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International Criminal Court Confrontation

July 3, 2002 at 12:00 AM EDT


RAY SUAREZ: The United States stood alone Sunday casting a rare veto in the United Nations Security Council. At issue, a resolution to extend the UN peacekeeping mission in Bosnia for six months. Currently 46 U.S. troops serve in the 1,500-person UN force in Bosnia.

That’s separate from the much larger NATO peacekeeping contingents in Bosnia and Kosovo. The U.S. voted against the mission because of concerns that its soldiers and diplomats in nearly 20 peacekeeping missions around the globe would come under the jurisdiction of a newly created international criminal court. The court came into existence July 1. It doesn’t enforce the laws of any one country. U.S. Ambassador to the UN John Negroponte insisted U.S. peacekeepers should be immune from prosecution by that court.

JOHN NEGROPONTE: By exposing people to dangerous and difficult situations in the service of promoting peace and stability, we will not ask them to accept the additional risk of politicized prosecutions before a court whose jurisdiction over our people the government United States does not accept.

RAY SUAREZ: The International Criminal Court is the first permanent international tribunal set up to prosecute individuals accused of war crimes, genocide, or crimes against humanity. 138 nations signed the treaty in Rome in 1998. So far 76 nations have ratified it.

Expressing reservations, former President Bill Clinton signed the treaty for the U.S. in December 2000. He said the U.S. could make changes it wanted by being a signatory. But he never sent the treaty to the Senate for ratification. In May, the Bush Administration withdrew the U.S. signature from the treaty. Yesterday in Milwaukee, President Bush reiterated his opposition and gave the major reason for U.S. objections.

PRESIDENT GEORGE W. BUSH: Now, as the United States works to bring peace around the world, our diplomats and or soldiers could be drug into this court. And that’s a very troubling, very troubling to me, and we’ll try to work out the impasse at the United Nations. But one thing we’re not going to do is sign on to the international criminal court.

RAY SUAREZ: And Defense Secretary Donald Rumsfeld said the U.S. was attempting to negotiate agreements at the UN and with countries where it has troops deployed.

DONALD RUMSFELD: We have no intention of pulling back. What we do have intention of doing is making judgments about additional things we go into, and trying to arrange those kinds of immunities that will protect our forces before we go in, and second, with respect to places where we already are in, to go around the world and attempt to see that we are provided that kind of bilateral protection, which will be helpful.

RAY SUAREZ: Europeans have criticized the U.S. veto. Danish Prime Minister Anders Rasmussen is serving as president of the European Union.

ANDERS RASMUSSEN, president, European Union: The presidency is following closely and with great concern the risk of an abrupt end to the UN police mission in Bosnia. That would mean an authority vacuum in the country until the crucial October elections. It is the common responsibility of the international community to ensure the continued stability in that region. The presidency is aiming at a decision that would entail that the EU is ready to take over the police mission earlier than planned.

RAY SUAREZ: On Sunday, the Security Council extended the Bosnian mission for three days. Today they met again to search for a compromise before the mission expires at midnight tonight.

JIM LEHRER: Margaret Warner takes it from there.

MARGARET WARNER: For two views on this stand-off over the International Criminal Court, or ICC, we turn to U.S. Ambassador for War Crimes Issues, Pierre Richard Prosper; he joins us from the State Department; and the Ambassador to the U.S. from the Netherlands, Boudewijn van Eenennaam. The ICC is headquartered in the Hague.

Welcome to you both, gentlemen.

Ambassador Prosper, beginning with you, first of all, what can you tell us about where negotiations stand at the UN right now?

PIERRE-RICHARD PROSPER: Well, what we’re doing now is we are in the process of consulting the other members of the Council to see if we can find a resolution to the impasse regarding the peacekeepers for Bosnia. We have tabled some additional language that we hope will be able to meet the equities that we all have at stake here. We’re hopeful that the resolution will be accepted and we’ll be able to move forward with the job of maintaining peace and security in the Balkans region, in Bosnia.

MARGARET WARNER: Now, we have just run some quotes from both the President and from Secretary Rumsfeld from earlier this week saying that essentially the U.S. fears or feels that U.S. soldiers and personnel would be particularly subject to prosecutions. Why is that?

PIERRE-RICHARD PROSPER: Well, it’s for a couple of reasons. One is our, it’s the unique responsibility that we have in the world to maintain peace and security. Currently as we speak, we are deployed all over the world in approximately 100 different countries at a given time. But also we feel that because of the unique role that we have that there are people who want to politicize the process and use the court as a vehicle or as a tool to attack us, if you will.

