THE HAGUE, Netherlands -- Shortly after NATO began its air campaign against Yugoslavia, a spokesman announced that the alliance would hand over to the war crimes tribunal evidence that Serb security forces had committed atrocities.
Louise Arbour, the tribunal's chief prosecutor, said she immediately got on the phone to NATO. "Can I have it?" the Canadian jurist recounted saying in an interview last week. Despite its promise, NATO said no, she recalled, because the information belonged to the member states. "I figured I had better go talk to the member states if that's the case," Arbour said.
Thus began a high-profile, five-stop foray into tough-talking diplomacy that led, two months later, to the unprecedented indictment for crimes against humanity of a sitting head of state -- Yugoslav President Slobodan Milosevic -- and four top associates. It was a campaign that elevated the tribunal's role, establishing the court as a key player in Europe's worst military and diplomatic crisis in half a century.
The story of how Milosevic was indicted is also the story of the attempt to build a legal institution to instill accountability into what too often had been viewed as beyond human control: waging war. It was an ambitious aim, last achieved in Europe at the Nuremberg Tribunal after World War II.
The International Criminal Tribunal for the Former Yugoslavia, as it is formally known, went a step further as it is not composed of victors, but an institution set up by the United Nations. Its concern and that of its supporters is that having come this far, the court might stumble, for Arbour is expected to be named shortly to a post on Canada's Supreme Court, and chief Judge Gabrielle Kirk MacDonald of the United States has announced that she is stepping down later this year.
Arbour "has finally taken on the mantle of Richard Goldstone as an aggressive prosecutor," said a staff member, referring to the tribunal's high-profile first prosecutor earlier this decade, "and if she now leaves, there is going to be a real downturn." The concern is largely related to the near certainty that the U.N. Security Council, slowed by China and Russia, will not appoint another chief prosecutor from a NATO country and will delay any appointment for months.
U.S. officials say the indictment will affect diplomacy, possibly setting back prospects for a settlement with Milosevic, and possibly having the opposite effect; it almost certainly will affect the conduct of the war, although how is not clear.
Thursday's indictment is only the first definitive word from the tribunal. A second indictment is being prepared for a number of senior Yugoslav officials who originally were to be charged along with Milosevic, according to Graham Blewitt of Australia, the deputy prosecutor.
Hoping to build on the new level of cooperation with Western governments, tribunal investigators will attempt to flesh out cases being prepared against Milosevic and other top officials for the wars in Croatia and Bosnia-Herzegovina and against Franjo Tudjman of Croatia, for his role in the war in Bosnia-Herzegovina.
Arbour has made only a part of the case public but said that the supporting material establishes not only the "de jure," or legal, chain of command, but also proves de facto that Milosevic and his aides are responsible for the massive deportations and hundreds of murders for which they are charged.
Arbour's tour, which took her to Bonn, Germany, London, Washington and U.N. headquarters in New York and Paris, had four aims: to insist that tribunal investigators go into Kosovo when NATO forces arrive; to demand the arrests of indicted war criminals in Bosnia; to insist on maximum sharing of intelligence in the form of evidence; and to assert her authority over NATO should its forces breach humanitarian law.
She received an enthusiastic reception in London, where Prime Minister Tony Blair has made the defeat of Milosevic's "ethnic cleansing" campaign into a crusade.
She did not seem to receive quite the same level of cooperation from the U.S. government.
In addition to asking for Washington's intelligence data, she delivered a strong demand in private, and in public, to arrest the war crimes suspects indicted during the 1992-1995 Bosnian conflict.
She said the NATO powers, who effectively control security in Bosnia, deliberately decided to suspend arrests during the Kosovo intervention. She said she made clear to the United States and other governments that they had an obligation "not only to comply" with the laws of war, "but to prevent and punish any deviant."
Pub Date: 5/31/99