August 25, 2002: Ambassador Pierre-Richard Prosper of the Office of War Crimes Issues discusses war tribunals with host Daljit Dhaliwal.

Daljit Dhaliwal: Ambassador Pierre Prosper, welcome to WIDE ANGLE.

Ambassador Prosper: Thank you. It’s a pleasure to be here.

Daljit Dhaliwal: You’re the United States Ambassador-at-Large for war crimes issues. Why should Americans care about the tribunal that’s going on in The Hague for Yugoslavia?

Ambassador Prosper: Well, the tribunal, in the case against Milosevic, is important to Americans and America for several reasons. The first primary reason is accountability for war crimes, for genocide, and for crimes against humanity. Mr. Milosevic stands accused of some of the most horrific crimes committed by man on the face of the earth, and it is important, in order for the rule of law to mean something, that we seek accountability for these atrocious actions. Another reason that we need to be concerned about what is happening there and supportive, is that this is a key to peace and stability in Europe. By holding leaders accountable for their actions for attacking civilians, it will help promote the peace that is needed, so we can move to a normal society in the area.

Daljit Dhaliwal: Now, you have personal experiences being involved in the war crimes tribunal for Rwanda. How difficult was it to actually make a case for genocide?

Ambassador Prosper: Making a case of genocide is not like what we have here in our ordinary criminal system. It’s not a situation where you have direct eyewitnesses that can say that the perpetrator took this particular action, particularly when you’re dealing with the situation where the person that is in the dock, if you will, for prosecution is the head of state. It’s generally a case built on circumstantial evidence. The best way I can put it is that when you look at Yugoslavia, you look at Rwanda, we need to understand that the entire country is a crime scene. There are witnesses from all walks of life, all parts of the country that need to be interviewed, that will have information that may not directly point to the leader, but it’s part of the building block that will be used to show that the leader played a fundamental role in orchestrating the events. It was part of his or her policy for annihilation, destruction of this particular group. And then from there, we start looking at other areas, such as the command and control of the leader over the forces or militias that are being used.

So it is a complex process. It’s usually a process that requires many months of actual trial time in order to prove the charges against the individual. And it is a process where there may not be a smoking gun, but the totality of the evidence or the information that is available is to be determined or examined at the end of the process in order to determine the guilt or innocence of the person.

Daljit Dhaliwal: And what experiences did you take away from your involvement in the Rwanda tribunal?

Ambassador Prosper: The experience that I took away was obviously on a professional level and a personal level. Professionally, it was clear to me that this was the right thing to do. It was absolutely necessary in order to bring to justice the orchestraters and the organizers of the genocide that occurred that killed nearly 800,000 people in 100 days. What I also took away from it is that we need to do a better job of bringing the justice back to the people. We need to do a better job with outreach. We need to do a better job of having the local farmer, the citizen, feel and understand that justice is actually being pursued on is for her behalf. My personal experiences in being involved with the tribunal made me realize that we have a role, we as individuals, we as members of the international community, have a role to play in order to ensure that there is accountability for the worst crimes known to humankind so that it doesn’t happen again.

Daljit Dhaliwal: There is broad U.S. support for ad hoc tribunals. We now have an International Criminal Court, which has come into effect on the first of July. Why has there been such virulent opposition of the United States to that?

Ambassador Prosper: Well, firstly what I want to say is that the United States is deeply committed to holding perpetrators of war crime accountable. This is our fundamental policy. We support the tribunal in The Hague. We support the tribunal for Rwanda. We also support a special court in Sierra Leone, which is also designed to achieve accountability through these violations of international and humanitarian law. But the problem we have with the permanent International Criminal Court is not in concept, but it’s in its implementation. We looked at the treaty, we determined that the treaty was flawed. There were insufficient safeguards in place to prevent this court from being used for political reasons, to politicize the process, or to be exploited for personal gain. And because these safeguards do not exist, we have made a decision out of principle not to support it. We respect the right of the other states to be a party to it, but we ask them to respect our right not to be a party to this process.

