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The Bush Administration View of
International Accountability
Ambassador Pierre-Richard Prosper
Michael A. Newton
INTRODUCTION
The President’s decision to retain the Office of War Crimes Issues laid
the foundation for the comprehensive and orchestrated diplomacy that
today implements our overall war crimes policy. The Ambassador-atLarge for War Crimes deals every day with the conflicting demands required to address the most serious crimes perpetrated by man in a way that
preserves and enhances the rule of law. These are far more than purely
theoretical, esoteric legal issues. The crimes we seek to deter and punish
are very real, yet almost unimaginable in their unyielding cruelty. The
impact on victims is life-changing. Every policy and legal decision the
United States makes is implemented against the backdrop of the legal traditions that have developed in pursuit of international peace and justice.
The United States has maintained its responsibility for working with our
closest allies to lead the charge in establishing mechanisms for addressing
man’s inhumanity to man. We are proud of the fact that we have helped

U.S. Ambassador-at-Large for War Crimes Issues. Pierre-Richard Prosper was nominated by President Bush on May 16, 2001 to be the U.S. Ambass ador-at-Large for War Crimes Issues and was sworn-in on Friday, July 13, 2001. In
this position, he advises the Secretary of State directly on U.S. efforts to addre ss
serious violations of international humanitarian law, including genocide, crimes
against humanity and war crimes, committed in areas of conflict throughout the
world. Ambassador Prosper also coordinates U.S. support for the International
Criminal Tribunals for the Former Yugoslavia and Rwanda, and assists in the creation and operation of other courts and judicial mechanisms to bring offenders of
international humanitarian law to justice.
 Lieutenant Colonel Newton is the Senior Advisor to the United States
Ambassador-at-Large for War Crimes Issues. He is involved with a wide range of
issues related to U.S. policy regarding the law of armed conflict to include support
to accountability mechanisms worldwide. He just returned from Sierra Leone
where he served as the U.S. representative on the U.N. Planning Mission for the
Sierra Leone Special Court. He previously served as a Special Advisor in the O ffice of War Crimes Issues from January 1999 to August 2000, and helped negot iate the Elements of Crimes document for the International Criminal Court.
891
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the international legal community bear the intellectual and practical brunt
of confronting some of the most difficult and painful problems humankind
has faced over the past decades of conflict and turmoil.
Despite the difficulties, it is important to recognize that the world is indeed making some dramatic advances in achieving accountability for
grave atrocities and war crimes. Leaders around the world can no longer
expect to employ their might ruthlessly and remain above the reach of the
law. Citizens worldwide are starting to feel that they are no longer at the
mercy of forces of brutality, or that justice is nothing more than an unattainable abstraction. States that protect human rights and guard against
war criminals are now becoming the norm. The rule of law is beginning to
prevail over unremitting evil.
This, then, is a snapshot of the views of the United States on working
together to pursue accountability for war crimes, particularly at a time
when the world is experiencing new challenges.
SEPTEMBER 11, 2001
It is clear that September 11th has changed the world and the way we
look at transnational threats and crimes. The tragic events of September
11th have forced us all to re-examine our traditional notions of security,
our understanding of our attackers, and our approaches to bringing the
perpetrators to justice. Moreover, September 11th gave the people of the
United States a firsthand introduction into the pain and societal trauma
that has unfortunately become so frequent in locations across our globe.
For the first time in modern history, mass atrocities were committed
against the United States on American soil. The terrorists opened a new
front in an unconventional war designed to destroy a way of life. Their
goal was to shatter our fundamental beliefs, and test values we take for
granted – freedom, peace, and the rule of law. These unprovoked attacks
were more than isolated and sporadic acts of violence or other acts of a
similar nature. September 11th truly represented a loss of American innocence. The crimes committed at the World Trade Center in New York, at
the headquarters of our Department of Defense, and in Pennsylvania were
of a magnitude that defied the imagination and shocked the conscience.
These acts are unacceptable and will be punished. We are truly grateful
for the many nations that have stood at our side in our common fight and
pledged to use the full range of tools at their disposal.
