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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics
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A. APRIL-JULY 1994: DURING THE GENOCIDE

USG support for the ICTR’s creation began both publicly and privately well before the genocide had concluded. Immediately after the killing started on April 6, 1994, the USG began publicly issuing general statements denouncing the atrocities and declaring a need for accountability for the genocide.8 Indeed, the day after the genocide began, Clinton declared that he was “shocked and deeply saddened ... [and] horrified that elements of the Rwandan security forces have sought out and murdered Rwandan officials ... .”9 He “condemn[ed] these actions and ... call[ed] on all parties to cease any such actions immediately ... .”10 That same day, the UNSC President (UNSC/P) for April 1994, Colin Keating, who was the UN Permanent Representative (UN/PR) from New Zealand, issued a statement supported by the USG (as UNSC/P statements are unanimous), similarly condemning “these horrific attacks and their perpetrators, who must be held responsible.”11 A week and a half later, Lake called on “the leadership of the Rwandan armed forces, including Army Commander-i n-Chief Col. Augustin Bizimungu, Col. [Leonard] Nkundiye, Capt. Pascal Simbikangwa[,] and Col. [Theoneste] Bagasora ... to do everything in their power to end the violence immediately.”12 According to historian and Human Rights Watch senior adviser Dr. Alison Des Forges, that statement “was the first by a major international actor to publicly assign responsibility for the ongoing killing to specific individuals, but it stopped short of calling the slaughter genocide.”13 Perhaps the most forceful early public statement by the USG concerning accountability for the genocide came on April 28. That day, U.S./DoS spokesperson Christine Shelly read a prepared statement that the USG “strongly condemns the massacres”; she mentioned that the USG was communicating with all parties to the conflict and would be “working very strongly through the United Nations.”14 During that press briefing, Shelly also indicated four general transitional justice options: domestic prosecutions within Rwanda, use of an ICT, referral to the UN, and use of the ICJ.15

Private USG efforts to condemn and seek accountability for the genocide started at approximately the same time. On April 26, the U.S./DoS decided that Prudence Bushnell, Principal Deputy Assistant Secretary of State for African Affairs, would call GoR officials leading the genocide as well as rebel leaders. Bushnell spoke to Bagasora on April 28, Bizimungu and Rwandan Patriotic Front (RPF) Major General Paul Kagame on April 30, and again to Kagame on May 1. She tried unsuccessfully to call Bagasora again that week but spoke to Bizimungu several more times in early May.16 Bushnell told Bizimungu: “I am calling to tell you President Clinton is going to hold you accountable for the killings.”17 In her conversation with Bagasora on April 28, Bushnell urged him to “end the killings,” emphasizing that “in the eyes of the world, the Rwanda military engaged in criminal acts” and stressing that “it would behoove the GOR military to show some responsible leadership and a willingness to compromise ... we were looking to him personally to do the right thing.”18 U.S. Assistant Secretary of State for African Affairs George Moose also repeatedly spoke by telephone to representatives of the GoR and the RPF.19 The discussions clearly signaled that the USG was watching the genocide and taking note of its perpetrators, with the intention of eventually holding them individually accountable for their crimes. Further reflecting that view, on April 29, at a meeting of the U.S. National Security Council (U.S./NSC) Deputies Committee, Scheffer proposed a UN-led investigation of the crime of genocide in Rwanda.20

The USG and the UNSC/P were not alone in calling for perpetrators to be brought to justice. Some Rwandans did, too, though they were much more specific (and, as it would turn out, prescient) about the precise form the accountability mechanism should take. Although not in power, Rwandans opposed to the genocidal Hutu regime almost immediately began demanding that the UN catch and try genocidaires. One week after the genocide began, Claude Dusaidi, the RPF representative to the UN, wrote to the UNSC/P that a “crime of genocide” had been committed in Rwanda and requested that the UNSC immediately establish an ICT and apprehend those responsible for the killings.21 After the genocide, the five reasons cited by the RPF-led GoR for its ICT request were:

