Pierre-Richard Prosper made his first visit to Arusha, from February 7th to 9th, since being appointed US Ambassador-at-Large for War Crimes Issues last July. He explains the United States position at an crucial stage in international justice. Interview

Carla del Ponte has proposed an exit strategy that the UN Security Council has refused. What should be the exit strategy for the ICTR ?
The Tribunal and the Prosecutor need to be narrow and focused with respect to their mandate and approach to indictments and prosecution. Our view is that the spirit behind the Resolution is for the Tribunal to only go after the leadership, the orchestrators and the organisers of the genocide. The balance of the cases should be left to the affected State, such as Rwanda. Rwanda needs to be able to either prosecute or through the gacaca program address the middle-level and low-level people.
Another component to the exit strategy is that the international community needs to be supportive of both the ICTR and the Rwandan component of the exit strategy. If all three - ICTR, Rwanda and the international community - do their part, we should be in a position to have closure to this process by 2008.

Would you support the recent proposal made by the Chief Prosecutor to give some cases to national jurisdictions?
I think the Prosecutor needs to prosecute a limited number of people, then we have to come up with a solution for the balance. If that means having the Rwandans prosecuting than we need to study all proposals in order to build the capacity of the Rwandan system to be able to address this matter.

Carla del Ponte wants the UN Security Council to take the political responsibility to tell her to limit the scope of the prosecutions. Are you ready to take this responsibility?
First, we do believe that it is within the Prosecutor's discretion to do this. She just needs to interpret her mandate based on the spirit of the Resolution which would provide her with ample guidance to pursue only the leaders and orchestrators of the genocide. However, that having been said, it's clear that she's reluctant to take such action. So we the Security Council are prepared to be seized with the matter and will make the appropriate decisions. It will be clear and public. We need to discuss this matter with other States to determine exactly when is the appropriate time to do something like this. And it's also a matter we want to look at both tribunals together rather than single out a particular tribunal.

You claim not to fight against international justice but you are strongly against the ICC. In your view, what should international justice look like in the future?
Our view is that we begin by looking at the domestic side. We want to see if States can and will do these things themselves. We think the States need to be empowered, they need to recognise their responsibilities to address some of these difficult questions. If there's a difficulty or a question of capacity, then the international community should be prepared to come in. The level of international assistance will obviously depend on the particular situation. If it is a question of political will, the international community should help change the political will. The concerned State must understand that it is not only their responsibility but in their interest to take action against war crimes and atrocities that are committed on their territories and by their people.

Does this mean there could be new ad hoc tribunals?
It's a possibility. Obviously it's not our preference because this is to get the States to accept their responsibility. But we don't rule out the possibility of the Security Council to create an ad hoc tribunal.

Why would the ICC not be this lastresort option?
The ICC does not have the oversight and safeguards that a Security Council created body has. The ICC really leaves it at the discretion of the Prosecutor and the Judges to pursuit cases as they wish. There are not enough safeguards to prevent a case being brought forward based on politics rather than facts and law.

It appears there's a difference between the ICTR and the ICTY in the way powerful States put pressure on other States where fugitives took refuge. Why ?
I don't think there's a difference. The ICTR has had great success in receiving cooperation from States. If you look at all the indictees in custody, it's based on diplomacy that they were brought here. It's not a situation of having SFOR troops sweeping in and apprehending them. Therefore, less diplomatic effort was needed in the Rwanda tribunal context than in the Yugoslav context where you had three States essentially that did not want to co-operate.
However, we do recognise that there are States in particular that are not co-operating with the Tribunal for Rwanda and are housing indictees or suspects. For our part, we will take aggressive diplomatic action and effort in this regard. It will be more visible in the coming months. We have made a decision to turn it up and to be more asserted in this matter. Unfortunately, these things do take years.

Are you hopeful that Interahamwe and ex-FAR in Congo will be neutralised in the near future?
I think the way to neutralise them is to pursue the leadership. We know it has played a significant role in the Rwandan genocide. We will assist in whatever it takes to bring them to the Tribunal. If we're successful in taking on this leadership and dismantling it, we believe that it will begin to fracture the ALIR, ex-FAR, Interahamwe component that continues to cause problems in the Congo.

How do you react to the withdrawal of the UN in the negotiations to create a court to prosecute former Khmers Rouges?
I have to say that I am disappointed by the breakdown in the negotiations. We do believe that there was room for more dialogue and think an agreement was possible. I hope there is a change of heart because it is important to see that justice is brought to that region. It is a hard effort and when we are trying to achieve accountability for such egregious violations, at times one must go that extra mile and that is what we are asking both parties to do: go the extra mile and try to make this happen. Unfortunately, the decision was made not to go the extra mile by the United Nations.

The Cambodian government said that it would organise the trials anyway. Would that be satisfactory?
It is encouraging. We have to see now how they plan and go about it because the original design was one that envisioned UN and international participation. The question is whether the design or intent remains and if so how do they plan to achieve or invite international participation.

The Milosevic trial is about to begin. Were you satisfied that he is to be tried in a single trial?
Yes, I think it's a good idea. Otherwise, it would be a waste of resources and potentially harmful to the well-being of witnesses. It will be a long and complex trial but that's what's needed here.