The crimes of September 11th remind us that there must be accountability and the rule of law. The fundamental truth is that the rule of law defends civilization by erecting a wall of reason and humanity against savagery and brutality. To that end, and in the interests of preserving civilization across the world, the United States is committed more than ever to
bringing perpetrators of war crimes and violators of international humani-
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tarian law to justice both abroad and at home. We remain committed to
working within the global community to confront the challenges that
would destroy us all. We pledge to use our available resources and influence to promote the cause of freedom and liberty for all people.
Our views and our approaches may differ from some of those held by
other nations, but we often seek common goals. For that reason, it is important to articulate our perspectives on the establishment of credible, effective accountability mechanisms to bring violators of international humanitarian law to justice and help build a global community that universally respects and upholds human rights.
THE INTERNATIONAL CRIMINAL COURT
In light of the terrorist threat that civilized nations face today, it may
seem ironic to some that the vision for an International Criminal Court
originated from the 1937 League of Nations Convention for the Prevention and Punishment of Terrorism. 1 The original Covenant never entered
into force, though it began a meandering thread of thought and diplomatic
discussion over nearly sixty years that led to the Rome Statute of the International Criminal Court. 2 The International Criminal Court (ICC) has
been a point of concern for the United States.
This concern has not changed as a result of September 11th. Since the
inception of the debates after World War II, the United States has persistently sought a court that would be neutral. We envisioned a court that
could be focused on the pursuit of efficient justice, and most of all immune from the poisonous taint of raw political power. Because of its inherently flawed structure, the Bush Administration, as with the previous
administration, opposes the Rome Treaty. Despite the signature by the
Clinton Administration, we – like the previous administration – will not
send it to the United States Senate for advice and consent to ratification.
We are steadfast in our concerns and committed to our beliefs that the
United States cannot be part of a process that lacks the essential safeguards to avoid a politicization of the process. We also firmly believe that
the ICC Treaty is just that -- a treaty. Therefore it cannot and should not
1. See Convention for the Prevention and Punishment of Terrorism, 19
LEAGUE OF NATIONS O.J. 23 (1938), League of Nations Doc.
C.546(I).M.383(I).1937.V (1938) (Nov. 16, 1937), reprinted in M. CHERIF
BASSOUNI, INTERNATIONAL TERRORISM : MULTILATERAL CONVENTIONS (19372001) 71, 79 (2001).
2. See Rome Statute of the International Criminal Court, U.N. Doc.
A/CONF.183/9 (1998) (United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17, 1998),
reprinted in 37 I.L.M. 1002 (1998).
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have jurisdiction over a non-party state absent United Nations Security
Council action. The United States has a unique role in the world in helping
to defend freedom and advance the cause of humanity. To that end, we
will continue to meet our responsibility, but not at the price of our national
security.
BUSH ADMINISTRATION PHILOSOPHICAL FRAMEWORK
This does not, however, undermine our steadfast determination to pursue accountability and justice on the world stage. To the contrary, we remain deeply committed. We have not abandoned our commitment to the
principle of justice, nor will we shirk our obligation to represent the moral
force of law-abiding nations in advancing respect for and adherence to the
rule of law. We do have some purely philosophical differences with some
of those who share our goal of pursuing accountability and justice for international crimes. Our approach begins on the domestic side of the ledger. As Ambassador Prosper testified to the United States Senate Committee on the Judiciary:
the international practice should be to support sovereign states seeking justice domestically when it is feasible and would be credible . . . . International
tribunals are not and should not be the courts of first redress, but of last resort. When domestic justice is not possible for egregious war crimes due to a
failed state or a dysfunctional judicial system, the international community
may through the Security Council or by consent step in on an ad hoc basis as
in Rwanda and Yugoslavia . . . . 3
In our view, the community of nations should use its means and influence to encourage states to pursue credible justice rather than simply abdicating domestic responsibility to international institutions. Because justice
and the administration of justice are cornerstones of any democracy, states
should be encouraged to exercise their sovereign right to pursue accountability for war crimes and other egregious violations of international and
domestic law.
