B. JULY-SEPTEMBER 1994: AFTER THE GENOCIDE
The RPF defeated the remaining GoR troops in mid-July 1994, halting the genocide. The RPF then gave Degni-Segui a list of fifty-five people it considered to be the core group of genocidaires.64 Meanwhile, Rwanda’s new government was sworn in on July 19, after which it lobbied for the establishment of an ICT for Rwanda. France began withdrawing its forces (deployed under Operation Turquoise) later that month.65 Also around this time, the Tanzanian government declared its willingness to cooperate “fully” with the international community in bringing genocidaires to justice,66 a pledge that later would prove important both to apprehending suspected genocidaires and to establishing the ICTR within its borders.
Notwithstanding the White House’s public and rhetorically unconditional endorsement of an ICT for Rwanda, the U.S./DoS in actuality remained only conditionally supportive. Senior U.S. Representative Tony Hall sent a letter on July 1 to Christopher advocating the immediate establishment of an ICT for Rwanda.67 In response, one of Christopher’s deputies, Wendy Sherman, stated that “[w]e will support the creation of an international tribunal if the [UN/ICER] confirms that violations of international humanitarian law have occurred.”68
In the immediate aftermath of the genocide, the U.S./IWCWG actively considered two of the options outlined in Degni-Segui’s June 28 report to prosecute genocide leaders: ICT-Tied and ICTY-Expanded. At this point, the USG favored the latter option, which Matheson recommended, in part to facilitate the expansion of the ICTY into a permanent international criminal court.69 The USG proposed that any ICT for Rwanda would not only share “common resources and registry staff” with the ICTY, but would also share with the ICTY a common statute, trial and appellate chambers[,] and chief prosecutor.”70 The USG also decided to declare its preference and commitment for domestic criminal justice efforts to prosecute other genocidaires.71 As it could not assume that the ICTY and the ICTR would share a chief prosecutor, the USG also actively researched and considered candidates for the position of ICTR chief prosecutor.72
The USG undertook six main efforts to gather international support behind the establishment of an ICT for Rwanda, especially under the rubric of ICTY- Expanded. First, on July 26, the USG instructed its embassies around the world “to advise their host governments of the U.S. support of an international tribunal to prosecute violations of ... international humanitarian law in Rwanda and to seek their support as well,” and to declare that the USG’s “present thinking” favored ICTY-Expanded or ICT-Tied; that the USG requested these governments to detain suspected genocidaires; and that ICTY chief prosecutor Goldstone “seems ready to supervise both the Yugoslav and Rwanda prosecutions” and had South African President “[Nelson] Mandela’s personal endorsement for this position.” The cable also requested its embassies to begin identifying African prosecutors and judges who could serve on an ICT for Rwanda.73 Scheffer characterizes this cable as “the first clear summary of what I and others spent July intensively hammering out as the U.S. initiative ... .”74
Second, from mid-July to November 8 (the date the ICTR was established), USG officials conducted frequent bilateral meetings with various governments to lobby for a Rwanda ICT, specifically according to the ICTY-Expanded proposal.75 The USG’s bilateral communication at this time with the Russian, French, South African, and Chinese governments is particularly noteworthy.
The USG focused its attention on the Russian and French governments because, as UNSC permanent members, their support was critical to establishing an ICT for Rwanda through that forum. Moreover, and to varying degrees, both of these states opposed the USG’s preference for ICTY-Expanded, instead desiring the ICTR to constitute a legally separate ICT. Reaching agreement with France particularly concerned the USG because of the French government’s history and association with Rwanda, a relationship the USG viewed as logistically critical to establishing a successful transitional justice mechanism. As one internal U.S./DoS document states:
France is a key player on this issue, not only because of its current involvement in Rwanda, but because it may have the most complete information of any western government on war crimes in Rwanda and access to witnesses, evidence[,] and even perpetrators. France’s support for the work of the [UN/ICER] may be critical to the success of its efforts, and France’s views on next steps will be critically important in the [UNSC].76
By mid-September, while Russia and France continued to oppose ICTY- Expanded, the USG began employing tactics other than simply advocating the merits of the USG’s preferred option. For example, the USG offered to support a Russian candidate for one of the new judgeships on an ICT in the form of ICTY- Expanded after having privately referred to the Kremlin as having “stubbornly defended” its opposition to this transitional justice option.77 ICTY-Expanded would have jurisdiction over cases arising from both the Rwandan genocide and the conflict in the FRY, the latter of which was of historic and emotional concern to Russians due to Slavic ties with the Serb population.78 The USG simultaneously appealed to the French government in a similar fashion: “the USG would welcome the appointment of a Deputy Prosecutor and staff prosecutors from other French-speaking countries to handle the Rwandan cases, as well as the election of an additional French-speaking judge to deal with both Rwandan and Yugoslav cases.”79