Recognizing this and recognizing that the court is really an unchecked body, an unchecked process, we feel that it is the type of process that we cannot sign up to, and therefore, we need to take the steps to try to protect our interests and work with the international community to meet the objectives we’re trying to meet.

MARGARET WARNER: Now, when you say it’s an unchecked process, what do you mean?

PIERRE-RICHARD PROSPER: Well, what it is, is that the prosecutor really has full authority to do what he or she wants to do in this regard; while there is a principle of complimentary, which is that the court should initially defer to the states, the court has the ability to overrule the decision of a sovereign government or a jury, for that matter, here in the United States and say, “you know what, United States? We don’t feel that you did a good enough job. We are going to prosecute your personnel despite a decision, a good-faith decision, that you made.” And this is something that we have extreme difficulties with and we cannot accept.

MARGARET WARNER: Ambassador van Eenennaam does the U.S. Administration have a point, first of all, that U.S. personnel, because of our role in the world, would be particularly at risk from prosecutions?

BOUDEWIJN VAN EENENNAAM: Well, I’m not sure I’m convinced by that argument, Margaret. First of all, let me say that we very much appreciate the leading role that the United States is playing in peacekeeping operations in the world at large. But I don’t think that this special position entitles the United States to any special regime as far as the issues of the International Criminal Court are concerned.

My feeling is, to be honest, that the worries that Ambassador Prosper is stating are unnecessary. There are many guarantees in the treaty. The United States has been intimately involved in the drafting of the treaty. President Clinton has signed the treaty, and I really believe that we should have another look maybe at all the guarantees, but I’m quite sure that they should be satisfactory.

MARGARET WARNER: Well, describe for us at least one or two of these guarantees that you think really do protect U.S. personnel, whether they’re in Bosnia or anywhere else, from being hounded or prosecuted for political reasons.

BOUDEWIJN VAN EENENNAAM: Well, the main argument here is that the International Criminal Court is there only as a court of last resort. As a basic rule, Americans that commit those crimes will be tried by the U.S. courts and not by the ICC.

MARGARET WARNER: Then is Ambassador Prosper right that, let’s say there was a serviceman or a commander in a country — he was brought back here for trial, he was acquitted here, that still the ICC could overrule that and essentially retry him in the ICC?

BOUDEWIJN VAN EENENNAAM: Well, the procedure is developed to take care of countries in which the legal system is, well, less than here in the United States. And I’m absolutely sure that there should be no worry about citizens that have been tried in the United States that would be a conclusion from the International Criminal Court that this process would not be up to standards.

MARGARET WARNER: So you mean that this was really designed for people from countries where there was a total breakdown in the judicial system and essentially they were unable or unwilling to prosecute any of their own?

BOUDEWIJN VAN EENENNAAM: It’s exactly as you say. It is designed for countries that are unable or unwilling to conduct a fair trial, and we all know that there are countries in which show trials happen, and we are not thinking of the United States, I can assure you.

MARGARET WARNER: Ambassador Prosper, give me sort of a hypothetical, a situation, where you think actually some sort of U.S., some U.S. personnel could be put in this position. Doing peacekeeping duties, which is what we’re talking about here.

PIERRE-RICHARD PROSPER: Well, that’s absolutely right. What you could have is a situation where a peacekeeper deployed anywhere in the world possibly committed some sort of a violation. We could take the steps that we take routinely in our armed services and investigate, fully prosecute the person either in a military court or a civilian process.

We could reach the good faith decision that the person is either not guilty or, based on evidentiary reasons, certain evidence is not admitted and the person is acquitted, and the ICC could in turn decide, “Well, again that is not good enough. We are going to prosecute.”

And I think what is important to note is that while, you know, I agree with the Ambassador that the aims of this court were designed to go after the worst of the worst, decisions in this regard are going to be left to the prosecutor to make, an individual. And if the individual has a political agenda, a biased agenda and feels that he or she wants to make their name off the prosecution of an American service member, then they have that full discretion to do so, to take it to the court and bring a process.

This process is not checked. It’s not like the court that is currently in The Hague for the former Yugoslavia, or that for Rwanda, which was formed by the UN Security Council, which has UN Security Council oversight. This is really a court that is… will be left to his own devices and can proceed on any agenda that it seeks to follow.