That said, the United States will continue to support the existing ad hoc
international tribunals created under the authority of the Security Council.
We also see a continuing role for the United Nations in pursuing accountability. The United States remains proud of its leadership in working
multilaterally to form the two ad hoc tribunals. They have both provided
3. Review of Terrorism Suspects Policies, Hearing on DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism, Before the United
States Senate Committee on the Judiciary, 107th Congress (2001) (statement of
Pierre-Richard Prosper, United States Ambassador-at-Large for War Crimes Issues), available at http://judiciary.senate.gov/hearing.cfm?id=129 (last visited
April 18, 2002).
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groundbreaking legal decisions and have sent the clear message that architects of genocide, crimes against humanity, and violations of the laws and
customs of war will be held responsible for their crimes. While the work
to date has greatly contributed to humanity, the long-term legacy of the
Tribunals may be greatly enhanced over the next few years. In order to be
deemed a success, they must attain a successful conclusion. And, in order
to fulfill the spirit of the Security Council, they must begin to aggressively
focus on the end-game.
FOUNDATIONAL PRINCIPLES OF THE AD HOC TRIBUNALS
The jurisdiction of the International Criminal Tribunal for the Former
Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda
(ICTR) are specifically limited to “serious” and “grave” violations of international humanitarian law. In establishing the Tribunals in U.N. Security Council Resolutions 8274 and 955,5 the Security Council noted its determination that they were a necessary response to threats to international
peace and security. The two ad hoc tribunals were not established to judge
each and every violation of law that occurred during the conflicts. And the
tribunals were not designed to completely usurp the authority of sovereign
states.
The Security Council clearly envisioned the fundamental responsibility
of domestic courts for adjudicating some of these serious violations. The
statutes specify that domestic courts have concurrent jurisdiction with the
Tribunals for the “serious” violations that the Tribunals are empowered to
prosecute. U.N. Security Council Resolution 955 calls for strengthening
the courts and domestic judicial systems in Rwanda, “in particular to the
necessity for those courts to deal with large numbers of suspects.” 6 It is
clear that the intention of the Security Council was for the tribunals to
focus prosecution on those most culpable within the killing machines that
committed the atrocities leaving the balance to the states.
The Tribunals should therefore focus on those most responsible as originally envisioned and, in regards to the ICTY, should conclude work by
2007, a date suggested by President Jorda. A hundred or more additional
indictments may not be helpful and may undermine the pursuit of justice
that may be better left to the regional states. We encourage ICTY to establish clear guidelines with regional states on which cases will be pursued
4. See S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc.
S/RES/827 (1993).
5. See S.C. Res. 955, U.N. SCOR, 49th Sess., 3453rd mtg., U.N. Doc.
S/RES/955 (1994).
6. Id.
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by ICTY and which cases should be pursued in domestic courts. We also
encourage a focus on management issues and improving oversight.
STATE RESPONSIBILITY
In order to achieve the shared vision for the successful culmination of
the ad hoc tribunals, regional states must pick up the balance and not abdicate their responsibility. The abuses cannot go unpunished, and regional
and local states cannot pretend that they did not occur. We will continue to
press the governments in the former Yugoslavia to accept their responsibility, and are working with the government in Rwanda, to hold accountable the mid and lower level perpetrators. The lower level perpetrators in
both of these regions should not get a free pass. We do not want to see an
abandonment of state responsibility and therefore are encouraging appropriate domestic judicial and administrative action.
The United States also stands prepared to assist the states in rebuilding
their shattered judicial systems to make them capable of dispensing truthbased justice and establishing systematic respect for the rule of law. As
part of this commitment, we are exploring creative approaches such as the
Rwandan gacaca system that is designed to deal with the seemingly untouchable mass of offenders.
For these efforts to be successful, however, cooperation by the states in
the regions is essential. In regards to the ICTY, the Federal Republic of
Yugoslavia must fulfill its obligations and transfer all at large indictees to
The Hague. For our part, we want to be perfectly clear: the United States
is committed to bringing Radovan Karadzic and Ratko Mladic into custody. Their trials will be a defining moment in the life of the ICTY and a
landmark for history.
