Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
The ICTR’s establishment, in which the USG played a leading role, was a momentous advancement in international law and politics. Along with the ICTY, founded just the previous year, the creation of the ICTR marked a significant development in international cooperation, especially among Great Powers. The ICTR’s birth (and that of the ICTY), particularly the bilateral cooperation between the United States and Russia on Goldstone’s appointment as the ICTY and then the ICTY/ ICTR chief prosecutor, illustrates significant progress in international cooperation during the immediate post-Cold War period. Shortly beforehand, the bilateral superpower rivalry paralyzed the UNSC and otherwise prevented effective collaboration on international issues, including transitional justice.
The ICTR’s creation also represents a significant development in transitional justice. The ICTR established a precedent for the international community’s response to crimes limited to an internal conflict. It also affirmed the power and legitimacy of the UNSC, initially demonstrated during the ICTY episode, to use its Chapter VII powers to create ad hoc ICTs for prosecuting suspected atrocity perpetrators.
As with the previous case studies—on the U.S. role in transitional justice for Nazi Germany, Imperial Japan, Libya, Iraq, and the FRY—a combination of politics, pragmatics, and normative beliefs drove the USG’s decision-making regarding transitional justice for Rwanda. Some of the USG’s individual motivations related to more than one of these factors.
That the USG did not intervene in the Rwandan genocide affected both political and pragmatic calculations over its subsequent transitional justice decision-making. The USG’s political and legal resistance to intervention affected the timing and nature of its denouncements of the genocide. That the USG did not send troops or other assistance to Rwanda perversely may have increased the likelihood of involvement in the immediate aftermath. A desire to compensate for its foreign policy failures in Rwanda, if not also feelings of guilt over not intervening, apparently motivated at least some USG officials to support a transitional justice institution for Rwanda. The USG’s stated pragmatic desire to avoid disrupting potential peace negotiations further affected the timing and nature of its rhetoric.
The extent of the USG’s role in the transitional justice process for Rwanda was determined further by another political goal, namely a desire to claim credit for Rwanda’s transitional justice solution before any other state could seize the initiative. Driven by that competitiveness, USG officials took the lead on designing and lobbying for the creation of an institution they felt was inevitable. Their goal of ensuring the most favorable design of that institution relative to U.S. interests further motivated the USG to become involved in a leadership capacity.
Certain political and pragmatic objectives influenced the USG’s choice over the general transitional justice option. USG officials believed that prosecution, particularly through a respected international forum such as the UN, would bolster the legitimacy of war crimes trials, prevent further conflict and impunity, and promote local stability and reconciliation by removing the transitional justice process from the GoR’s exclusive control.
The USG’s preexisting treaty agreements also affected its transitional justice decision-making politically. USG officials stated that they were partly motivated to support prosecution over alternative transitional justice options because of the USG’s obligations under the Genocide Convention to try suspected genocide offenders before competent tribunals.
Particular features of the Rwandan genocide exerted pragmatic influence on the USG’s role in transitional justice for Rwanda. Given that genocidaires were no longer in power, prosecution was seen as a suitable option, whereas responses such as amnesty and exile and extreme solutions such as lethal force were seen as unnecessary. Furthermore, the sheer number of genocidaires rendered exile and lethal force impractical, if not impossible.
The USG was motivated to support prosecutions in the case of Rwanda because of particular political and pragmatic objectives USG officials held. These officials sought to bolster the legitimacy of war crimes trials, facilitate the repatriation of refugees, deter additional atrocities, remove the most egregious perpetrators from the region, and establish a historical record of the genocide.
The natures of the successor regime and its relationship with the USG were yet further political engines driving the transitional justice process. From the USG’s perspective, the RPF-led GoR was unfamiliar, unpredictable, and untrusted. As a result, the USG did not want to leave the transitional justice process, even if it were prosecutorial, solely in the GoR’s hands. For similar reasons, the USG did not want to partner with the GoR on a transitional justice institution through the UN, such as a GoR-UN hybrid tribunal.
How the conflict ended was a crucial pragmatic factor driving the transitional justice process. The absence of victorious occupying forces led the USG to support a transitional justice option through the UN as a default forum. And the USG’s relationship with the UN at that particular point in history helped determine politically whether that default forum would be embraced. As the USG had positive relations with the UN at the time, USG officials viewed the UN as an attractive option.
