warrants. I mean the tribunal doesn't have this self-propelling capacity to perpetuate itself. It would be unthinkable that it would be brought to such an abrupt end, not to mention how unfair it would be to those who already have been convicted to see the process cut...I mean, this would be considerably shorter that midway into it, so the existing charges I think, and the charges that we'll bring in the future are likely to be outstanding, I hope, for as long as it takes to execute these warrants and complete these trials.

Q: Prioritizing the cases surely involves quite a lot of painful decisions, because people who have given their testimony to investigators in the field for example may have put their trust and their hopes for justice into the tribunal. If they find that their case is somehow not one of those that will be considered they may feel in some cheated or denied of a sense of justice. How, how aware are you of those problems?

Justice Arbour: It's a huge factor. It's probably one of the most difficult decisions that has to be made, and it's the one that a domestic prosecutor never has to make. Law enforcement, domestically, is universal; it's not hard. Crimes are committed, you prosecute them, give or take, the stuff that's trivial offenses. Or you could get directions from politicians from those who have the public responsibility for law enforcement policy to deploy more resources in one sector or another. So all of a sudden you see a lot of prosecutions, say, clean up the streets of prostitutes. It's not because there's more prostitution, it's because at some point there's more emphasis in response to public concern. Then, all of a sudden, that dies out and you see a lot of drunk driving prosecutions. But essentially, the system feeds itself and it's universal enforcement. A crime is reported, it's investigated.

This is not the way it works in our case because we have primacy over national courts in the former Yugoslavia, but we have to work as a complement to national courts. There's no question. We only have eleven judges. We have two trial chambers, there's no question we cannot prosecute all offenders for all crimes and therefore, we have to discriminate and I use the word to mean 'make distinctions.' And, internally, the prosecutor must give out the signals to investigators and then as the cases move forward to lawyers and essentially make the final decision about which cases will be taken further. And I have to give these directions at the investigator stage, so we don't waste a lot of time investigating something that ultimately I'll decide we should not prosecute. Now, how to make that decision is very difficult and it's very costly in terms, for example of a perception that the trust that victims and victims' groups have put in the tribunal is not bearing fruit. Again, because I believe that we have to have some guidelines and the one that I think is, is the most critical one is that we have to go up the chain of command.

Therefore we have to put on the back burner sometimes investigation in charges that have considerable merit, that we would win in court, just because we can't tie our resources to doing that, if a route is available to us that may yield evidence of responsibility at a higher level.

Q: What are you promising, say, to the women who were raped, and the people who have lost their homes and whose families were lost as well?

Justice Arbour: Well, I think they have to have confidence and a considerable amount of patience. What I think we, with a lot of skill and a little bit of luck, may be able to accomplish, is to find a link that will take us high enough up the military or political chain of command. And if we have evidence in one case, we may be able then to go back down again and re-link other cases to that one, so it's not that the evidence that they've provided is useless or will never be put to use. It's just that if it actually stops at a particular level, we may not want, at that particular stage to take that case further because while we're doing that, we're spending a lot of money and resources not developing the more complex and difficult investigations.

The case of sexual offenses is a particularly frustrating one because there are features of these types of crimes that are slightly different than others. One is that there is a higher rate in sexual assault than in other types of cases generally, of cases where there is no question that there is credible evidence that the crime was committed, where the victim, for instance, comes forward in a very credible fashion, but cannot identify the perpetrator. This is very common in this type of crime, where you have credible evidence of the crime, but it doesn't get you anywhere. You know, we are not just a record of criminal activities, we focus on offenders.

So, if you don't have the original offender you don't get anywhere. Even when you do, not by name, all you need sometimes is the victim to be able to identify a uniform, which then links you possibly up a chain of command but sexual assaults, again, are not easy to develop on a command responsibility theory. ...So what you tend to need is sufficiently massive and notorious commission of the crime that it necessarily follows that the commander must have known, if everybody else knew. So, you need to develop an evidentiary base in the field that is quite compelling before you feel confident that you can start imputing knowledge at the level of responsibility that you want to pursue. So, it's very frustrating and challenging work.

Q: But that ladder from the offense, as it were in the small locality, up to the command is a ladder that the whole institution is attempting to climb-- whether it be sexual assault or any of the other atrocities that took place?

Justice Arbour: Oh absolutely. And sometimes you can have a breakthrough -- if you can't prove that there was massive and notorious, for instance, sexual assaults, sometimes you may just get the break that will show that you'll find the one case that had to be within the knowledge of the command. Either because he was in the vicinity or it was otherwise known. So there's a mixture, as I said, of a lot of hard work and sometimes a breakthrough in the factual fabric of your case that allows you to move.