ICTR: U.S. POLICY – ENDGAME
We will continue to actively support the International Criminal Tribunal
for Rwanda. We are increasing assistance, utilizing diplomacy, information collection and the existing Department of State rewards program,
in locating and apprehending the remaining persons indicted for war
crimes, including those who have killed, attacked, and threatened Americans. We urge other states to assist the Government of Rwanda in all possible ways, including by providing adequate resources. We are pressing
states with indicted persons in their territory to turn those individuals over
to the Tribunal for trial.
We also are encouraging the ICTR to establish clear guidelines with the
Government of Rwanda relating to which cases will be pursued by the
ICTR and which cases should be pursued in Rwandan domestic court. We
are stressing that the Rwandan government should continue to pursue jus-
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tice against mid and lower ranking individuals through domestic processes, including gacaca. As with the ICTY, we are focused on efforts to improve the management of ICTR and recognize the positive steps ICTR has
taken to date. We support the addition of ad litem judges to the ICTR to
help accelerate the pace of trials, provided that the management of the
ICTR is done in such a manner as to ensure the efficient employment of
the ad litem judges.
HYBRID APPROACHES
In other areas of the world, such as Sierra Leone and Cambodia, we are
working with the international community to pursue justice in each country. Using a hybrid approach, it is possible to more closely achieve our
ultimate goal of every state fulfilling its responsibility to humankind to
guard vigilantly against those who would commit war crimes, genocide,
and crimes against humanity and to hold perpetrators accountable.
In Sierra Leone, the United States has worked diligently along with the
international community to facilitate the establishment of a special court
to hold accountable those who bear the greatest responsibility for the
atrocities. This treaty-based court, with the significant involvement of the
Sierra Leone Government as well as the international community, offers
the promise of achieving credible justice. It is part of a strategy that will
help build the future of the nation by fully rebuilding its legal structure
while respecting sovereign responsibility. The United States supports the
establishment of the Special Court, believing that it is one of several essential components necessary to restoring peace and stability to Sierra
Leone and the region.
Similarly, in Cambodia, the United States supports efforts to bring to
justice leaders of the Khmer Rouge who bear most responsibility for
atrocities committed between 1975 and 1979. It is important that there be
accountability in Cambodia in order to promote the rule of law and develop democracy. We have been encouraging both the Royal Government of
Cambodia and the United Nations to be flexible in their approaches and to
expeditiously finalize an agreement to ensure credible justice is achieved
in the establishment of the Extraordinary Chambers. We are urging a
prompt resolution of the remaining issues so that the long overdue process
of justice and accountability can unfold. We look forward to U.N. negotiations with Phnom Penh to conclude this final stage in the process and hope
they will take place soon.
AFGHANISTAN
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We also face tremendous challenges in Afghanistan. To date, there are
captured Taliban in the hands of other Afghan groups. We expect and
have repeatedly made clear to opponents of the Taliban that captured
fighters must not be harmed and must be treated humanely while they are
being held. Afghan leaders, like Hamid Karzai, have said that the Taliban
leadership will face justice for any crimes they have committed against the
Afghan people. The international community should stand prepared to
assist where needed.
PRESIDENT BUSH’S WAR CRIMES TRIBUNAL OPTION
Lastly, we want to address an issue that has generated much international media attention and legal commentary, and that is the Military Order that President Bush promulgated on November 13th. Shortly after September 11th, the President stated that he would use every tool at the disposal of the United States to combat terrorism and to bring the perpetrators of the atrocities to justice. He is indeed using the range of available
military, diplomatic, economic, and legal tools. In creating the war crimes
commissions, the President is fulfilling his pledge to the American people
by creating another legal option to be used in appropriate cases. It is another arrow in the quiver.
