III. Explaining the United States Role in Transitional Justice for Rwanda
This Part considers, first, USG decision-making at each of the most critical decision points leading to the establishment of the ICTR. This Part then identifies and resolves certain puzzles in that decision-making process.
A. DECISION POINTS
In the course of endorsing what would become the ICTR, the USG backed general and specific transitional justice options. This Part discusses the USG’s rationale for each of those decisions, namely (1) to support action, (2) to support prosecution, (3) to support prosecution through the UN, (4) to support prosecution through the UNSC’s Chapter VII powers, and (5) to support prosecution through the ICT-Tied option.
U.S. Government Support for Action
It is not obvious that the USG would have decided to do something about Rwandan genocidaires. The USG had been proactive in the aftermath of some atrocities, such as by taking the initiatives regarding suspected German, Japanese, and Balkan perpetrators discussed in the preceding three chapters. However, the USG also was inactive in the immediate aftermath of other atrocities, such as the 1915 Armenian genocide that killed approximately 1 million people, and the mid-1970s Khmer Rouge genocide of Cambodians that claimed approximately 1.7 million lives.155
Furthermore, the USG not only decided to remain on the sidelines during the Rwandan genocide, but also proactively sought to block or minimize UN efforts.156 Declassified USG documents reveal that:
Contrary to later public statements, the US lobbied the UN for a total withdrawal of UN forces in Rwanda; Secretary of State Warren Christopher did not authorize officials to use the term “genocide” until May 21 [, 1994], and even then, US officials waited another three weeks before using the term in public; [b]ureaucratic infighting slowed the US response to the genocide; [t]he US refused to “jam” extremist radio broadcasts inciting the killing because of costs and concern with international law; and US officials knew exactly who was leading the genocide, and actually spoke with those leaders to urge an end to the violence.157
The initial question then is why, given USG inaction and obstructionism during the genocide, the USG took an active role post-genocide.
One possible explanation lies in guilt. The USG decision to “do something” post-genocide may have been driven by personal responsibility felt by Clinton and other USG officials stemming from their recognition that even limited intervention by the USG could have significantly mitigated the genocide. Referring to the USG as a whole, a U.S. congressperson charged when advocating for the immediate establishment of an ICT for Rwanda in July 1994: “Any further delay clearly increases the burden of guilt on our account.”158 Indeed, some GoR officials have accused the USG in similar fashion.159
Some experts on the genocide outside the USG agree with this explanation. Des Forges believed that “the USG decided to support the ICTR because they felt so damn guilty,” thinking “it was a ‘least-we-can-do’ kind of idea ... they wanted to have some form of justice just because they needed to settle their own consciences ... .”160 Journalist Elizabeth Neuffer agreed: “How to assuage the West’s guilt? The answer was the same as for the [FRY]: create a war crimes tribunal.”161 Some USG officials who worked on the issue concur with these experts. Gregory Stanton, former Political Officer in the U.S./DoS Office for UN Political Affairs, former president of the International Association of Genocide Scholars, and current president of Genocide Watch, believes that USG officials were motivated by subconscious feelings of “guilt ... . We were involved in the decision to throw out UNAMIR troops from Rwanda. The result of that decision was that hundreds of thousands of people were slaughtered. I think a lot of people in the USG realized that was a huge mistake.”162 Stanton specifically points to Clinton and other senior USG officials as being motivated by feelings of culpability to “do something” post-genocide.163 Congressperson Maxine Waters, who accompanied Clinton to his March 25, 1998, speech at the Kigali International Airport, publicly stated her belief that Clinton felt remorse over the USG not intervening in the genocide.164
Shattuck acknowledges that he and others sensed a connection between USG inaction during the genocide and the desire to do something after the fact. As Shattuck explains, doing nothing was
unthinkable, in my view, from the standpoint of having had the international community withdraw the UN forces that might well have been able to at least slow the genocide. Nothing was done to stop the genocide and it was unthinkable not to address the genocide after it occurred . [there were] certainly feelings of obligation and perhaps some guilt.165
Some senior USG officials discuss their feelings in terms of a missed opportunity to offer assistance without explicitly drawing connections to USG post-genocide policies. Albright reflected on the genocide by noting: “My deepest regret from my years in public service is the failure of the United States and the international community to act sooner to halt those crimes.”166
However, other USG officials working on the issue emphatically deny that guilt was a motivating factor. As Scheffer declares, “it is a popular, erroneous presumption, and everyone likes to use it, that the ICTR was America’s sop to what occurred in Rwanda or that it was somehow our contrition for letting the genocide occur.”167 (Even then, though, Scheffer has referred multiple times to the establishment of the ICTR as part of his then-USG colleagues and his own personal effort to seek “redemption”168 after “the United States had abandoned Rwandan Tutsi to their fate in the genocide.”169) Matheson is also skeptical of the remorse explanation, though he is less vehement in his denial, stating, “in terms of saying that the government feels guilt, well, the government is not a person, so it is hard to attribute that kind of motive to it.”170 While acknowledging, like Albright, that not intervening in Rwanda is his greatest regret,171 Clinton, too, has explicitly denied feeling guilty about the genocide.172
It is unclear from the interviews I conducted, excerpted above, whether a major factor in the USG decision to “do something” was that USG decision-makers felt guilty (about not intervening, and obstructing other assistance during the genocide) and so wanted to “do something” in the aftermath to make amends. The USG, including the Clinton administration, declined to intervene in previous and subsequent atrocities (e.g., Sudan, the DRC), and has provided only minimal support to many transitional justice systems in their immediate aftermath, further raising questions about whether and, if so, to what extent feelings of guilt over humanitarian crises have driven foreign policy decision-making on transitional justice.