MARGARET WARNER: Ambassador Prosper, why not simply then withdraw U.S. personnel from these peacekeeping missions? Though as you said, we do have soldiers in many countries in these missions, the pure UN missions, as I understand, we maybe only have 700 or 800 personnel is all we’re talking about. Why not do that rather than use the… our UN veto to scuttle the whole mission, as in the case with the Bosnia one?

PIERRE-RICHARD PROSPER: Well, there are I guess two points I’d like to make here. One is what we are asking for in the Security Council is not novel, is not unusual. These type of agreements, where there is exclusive jurisdiction to the sending state such as the United States, are reached day in and day out. We do it bilaterally between states every time we deploy to any other country; other states do this. They have been done multilaterally. For example, the security forces that are in Afghanistan, the British-led security forces have a similar provision where exclusive jurisdiction is granted to the British or the personnel.

MARGARET WARNER: Let me just interrupt to make sure our viewers understand. What you’re saying is that the sending country negotiates a private deal with the host country and says, “if anything goes wrong here, you’re not going to turn over our guys to the criminal court. You’re going to let us prosecute them.” Is that what you’re talking about?

PIERRE-RICHARD PROSPER: That’s exactly right. And this is done routinely and historically throughout the world. What we’re seeking to do is to have a similar provision done at the international level, so when international peacekeepers are sent, the same privileges, if you will, are granted to the sending state as part of the international peacekeeping forum. And we have difficulty understanding why some of our colleagues cannot accept this. We do not see this as being intellectually honest, if you will, because again it is being done in multilateral settings as well as bilateral settings.

MARGARET WARNER: What about that point, Mr. Ambassador? What’s wrong with those kinds of agreements as a compromise here?

BOUDEWIJN VAN EENENNAAM: Would you first allow me to address an earlier point–


BOUDEWIJN VAN EENENNAAM: Made by the Ambassador’s on his suspicion, if I may use that word, of the impartiality of judges and other officials in the International Criminal Court. There are two points there.

First of all, there are guarantees, as I said also on this point, within the treaty that these judges are objective and of high moral standards.

But my second point would be that now we have the structure in place and starting the implementation of the working of the court, it would be far preferable if the United States would in some way– if difficult to join, well, that’s the pity– but in some other ways trying to bring their influence to bear on the further implementation and assure that also in practice there will be objective judges and indeed one step further. As long as the U.S. does not join, there will be no American judges. But then–

MARGARET WARNER: This other idea about giving U.S. peacekeepers some kind of negotiated immunity essentially.

BOUDEWIJN VAN EENENNAAM: I agree, you know, to a certain extent. I mean, this is not a black-and- white issue, and I really hope that we will be able to find a solution before 12:00 tonight in the Security Council.

MARGARET WARNER: Just let me ask you to clarify. Ambassador Prosper is correct, is he not, that the British led force in Afghanistan negotiated that very same kind of agreement before agreeing to go in?

BOUDEWIJN VAN EENENNAAM: Well, I’m not sure whether it’s exactly the same agreement, but there are possibilities indeed on a bilateral basis to seek certain exemptions on an ad hoc basis, and if that is the direction in which we can find a solution, I think we should try that at least. But my impression is that what is at stake now in the Security Council and in the U.S. Administration is a far more general and definite arrangement.

MARGARET WARNER: Sort of a blanket.

BOUDEWIJN VAN EENENNAAM: Yeah, involving the Security Council. There we really have to think– I’m not excluding anything, certainly not while the discussion is going on in New York– but we really have to think twice whether we want to is the Security Council in a big role over an international legal process.

MARGARET WARNER: So final word from both of you. Ambassador Prosper, do you want to make any predictions about– this mandate expires tonight– the U.S. would not once again veto the Bosnia mission and scuttle the whole thing?

PIERRE-RICHARD PROSPER: We’re looking at all options here. We again, there are two issues here. There’s the matter of principle and the protections we need for our service members. I do not want to prejudice the hands of the negotiators in New York at this time, but again, I feel confident that regardless of the outcome, we’ll stand on principle and we’ll continue to accept our responsibility to maintain international peace and security.

MARGARET WARNER: Would you like a brief prediction?

BOUDEWIJN VAN EENENNAAM: Prediction is difficult, but I really hope that we will be able to solve the issue, if not tonight, then if necessary, with some extension in time, because it is important enough. And let me express one very strong hope: That the United States will not seriously consider to withdraw their troops, because peacekeeping missions are being held in regions where failed states, breeding grounds for terrorism. And we want the U.S. to be there, have their eyes and ears in our common combat against terrorism.

MARGARET WARNER: Ambassadors both, thank you both.