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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics
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U.S. Government Support for Prosecution

Some USG officials claim Washington preferred prosecution as a means of realizing the precise transitional justice goals USG officials sought. Among those goals, deterrence against future violence, both in the short-term and long-term and both locally and throughout the region, was prioritized highly.188

The USG clearly also sought to punish the genocidaires. Clinton declared in a 1998 speech in Rwanda: “We must punish the [genocide] leaders, and then we can have justice for everyone else.”189 Most USG officials, including Scheffer, Stanton, Matheson, and Lake, viewed prosecution as a likely mechanism for meting out optimal punishment.190 Besides its retributive nature, punishment (e.g, through imprisonment) featured the added benefit of incapacitating geno- cidaires in the region, which was a third transitional justice goal of the USG.191 USG officials involved in the decision also sought as a fourth transitional justice goal to establish the historical record, which was considered crucial to determining what occurred during the genocide and to delegitimize the regime that had been in power at that time.192 Prosecution had yet another benefit in that it could accomplish most of the transitional justice goals that alternatives would have yielded. For example, prosecution, like amnesty, can establish the truth and provide accountability.193

Besides fulfilling certain transitional justice goals, a second main reason explaining the road to prosecution was that it was the only legal option avail- able.194 Christopher’s June 30, 1994, testimony to the U.S./SCFR had stated that the international community, including the USG, had an obligation under the 1948 Genocide Convention to punish acts of genocide. That treaty also requires all signatories, including the United States, to prosecute genocide perpetrators.195

Some USG officials, such as Matheson, claim that a third reason underlying the USG’s preference for prosecution was the lack of urgency to make any deal or to be lenient with genocidaires as part of a power transfer as they were no longer in power. This situation, Matheson stated, rendered amnesty, exile, and lustration unnecessary.196

Fourth, USG officials such as Bushnell, Stanton, and Bennet, claim that support for prosecutions followed from the U.S. tradition to investigate and prosecute after a crime.197 As a fifth argument, USG officials contend that the logistical challenges of dealing with a large number of genocidaires generated a belief that some alternatives to prosecution were impractical, even impossible. Regarding exile, Shattuck argues, “[g]iven the enormous number of people involved in the genocide, there was just no practical way to imagine exile.”198 Similarly, regarding the use of lethal force, Matheson states, “it is not as though we could have sent in individual assassins. The genocidaires were too numerous and they had to be dealt with in other ways.”199

A sixth rationale concerns the USG’s foreign policy toolbox. War crimes prosecutions clearly have been an effective arrow in that quiver; thus, the USG was equipped and institutionally prepared to support prosecutions for Rwanda. Indeed, no other option was as prominent in the toolbox. For example, Bushnell claims that the USG did not support one of the alternatives to prosecution—lethal force—specifically because it was not part of the USG foreign policy repertoire.200

Shattuck and Scheffer argue that the ongoing precedent of prosecuting suspected perpetrators of the FRY atrocities served as a final reason USG officials sought to prosecute genocidaires, especially as the Rwandan genocide was considered even more horrendous than the Balkans crisis.201

Even though some governments, such as in Tanzania,202 floated the idea of amnesty, and some individuals, such as the GoR’s own Minister for Rehabilitation and Social Integration, suggested it as a mechanism for “passive participants in the violence,”203 the international community (including the USG) did not widely or seriously consider amnesty as an alternative to prosecution in post-genocide Rwanda. Given that supporting amnesty featured in USG decision-making as recently as three years earlier (when the USG contributed 40 percent of the budget for El Salvador’s 1991 Commission on the Truth204), it is important to understand why the USG never seriously considered the same policy for Rwanda. In addition, the USG apparently did not consider any of the other proactive but non-prosecutorial transitional justice options: exile, lustration, indefinite detention, and lethal force.

Some alternatives to prosecution, such as amnesty, were not considered because USG officials saw them as incapable of providing optimal transitional justice and possibly capable of fomenting additional conflict and impunity. Shattuck argues that, if genocidaires were granted amnesty, their victims would have sought revenge, leading to further violence.205 Similarly, Stanton argues that, if genocidaires were allowed to flee into exile, more violence would have occurred, as genocidaires would have continued killing.206 Some USG officials, such as Shattuck, also regarded the use of lethal force as lacking deterring force against further conflict or, even worse, perhaps facilitating it.207 The USG also did not consider alternatives such as exile, amnesty, and lustration because, according to Lake, Matheson, Shattuck, and Stanton, the USG viewed these options as inappropriate and incapable of providing sufficient punishment for the egregiousness of the genocide.208

 
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