One of the fundamental reasons the President invoked the military
commission option is because he concluded that we are in a state of armed
conflict.7 It is clear that the attacks against the United States were more
than isolated and sporadic acts of violence or other acts of a similar nature. A foreign, private terrorist network is waging war against the United
States. It has organized, trained, and repeatedly carried out cowardly, indiscriminate attacks, including the largest attack in history against the territory of the United States and other attacks carried out on the soil of our
allies.
An objective review of the organization’s actions confirms the existence
of a state of armed conflict. It begins with a decade’s worth of hostile
statements by Osama Bin Laden stating that he and all his followers are
committed to waging war against the United States. It includes instructions to his followers to kill each and every American civilian. There is
further evidence to suggest that al Qaida is connected with the bombing of
7. “International terrorists, including members of al Qaida, have carried
out attacks on United States diplomatic and military personnel and facilities
abroad and on citizens and property within the United States on a scale that has
created a state of armed conflict that requires the use of the United States Armed
Forces.”
President Issues Military Order (Nov. 13, 2001) available at
http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html
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the World Trade Center in 1993 as well as the attacks against U.S. military service personnel serving in Somalia in the same year. Added to it is
the fact that Bin Laden and other members of al Qaida are indicted for
attacking and bombing our embassies in Nairobi, Kenya and Dar es Salaam, Tanzania, and are believed to have perpetrated last year’s bombing
of the U.S.S. Cole. And of course, the evidence culminates with the horrifying and unprovoked air assaults on the Twin Towers in New York, the
Pentagon, and the airplane tragedy in Pennsylvania.
The conduct of al Qaida is not merely a violation of criminal law – it also amounts to a violation of the laws and customs of war. Our view that
this is a state of armed conflict is confirmed by the international reaction
to the events. NATO’s North Atlantic Council declared that the attack was
directed from abroad and “regarded as an action covered by Article V of
the Washington Treaty, which states that an armed attack against one or
more of the Allies in Europe or North America shall be considered an attack against them all.”8 The Organization of American States, Australia
and New Zealand likewise activated provisions in mutual defense treaties.
U.N. Security Council resolutions recognized our inherent right to exercise self-defense and that acts of international terrorism constitute one of
the most serious threats to international peace and security in the twentyfirst century.9
Our Congress responded by passing a joint resolution authorizing “the
use of all necessary and appropriate force” in order to prevent any future
acts of international terrorism. 10 This, then, is a war, an unconventional
war conducted by an evil aggressor, an aggressor that has no legal right to
wage war. Under long established legal principles, the right to conduct
armed conflict, lawful belligerency, is reserved to states and their armed
forces or groups under responsible command that adhere to the laws and
customs of war. Private persons lacking the basic indicia of organization
and the ability or willingness to conduct operations in accordance with the
laws of armed conflict have no legal right to wage warfare against a state.
If they do so they are unlawful combatants.
The members of al Qaida do not meet the criteria to be lawful combatants under the law of war. They have no right to engage in armed conflict.
And because they have intentionally targeted and killed civilians in the
conduct of armed conflict they have committed war crimes. As a result,
8. Statement by the Secretary General of NATO, Lord Robertson (Oct. 2,
2001) available at http://www.nato.int/docu/speech/2001/s011002a.htm.
9. See S.C. Res. 1368, U.N. SCOR, 56th Sess., 4370th mtg., U.N. Doc.
S/RES/1368 (2001).
10. Authorization for Use of Military Force, P.L. 107-40, § 2 115 Stat. 224,
224 (2002).
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and in keeping with the U.S. legal tradition, war crimes commissions can
be convened to adjudicate these horrific violations of the laws of war.
The power to create commissions is within the President’s constitutional authority as Commander in Chief and is not new. War crimes commissions have been utilized and legally accepted throughout our history. They
were used by General Winfield Scott during his operations in Mexico, in
the Civil War by President Lincoln, and in 1942 by President Roosevelt.
