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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics
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D. NOVEMBER 8, 1994: THE DECISION TO CREATE THE ICTR

On November 8, the UNSC adopted Resolution 955, establishing the ICTR through the UN Charter’s Chapter VII authority.139 The vote was thirteen in favor, one abstention (China), and one against (Rwanda). Along with the United States, those voting in favor of the resolution were: Argentina, Brazil, Czech Republic, Djibouti, France, New Zealand, Nigeria, Oman, Pakistan, Russia, Spain, and the United Kingdom.140

China abstained from the vote, as explained by its UN/PR, both because it opposed in principle overreaching the UNSC’s authority by invoking Chapter VII to establish an ICT via UNSC resolution, and also because China believed that the UNSC should have consulted further with the GoR.141 It is unclear to what extent China’s objection was based, as it claimed, on a principled opposition to this use of Chapter VII and deference to the GoR’s concerns. Alternatively, these reasons could have masked China’s unwillingness to cooperate with the ICTR, or China’s desire to avoid a precedent that could later hold it responsible for its own alleged atrocities. (The GoR’s negative vote is discussed later in this chapter.142)

The subject-matter jurisdiction of the ICTR was limited to genocide, crimes against humanity, and violations of Article 3 common to the Geneva Conventions of August 12, 1949, for the Protection of War Victims, and of Additional Protocol II thereto of June 8, 1977. The temporal jurisdiction was restricted to crimes committed between January 1 and December 31, 1994. Finally, the personal and territorial jurisdictions were confined to crimes committed by Rwandans in the territory of Rwanda or of neighboring states, as well as by non-Rwandan citizens for crimes committed in Rwanda. UNSCR 977, adopted on February 22, 1995, designated Arusha, Tanzania, as the ICTR’s seat.143

When established, the ICTR shared an appeals chamber and chief prosecutor with the ICTY and was endowed with UNSC Chapter VII powers to compel state compliance with arresting and extraditing suspected genocidaires. The ICTR marks a watershed in the development of international law and transitional justice because, in contrast to the ICTY, which treated the Balkans crisis as an ongoing international armed conflict, and the IMT and the IMTFE, which addressed the European and Pacific theaters of a world war, the ICTR is “the first international court having competence to prosecute and punish individuals for egregious crimes committed during an internal conflict.”144

In the case of Rwanda, after issuing broad public statements condemning and calling for accountability of genocidaires and privately and directly threatening the genocide’s leaders, the USG decided to act only after the genocide. Specifically, the USG decided to support prosecutions through ICT-Tied after abandoning its initial position of favoring ICTY-Expanded. The USG therefore chose to support a judicial process that would deal with only a few dozen geno- cidaires, would be relatively expensive compared to other transitional justice options, would be located outside the victimized country, would create the precedent of founding an ICT for a purely civil conflict, would share some resources and bureaucracy with an existing transitional justice institution (the ICTY), and would affirm the precedent (established by the ICTY) of the UNSC’s use of its Chapter VII powers to investigate selectively and to prosecute alleged atrocity perpetrators.

 
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