  • (1) “to involve the international community, which was also harmed by the genocide and by the grave and massive violations of international humanitarian law” and “to enhance the exemplary nature of a justice that would be seen to be completely neutral and fair”;
  • (2) “to avoid any suspicion of its [the GoR’s] wanting to organize speedy, vengeful justice”;
  • (3) “to make it easier to get at those criminals who have found refuge in foreign countries”;
  • (4) to emphasize that “the genocide committed in Rwanda is a crime against humankind and should be suppressed by the international community as a whole”; and
  • (5) “above all ... to teach the Rwandese people a lesson, to fight against the impunity to which it had become accustomed since 1959 and to promote national reconciliation.”22

Two weeks later, on April 30, the UNSC suggested that prosecutions be used to determine responsibility for atrocities in Rwanda, but did not endorse a specific forum. The UNSC/P’s statement called “on the leadership of both parties . to commit themselves to ensuring that persons who instigate or participate in such attacks are prosecuted and punished.”23 The statement further recalled that “persons who instigate or participate in such acts are individually responsible. In this context, the [UNSC] recall[ed] that the killing of members of an ethnic group with the intention of destroying such a group in whole or in part constitutes a crime punishable under international law.”24 The statement then requested the UNSG “to make proposals for investigation of the reports of serious violations of international humanitarian law during the conflict.”25 Without employing the word “genocide,” this statement alluded to its definition under international law.

RPF officials were not satisfied, however, with the UN’s slow progress, and therefore lobbied publicly for an ICT by alleging racism and regionalism. In May, RPF Prime Minister-designate Faustin Twagiramungu posed a rhetorical question at a press conference: “Is what is happening different from what happened in Nazi Germany? Was a war crimes court not set up in Germany? Is it because we’re Africans that a court has not been set up?”26

The same month, the USG began preparing daily intergovernmental agency briefings on Rwanda.27 Many of these discussions occurred in the U.S. Interagency War Crimes Working Group (U.S./IWCWG), which emerged in response to the Balkans crisis. A classified internal discussion paper of May 1 outlined goals, tactics, and options for the daily intra-USG briefings on Rwanda. On the topic of “Genocide Investigation: Language that calls for an international investigation of human rights abuses and possible violations of the genocide convention,” the paper cautioned: “Be careful. [The Office of the] Legal [Adviser] at [U.S./DoS] was worried about this yesterday—Genocide finding could commit USG to actually ‘do something.’ ” On the topic of “Pressure to Punish Organizers of Killings” the paper also cautioned: “NO. Hold till Ceasefire has been established—don’t want to scare off the participants.”28 At this point, political considerations about automatic USG involvement and disruption of peace negotiations prevented the USG from calling for an investigation into and punishment for the massacres.

Two weeks later, on May 16, Joan Donoghue, U.S./DoS Assistant Legal Adviser for African Affairs, prepared a legal analysis for Christopher, finding that “[t]here can be little question that the specific listed acts [of genocide] have taken place in Rwanda.”29 Shortly thereafter, Toby Gati, U.S. Assistant Secretary of State for Intelligence and Research, sent a memorandum to Moose and U.S./DoS Legal Adviser Conrad Harper concluding that “[t]here is substantial circumstantial evidence implicating senior Rwandan government and military officials in the widespread, systematic killing of ethnic Tutsis, and to a lesser extent, ethnic Hutus who supported power-sharing between the two groups.”30 On May 21, several U.S./DoS officials, including Moose, Shattuck, Assistant Secretary of State for International Organization Affairs Douglas Bennet, and Harper sent a memorandum titled “Has Genocide Occurred in Rwanda?” to Christopher recommending that he authorize U.S./DoS officials to use the formulation “acts of genocide have occurred” in Rwanda, noting that “[t]his is the same formulation that we use with respect to Bosnia.”31 The memorandum, featuring the file name of “nonamerwandakilllgs”32 (which appears to be a shortened version of “no name Rwanda killings”), also noted that such a statement

would not have any particular legal consequences. Under the [Genocide] Convention, the prosecution of persons charged with genocide is the responsibility of the competent courts in the state where the acts took place or an [ICT] (none has yet been established); the U.S. has no criminal jurisdiction over acts of genocide occurring within Rwanda unless they are committed by U.S. citizens or they fall under another criminal provision of U.S. law (such as those relating to acts of terrorism for which there is a basis for U.S. jurisdiction).33