Daljit Dhaliwal: You say exploit and you say it would be politically motivated. What do you mean by that?

Ambassador Prosper: Well, it places an incredible amount of power and authority in the hands of an individual. Unlike the tribunal in The Hague that is prosecuting Milosevic, one that is answerable to the UN, to the UN Security Council, the permanent International Criminal Court is essentially answerable to no one. A prosecutor will have the broad discretion, the broad ability to pursue any case that he or she feels is worthy of pursuit. They could make this decision for political reasons. We could be acting in good faith in a time of conflict, our soldiers who are deployed overseas could be engaged in lawful activity, but a prosecutor could choose to use the ICC as a vehicle to try to challenge our policies, challenge our approach in a particular conflict, and seek to apprehend and arrest one of our service personnel. And this is something that we cannot accept. We cannot have such an unchecked process be available to an individual.

Daljit Dhaliwal: But that’s very unlikely to happen. The International Criminal Court is actually a court of last resort. And, as a basic rule, Americans who commit crimes will be tried by U.S. courts first.

Ambassador Prosper: There is a provision, which we call the complimentary provision within the ICC, the International Criminal Court. It does give the state the first bite of the apple, if you will. However, the tribunal, the International Criminal Court will have the authority to second-guess any decision that a nation may make regarding prosecution or investigation. The best example that I could give is that we could in good faith, prosecute one of our people here in the United States, either before our jury system or before our military courts, the person could be acquitted by a jury, and the criminal court could decide that they are not satisfied with that result, and they will seek to prosecute anew the individual, the service member or the government official who was on trial. This second-guessing by an unchecked process is something that we view as a dangerous precedent. And again, we took a stand against this and decided that we would not be part of it, but we respect the right of the Europeans and other states to be a party to it.

Daljit Dhaliwal: Isn’t there an element of exaggeration, though, in what you’re saying? Because the creators of the ICC actually went out of their way to address America’s concerns. They said there wouldn’t be room for frivolous prosecutions involving American servicemen or women, and that it wouldn’t be a forum for America-haters.

Ambassador Prosper: Well, let me begin by saying that we believe that the ICC is a noble idea. And that is why since 1995 we negotiated in good faith to be a party to this process. We went through Rome trying to see if we could have the safeguards put in place in order to allow us to be part of this. But it didn’t happen. After Rome, we continued to negotiate in New York at the various conferences to see …

Daljit Dhaliwal: But nobody else has asked for safeguards. Tony Blair isn’t asking for safeguards. Europe thinks it’s OK. Why such resistance from the United States – from this administration in particular?

Ambassador Prosper: Well, we are in a unique position internationally. We have the unique responsibility to preserve international peace and security. Whenever there is a conflict, whenever there is a hot spot, the first nation that people look to is the United States. Currently we have service members deployed in over 100 countries at a given time. We feel that this is a process that exposes us to politicization. We believe that a prosecutor with this unbridled authority to pursue any case that he or she feels is appropriate is a dangerous one and will expose us.

Daljit Dhaliwal: You’re denigrating the judges here. You’re saying that they’re going to be subjective in their rulings, there will be politically motivated trials against the United States. And yet as I come back to this point again, there are ample opportunities within the way that the treaty has been drawn up to have a number of opportunities to make challenges. Why is the Bush Administration not satisfied with that?

Ambassador Prosper: Well, this is not only the Bush Administration. Two administrations have looked at this – the Clinton Administration and this one. We both opposed the International Criminal Court. But it would be naive for us not to think of this possibility, the fact that a judge or a prosecutor could use this as a vehicle to prosecute us for political reasons. We don’t know who the judges are going to be. We don’t know who the prosecutors are going to be. It’s putting a lot of faith into the hands of an individual. But when we look at this, we believe that we need to take a stand not only for our current officials and service members, but for the future. We believe that, again this is a process that we cannot support, we cannot be a party to it based on the flaws. We don’t think that the safeguards that are in place are sufficient. They may delay the process, if you will, but there is still, at the end of the day, an unchecked process where the prosecutor and essentially two judges can make a decision that will essentially govern the fate of the world and will dictate what the response should be to a breach of international peace and security.