The USG’s ability to reach agreement with former adversaries and current allies on key matters significantly affected the post-genocide transitional justice process politically. The USG viewed the support of Russia and South Africa as critical to the selection of the ICTR’s chief prosecutor. Moreover, the USG knew that it was necessary to obtain agreement from Russia, China, France, and the United Kingdom because of their equal veto power over the creation of any ICT through the UNSC. Fortunately for the USG, the end of the Cold War provided the political opportunity to reach consensus with Russia on transitional justice in Rwanda (as similarly occurred with transitional justice for the FRY). The USG was also concerned about France because of its historical ties to and ongoing involvement in Rwanda. Indeed, France likely had the best access of any country (other than Rwanda itself) to witnesses, evidence, and even suspected genocid- aires. The USG knew that the UNSC’s permanent members, including the USG itself, could compel the cooperation of states that were important to transitional justice in Rwanda and still retain veto power over that process. Reaching that consensus was so important to the USG that it abandoned the transitional justice option it initially preferred in favor of one other permanent UNSC members also supported.
The USG’s power to overrule those states with which it ultimately disagreed, namely Rwanda itself, also helped shape transitional justice for Rwanda politically. The USG cited the GoR’s preference for the international community to create an ICT through the UNSC as part of the reason the USG supported that option. Moreover, USG officials noted their desire to placate the GoR and defer to it to prosecute the overwhelming majority of genocidaires as a reason that the USG supported a transitional justice option that would address only a small fraction of the suspected genocide perpetrators. However, the USG did not honor the GoR’s wishes about the precise design and function of the ICT for Rwanda. Unlike with the permanent members, the GoR did not wield a veto on the UNSC, and so the USG could choose which of the GoR’s preferences it would support— and which it would not.
The perceived need to move quickly on a transitional justice response to the ferocious pace of the genocide served as a key pragmatic motivation leading to the eventual form that response would take. The USG thus decided to withdraw its initial, weak preference for ICTY-Expanded because negotiations with other critical states to generate more support would have required additional time. For the same reason, the USG decided to adopt or otherwise apply the existing ICTY model instead of pursuing innovative options, such as a hybrid GoR-UN ICT, which would have taken extra time to design. The USG decided it could not entertain additional GoR requests for modifications to the design of the ICT-Tied option, in part because such amendments would further delay the process.
A pragmatic desire to limit the cost of the chosen prosecutorial transitional justice option convinced the USG to support prosecution not only through the UN, which would enable the USG to share burdens with other members of the international community, but also through an option that shared at least some bureaucracy with the existing ICTY infrastructure. Pragmatic budgetary concerns also prompted USG officials to support a transitional justice option that could address only a few dozen genocidaires. Additionally, connecting the ICT for Rwanda to that of the ICTY was attractive to the USG for two more pragmatic reasons: (1) it satisfied USG preferences to promote the consistent development of international law and prosecutorial process; and (2) the ICTY already had a respected chief prosecutor—and one from sub-Saharan Africa to boot—who could be commissioned, as well, by the ICTR.
Enacting a transitional justice option for Rwanda through the UNSC presented a further pragmatic advantage: the UNSC could compel states to comply with critical requests for cooperation. Certain additional pragmatic factors further influenced the ultimate transitional justice option the USG supported. The USG’s objectives to avoid adding to the ICTY’s already significant caseload and limited detention capacity, and the USG’s goal to locate the ICT for Rwanda in Africa, both played a role in the USG’s decision to support ICT-Tied over ICTY-Expanded.
Overall, the single most important pragmatic determinant of the USG’s support for the creation of the ICTR, at least for the first four decision points, was the path dependency created by the ICTY. This precedent—and the analogical reasoning following from it, despite known problems and setbacks—implicitly applied pressure on the USG to formulate a consistent policy on suspected atrocity perpetrators, regardless of their nationality, ethnicity, or location. In other words, just as the IMT precedent had done in the case of post-WWII Japan, the ICTY precedent served as a model compelling both the impetus for, and the shape of, USG action in post-genocide Rwanda.