Similarly, in response to a May 27 note from U.S./NSC Senior Director for African Affairs Donald Steinberg to Lake indicating that no additional legal obligations would follow from Clinton’s use of the term “genocide” in referring to the situation in Rwanda, Lake stated: “No. Raises stakes even further beyond possible remedies.”34 Publicly and internally, the USG was thus careful not to describe the conflict as “genocide,” in part for fear of that term’s legal, political, and perhaps moral implications. Namely, its use could trigger the USG’s obligation to apprehend and prosecute perpetrators.35 While Hutu interahamwe (paramilitary mobile killing squads) slaughtered Tutsi men, women, and children by the hundreds of thousands, the U.S./DoS continued wrestling with the precise language for the killings.36

During this same month (May 1994), the USG began urging the UN to take a more proactive role in responding to the genocide.37 Human rights advocate Holly Burkhalter implies that Shattuck’s pressure on UN officials resulted in the appointment of a special rapporteur on Rwanda.38 The UN responded to such external pressure in other ways, such as by sending UN High Commissioner for Human Rights (UN/HCHR) Jose Ayala Lasso to Rwanda on May 11-12 to investigate allegations of serious violations of international humanitarian law and to publish a report on his findings. Thus, even before the genocide had concluded, various agents and agencies of the UN—such as the UN/HCHR, the UN Commission on Human Rights (UN/CHR), and the UNSC (including the USG)—had launched an investigation and made known that criminal perpetrators would be held individually responsible. Importantly, these UN agencies’ efforts received the RPF’s imprimatur.39

Also in May, the USG held bilateral meetings with relevant non-state actors to explore issues concerning pursuing transitional justice for Rwanda. Among other efforts, U.S. Ambassador to Belgium Alan Blinken met with ICJ Judge Raymond Ranjeva to explore “the notion of an international inquiry into gross violations of human rights in Rwanda.”40 USG officials also consulted NGOs, such as the International Committee of the Red Cross, on the possibility of creating an ICT for Rwanda and recruiting witnesses to testify.41 Shortly thereafter, the USG also consulted and lobbied UN officials, including Lasso, to create an ICT for Rwanda. Specifically, the USG advocated expanding the jurisdiction of the ICTY to encompass atrocities in Rwanda (what I refer to as the “ICTY- Expanded” option).42

According to Scheffer, it was not until the middle of the following month that serious planning for establishing an ICT for Rwanda commenced.43 During June, momentum developed within the UN to establish a “commission of experts to gather evidence related to breaches of the genocide convention and other violations of international humanitarian law in Rwanda.” This commission would eventually become the UN Independent Commission of Experts on Rwanda (UN/ ICER). On June 10, Spain circulated a draft resolution calling for the establishment of such a commission.44 Spain’s initiative prompted further internal USG discussion about whether and how to support the commission, and whether to propose or at least support a transitional justice option. At the time, the USG was considering at least three options: ICTY-Expanded, the creation of an entirely separate ICT for Rwanda (what I refer to as the “ICT-Separate” option), and the establishment of a permanent international criminal court.45 Later that month, the USG decided to co-sponsor a UNSC resolution establishing a commission of experts for Rwanda.46

