Copyright 2002 Southam Inc.

The Ottawa Citizen

January 21, 2002 Monday Final EDITION

SECTION: NEWS, Pg. A7

LENGTH: 491 words

HEADLINE: Canadian judge pans new international court: Arbour says rules
shield world's worst criminals

BYLINE: David Rider

SOURCE: The Ottawa Citizen

DATELINE: TORONTO

BODY:
With a permanent international court finally set to become reality, a
Supreme Court of Canada judge and former war crimes prosecutor is worried
governments have been handed a "major trump card" to shield some of the
world's worst criminals.
Justice Louise Arbour -- an international legal figure who indicted former
Yugoslav president Slobodan Milosevic -- told a forum she's deeply
concerned that the borderless court will get involved only when a nation is
"unwilling" or "unable" to prosecute a case itself.
It's fairly easy to determine when a state is unable to try someone for
genocide, crimes against humanity or war crimes, said Judge Arbour, who was
chief prosecutor for the United Nations tribunals for Rwanda and the former
Yugoslavia until her appointment to Canada's top court in 1999.
For example, Rwanda couldn't hold its own genocide trials because few
lawyers and judges survived the 1994 massacre.
However, under rules of the International Criminal Court (ICC) treaty
drafted at a Canadian-chaired meeting in Rome in 1998, national courts have
primacy -- even when the state's leaders are themselves implicated -- and
the onus is on international prosecutors to prove that any fraudulent
investigations and trials aren't "genuine."
A long-standing proponent of a permanent court to judge the worst crimes
against civilians, Judge Arbour called the rule a "very, very bad idea."
States with relatively developed legal systems will have a "major trump
card" to evade justice and will clash with developing countries that don't,
she said.
"That clash will be intensely political, so I think the reality is that the
ICC risks becoming the true default jurisdiction for developing countries,
and is buying into major political legal battles with everybody else," she
said.
A dream of human rights activists since the Second World War, the new court
is set to become a fact when 60 countries ratify the Rome treaty.
Forty-eight, including Canada, have already done so and the magic number is
expected to be reached by about mid-April.
However, holdouts include the United States and most observers believe its
money and political clout are critical to the court's long-term success.
Judge Arbour said the merits of the court's existence are "yesterday's
debate" and speculated that the U.S. will become tacitly involved when the
UN security council, on which the U.S. sits, refers cases to the new court.
"My concern is not that (the court) is too ambitious but that it is not
ambitious enough," she said, adding it would be a mistake to build the
court on the Canadian judicial template. For example, prosecutors will need
more power to protect the safety of witnesses and to get information from
state intelligence agencies than they have under the Canadian system.
She called the court's development "highly complex, immensely challenging
but immensely do-able and, for all these reasons, just."

GRAPHIC: Photo: Sava Radovanovic, The Associated Press ; Former, Bosnian
Serb leader Radovan Karadzic and his wartime commander, Gen., Ratko Mladic,
are among the people who would be tried before a, permanent international
court. These wanted posters have been posted, in Sarajevo.