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NTIL the outbreak of hostilities in disintegrating Yugoslavia no one but scholars and a few idealistic or zealous public figures had thought much about the need for a war-crimes tribunal. The post-World War II trials of Nazi and Japanese leaders had set a precedent, but one hobbled by the nature of the justice being done: however fairly, victors were trying the vanquished. The United Nations after the war had sought to codify crimes against humanity, genocide, violations of the customs of war, and the like. But during the Cold War the documents embodying these ideas, which would provide the legal and political underpinnings for the tribunals of the 1990s, existed in the realm of pure theory.

The International Criminal Tribunal for the former Yugoslavia was established in 1993, two years after the conflict in the Balkans began. Western nations had been confounded by this southeastern European crisis, and they had been roundly accused of spinelessness and dithering as mounting numbers of casualties -- in particular, civilian fatalities -- were reported on global television.

The cynical view still propounded by some diplomats is that the tribunal was established to give the appearance of doing something -- anything -- when economic sanctions, arms embargoes, armed intervention, and negotiations were either ineffective or impossible. "I've heard it all," Arbour told me, commenting on this view. "But as a lawyer I find it difficult to believe that those who voted for [the tribunal] didn't realize what they were launching. On its face, they were launching a pretty robust and well-equipped institution, and one that is very difficult to recall. If it was a cynical act, my God, was it ever stupid." One evening, to describe what the tribunal stands for, she touched the lapels of her suit jacket and said, "When criminal law puts on its Sunday suit."

The first chief prosecutor, Richard Goldstone, had enjoyed a distinguished career as a judge in South Africa. He had headed up investigations, just before the collapse of the white-minority government, into atrocities committed against black civilians by agents of the South African state. He had a sure sense of media relations, a fine pedigree with respect to worthy causes, and a determination to put the tribunal on the map. When the Security Council, in 1994, added war crimes in Rwanda to his brief, Goldstone already enjoyed a good reputation -- for a white jurist -- in black Africa. (The story of the International Criminal Tribunal for Rwanda, which Arbour also headed subsequently, is a separate, vexing case that will not be covered here.)

After a slow start, Goldstone began to issue indictments, making prosecutorial decisions that would be fateful for the early years of the tribunal. By 1996, when he left, seventy-six people had been indicted -- most of them Bosnian Serbs, for crimes against Bosnia's Muslims. In what some critics inside and outside the tribunal believe was a mistaken signal of moral equivalence, Goldstone also brought indictments against Croats (reasonably enough, given evidence of their violence against Serbs and Muslims alike) and against Bosnian Muslims, who at the time were by far the most victimized of the ethnic populations in the Balkans.

In 1994 the tribunal received its first prisoner, when the German police arrested Dusan Tadic, who was living in Munich. In 1995 the tribunal issued indictments against two Bosnian Serb leaders for organizing the ethnic-cleansing and extermination campaign against Croats and Muslims during the war -- the political leader Radovan Karadzic and his military chief, Ratko Mladic. At this writing Karadzic and Mladic are still at large and remain the most wanted men in the Balkans, symbols of the impunity that the tribunal is struggling to expunge.

In 1996 the tribunal began to try Tadic, whose small-fry status and agonizingly ponderous trial (appeals of his conviction stretched into this year) would come to epitomize the shortcomings of justice in The Hague. In April of 1996 a bigger fish, the Bosnian Croat general Tihomir Blaskic, surrendered less than voluntarily to the tribunal, to face charges of command responsibility for atrocities. By the time Goldstone left, in September, only one trial had been completed, and only one confession had been recorded. Of the seventy-six indicted suspects only eight were in custody, and only one of them was a Serb.

Justice is slow in The Hague for many reasons. Some involve the hybrid form of law that the tribunal practices. Its adversarial proceedings and rules of evidence are borrowed largely from British common law. But, as in the continental European tradition, defendants have no right to a jury, defendants can be questioned, and all cases are decided by a three-judge bench, with two votes sufficing to convict. In The Hague prosecutors may appeal acquittals (and have done so). Hearsay is permissible; so is a diluted form of trial in absentia.

This mishmash of legal traditions is made all the more troublesome by simultaneous but not always perfect translation into the three languages of the court -- French, English, and Serbo-Croatian. In the Goldstone era only a single courtroom was available; the judges heard two cases alternately, slowing whatever trials were under way to half speed. (The tribunal now has three courtrooms.)

Goldstone, who knew Arbour from the legal circuit, invited her to dinner one day in late 1995 when he was visiting Ottawa. Arbour recalls that he asked her point-blank, "How would you like my job?" The thought had never crossed her mind. He urged her to consider it. In December, Boutros Boutros-Ghali, then the UN Secretary-General, called her and asked if she would accept the appointment.

