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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics



Between the July 26 cable (indicating USG preference for ICTY-Expanded) and September 28, USG preferences shifted to ICT-Tied, a compromise solution New Zealand advocated on September 26.116 Although the UN/ICER endorsed ICTY- Expanded in its interim report, several UNSC member states, most notably Russia and France, preferred ICT-Tied.117 Russia and France favored ICT-Tied in part to avoid creating the institutional framework for a permanent international criminal court, which ICTY-Expanded would do more so.118

Because the USG harbored only a weak preference for ICTY-Expanded over ICT-Tied, and given the value of French and Russian support, the USG revised its own position to reflect the shifting preferences among these other UNSC permanent members.119 The USG characterized its new position in favor of ICT-Tied as “the latest USG proposal for the [Rwanda] war crimes tribunal, based on the New Zealand approach.”120 That announcement occurred on September 28, with the caveat that “the appeals judges and prosecutor for the [ICTY] would serve also as the appeals judges and prosecutor for Rwanda,” and reflected the USG’s desire to “compromise in the interest of quick [UNSC] action on Rwanda prosecutions, which is essential in light of the situation ... .”121 The GoR advised the USG that it agreed with the “New Zealand approach” and wanted trials to be held in Kigali.122 The French, British, and Belgian governments also advised the USG that they, too, supported the ICT-Tied option.123 On September 28-29, the U.S. and New Zealand governments circulated among UNSC members and Zacklin a draft UNSC resolution for the establishment of the ICTR.124 The U.S., New Zealand, and U.K. governments then introduced a revised text two weeks later.125 The USG also decided to establish a ministerial-level operational support group, “The Friends of Rwanda,” to coordinate further efforts to assist post-genocide Rwanda.126

Even after support for the ICT-Tied option emerged among the UNSC permanent members and some other critical states—such as New Zealand, Uganda, and Tanzania (the last of which, in October, offered Arusha as a venue for any ICT for Rwanda127)—other parties raised concerns. For example, Boutros-Ghali objected to Goldstone as chief prosecutor, preferring instead a Francophone African.128 Furthermore, in mid-October, Japan’s government expressed concern that the UNSC apparently was engaged in the proliferation of ad hoc ICTs, a practice to which it objected.129

In addition, the GoR remained an active lobbyist for a Rwanda ICT without stating a preference for a particular ICT type (e.g., ICT-Tied, ICTY-Expanded). Furthermore, GoR representatives voiced objections to Matheson and other USG officials regarding the draft ICTR statute, including the temporal jurisdiction, the number ofjudges, the seat of the tribunal, and the text of Articles 3 (on crimes against humanity), 4 (on war crimes), 26 (on sentencing), and 27 (on pardon or commutation of sentences). The GoR also pressed for a voice in the selection of tribunal staff, a veto over all releases and pardons, and a guarantee that all convicted genocidaires be incarcerated in Rwanda.130 The GoR demanded more control over a process perceived as crucial to its post-conflict reconstruction. The GoR moreover insisted that atrocities committed before 1994 be included in the ICT’s jurisdiction, because, the GoR argued, these offenses should also be punished and were inextricably linked to the genocide in 1994. Twagiramungu again publicly demanded the establishment of an ICT for Rwanda around this time.131 USG officials continued meeting with their GoR counterparts from mid-October through early-November132 but did not discover “until the last day or so prior to the vote in the [UNSC] that the Rwandan government would not budge on their objections to the ICTR statute"133 Part of the problem may have been communication difficulties the GoR delegation at the UN claimed to have with their home government in Kigali, which prevented the GoR delegation from receiving timely and thorough guidance.134

On November 3, the USG convened a meeting of the co-sponsors of a resolution to establish an ICT for Rwanda: France, New Zealand, Russia, Spain, the United States, and the United Kingdom.135 The group decided at that meeting (1) to confer with GoR officials the following day to try to persuade them “to vote in favor or not participate" in the resolution, (2) to bring the resolution to a vote on November 7 “irrespective of Rwandan position," and (3) “that no changes would be made in [the] text of resolution or statute unless Rwanda indicated one or another minor cosmetic change would enable them to vote yes on the resolution." Members of the group varied in terms of their strict adherence to these positions. French and Russian representatives urged no further amendments to the resolution and insisted on a November 7 vote. U.S. and Spanish officials supported the French/Russian position. However, the government of New Zealand was willing both to negotiate further with the GoR and to delay any vote on the resolution.136

As planned, on November 4 the co-sponsors of the resolution met with GoR officials, including Rwandan UN/PR Manzi Bakuramutsa. The group conveyed to the Rwandan delegates its decisions from the previous day, including the planned November 7 vote on the proposed resolution, and expressed hope that the GoR either would vote affirmatively or abstain. GoR officials demurred, stating that they had not yet received instructions from more senior officials in Kigali. The delay partially arose because, according to a U.S./DoS cable, “time was differently perceived in Rwanda ... it simply took weeks for them fully to grasp” the proposal. Bakuramutsa also reiterated some of the GoR’s objections to the draft resolution. The co-sponsors responded that they were amenable to increasing the number of judges but not to increasing the GoR’s involvement in their selection because the ICT “could not be seen as in any way prone to bias.” The meeting concluded with an agreement to reconvene as soon as the GoR delegates received their instructions. Members of the co-sponsoring group continued to vary in terms of their resolve, with the French and Russians insistent on a November 7 vote over the extant version of the resolution, and New Zealand being most willing to compromise with the GoR and delay the vote. USG officials present at the meeting added that, although no agreement with the GoR had been reached, the meeting had been productive in conveying the “message to Rwandans that time had come to make their decision and slight firming up of New Zealand and UK resolve to act on Monday[, November 7].”137

Further meetings among GoR, USG, and UN officials on this topic did occur from November 5 to 7, but in Kigali rather than at UN headquarters in New York City. During this time, GoR officials in Kigali sent instructions to their representatives at the UN to vote against the proposed tribunal statute. Scheffer opines that the delay from November 7 to the next day did not significantly affect the ultimate vote on the UNSC resolution containing the tribunal statute. Instead, he suggests that such delays are common and, in this case, probably reflected the lag between last-minute meetings occurring in Kigali and the time it took to relay messages from there to New York City.138

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