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

U.S. Government Support for Prosecution through the UN

The USG’s support for UN-led prosecutions finds purchase in the political and pragmatic benefits the United States would accrue by cooperating on a broadly multilateral transitional justice solution rather than pursuing a unilateral, bilateral, or narrowly multilateral option. The ICTR ensured burden-sharing by distributing the costs and responsibilities of trying genocidaires through collective participation in the UN system.209 Moreover, the ICTR created issue linkages between the investigation and prosecution of genocidaires and stability and postconflict reconstruction and reconciliation in Rwanda and the Great Lakes region of East Africa. For example, the USG believed that the creation of an ICT for Rwanda would facilitate the repatriation of refugees.210 As a result, some USG officials (including Bennet) involved in the decision to establish the ICTR perceived its creation as a mutually beneficial endeavor among the USG and other UN member states.211

Lake, Matheson, and Stanton claim that the USG’s decision to support prosecution through the UN furthered the political objective of bolstering the legitimacy of prosecutions in Africa and elsewhere with greater force than a narrower coalition or single state could produce.212 International—and, particularly, UN- led—prosecutions would obviate a sense that the Rwanda trials were merely political instruments. As Stanton recalls, unilateral GoR prosecutions “would be seen as victor’s justice ... .”213 For this reason, some states, such as Tanzania, which were critical to the process of bringing genocidaires to justice, were hesitant to cooperate with a transitional justice option pursued outside the UN.214

As a third reason, Matheson argues that the USG preferred international prosecutions to promote Rwanda’s national stability and reconciliation by ensuring that the transitional justice would not lie in the hands of “any one ethnic group,” referring to Tutsi.215 USG officials feared that any perceived bias in the transitional justice process might provoke further hostilities, such as vigilante justice.216 Prosecuting through the near-universal international body of the UN would supposedly allay this concern.

Fourth, USG officials pointed to Rwanda’s lack of viability as a functioning state to prosecute unilaterally or even in a multilateral partnership as a reason to support international prosecution. Matheson and Scheffer, for example, believed that the Rwandan judiciary did not have the capacity for such trials, at least not immediately post-genocide.217 Beyond the inability of the GoR to prosecute, USG officials such as Matheson cite the undesirability of its doing so. USG officials claim that they had little familiarity and experience with the post-genocide GoR government and thus could not predict its actions.218 Other USG officials argued that, beyond a lack of information, a lack of trust between the USG and the new GoR permeated their relations. Among other things, the USG was particularly concerned about the GoR’s knowledge of, or even participation in, supporting the RPF’s alleged post-genocide reprisal mass killings of Hutu.219 Other observers arrived at the same conclusion: the GoR could not and should not manage the trials. Bass states: “The [ICTR] was established partly because of dissatisfaction with the quality of justice likely to be dispensed by the overburdened, penniless, and understandably vengeful Rwandan regime.”220

Stanton cites a fifth reason for the USG’s international prosecution preference: that the entire world, not just Rwanda, shouldered the responsibility to respond to the genocide.221 Prosecuting through the near-universal international body of the UN, instead of through a unilateral or more narrowly multilateral option, would ensure that most of the world, which had failed to intervene, would at least assume responsibility for assisting Rwanda post-genocide. The political and pragmatic benefits of broad multilateralism, then, could not be understated.

USG officials such as Scheffer cite, as a sixth reason, the GoR’s own preference for a UN-led ICT to explain why the USG supported prosecutions through the UN.222 A seventh explanation offered for USG support for UN-led prosecution is that the UN already was dealing with the genocide. The UN therefore was considered the natural, path-dependent forum for seamless decision-making immediately after the genocide, including regarding any transitional justice institution.

An eighth explanation for USG support for UN-led prosecution was that, in the absence of triumphant occupying forces, the UN was the default, indeed the only appropriate forum. USG officials such as Bushnell, Matheson, Shattuck, and Stanton referred to the Allies’ victory in WWII and their decision to establish the IMT as distinguishable from Rwanda, where no members of the international community intervened.223

Bennet offers a ninth reason for USG support for UN-led prosecutions: at that time, USG-UN relations were positive enough that USG officials opted as a first resort to work through the UN on international issues. 224 Not only had the USG supported the UNSC’s 1993 establishment of the ICTY, but the USG also had collaborated recently through the UN in the 1991 Gulf War.

USG officials also claim, as a tenth reason, that they supported UN-led prosecutions because this option allowed them to pursue other prosecutorial mechanisms for some genocidaires outside the UN. According to USG officials such as Albright, Scheffer, and Stanton, during the mid-1994 negotiations to establish the ICTR, the USG also offered the GoR support in dealing with genocidaires through its domestic judicial process.225 Indeed, as early as August 1994, USG officials began conducting bilateral talks with the GoR about how the former could help “reconstitute the Rwandan justice system ... .”226

Finally, USG officials involved in the decision argue that the recent and existing precedent of prosecuting suspects in the FRY through the UN triggered USG support for a plan to prosecute genocidaires through the same forum.227

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