From June 9 to 20, the UN conducted another investigation of atrocities in Rwanda. Rene Degni-Segui, who had recently been appointed UN/CHR Special Rapporteur on the situation of human rights in Rwanda, visited Rwanda and its neighboring countries, Burundi, Zaire (now the DRC), and Kenya. Bacre Waly Ndiaye, UN/CHR Special Rapporteur on extrajudicial, summary, or arbitrary executions, and Nigel Rodley, UN/CHR Special Rapporteur on torture, accompanied Degni-Segui. Their mission was to investigate allegations of human rights violations, particularly crimes against humanity and genocide.47 On June 28, after their return, Degni-Segui issued a report that “recommend[ed] ... the establishment of an ad hoc international criminal tribunal or, alternatively, the extension of the jurisdiction of the [ICTY].”48 This report marked the first public proposal supporting specific transitional justice options for Rwanda. Degni-Segui mentioned ICTY-Expanded or a new ICT, which implicitly included ICT-Separate and an ICT for Rwanda that shared some bureaucracy with the ICTY (what I refer to as the “ICT-Tied” option). During this same period, the USG continued to publicly characterize the atrocities in Rwanda as “acts of genocide” (rather than unqualified “genocide”), to deny that it had any legal obligation to act, and to stress that it was supporting an active UN role to help stop the massacres.49 Amid this June investigation, the USG had still not determined whether it would support an ICT for Rwanda.50 On July 1, the UNSC took a further step toward pursuing transitional justice for Rwanda through voting for UNSCR 935, which declared that atrocity perpetrators would be held individually accountable and requested the UNSG to establish the UN/ICER to collect evidence of those crimes.51

The USG supported or supplemented these UN efforts, including the UN/ ICER. Responding both to pressure and overwhelming evidence, and as opposed to characterizing the offenses through the less definitive construct of “acts of genocide,” Christopher for the first time publicly called the slaughter in Rwanda “genocide” on June 10.52 Several weeks later, on June 30, Christopher testified before the U.S. Senate Committee on Foreign Relations (U.S./SCFR), observing, “it’s clear that there is genocide, acts of genocide in Rwanda, and they ought to be pursued” and also stating that, even though the USG had no unilateral responsibility, the international community had a collective obligation under the Genocide Convention to punish acts of genocide. Christopher also made an unsolicited comparison to Bosnia: “I have no hesitation in saying that there was genocide in Rwanda and had been genocide, is genocide, in Bosnia as well.” He publicly stated for the first time during this testimony that the USG supported “the creation of an international war crimes tribunal” for Rwanda, and that he had recently met with the ICTY’s deputy prosecutor to discuss the matter.53 At this point, the USG envisaged the ICT taking one of two forms: an ICT specifically for Rwanda (although Christopher did not mention its relationship to the UN) or a permanent international criminal court.54

Shortly after the vote to establish the UN/ICER, the U.S. representative on the UNSC, Edward Gnehm, Jr., stated:

Our goal must be individual accountability and responsibility for grave violations of international humanitarian law in Rwanda. We must fix responsibility on those who have directed these acts of violence. In so doing, we can transform revenge into justice, affirm the rule of law and, hopefully, bring this horrible cycle of violence to a merciful close.55

Also around that time, as Scheffer notes, the U.S./IWCWG began collecting its own evidence of the genocide, in part to assist the UN/ICER.56 On July 15, the White House joined U.S./DoS in publicly supporting the establishment of an ICT for Rwanda, expressing hope “that the United Nations would act swiftly ... to create a War Crimes Tribunal.”57 Four days later, Albright called for “quick action” within the UNSC to establish an ICT for Rwanda.58 The USG was simultaneously pressuring individual states, such as Tanzania and France, to detain certain suspected genocidaires,59 and the USG also began curtailing diplomatic relations with the GoR, including a refusal to recognize the current government, closing the GoR’s embassy in Washington, DC, and freezing the GoR’s assets in the United States.60

The selection of the ICTY chief prosecutor, who ultimately would also become the ICTR chief prosecutor, occurred parallel to these developments, although this broadened mandate was not decided at the time. During a July 6 meeting in Moscow, Shattuck and Russian deputy foreign minister Sergey Lavrov agreed to appoint Richard Goldstone, a prominent South African jurist, as the ICTY chief prosecutor.61 Two days later, UNSC Resolution 936 formalized that decision,62 and Goldstone began serving as ICTY chief prosecutor on August 15.63

 
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