Daljit Dhaliwal: What do you say to your critics though who say that this is just a situation where the United States is trying to control the court as far as they’re concerned, there are plenty of safeguards. Europe isn’t concerned and going on about its peacekeepers. Why shouldn’t the United States just fall into line?

Ambassador Prosper: Well, again, we looked at this with our national security interests in mind. And obviously, the European states can have their own views. They’re not as extended as we are internationally when it comes to military personnel. They don’t have the same unique role and responsibility that we have internationally in order to preserve and maintain international peace and security. So we need to look at this through our own perspective, through our own lens. We do think that some of the European states will, with time, come to understand our arguments. They will come to see some of the concerns that we have with the process. And they will, in the end, probably try to add additional safeguards to the process. But as it currently exists, the court, which again we view as a noble idea in theory, is flawed in its implementation and we just cannot be a party to it.

Daljit Dhaliwal: I just want to come back to how real that threat is and how real those concerns are for Americans because the procedure has been developed in such a way that it’s actually going to take care of countries where the legal systems have broken down, in effect failed states. The United States isn’t a failed state.

Ambassador Prosper: Well, if that was the criteria that it is to take effect in failed states, that would be a different matter. But the way the court is designed is that it allows the prosecutor and the judges to examine the inner workings of any domestic system in any country and second-guess it. It has essentially an overriding ability or a veto process built into it. Again, what we have here is we have a situation where the ICC prosecutor could second-guess jurors here in the United States, could second-guess judges in the United States that are elected or appointed by our president and come to their own determination, not taking into consideration the things that we take into consideration here in the United States

Daljit Dhaliwal: But the way that, again, the ICC has set up the procedures, there are a lot more sophisticated than the criminal system here in the United States. Isn’t that right?

Ambassador Prosper: Well, not necessarily. In fact, the rules of evidence and procedure are more relaxed. For example, there is no essential prohibition against hearsay. There is no form of exclusionary rule for evidence that was illegally gained or gotten. There are a wide variety of differences between the International Criminal Court and our domestic process here. Some of them are necessary based on the nature of the offenses that the court will be prosecuting. But at the same time we don’t want a judge that comes from a completely different system, a different country, second guessing our experts here who made a good faith decision regarding whether or not to pursue a case or whether or not the person was guilty or innocent. And that is essentially the fundamental problem that we have with this process.

Daljit Dhaliwal: You say that the system is flawed. The United States has a tradition of being involved, of leading from the front, why not get involved and put your doubts to one side and try and reform the system if you think there are so many things wrong with it from the inside?

Ambassador Prosper: We tried. We tried, again, since 1995 to work with this process, to make it something that we believe would have been credible, and could have played an important role in the international scene or stage. And it just didn’t work. But what we are doing is we are exercising leadership, not only in the fact that we’ve made a decision in principle and made a statement, if you will, that this is a flawed process, but what we’re doing is we’re looking at war crimes. We believe that a different approach is in order. And what that approach is that we should first look to the states where these crimes occurred to try to help build the infrastructure so that these cases can be addressed and prosecuted. We believe that if we can promote the rule of law at the grass-roots level, it will build the institutions that will act as a constraint against these abuses into the future.

Daljit Dhaliwal: How would have that been possible in Rwanda? How would that have been possible in Yugoslavia?

Ambassador Prosper: Yes. Well, Rwanda’s a perfect example. We did establish a tribunal, which was the right idea at the time.

Daljit Dhaliwal: But some of the people who were upset by the way that the United States has refused to cooperate with the institution -they’re some of our closest allies in Europe who are backing the United States in the war against terror.

