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today’s ” AR-online” again AR-Online recent issues: May 1999 April 1999 March 1999 February 1999 January 1999 December 1998 November 1998 October 1998 September 1998 August 1998 July 1998 Toronto, Canada, May 22, 1999 Editorial Loose Cannon? WHO is Louise Arbour and how can we get rid of her?
These are two questions Canadians might be asking after Judge Arbour, the war crimes prosecutor and imminent appointee to the Supreme Court of Canada, dropped the following bombshell on Thursday in a speech she gave at the University of New Brunswick: Nato may soon be slapped with charges of “crimes against humanity” for its military campaign against Yugoslavia. Judge Arbour is presumably basing her novel conception of a war crime on the doctrine of “universal jurisdiction.”
This was once a limited doctrine of international law. It meant that sovereign states could claim universal jurisdiction to prosecute foreigners in extremely rare cases that involved unspeakably hideous crimes, such as Hitler ‘s genocidal extermination of the Jews in Europe during the Second World War. But the new internationalists — of which Judge Arbour is the chief cheerleader — say that universal jurisdiction can in fact be exercised for almost anything, and by almost anyone.
This mindset undergirds the statute of the International Criminal Court, which places the “imposition of mental suffering” and “causing serious bodily or mental harm to members of a group” on an equal footing with the Holocaust. Thus it may only be a matter of time before Judge Arbour prosecutes racial slurs as war crimes.
Judge Arbour has advocated that ICC prosecutors be able to exercise the “maximum prosecutorial discretion,” initiating prosecutions “ex officio based on reliable information received from any source,” and that the “prosecutor of the permanent courts should have unhindered and direct access to all potential evidence” without getting the approval of the relevant national authorities. But surely Canadians can pressure Judge Arbour toward accepting a less activist view of war crimes jurisprudence?
Sadly, no. Although technically accountable to the ad hoc war crimes tribunal, under the aegis of the United Nations, Judge Arbour acts more like a loose cannon, accountable only to herself. Consider her record. Although required to do so by the mandate of the tribunal, Judge Arbour has failed to bring quick and clear charges against alleged war criminals.
She has spent the great majority of the last three years gallivanting across the globe, convincing everyone of the importance of war crimes – but rarely prosecuting anyone. In the little time Judge Arbour has spent prosecuting cases, she has even managed to alienate other internationalist-minded jurists.
In the case of Furundzija, Judge Florence Ndepele Mwachande Mumba of Zambia, writing for the full Trial Chamber of the ad hoc tribunal, severely reprimanded her: The Trial Chamber is of the view that it should not have to remind or prompt the prosecution of its obligations, nor should it have to pursue the prosecution in order to ensure that deadlines are kept and orders or decisions are complied within their entirety.”
Judge Mumba went on to note that this complaint was forwarded to prosecutor Arbour “in the hope that no Trial Chamber of the International Tribunal will again be faced with a similar situation.” Such rebukes might have persuaded a lesser jurist to take a narrower view of her newly invented powers. Not Judge Arbour. Responding to suggestions that an independent prosecutorial power could be abused, she said ringingly: “there is more to fear from an impotent than from an overreaching prosecutor.”
What exactly? The judge presumably means that dictators and rogue states will ride roughshod over people’s rights if an independent prosecutor lacks real power. But experience says these things happen anyway. The only people who need fear the long arm of Judge Arbour are either those few dictators like General Pinochet , who voluntarily hand power