The USG believed that garnering robust South African support behind an ICT for Rwanda (in particular from President Mandela and Foreign Minister Alfred Nzo) would “lend great credibility and momentum for this important effort.”80 In bilateral discussions with the South African government, including directly with Mandela (in which the USG addressed him as “Africa’s most respected leader”), the USG further pressed the connection between Rwanda’s and South Africa’s national interests: “South Africa could and should play a prominent role in this effort, thereby promoting human rights and furthering its moral leadership in the international community. This will be particularly true if, as we hope, Justice Goldstone will oversee both Yugoslav and Rwanda war crimes.”81 Indeed, several African states, including South Africa, eventually agreed to provide support for an ICT for Rwanda, specifically the ICTY-Expanded option. The USG suspected that staffing selection, rather than the proposal’s merits, played a decisive role in providing motivation. As an internal U.S./DoS document mused:
we have received favorable preliminary reactions from key African governments for expanding the [ICTY] to include Rwanda. This is probably due, at least in part, to the fact that the current head of one of the two trial chambers [of the ICTY] (Judge Karibi-Whyte) is from Nigeria, and the current chief prosecutor [of the ICTY] (Judge Goldstone) is from South Africa and has the personal support of President Mandela.82
The USG also pressed China to support the establishment of an ICT for Rwanda, because, by mid-August, China was the only UNSC permanent member resisting the idea. China explained its hesitancy in terms of the international community potentially violating the GoR’s sovereignty. In order to lobby China, the USG made direct bilateral appeals and also enlisted the support of various African states.83
The USG’s third lobbying effort occurred in early August, when USG officials secured support from Goldstone for the ICTY-Expanded option.84 Fourth, the USG convened meetings (on August 4 and 9) of the UNSC permanent members’ legal advisers to discuss establishing an ICT for Rwanda and specifically to lobby for ICTY-Expanded. On August 4, Russia “strongly supported” and France “generally supported” the USG proposal, whereas China and the United Kingdom remained noncommittal.85 By August 9, only China’s position continued to be uncertain.86 Another meeting of these legal advisers convened on August 18 at the behest of UN Legal Counsel Hans Correll. During that meeting, the USG reiterated its preference for ICTY-Expanded while Correll noted various transitional justice options for Rwanda, including the USG proposal (ICTY-Expanded), ICT-Separate (through either Chapter VI or Chapter VII of the UN Charter), or augmenting the GoR’s national courts with foreign judges.87 At this meeting, France (seconded by the United Kingdom) restated its preference for legally separate ICTs for Rwanda and for the FRY, but was “not, however, adamantly opposed to [the] US approach.”88 A few days later, UN Deputy Legal Adviser Ralph Zacklin told USG officials that he personally preferred two legally separate ICTs for Rwanda and for the FRY. Zacklin also said that, although he believed they could share an appeals chamber, he preferred separate trial chambers and chief prosecutors, as well as suggested that whatever part of an ICT for Rwanda were located in Africa should be in Nairobi or, as a second choice, in
Addis Ababa.89 On August 30, the Chinese government informed the USG that it would support the USG’s proposal for ICTY-Expanded.90
The fifth USG lobbying campaign unfolded from August 4 to 10, when four USG officials traveled to Uganda, Rwanda, Burundi, Zaire, and France for bilateral discussions about various USG objectives relating to post-genocide Rwanda.91 In Rwanda, the delegation sought to convey the USG’s strong support for an ICT for Rwanda—without specifying whether it be ICTY-Expanded or ICT-Tied—and also to persuade the GoR to support such a tribunal, in part by requesting that the UNSC establish it.92 In Rwanda, the delegation met with Kagame (who had become vice president and minister of defense), Rwandan Minister of Justice Alphonse-Marie Nkubito, Twagiramungu, and Rwandan Minister of Rehabilitation and Social Integration Jacques Bihozagara.93 The delegation arrived in Kigali on August 5, where they were joined by U.S. Ambassador to Rwanda David Rawson and Chairman of the Joint Chiefs of Staff General John Shalikashvili.94 The stated purposes of the trip were to “seek Kagame’s support for a [UNSC] resolution to establish an [ICT] for Rwanda to investigate the genocide and bring its leaders to justice ... [and to] urge Kagame to work with the United States to rebuild the country’s shattered justice system ... .” Shattuck also delivered a USG-drafted letter to Kagame and Nkubito endorsing the establishment of an ICT for Rwanda, which he asked the GoR to send to the UNSC.95 On behalf of the GoR, Nkubito submitted the letter to the UNSG on August 8,96 and the UNSC issued a presidential statement on August 10 embracing its contents.97