Q: But given the limitations, even with the extra courtrooms and perhaps extra money and the length of time that the tribunals could be in existence, in practical terms, you are never really going to be able to return to many of those cases which have provided, as it were, the fuel for this climb up the ladder. Do you think that the people whose lives have been wrecked and ruined share your sense of priority? Do you think that in a sense, they understand that it's necessary for them, perhaps to make the sacrifice of their day in court, in order to bring the big fish into the net?

Justice Arbour: Well, I think it's a very good question. Again, ideally, as you build this consensus and support for the international tribunal, if you can also work to rebuild the credibility and the legitimacy of the domestic courts, that should work hand in hand and as the tribunal is prosecuting at a level that may be out of reach for the domestic courts, either because it's too politically sensitive for them to embrace these kinds of prosecution or because they're just unwilling to do it, if at the same time they could take on the smaller perpetrator, then you have a true partnership. We're not there yet; we're still in the infancy I think, of building that kind of symbiotic relationship between the international criminal tribunal and help the functioning domestic criminal justice system, that could take the kinds of cases that we can't. We just don't have the resources. There are thousands of cases that would have to be prosecuted if we were to pursue every evidentiary link that we have to a war crime.

Q: This is not just another court is it? This is the court set up by the international communities to do a job. And the analogy is Munich: the idea that you should deter these people from making these transgressions in the future. They're really talking about the top flight of people aren't they?

Justice Arbour: That's right.

Q: That's what they really want you to do?

Justice Arbour: I think so, and that's why we're here.

But you can't neglect those who have been victimized in a very severe fashion by someone they would like to see brought to justice, quite apart from the political or military leaders. But we can't do it.

Q: Isn't it sort of unfair on Tadic (a low-level perpetrator), or the two or three Tadices that they are the only ones who take the rap at that level while all those others, those thousands and thousands of others go uninvestigated, and unpunished?

Justice Arbour: Not more unfair, that some criminals get caught than others don't. I mean it's not unfair for one criminal to say 'why me?' well it's 'why you? Because you're here.' And if we had whatever it takes to get to all the others like you, we would and we will in due course, but it is not unfair I think. I mean it is the same kind of reasoning that is used to say to the international community, well why don't you prosecute those who could have stopped all this?

Q: But it would look rather peculiar for example in the year 2008 ten years from now Tadic and three others are the only ones behind bars.

Justice Arbour: Yes, but you see, it's just a question of form. I think it would be very unfair if the international criminal tribunal was never supported by its partners, there's no question. It's meant to work in partnership with domestic courts. Now, if they never do their work, it's true I think, it may be perceived as unfair, because our work is always going to be extremely selective. And why having selected one case and not the other? Well sometimes it's very opportunistic, it's because it helps a particular investigation, or the accused was readily available at a convenient time. You know, there are many factors that could come into play, but it won't be unfair if the others of the same caliber are tried and convicted even though in a different form. The form doesn't really matter that much.

Q: But you would feel uncomfortable, for example, those domestic courts never really took off and that in the end the international court stood really alone or fairly naked.

Justice Arbour: Right.

And by the domestic courts, I mean the courts of the former Yugoslavia and all the other countries. I am a big promoter of universal jurisdiction. I think courts should embrace their jurisdiction over genocide and prosecute it, because I don't think even a permanent international court will ever have the capacity to really go to full-fledged universal law enforcement of all the crimes within its jurisdiction. It will never do that.

Q: Earlier, we were talking about the relationship of this court to Nuremburg, How do you see the relationship of this court to a possible permanent international court?

Justice Arbour: At the rate at which it's going (laugh) I think this court's going to be a considerably better court. I'm very concerned about the direction that the discussions are going. I think now we've reached the point where I would say that the chances of an permanent international criminal court being created are very high. I think there's a real momentum, there's a real sense that it's now or never. We've tried so many times before, this is as close as it ever got, and so on.

So, there's a sentiment that it's just around the corner. Come June, in Rome it's going to happen. Now, as part of this momentum, I think, unfortunately is a will to compromise, you know? It's a great dream and it's so much around the corner that anybody who's too greedy and too ambitious is put to the side for the sake of bringing a consensus and bringing into the fold the ones who are viewed as indispensable partners in the enterprise and who are looking for a very low threshold. So, at this point I find it extremely troubling, we'll get a court and I'm not sure it's going to be worth much if we water it down...

Justice Arbour: Well, there are a couple of features. If we could duplicate this tribunal and the tribunal for Rwanda and create that as a permanent institution with universal jurisdiction, I would have thought that we have truly realized the dream of Nuremburg, and we are the true heirs of the Nuremburg concept. There's no sign at this point, that the dream of this magnitude is about to be realized. This question of complementarity with national courts... The way we work now national courts are our partners, we count on them, we rely on them, but we have primacy over them. We can seize ourselves of any case within our jurisdiction in the former Yugoslavia or in Rwanda. So we then control our own agenda.