Ambassador Prosper: Well, that’s right. And what we did is when we made the decision to divorce ourselves from the International Criminal Court, we reached out to our allies and explained our position to them. And we also said that we respect their right to be party to this court. It’s a treaty-based court. But we asked them to respect our right not to be a party to it. But this decision does not impact the war on terror, the coalition against terror because what we’ve done is we’ve continued to engage our allies in this regard. We’ve built this coalition where everyone uses their unilateral tools to combat terrorism, to hold perpetrators accountable, and to bring stability in various parts of the world.

Daljit Dhaliwal: Is it fair to say that there’s an attitude at the core of this, which says that international institutions aren’t for American affairs? It’s fine for the Europeans, but that Americans want to go it alone and they want to take unilateral action. The ICC being just one example of this.

Ambassador Prosper: Well, the ICC is an example of something that we cannot be a party to. But the United States remains committed on the international stage to hold perpetrators accountable. We continue to be the strongest supporter for the tribunal and The Hague currently, for the former Yugoslavia. We’re the strongest supporters for the tribunal for Rwanda. We were the vision behind the special court in Sierra Leone. We are prepared to look at other international mechanisms where there may be used to combat these abuses. And if there’s a situation where there is a breach of international peace and security and it warrants the creation of some sort of an international mechanism to hold perpetrators accountable, we are prepared to act responsibly in the security council. Again, what we have here, and I think it’s important to make clear, is that it’s not the idea that we’re against here. It’s this particular mechanism. It was not thought out well. It’s flawed. And the safeguards just are not in place to make this something that we can fully embrace.

Daljit Dhaliwal: So if you don’t want to embrace the ICC, let’s assume that there is an attack to remove the President of Iraq, Saddam Hussein. Where are we going to take Saddam Hussein?

Ambassador Prosper: Well, Saddam Hussein is a unique case for several reasons. One, the majority of the violations of the war crimes, the crimes against humanity, that were committed in Iraq were committed at a time prior to the coming into being of the International Criminal Court. We’re talking about the late 80’s and the early 90’s, when these offenses occurred. If we were to do anything internationally, we would have to create a new mechanism. But what we would like to see actually in the situation such as this when there is a change of regime in Iraq, we will first look to see what is available at the domestic level to hold him accountable for the acts that he committed against his people. Because if we really want the rule of law to grow.

Daljit Dhaliwal: Well, that’s fine and noble, but also to some extent, unrealistic.

Ambassador Prosper: We don’t think it’s unrealistic. We think that if the other states join us, if the European states join us in our effort to move forward to try to reinstate the rule of law in these states, it’s achievable. It’s not something that will occur overnight. We understand that. But we need to begin to lay the groundwork now so that the world is a better place five, ten years from now.

Daljit Dhaliwal: So if you’re more in favor of ad hoc tribunals, we also get into this problem of questions of selective justice. Why not an ad hoc tribunal for the killing fields of Cambodia, but one for the Balkans and belatedly, incidentally, one for Rwanda?

Ambassador Prosper: We are working hard to see what we can do for Cambodia. It’s been a process that’s been underway for several years. Just recently both the Secretary General of the United Nations and the Prime Minister of Cambodia, Hun Sen, have expressed a desire for the Security Council and the General Assembly to play a more active role to see if we can create a court that will be able to address the killing fields. And incidentally, it is a court that will be a hybrid court, have international participation as well as domestic participation, something that we fully support in order for the rule of law to mean something. But wherever there are these atrocities, we will look to see what the appropriate response should be, and we’ll play an active role.

Daljit Dhaliwal: Okay, the administration doesn’t like the court so what is the US doing in terms of trying to get around that? I understand one of the things that you’re looking into is signing bilateral deals with countries that have signed up to the ICC.