It appears you personally intervened in trying to obtain Karadzic's surrender. Can you explain the step you took?
I won't go into details but what I did is try to encourage a surrender. No deals but a simple statement of fact that it is important for Karadzic to surrender with dignity rather risk being apprehended by the international community or the local authorities. Now is the time to step forward and defend himself or maintaining the dignity that he believes he deserves. All I've done is that I've said this publicly and privately that this is the course of action he should take.

Do you have reason to think he would?
No, it was just an initiative that we decide to push and promote : to say that Karadzic needs to take this step. It is important to think creatively and take creative approaches. We cannot rule out any option or solution. By speaking up publicly to government officials and others regarding Karadzic's surrender, we just thought that it was an opportunity that had to be taken advantage of. We're not offering anything in exchange other than a dignified surrender. We are not in a position to make deals for the Tribunal, but being a former prosecutor I know that courts often look favourably upon surrenders.

When could the new Special Court in Sierra Leone start?
The hope is that it would start by next spring or summer. We are waiting for the United Nations to make a decision regarding the top officials, namely the prosecutor, the registrar and so on. I believe that once these persons are in fact selected we'll be prepared to go in short order to launch the process and begin the investigations and the work that is needed.
This court was designed in a manner that is a streamline approach that will avoid any bureaucracies that could slow the process. So once these decisions are made, this process should be able to move through.

Why are you trying to limit UN control over this Court?
In creating this Court, we decided to make it a court that provides as much ownership to the matter to the State as possible. Making it a UN subsidiary organ would not achieve that purpose. It would have been possible to have state participation but not state responsibility. Here we reached an independent court through an international agreement that shares the responsibility between the Sierra Leone government and the Security Council and the Secretariat of the United Nations. It fits into our global philosophy that I just laid out to you before.
It's not part of the UN and it's not part of the Sierra Leonian legislative body.

Why are you pushing for the Prosecutor of this Special court to be an American?
We didn't push. We offered. There was a need for qualified, competent prosecutors. We found a candidate that we thought would be great for the job, put his name up and, of course, once we do that we back our candidate the entire way. Other governments, in looking at the Sierra Leone operation, decided that it would be best for them to contribute in other areas. I believe the UK was looking at the Registry and decided that perhaps that's a place where they can put up a name. Other States were assisting in other regards. We just thought we could be a player in offering a credible and competent prosecutor.
Being the main donor, we want the process to move forward and succeed.

What are the financial guarantees to enable the Court to operate over the next three years?
We already programmed in our minds the money that will need to be spent. We've already given 5 million dollars and we made the public commitment to pledge 5 million dollars per year and I think other States have done the same.

You're under strong criticisms for not having granted the prisoner of war status to Taliban and Al Qaeda members. How do you defend your government's position?
Those who criticise us need to do a careful reading of the international law that is out there and look carefully at the President's statement this week and the rationale behind the decision. The basic approach is as follows: the Geneva Conventions do not apply to Al Qaeda because we are talking about terrorists. They are not soldiers, they are unlawful combatants. The Geneva Conventions do apply to the Taliban but when you go through the analysis of the Conventions, one reaches the conclusion that they too are unlawful combatants and do not warrant or merit POW status. The treatment will still be humane. They will be fed three times a day; they allowed to pray five times a day. There is really no fundamental difference. Where there is a difference in the status is they do not get officers quarters, they do not get pay, they do not have the right to organise and hold meetings on what they want to do as ordinary POW would do.
The Geneva Conventions were designed to protect not only civilian populations but the soldiers who were acting in their lawful capacity and just so happened to be caught in a lawful engagement. It was designed to preserve their dignity as lawful soldiers and the ability to continue to represent their country. That is why they were allowed to still wear their uniform and to hold their rank. We have none of that with Al Qaeda and the Taliban who essentially were an arm of a terrorist network.

The ICRC clearly holds a different point of view on these issues...
The ICRC will understand our rationale. They need not agree but we need to talk. What the ICRC is saying is that they want a tribunal to make a determination of whether or not they are POWs or unlawful combatants. The Geneva Convention says that if there is doubt as to their status, then a tribunal needs to be convened to determine their status. For us, we have no doubt as to their status. Therefore, we need not convene a tribunal. The way the ICRC is reading it is that you automatically have to have a tribunal to determine the status.

Why should you be the ones to decide?
The Geneva Convention calls for the detaining party to make these decisions. The ICRC does have a voice because they view themselves as the guardians of the Geneva Conventions. But it is not an independent international tribunal as Mary Robinson has called for. It is the detaining power that has to make these decisions.

Would you allow non-American lawyers to defend these accused?
We are on the process of drafting the rules and procedure which also include issues such as counsel for the accused person. We have not made a decision. We want to make sure that the accused receives a full and fair defence and that also means the ability to view, where necessary, sensitive and classified information. So we are studying issues such as how do we give clearances to people so that they can read the appropriate documents and as you know there are some parts of the world where it may be impossible to clear that person for various reasons, just as there are some states where it would be impossible for them to clear Americans. We are studying it as we speak.