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 Posted Saturday, May 29, 1999

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Toronto, Canada, May 22, 1999



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 back to the people (and there'll be fewer of them in future) or small fry soldiers and torturers whom the major villains sacrifice gladly to stay out of harm's way. On the other side of the ledger, meanwhile, states find that their own judicial sovereignty may be junked, and their fragile peace disturbed, by irresponsible foreign jurists barging in, unravelling delicate political compromises, and hijacking those dictators who were silly enough not to utter the right slogans.

Since Judge Arbour is practically certain to fill the judicial vacancy on Canada's Supreme Court, the international war crimes tribunal may soon be set right. Surely, however, even the Canadian Supreme Court deserves better.

Our opinion
  HERE is an odd example of a judge, after being endlessly hyped by Canada's liberal media elites, believing in her own press clippings and becoming a legend in her own mind. Many Canadians expect she'll be "kicked upstairs" to serve on "our" Supreme Court. Which would be akin to pairing Rowan Atkinson and John Cleese in a 1990s revival of Faulty Towers.

If you write to a newspaper don't forget: 1. keep it short; 2. add your mail address and a daytime telephone number; they will not print it otherwise.

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© Focal Point 1999 e-mail:  write to David Irving