Ambassador Prosper: That’s right. What we decided to do is to take a treaty friendly approach to our concerns and problems. Within the statute that establishes this court there is a provision that allows us to negotiate bilateral agreements with states that essentially says if one of our persons, our service members or officials are found within your territory, and the ICC seeks to assert jurisdiction over that person, you, the state that we negotiate with, will, rather than sending the person to the international criminal court, will transfer the person back to the United States for action.

Daljit Dhaliwal: OK. So how many arms have you managed to twist?

Ambassador Prosper: Well, we’re not twisting arms. What we’re doing really is we’re making our position clear. We’re talking to these states, we’re showing that it is a treaty-friendly approach.

Daljit Dhaliwal: How many have signed up?

Ambassador Prosper: We have two states that have signed up. We’re in deep negotiations with countless of others. This is a global approach. We believe that we are making progress and really making our position clear that this is consistent with the ICC and we hope that within the coming month or so we’ll be able to get enough agreements so that we’re comfortable.

Daljit Dhaliwal: Britain has signed up to the treaty. What happens if an American is charged with war crimes or apprehended for war crimes in London?

Ambassador Prosper: Well, we hope to negotiate one of these agreements with the United Kingdom. And we hope that after negotiating this agreement that we will have the protection in place that will allow our service member or official to be transferred back to the United States for action, prosecution, whatever it may be, assuming there is a credible charge there. The UK is a close friend and ally and we don’t expect to have any difficulties in this regard.

Daljit Dhaliwal: But there are many people, many countries who aren’t close friends and allies of the United States. So far we’ve signed up two countries. What about the rest of them?

Ambassador Prosper: Well the other states need to understand that this is something that is a fundamental concern to the president, to this entire administration, to the past administration, to the United States at large. And that if a state seeks to gain custody, what we’ll consider to be illegal custody over one of our individuals, there will be actions taken by the United States. I can’t say what those actions will be. But we will take measures to protect our personnel.

Daljit Dhaliwal: But they could involve military force. For instance, President Bush did say by all means necessary, didn’t he?

Ambassador Prosper: Well, I’m not prepared to speculate what the response is going to be. But I think what we can say, and I can say with confidence, is that there will be action taken in order to protect our interests and protect our personnel.

Daljit Dhaliwal: Is the administration worried that if it stays on the sidelines of the international criminal court that it’s going to be much harder to muster support for the war against terrorism from its allies?

Ambassador Prosper: Not at all. Actually, we view these as two separate issues. The international criminal court is something that obviously we have a position on, a lot of our allies have a different position on, we are going to reach an understanding and agree to disagree …

Daljit Dhaliwal: But there’s always a lot of give and taken in international diplomacy, isn’t there?

Ambassador Prosper: There is. But the war on terror is something that we’re united behind and we all believe that it is in our collective interest to work together, to use our unilateral tools to combat the insecurity and the risk of violations that occur that exist out there. So what we’re going to do is we’re going to continue to work with all these other states in the war on terror to achieve our objectives. But the international criminal court is something that is just separate and apart, and what we’re trying to do now is to reach an understanding with our allies that will allow for us to respect their ability to be part of this process and allow for them to respect our desire not to be part of this process.

Daljit Dhaliwal: But you have to appreciate that the world is a very changed place and a mechanism like the international criminal court is a very useful tool in terms of collective problem solving at least.

Ambassador Prosper: Well, what we ask ourselves is, is that the best way to deal with this issue. And the answer is no. Because what we think is that it’s best that each state uses the powers that they have, the tools that they have to combat terrorism as it exists throughout the world, rather than having one body that will try to address these issues and may not have the reach that each state will have.

Daljit Dhaliwal: But the international criminal court is there as a last resort. It’s not there to encroach on anyone’s sovereignty, let alone the United States.

Ambassador Prosper: It’s supposed to be there as a last resort. And this is one of the concerns that we have, that it will not be there as a last resort. When we negotiated we tried to put in the appropriate fixes in place to make sure that it was a court of last resort and that there was oversight over the process. This is what is lacking. And we feel that it can encroach upon the good faith decision of states and will also create an environment where states will abdicate their responsibility and have the international criminal court do the heavy lifting, if you will, rather than the state itself doing it. And in looking at that, we think that is not healthy for the development of some of these new democracies.