What is being contemplated in the permanent court is exactly the opposite, that the tribunal would be complementary to domestic jurisdiction, so as long as someone, somewhere is prepared to take the case, the international court is out. Well, I think that this in itself ... is extremely problematic and one that is perceived as virtually non-negotiable.

Q: By whom? By which governments?

Justice Arbour: By many governments except, frankly I have to say at this point, I don't follow enough of their progress to tell. There's been a prep-com that finished just last week... I don't know where everybody is lining up on that. Then there's the question of the trigger mechanism. Who's going to decide where and what to investigate? Will it be by mandate of the security council? That's one model. Will it be by so-called states concerned asking the prosecutor to come and intervene? Or could it be, as it should, by an independent decision of the prosecutor to go and launch an investigation? Well, that independent ex-officio prosecutor launching an investigation at this point, is the least-favored option. It's promoted only by progressive states who have a clear vision about how this kind of court should work.

So what you have in the alternative is the launching of investigations that is likely to always be perceived as being tainted by political objectives. You can't have a court that's going to be perceived either in reality or in perception, that will give the appearance of being in the puppet of some political interests. I think that's such a fatal flaw. You can't have a criminal court that would survive, that would have any kind of legitimacy if it was tainted by this kind of perception. So that this trigger mechanism, triggering the jurisdiction of the court is also an absolutely critical feature that is still long way from being firmed up.

Q: So effectively you think that the court, as is being envisaged at the moment, those nations on the security council for example, would never have any reason to fear the jurisdiction of the court because they can more or less take it or leave it at their own discretion?

Justice Arbour: Well that's right. If you look at the security council trigger mechanism, it's pretty clear that certainly under one model, if it took an actual referral by the security council for the prosecutor to be empowered to act, any of the five permanent members could veto any investigation. Now, there've been reversed formulas that have been proposed and are considerably more attractive, such as the proposal that the prosecutor should always be able to go ahead unless the security council ordered the prosecutor to stop. In which case, one veto could defeat the order to stop, so you would need only one of the five permanent members of the security council endorsing the decision of the prosecutor to go forward to permit it to go. That's called the, the Singapore Formula. It was a formula that was promoted by Singapore, which is attracting a tremendous amount of support. So, you know, there's a lot of room for negotiations. The worst possible model is the state consensus model. I'd prefer I think, a trigger by the security council, certainly under their Singapore formula, which is a pretty generous model rather than the model where you could only launch a prosecution if you had the combined consensus of the state where the offense was committed, the state where the accused is, the state where the victims are. Under that model I cannot think of a single conflict, since the second World War where you could realiztically imagine that you would have had a criminal investigation.

Q: You were talking abou how a system couldn't survive the idea of being politically tainted or appearing to be politically tainted. That really is what many in the Republic of Srpska and many in Serbia for example, feel about the Tribunal. For them, it would be impossible for Karadzic to come here and have a fair trial. What kind of assurance can be given to such people?

Justice Arbour: Well, you see, the difference between the fears I have for a permanent court and the situation you've described, is that the situation you're describing is just plainly wrong. People who say that Karadzic cannot get a fair trial are wrong and they are perceived as wrong by virtually everybody else but themselves. And they're wrong in part because their assessment of the fairness of the court is motivated by their own political agenda, and also, in part I believe because they're terribly mis-informed.

A lot of that sentiment, which is starting to yield I think, to the reality as Republic of Srpska and a Federal Republic of Yugoslavia is opening up, I think to, to being more receptive to again a free media, more information and so on. I mean there are always criminals who say that the judge was biased and the court was biased and they didn't get a fair trial, you know, prisons are full of people who still have that sentiment, although interestingly enough, it's not unanimous. There are lots of people in prisons all over the world who will concede that you know, they made a mistake, they got caught and they got a perfectly fair trial and they can live with the consequences. What matters is not that to a person, including the criminal, they all embrace the court, is that they be a generally accepted kind of majority consensus that the court is a fair and decent institution.... There's always going to be somebody to raise the bar, you're never going to do enough to satisfy your target that he or she should be tried. The important thing is where's the consensus? And I think if you work in a transparent, credible, fair fashion you will generate a consensus.

So when I say I'm afraid about the permanent court being perceived as being politically driven, I mean where most people who would agree that that's either the case or that there's a reasonable apprehension of political bias. And I'm not talking just about the people who would be targeted, I'm talking about people like you and me who'd be sitting around looking at how this court is operating and would shrug their shoulder in disbelief. That's what I think very troublesome. And I don't think there is that sentiment about these tribunals, I think most people, looking at the way we operate, would say that's a perfectly decent and acceptable criminal justice system.