after dinner one evening that we bicycle over to see Scheveningen prison, where those charged by the ICC and other international tribunals with war crimes and crimes against humanity were incarcerated for the duration of their trials. It was a short hop from her house on Kanaalweg to the unimposing compound with its antiquated castle gate, turrets and gun slots. Two small kids on skateboards, in the company of their father and a brown dog, were cavorting in the parking area. The renovated prison, once used as a lock-up by the Nazis for Dutch resistance fighters, was anything but primitive inside and would have put local hotels to shame, with its 160-square-foot rooms equipped with coffee maker, desk, radio, bookshelves and satellite TV. Detainees also had the use of library, gym, recreation room, flower garden, prison shop and family visitation rooms. Security appeared lax, as the prison door was ajar and no one seemed the least bit interested in the fact that I was taking photographs through the opening. In the UN wing behind this wall, Slobodan Milosevic had been interned and died before he could be convicted of war crimes, defying the court and causing no end of dismay to his surviving accusers. For all I knew, Bosnian-Serb leader Radovan Karadzic, recently apprehended, might have already taken up his lodgings here, with or without his beard. Was he chatting up Thomas Lubanga Dyilo in the court yard, enrolling in guitar lessons or playing Ping-Pong with Jean-Pierre Bemba, a popular Congolese militia leader and presidential contender charged with crimes against humanity?
A COUPLE OF hours had passed since leaving Heathrow. My religious seatmate had dozed off and was emitting a delicate snore, the open Bible page-down on her lap. The dapper gentleman in the window seat on my right had set aside the Times and selected a movie that appeared to involve some sort of vendetta. I was determined not to be lured from my reading by high-altitude misadventures on a diminutive screen, but the changing colours and movement in my peripheral vision kept sucking me in. And the fact that the film was about the search for justice, however self-administered, made it difficult to ignore.
During my time in The Hague, I had met with a French national named Patrick, who worked in the court’s public relations sector, and two more women in charge of departments at the ICC. While he gave me a tour of the facilities, Patrick told me how much he had appreciated meeting Simone Weil, the famous writer and Holocaust survivor who had decided to lend her name to the work of the ICC. As Patrick explained, Weil was not impressed with, or convinced by, the notion of international justice, which she considered occasional, random and, at best, unreliable, but she had strong feelings about the rights and protection of victims.
When Fiona McKay found us outside the elevator, she was running late. She directed me to a seat in the visitors’ lounge, so I knew our encounter would be brief. McKay had practised law briefly in the U.K., but was now head of the ICC’s Victims Participation and Reparation Section. We discussed the differences between courts using common law and the proceedings of the ICC, where witnesses are not cross-examined to evaluate and possibly dismantle their testimony. Like Claudia Perdomo, McKay had a team in Africa who interviewed victims and potential witnesses, using similar techniques of town hall meetings and role-playing. I asked if, given the unreliability of memory, this latter practice might not contribute to something like false memory syndrome, in which a patient too readily accepts a psychiatrist’s suggestions about the source of distress.
Fiona knitted her brows and leaned into the question. “That’s not my mandate. I want you to understand the nature of witness participation. For one thing, witnesses in this court are voluntary, not mandatory.” She explained in detail Regulation 81, which concerns effective participation by victims and witnesses and programs designed to provide them with legal counsel and financial assistance. Given the huge number of victims involved, I suggested, and the extreme nature of their losses, reparations could hardly be more than token. Add the legal, financial and psychiatric implications of bringing witnesses and their representatives all the way to The Hague . . .
Fiona glanced at her watch. “I’m sorry,” she said, “but I have to make a pre-arranged call to my team in Uganda in ten minutes.” The interview was over, but she invited me to continue the conversation by e-mail. Back in Victoria, I would follow the weekly reports from the ICC that provided updates on various cases and witness programs, but I did not take Fiona McKay up on her offer. However, the contact she gave me with a lawyer named Joseph Manoba in Kampala proved to be the most valuable piece of information I gathered from the ICC.
With only a day left in The Hague, I was anxious to speak with someone from the Office of the Prosecutor at the ICC. My call to Florence Olara, a Ugandan staffer, proved lucky. She arranged a dinner meeting for me with Béatrice Le Fraper du Hellen, a former French diplomat with the intimidating title of director of the Jurisdiction, Complementarity and Cooperation Division, Office of the Prosecutor (OTP), International Criminal Court.
In her late forties, trim, alert and with a disarming candour, Béatrice put me immediately at ease. She was ready to answer all of my questions, even about the two major impediments to the ICC’s credibility: time and numbers. Didn’t the length of time it took to apprehend suspected war criminals, plus the drawn-out judicial process, with its countless delays and appeals, encourage skepticism about the court’s effectiveness? And with so many perpetrators slipping through the net, were the victims’ rights to justice ever likely to be satisfied?
“Radovan Karadzic’s arrest took thirteen years,” I said. “His trial could take several more.”
Béatrice beamed. She reached out and touched my arm. “That’s the thing, Gary, even after thirteen years, justice will be done. The message is out there, loud and clear. If you commit war crimes or crimes against humanity, you won’t sleep well anymore. I love it. I’m very excited about this arrest.” She was a true believer, her enthusiasm infectious. “We know the message is getting out. I’m receiving phone calls daily from both the Russians and the Georgians wanting to discuss the situation that is unfolding there. People want to talk to us.”
We moved next to the concept of “winner’s justice,” a term that originated during the Nuremberg Trials in reference to the Allied atrocities that were ignored. How might this affect the credibility of the International Criminal Tribunal for Rwanda, which was convicting former génocidaires but ignoring war crimes committed by the Rwandan Patriotic Front, the movement formed by Tutsi refugees to overthrow the repressive Hutu regime? Then there was the question of NATO’s possibly illegal attacks in Yugoslavia, where 25,000 bombs were dropped, many of them on civilian targets, killing upwards of a thousand people and causing billions of dollars of destruction to infrastructure, including the Grdelica bridge, which sustained damage when a passing train full of people was hit by two NATO missiles. The International Criminal Tribunal for the former Yugoslavia (ICTY) had not taken charges of war crimes against NATO leaders and politicians, including Bill Clinton, Jean Chrétien and Tony Blair, seriously enough to open an investigation. Michael Mandel, an expert on international law and Osgoode Hall Law School professor, claimed the NATO attack on Yugoslavia was nothing less than a U.S.-led strike against the authority of the UN.
That led to another question for Béatrice: Does the fact that the U.S. is not a signatory to the ICC make it more difficult for her to conduct her business, especially when so many of the small, troubled states are dependent on the U.S. for military equipment and economic aid?
I was surprised by her candid response. “The refusal of the U.S. to be one of the signatories is, in a certain sense, a problem for us, but it’s also an advantage. When we are talking to an unsympathetic African state, trying to get them to help us apprehend a suspected war criminal, they often ask if this action has been prompted by the U.S. And here we can assure them that the U.S. has not only refused to sign but also, thanks to George Bush and his éminence grise, John Bolton, set in place The Hague Invasion Act, allowing the Americans to attack this city if one of their nationals is brought before the court. On the other hand, when we are speaking with the Arab states, many of which have close links with the U.S. and its foreign policy, it’s useful to be able to say that the Americans are more rather than less onside. So, a certain amount of ambiguity can be put to good use.”