All USG officials involved in the decision emphasize the pragmatic and political significance of the ICTY precedent to the creation of the ICTR. As Scheffer argues:
If there had not been an ICTY, I think the presumption of considering an
ICTR may not have occurred in 1994. In other words, the ICTY paved the way for the issue to arise very quickly within the councils of the UN and in Washington. The ICTY had an enormous influence on creating the context within which an ICTR could be contemplated.301
In fact, many USG officials, such as Bushnell, Shattuck, and Stanton, believe that the ICTY was the “single most important factor” molding the form of the USG’s decision to “do something” in post-genocide Rwanda.302 Scholars also have noted the pragmatic importance of the ICTY precedent to the ICTR and other tribunals. Legal academic Peter Burns opines that the ICTY “is clearly a prototype for other such tribunals and it carries with it the moral and political force of the world community.”303 Not only were the pragmatic reasons and normative beliefs driving the USG’s support for the establishment of the ICTR based in many ways on the ICTY (e.g., support for prosecution as a more appropriate solution than amnesty, exile, lustration, or lethal force; pursuing an option through rather than outside the UN), but much of the process leading to the eventual creation of the ICTR borrowed from the Balkans case as well. For example, the decision to establish the UN/ICER that preceded UNSCR 955 mirrored the UNSC’s decision to ask the UNSG to establish the UN/ICEfY that conducted an investigation in the Balkans and issued recommendations that led to the creation of the ICTY.304
USG officials differ on the necessity of the ICTY precedent to the establishment of the ICTR. Some USG officials believe that the ICTR would have materialized even without the ICTY precedent. As Matheson theorizes: “If there had been no ICTY ... I guess there still would have been an ICTR. All the same elements were there. I don’t see why a different solution would have emerged.”305 Other USG officials, such as Shattuck, believe that had the ICTY not existed, the ICTR would not have either, in part because the USG would have felt less political pressure to “do something” in post-genocide Rwanda and to do so through an ICT.306 Some UN officials involved in the decision favor this latter view, though perhaps not as strongly. As UN Legal Officer Daphna Shraga and Zacklin argue, “it is questionable whether the [ICTR] would have been established without the Yugoslav precedent ... .”307 Some scholars concur, assuming that the transitional justice response for Rwanda, if any, would have been much less significant without the ICTY precedent. Therefore, the ICTR was not established to reflect the supposedly benevolent motives of the international community when it established the ICTY. “In view of this hard reality,” legal scholar Payam Akhavan argues on account of disparate treatment for black Africans and white Europeans in response to other atrocities, “there is little room for celebration, and even less for triumphalism.”308 As the ICTY served as such an important precedent for the ICTR, it follows that the USG decision to establish the ICTR derives much of its origin from its earlier decision to support the ICTY’s creation. Perhaps counterintuitively, then, many of the political factors, pragmatic features, and normative beliefs about establishing a UN ad hoc ICT for Rwanda through the UNSC’s Chapter VII powers are represented in the debate to establish the ICTY, and occur during the Balkans crisis (when the decision to create the ICTY was made), not during and immediately after the Rwandan genocide. Again, the creation of the ICTY thus helps to explain both the USG’s decision to support the establishment of the ICTR and the form the resulting ICT took. As discussed in Chapter V, the USG embraced similar path dependency in adopting the IMT framework as a working model for what would become the IMTFE.
Path dependency also served as both a pragmatic and political factor driving the USG’s decision-making on transitional justice for Rwanda in another way. As the forum in which the international community was addressing the Rwandan genocide, the UN’s (particularly the UNSC’s) extant role compelled the USG to think of the UNSC as the most appropriate forum for dealing with the genocide’s aftermath, including the transitional justice institution. The existing model of the ICTY and the existing UN and UNSC discussions about the Rwandan genocide stifled creative thinking about alternative transitional justice solutions. The ongoing precedent and negotiations also suggested that emulating the ICTY model and working through these forums was bureaucratically and politically easier and more desirable than pursuing an alternative option, which would raise difficult and sensitive questions about why the Rwandan genocide was being treated differently than the Balkans crisis. The existing ICTY machinery provided a blueprint of a UNSC-led ICT that could quickly and easily be adapted for the Rwandan genocide. The ICTY’s statute, rules of procedure and evidence, chief prosecutor, appeals chamber, and supervisory authority (the UNSC) all were readily available to use for the Rwandan transitional justice institution.
Besides political and pragmatic factors, normative beliefs contributed to the USG’s decision to support the creation of the ICTR. The USG’s growing awareness over time about the nature and scope of the atrocities compelled officials to become involved out of a normative belief that such atrocities should be addressed through transitional justice. Some USG officials strongly favored on principle a particular means for confronting some genocide perpetrators. These USG officials believed that the most egregious genocidaires must be prosecuted and punished for their heinous acts. A further normative belief relates to U.S. domestic traditions. Some USG officials stated that the U.S. practice of prosecution in dealing with criminal offenders necessitated a legal process for addressing suspected Rwandan genocide perpetrators.
Nevertheless, there are limits to the persuasiveness of USG officials’ explanations of the normative beliefs driving the U.S. role in transitional justice for Rwanda. Although some officials argued that prosecution was the only legal, mainstream, and appropriate option for dealing with genocidaires, and that the USG tradition of domestic prosecutions influenced its decision to favor this option for Rwanda, these explanations are dubious. As discussed in Chapters II, IV, V, and VI, the USG had and has since supported alternative transitional justice options for responding to atrocities. The argument that the USG does not use lethal force on suspected atrocity perpetrators is, as also discussed in Chapter II, inaccurate and therefore not a compelling explanation for the decision to prosecute in this case.
Now that these six cases—Germany and Japan in the immediate aftermath of WWII as well as Libya, Iraq, the FRY, and Rwanda in the immediate aftermath of the Cold War—have been examined, I proceed in the following, final chapter to consider them as a whole. That chapter will evaluate these cases’ similarities and differences as well as assess whether legalism or prudentialism better accounts for the U.S. role in the cases’ transitional justice.
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