Arbour had no experience in international law or as a prosecutor. She had taught criminal law and law relating to her passion for civil and human rights, and had recently chaired a commission investigating conditions in Canadian women's prisons. She had been a law-school student in Montreal when Prime Minister Pierre Trudeau suspended civil liberties during a notorious crackdown on radical Quebecois separatists. She clerked for a Canadian Supreme Court judge, though at the time she spoke only a few words of English. (She is now fluent.) She says she was no more a Quebecois nationalist than her peers, but she grew up and trained and thought about the law in a place that had experienced a mild version of the ethnic passions that roil the Balkans.

In The Hague, Arbour focused her attention on two broad areas: getting surrenders or arrests, and culling the indictments. She had an untested tool at her disposal, one that was both enormously valuable and enormously frustrating: NATO's Stabilization Force (SFOR), the multinational peacekeeping force that succeeded one brought into being by the Dayton Accords -- the 1995 agreement that ended four years of strife in Bosnia. Its mandate to arrest war-crimes suspects had been the subject of some of the most difficult negotiations during the three weeks of talks in Dayton, Ohio, that were brokered by the U.S. diplomat Richard Holbrooke.

The reasons for Western unease about arrests were several. First, American and other NATO military leaders feared that arrests would lead to violence -- against their own troops. "Force security" has been an obsession of the U.S. military's high command since the Somalia debacle. Second, they worried that with substantial numbers of Bosnian Serbs still owing fealty to Karadzic, the peace that SFOR was in Bosnia to keep might be shaken apart by arrests. Third, there were the sensitivities of the leaders in the area, notably Milosevic and Franjo Tudjman, then the President of Croatia (he died in December). However complicit in the horrors that had come before, these two men were now signatories to the Dayton Accords, and as such were guarantors of the new order in the Balkans. Western military commanders knew (and still know) very well where Karadzic and Mladic were. But they didn't have the say-so of their governments to "encounter" them and then pick them up for dispatch to The Hague.

Arbour was impatient with SFOR's nervousness, and became downright skeptical and even contemptuous over time. But in some respects momentum was shifting her way. In July of 1997, with SFOR better rooted, the peace more durable, and the power of the suspects shrinking, the first SFOR arrest took place.

Other arrests followed, one upon another, by British, Dutch, and American forces, and "World War Three didn't happen," as Arbour put it later. This was the first message that got through to the tribunal's hesitant military partners. The second message was that the threat of arrests, made credible by actual arrests, persuaded guilty parties to turn themselves in, in the hope of avoiding a violent confrontation and perhaps of getting a better deal from prosecutors. In the year and a half that followed, 46 percent of those who came into custody in The Hague did so by surrendering.

Arbour had a complementary strategy that, she now believes, was even more effective in fostering arrests: she disclosed that there were suspects facing criminal charges whose identities had not been made public. This policy of issuing sealed indictments became, intermittently, a cause for outrage among officials of the targeted countries and of Russia, and, strangely, among NATO commanders, too. They all railed against "secret" indictments, as if the procedure somehow amounted to a suspension of fair play. Arbour argued that she was simply using a strategy that any criminal prosecutor in North America uses routinely.

Arbour's sealed-indictment strategy had a utilitarian purpose: to strike fear in suspects who might well worry that they were under indictment and might conclude that surrender would be preferable. Its larger purpose was "to put lead in SFOR's pencil," as one of Arbour's prosecution staff told me. A secret arrest warrant gave SFOR troops an advantage against the target and a better chance of effecting a bloodless arrest. And the secret warrant itself carried the implicit threat of exposure if military commanders and their political superiors failed to act on it. Arbour was essentially telling SFOR, "Arrest so-and-so, or I will say publicly that you didn't when you could have." An American diplomat put it to me this way: "It gave [SFOR] an excuse, or took away their excuse."

Meanwhile, she scrutinized the viability of existing indictments, and in May of 1998 she announced that charges had been dropped against fourteen people. The move was read at the time as a repudiation of Goldstone's indictments policy, and as a symptom of disarray. But mainly it marked a shift in the priorities of the tribunal. Henceforward the prosecutor meant to concentrate her resources on fewer and more-important suspects. "We had to regain control of the agenda and curtail our exposure," she told me, "so that we could decide who to try and in which order."

RBOUR was learning that an independent prosecutor could not afford to be a passive prosecutor. The job required charm and bravado and endurance, and the wise use of spare resources, untested influence, and the power of public statements and private warnings.