The USG’s sixth main maneuver toward an ICT for Rwanda (specifically as ICTY-Expanded) occurred on September 1, when the USG began circulating a draft resolution and annex including a statute to create an ICT for Rwanda through ICTY-Expanded.98 The USG followed up by circulating another draft document to UNSC members on September 20 arguing that prosecution of the Rwandan cases “can be most effectively done by adding this responsibility to the mandate of the [ICTY].”99
After the USG delegation returned from its multistate trip, the U.S./DoS increased its focus on Rwandan criminal justice issues. On August 12, the U.S./DoS established a separate U.S./IWCWG on Rwanda and indicated that it would press for a speedy completion of the UN/ICER’s work.100 Almost two weeks later, Shattuck published an opinion piece in the Washington Post, stating “it is vital that the international community rapidly create a war crimes tribunal for Rwanda that will hold the perpetrators of genocide and other atrocities accountable to their victims and to the international community.”101 Also in midAugust, the USG began pressuring the UN/ICER and the UN/HCHR to support the establishment of an ICT for Rwanda, including a request that the UN/ ICER issue an interim report with a recommendation to that effect.102 The idea of the UN/ICER issuing an interim report apparently arose from this USG pressure, after an August 18 meeting between Matheson and three members of the
UN/ICER, including its chairman, Atsu-Koffi Amega.103 The USG made several offers of assistance to the UN/ICER at this point, including legal staff, and urged the UN to provide adequate office equipment.104
Soon thereafter, Clinton sent a high-level delegation to Rwanda to investigate post-genocide issues in the region. Upon their return, delegation members briefed the White House, the U.S./NSC, and the U.S./DoS; appeared on various televised news programs; and were quoted in the media. Their conclusions and recommendations “track[ed] closely with U.S.G. policy," including the quick establishment of an ICT for Rwanda.105 One mission member, Aspen Institute president S. Frederick Starr, published an opinion piece in the Washington Post on September 6 recommending the establishment of such an ICT.106
That same month, the USG sent another team to Rwanda—an interagency evidence-gathering team to assist the efforts of the UN/ICER, which had completed its preliminary work in Rwanda on September 5.107 This team traveled to Rwanda to assess the political and security climate, to collect evidence, and to interview witnesses, all data and findings of which they provided to the UN/ ICER.108 The UN/ICER acknowledged these contributions in its October 1 interim report, stating that U.S./DoS “forwarded to the [UN/ICER] documents ... that prove the existence of a plan for genocide against Tutsis and the murder of moderate Hutus.”109 The USG sent yet a third mission to Rwanda later that month. In mid-September, Undersecretary of State for Global Affairs Timothy Wirth visited Rwanda for four days to investigate developments on the ground and to further lobby for the establishment of an ICT for Rwanda.110
The UN/ICER’s interim report made recommendations on the prosecutions’ format. The report suggested an international, rather than a “municipal,” tribunal and, like Degni-Segui’s June 28 report, discussed only two options for dealing with suspected genocidaires: ICTY-Expanded and a new ICT, either ICT-Tied or ICT-Separate.111 The UN/ICER stated its preference for ICTY-Expanded, arguing that
[t]he alternative of creating an ad hoc tribunal alongside the already existing [ICTY] would not only be less efficient from an administrative point of view of staffing and use of physical resources, but would be more likely to lead to less consistency in the legal interpretation and application of international criminal law.112
The GoR remained dissatisfied with the international community’s progress toward bringing genocidaires to justice. On September 28, the Rwandan UN/ PR sent a letter to the UNSC/P noting “evident reluctance by the international community to set up an international tribunal.”113 On October 4, the GoR publicly declared its preferences, namely that proceedings occur in Rwanda and that convicted genocidaires receive the death penalty.114 Two days later, Rwandan President Pasteur Bizimungu stated to the UNGA,
it is absolutely urgent that this international tribunal be established. It will enable us to prosecute in a completely open setting those responsible for the genocide. Since most of the criminals have found refuge in various corners of the world, what we seek is a tool of justice that knows no borders. Moreover, the very nature of the events—considered to be crimes against humanity—warrants the international community’s joining forces to prevent their reoccurrence.
Bizimungu also stated the GoR’s preference for an ICT created by UNSC Chapter VII, so that the ICT could compel state compliance.115 However, none of these GoR statements indicated its preference among the ICTY-Expanded, ICT-Tied, or ICT-Separate options.