Louise Arbour

Canadian Supreme Court Justice; War Crimes Prosecutor
February 5, 2003   4:00pm    ICC Auditorium

Justice Louise Arbour has served on the Supreme Court of Canada since 1999. Prior to her appointment, she served as the Chief Prosecutor of War Crimes before the International Criminal Tribunal for Rwanda and the former Yugoslavia in The Hague. While at this post, she indicted Serbian president Slobodan Milosevic, the first time a sitting head of state was indicted by an international tribunal.  Justice Arbour has also served on the Supreme Court of Ontario and the Court of Appeal for Ontario. In addition, she was Associate Professor and Associate Dean of Osgoode Hall Law School, where she taught from 1974 to 1987, and Vice-President of the Canadian Civil Liberties Association.

Waging War Lawfully: Who Will Enforce the Law?

Lots of attention has been devoted in the last decade to the enforcement of international humanitarian law, first through the ad hoc Tribunals for the former Yugoslavia and for Rwanda, and, in the summer of 1998, through the creation of the International Criminal Court. As the ICC is about to become fully operational, it is useful to recall that this new international judicial institution is merely complementary to national courts, and is only expected to be seized of a case if national judicial systems are not genuinely willing or able to carry on the investigation and, if necessary, the prosecution of a matter.

In parallel to the launch of the ICC, we are experiencing a growth in the acceptance and in the exercise of universal jurisdiction by many states, including by many that have ratified the Rome Treaty. This talk explores the relationship between international and domestic prosecutions for war crimes, crimes against humanity and genocide, and posits that the ICC may be an entirely successful international judicial institution even if never hears a case.

The fundamental policy choice for the ICC will be the management of complementarity and the level of deference that it will show national courts in the discharge of its prosecutorial mandate. Will the expansion of universal jurisdiction in national courts make the ICC a mere watchdog? Is this a desirable development? Is the ICC a forum preferable to a national court that has a very weak link to the case? Will national courts be called upon to exercise their universal jurisdiction in the face of an overworked or underresourced ICC? In short, where will the future enforcement of international humanitarian law likely take place? There is a strong case to be made that it will take place in national courts, not before the ICC. But, after the Rome statute, one thing is certain, the law will be enforced. Somewhere.