And as many here know, war crimes tribunals are also an internationally
accepted practice with deep historical roots. The international community
has utilized war crimes commissions and tribunals to achieve justice, most
notably at Nuremberg and in the Far East. Military commissions were
used to try most of the leading perpetrators of Nazi and Japanese war
crimes. These commissions were followed by thousands of Allied prosecutions of the lower-level perpetrators under the Control Council Law No.
10.11
By the end of 1958, the Western Allies had used war crimes tribunals to
sentence over 5,000 Germans for war crimes. 12 In the Far East, 4,200 Japanese were convicted before war crimes tribunals convened by U.S., Australian, British, Chinese, Dutch, and French forces. Military commissions
were also convened in Guam, Italy, Austria, and China.13
The commissions as envisioned by the President’s Order, while different from those found in our civilian courts, conform to these historical
precedents. Perhaps even more importantly, they adhere to the international law standards of today, including those embodied in the 1949 Geneva
Conventions and the 1977 Additional Protocols to the Geneva Conventions. Although the commissions are conducted under a different body of
law, they are also consistent with the International Covenant on Civil and
Political Rights. They are also consistent with the process followed in the
current ad hoc tribunals. Like its predecessors in Nuremberg, the Far East,
and the International Criminal Tribunals for the former Yugoslavia and
Rwanda, the commissioners may adjudge both issues of law and of fact.
As with these prior institutions, decisions such as judicial orders, judgments, and sentences, will be reached by a majority vote and not unanimity, and evidence of a probative value will be admitted (although a death
sentence will require a unanimous vote of the members of the commission). Proceedings will be open, but as with the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, portions
11. See generally Control Council Law No. 10 (Dec. 20, 1945) reprinted in
TRIALS OF WAR CRIMINALS B EFORE THE NUREMBERG MILITARY TRIBUNALS (1949).
12. See Marjorie M. Whiteman, 11 DIGEST OF INTERNATIONAL LAW 947-56
(1968).
13. See id. at 1005.
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of the proceedings may be closed for reasons of safety or security.
In this campaign against terrorism, it is important that the President
have the full range of available fora for seeking criminal accountability
against persons for their individual and command responsibility for violations of the law of war. The war crimes commission provides a traditional
mechanism to address these unconventional crimes.
There is much debate as to why we are not using our federal courts for
all of these terrorists. Federal courts have not been excluded. Rather, the
option of a war crimes commission has been included. A specialized tribunal, as is now international practice for the prosecution of war crimes,
will not only bring in expertise with respect to the law of war, but will
also provide security and protection – against persons who have proven
that they are willing to kill thousands of people at a time – to the jurors,
bailiffs, court reporters, and other personnel who did not sign up for this
type of service, to be potential victims of terror.
We are doing what we believe is necessary to fight terrorist war criminals and to protect our country. We have a duty to future generations to
remedy this evil. The American people are truly grateful to those nations
that have stood at our side and joined us in this effort. These challenges
will only be surmounted by the concerted efforts and unflinching dedication of the many distinguished representatives of the international community who have committed to solving the problem of international terrorism. This is a problem that reaches across borders and into the homes and
hearts of every civilized nation. We are truly grateful for the outpouring of
support that the world has demonstrated.
In the years ahead, the United States will continue to lead the fight to
end impunity for genocide, crimes against humanity, and war crimes. We
will be implacable in our opposition to those who feel that they are beyond the reach of the law as they commit horrendous crimes. We will help
create the political will. We will continue to seek to bring justice as close
as feasibly and credibly possible to the victims in order to create a sense
of ownership and involvement. In our work with the Rwandan and Yugoslav Tribunals, the Special Court for Sierra Leone, and elsewhere, we will
stress that all parties have a responsibility on the road to justice.
For this noble cause to be successful, for justice to endure, the international community, the existing ad hoc Tribunals, and the sovereign states
of the world must coordinate, accept their role and individual responsibility, and go down this arduous road together. With our strong support of
these efforts, we will continue to overcome obstacles, achieve accountability for the perpetrators, and secure the rule of law. In passing milestones and creating an environment where there is not a dependency on
international mechanisms we will bring justice to the victims and restore
confidence in domestic institutions in societies throughout the world.