Daljit Dhaliwal: But more than 60 countries have signed up to the court.

Ambassador Prosper: Again, this is a decision that we made on principle. We looked at this issue and we decided that we cannot be part of this process no matter how noble it is. And we agree that it is a noble idea. We will stand on the sideline and watch this thing develop. The treaty will be reopened or allowed to be reopened seven years from now. If our allies want the US involvement, then we can renegotiate the treaty and look at it at that time. But the way it is currently drafted, the way it currently exists, it is a process that we just cannot support. We are not waging war against it, but we’ve decided to remain on the sideline and be divorced from this process.

Daljit Dhaliwal: Okay, so give me a worst-case scenario where you think abuses could creep into the system.

Ambassador Prosper: Well, there are a lot of different worst-case scenarios that could play out relating to the ICC. But one example that I can give you is a situation where one of our service members could be overseas, could be in a conflict zone, could be shot down or apprehended. There could be charges or people may say that he or she committed war crimes and the ICC seeks to investigate and prosecute this individual. We can make a determination at this …

Daljit Dhaliwal: But in those situations that would be frivolous and that is something that would be dismissed by the court, unless of course there was evidence but again, you’re saying this is a hypothetical.

Ambassador Prosper: Well, it’d be nice if we had those assurances that frivolous prosecutions would be dismissed by the court. But this is putting a lot of faith into the hands of these individuals that have yet to be named. We have no idea who these people are and who they’re going to be, what their political views may be, what their views towards the United States may be. We’re not prepared to sign up to a process that is unchecked, that will allow an individual to make a determination as to the future of our people.

Daljit Dhaliwal: But you could make the same kinds of arguments for the US criminal justice system. There is going to be an element of subjectivity, but again these judges haven’t even been voted on. You don’t know who they’re going to be. You’re just jumping the gun.

Ambassador Prosper: Well, with the US criminal system we have a series of checks and balances in place. Not only checks and balances over the prosecutor, over law enforcement officials But also our jurors act as a check and balance over the judges and over the entire system.

Daljit Dhaliwal: So does the ICC.

Ambassador Prosper: In the ICC, that doesn’t exist. At the end of the day, the ICC can have the final say over the prosecution of an individual.

Daljit Dhaliwal: But you’re painting the scenario of there being a complete and utter sham.

Ambassador Prosper: We’re painting the scenario that we need to look at as, part of our responsibility in being the administration that is in power. We need to look at this because we have a responsibility to our service members that we deploy overseas and ask them to engage in risk or enter into harm’s way. We have to look at this. It’d be naive for us to ignore it. We do not know, again, who these individuals may be, and they may have their own political preferences that they will seek to advance – and at the detriment of the United States. And this is not something that we take lightly, and we’re prepared to sign up to.

Daljit Dhaliwal: Sounds to me that you have a very low opinion of prosecutors and judges.

Ambassador Prosper: (Laughs) I don’t. because I was a prosecutor for ten years. So I think prosecutors obviously are out there trying to do the right thing. But when we’re dealing with war crimes, crimes against humanity and genocide, the allegations occur in a conflict environment, a political environment where there are two sides to the issue, where there are people who will do anything to gain the upper hand or political advantage over an opponent. And we are concerned that someone will seek to use the ICC as a political tool against the United States, rather than a court of law.

Daljit Dhaliwal: Your European allies are saying that you’re being paranoid. What’s your response to that? Is that a fair observation?

Ambassador Prosper: We are concerned and we are right to be concerned because of the level of risk that we see for our people, again, based on the unique role that we play in the world in ensuring international peace and stability.

Daljit Dhaliwal: Thank you very much.

Ambassador Prosper: Thank you. My pleasure.