The exertion of influence went in both directions. Everyone involved in the relationship between The Hague and Washington insists that no unseemly political pressure was ever put on the prosecutor or her senior staff. But U.S. officials had ways of steering investigations by simply turning on or off the faucets of information and cooperation sought by the tribunal. In the minuet of information-sharing and prosecutorial shoptalk the United States made sure that it always knew what was going on in The Hague, and that its preferences were known. When Washington was unhappy with her, Arbour would get treatment that she calls "withdrawal of affection" -- gentle reminders that she could be part of the inner circle, but only if she behaved. One of her aides described the dynamic between the prosecutors in The Hague and the bureaucrats in Washington: "It's better to have a dance partner than none at all, even if he's stepping on your feet. Yes, they were uncooperative, but they can do more to help us than anyone else."

Arbour had an ally, at least at first, in the new U.S. Secretary of State, Madeleine Albright, who had celebrated Arbour's appointment at the United Nations and had come to the Department of State with war crimes high on her agenda. Albright established the department's first Office of War Crimes. It was headed by an ambassador-at-large whom Albright trusted, David Scheffer, who would become the Clinton Administration's point man with the tribunal. The tribunal had a supporter in Kofi Annan, also new as Secretary-General of the United Nations, whose reputation had been sullied by his inaction as the UN's peacekeeping chief during the genocide in Rwanda in 1994. The tribunal was also aggressively backed by the new British government of Tony Blair.

After Dayton the former war zone in Bosnia was divided into three geographic peacekeeping sectors that overlay the political entities created by the accords. One sector each is commanded by U.S., French, and British officers, with troops of other nations under their command. In 1997 and 1998 a pattern began to emerge with respect to executing the tribunal's arrest warrants. The British were far ahead. Dutch, German, and American troops had picked up a few suspects. The French had no score -- and they had Karadzic and Mladic, among other high-priority suspects, living in their zone.

The French were something of a special case here, as they have often seemed to be elsewhere. They had suffered far more casualties in the Balkans than any other non-Balkan nation -- seventy-five soldiers killed. They had been stung by denunciations of pusillanimity, not only in the Balkans but also, in the spring of 1994, in Rwanda. French officials had reason to be worried about more casualties, and about the political consequences in France and, potentially, the prospect of French military officers being called to account in The Hague. [For a fuller discussion of France and the former Yugoslavia see "The Reluctant Gendarme," by Chuck Sudetic.]

The French attitude toward the tribunal in this period was framed indelibly by a single remark by the French Defense Minister, Alain Richard, in an interview in Le Monde in December of 1997. What Richard said, apropos of tribunal requests that French military officers testify in The Hague about events on the ground during the war, is that French officers would "never" go to The Hague to participate in any "justice spectacle."

The words are often translated as "show trial," but Richard's meaning was probably closer to "media circus." In any case, the remark brought down the house on Richard and the government of Prime Minister Lionel Jospin. French newspapers of every stripe denounced his attitude, wondering if France still believed officially in international justice. Arbour could not resist piling on, also in Le Monde, asserting, "In the French sector can be found lots of war criminals, and they feel absolutely secure there."

Relations between France and the tribunal have improved. French officers have been permitted to testify, and Arbour eventually pronounced France in "full compliance" with the tribunal's needs. Arbour says she regrets the incident. "It singled out the French as pariahs, which was not accurate. There were others who fit the bill." The issue was never really France -- it was any major nation's commitment to the tribunal and its cause (or so she insisted). One U.S. official cannot resist pointing out, however, that Arbour's remark about the French zone remains accurate.

The French were, however, neatly on the side of the blessed -- and the United States was on the other side, from the perspective of the international human-rights and justice communities -- in July of 1998, when 160 nations, and roaming armies of well-briefed, well-funded representatives of humanitarian agencies, set to work in Rome on a treaty to create a permanent International Criminal Court.

Books will be written about the compromises made in Rome. It is enough here to say that in the closing days of the conference the future International Criminal Court nearly foundered over the power of an independent prosecutor to bring actions against suspected war criminals. Would a Security Council referral be required -- or a veto permitted? Could a prosecutor choose to investigate anything, even without a state's referral?

The final text gave a prosecutor such power, in extremis. The treaty also insisted that the International Criminal Court could override the primacy of national courts if they were judged to be in default of their obligations to dispense justice fairly or adequately.

In the face of these two provisions, and whatever its own judgment, the Clinton Administration felt compelled to echo the reservations of Republican critics on Capitol Hill. Jesse Helms and others had vowed that any treaty permitting even the remote possibility that some future Lieutenant William Calley or Robert S. McNamara would stand trial in a "foreign" court would be dead on arrival. The Clinton Administration decided not to deliver the body. It has continued to work with other signatories to find ways of squaring the circle -- "fixing" the treaty, from a U.S. perspective, without "changing" it, a task only a diplomat could envisage. As even the treaty's strongest supporters understand, an International Criminal Court without the United States will have neither credibility nor authority. After Rome, Arbour pointed out repeatedly that the treaty creates an institution in many ways weaker than the existing UN tribunal.