Another explanation for the USG’s decision to “do something” post-genocide is that, with the progressive realization of the particularly egregious nature and scope of the atrocities, the USG felt that it should become involved as a logical, appropriate, and necessary response. Lake, Matheson, and Stanton all subscribe to that view.173 This perspective denies that the UN, including the USG, knew the full extent of the genocide soon after it erupted—a view not without its skeptics and essentially debunked now. Indeed, declassified USG documents from the time and subsequent reports indicate that the USG was aware of the magnitude of the atrocities as they unfolded.174
Instead, USG officials such as Stanton and Scheffer believe that their colleagues pursued a transitional justice option for Rwanda to achieve a foreign policy success as compensation for recent USG failures in the region—during the Rwandan genocide itself as well as the disastrous October 1993 intervention in Somalia175— even without feelings of guilt about those failures.176 Those involved may have viewed a genocide response that did not risk American lives and resources but rather supported the establishment of a post-conflict transitional justice solution as the less costly alternative, both politically and pragmatically (e.g., financially), although these two options need not have been mutually exclusive.
On the other hand, some USG officials involved do not believe that achieving a foreign policy success after Somalia and Rwanda factored into the calculus. Shattuck argues: “The impact of Somalia on U.S.-Rwanda policy was more a factor in having the U.S. decide not to support the continuation of the peacekeeping operation in Rwanda.”177 Others, such as Matheson, concur, arguing that even if the USG had attained foreign policy successes in Rwanda and Somalia, the USG still would have supported the establishment of the ICTR.178
A fourth possible explanation is that the USG wanted to become involved in the transitional justice solution for Rwanda for strategic reasons: (1) the solution’s potential value as a precedent for handling future atrocities, (2) the overlap between the solution and the USG’s interests, (3) a sense that USG involvement would ensure the solution’s best possible outcome, and, finally, (4) the inevitably of some sort of transitional justice for Rwanda. Stanton, Matheson, and Scheffer hold this view, with Scheffer arguing that the USG decided
to take the lead before another delegation seized the lead and the credit for it. A major reason for US leadership was the reality that it would allow us to control the drafting and ultimate structure of the [ICTR]. Ninety percent of the struggle is being the initial drafter, creating the draft that other delegations have to work from. We needed to be in the front door first with that draft resolution ... part of the game is for other delegations to recognize the US early as the country to look to for that initial draft.179
This concern also appears explicitly in internal USG documents. In response to the Spanish government’s June 10 proposal for what would become the UN/ ICER, a U.S./DoS cable stated that
USUN anticipates that other countries will launch this human rights initiative as theirs ... . [U.S./DoS] should undertake the necessary assessment and provide appropriate guidance so that we not be foreclosed out of the option of the U.S. taking the initiative on the issue by another delegation doing so first.180
The USG’s posturing and desire to claim credit are also apparent at other steps in the process of seeking transitional justice for Rwanda.181
Furthermore, the USG did not view a transitional justice system for Rwanda as a threat to its pragmatic objectives. The temporary and limited ICTR would help achieve the USG’s goals of promoting justice and atrocity deterrence. Crucially, the ICTR establishment would not create a permanent or broad institution that would affect American citizens and government activities or risk harm to U.S. interests from the possibilities of other state actors not complying.
USG officials believed that their involvement in the ICTR would ensure the best possible outcome. As Stanton argues:
There were some people in the Clinton Administration and there are some people still in the U.S. government and I think in general who think of the U.S. as having a particularly good model to make justice on and so we have a duty to work in these settings to uphold due process and the rights of the defendant to make sure these things work well.182
Shattuck concurs: “There was the thought among us that if the ICTR was sponsored by the U.S., it stood a better chance of being adopted than if it was sponsored by some other government.”183 The USG believed that only the United States had the necessary will, resources, and mature judicial traditions to guide the successful development of Rwandan transitional justice. Moreover, USG officials believed that a transitional justice system would be established in any case for post-genocide Rwanda so, according to Stanton, “it was clearly a private part of the decision to support the establishment of the ICTR” to mold what it viewed as an inevitable outcome.184
Finally, some USG officials contend that USG action in post-genocide Rwandan was motivated partially by recent USG involvement in the immediate aftermath of the FRY conflict. The ICTY precedent provided a model and impetus for USG action in post-genocide Rwanda. According to Matheson, he and some other U.S./DoS officials “persuaded the [U.S./DoS] that we had to treat Rwanda the same way as Yugoslavia.”185 Scheffer agrees, stating that, in postgenocide Rwanda, “there had to be a judicial response at least as credible as that which the Balkans atrocities had inspired with the [ICTY].”186
Furthermore, the ICTY precedent caused USG officials to consider carefully the consistency with which they applied transitional justice solutions in different regions; they wanted the international community to view them as treating Africans similarly to Europeans. According to these officials, the USG would have found it politically difficult to justify inaction in post-genocide Rwanda, especially after the USG’s precedent of proactive involvement in the arguably less egregious Balkans crisis. Had the USG not acted, it likely would have faced criticism as being racist and regionalist,187 as Twagiramungu had suggested. As discussed in Chapter V, the USG faced similar pressures with respect to Japanese atrocity perpetrators after the USG had participated in establishing the IMT for Nazis.