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

The U.S. Government’s Multilateral Intentions and Frustrations

During his congressional confirmation hearing on January 13, 1993, to become the 63rd U.S. secretary of state, Christopher discussed atrocities in the FRY and Iraq, and whether and how to hold their perpetrators accountable. In particular, Christopher stated that the Clinton administration supported war crimes trials for both Iraqis suspected of committing atrocities in Kurdistan and alleged perpetrators of atrocities in the FRY.83 Christopher suggested two venues for such trials: (1) before the ICJ, and (2) before a tribunal created in the United States.84 Whichever method the USG pursued, Christopher pledged the USG’s intentions to participate in a multilateral transitional justice process.85

However, the USG’s early efforts did not garner much support among its allies, some of which resisted imposing stronger measures in the Balkans, even through a multilateral UN initiative. In an episode reminiscent of the etiology of the IMT, according to one observer, “[t]he British, in particular, have expressed reservations to the United States about the purpose and feasibility of moving toward war-crimes trials.”86 Instead of advocating for summary executions in this case (as the United Kingdom had done for Nazis), however, the British resisted prosecutions in the Balkans out of concern that such proceedings would endanger UN peacekeepers and the overall humanitarian effort.87 Other members of the UNSC also opposed the initial USG lobbying to establish an ICT for the FRY. France, like the United Kingdom, believed a peace settlement merited a higher priority than prosecutions. China worried that creating an ICT for the FRY might establish a precedent that could backfire on them for their own alleged atrocities. The Russians, who shared similar concerns as China, resisted prosecuting their historic allies and Slavic brethren, the Serbs.88

The USG was particularly disappointed in the lack of support its efforts received from the CoE. Many commentators criticized the structure of the CoE as well as the performance and attitude of some of its members; the commission suffered from leadership problems and disruptive transitions early in its operation. The CoE Chairman, retired legal scholar Frits Kalshoven, “resigned midstream” to be replaced by Bassiouni, another CoE member.89 Kalshoven certainly did not expect to assume the chairmanship, in part because he was unsure about whether he even supported trials for atrocity perpetrators in the FRY.90 Moreover, he was not necessarily supportive of the ICTY or optimistic about its success, even after the UNSC provisionally approved its creation. He reportedly stated:

There is no way a tribunal could work in the present atmosphere of antiSerb propaganda, which is rampant all over the world ... . It will never be possible to have an objective procedure ... . And by the way, a tribunal can take place only at the end of the conflict,

which Kalshoven then predicted might not occur for more than a decade.91

Five months after its establishment, journalist and author Roy Gutman described the CoE as “bogged down in confusion” and having “achieved next to nothing.”92 Gutman reported that USG officials were “livid” that the CoE had accomplished so little since its establishment: “It hasn’t held a hearing or sent a mission into Bosnia, or even requested the news media to provide copies of their stories and videotapes.”93 In particular, Gutman referenced Abram’s assertions that the CoE had been delinquent in its duties:

They meet once in a while ... . They don’t have a staff to amount to anything. They don’t have resources, people right now interviewing witnesses, who can tell you about who the camp guards were . . If this is serious

you’ve got to have a large number of people involved. And moreover, you’ve got to start dealing with the problem before the trail gets cold.94

Gutman suggested that descriptions of atrocities in the CoE’s interim report were lacking, because the body “did not say where they had occurred or where the principal responsibility might lie.”95

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