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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 through the UNSC’s

Chapter VII Powers As noted above, the USG eventually decided to prosecute genocidaires through the UNSC’s Chapter VII powers. Matheson recalled that the USG supported the creation of an ICT for Rwanda via Chapter VII because that provision obligates potentially uncooperative governments to extradite suspects residing in their countries and to comply with the ICTR in other ways, which was crucial given the number of genocidaires who sought refuge abroad.228

Some USG officials, such as Lake, stated that the USG also supported UNSC prosecutions to maximize the USG’s control over the process through its veto- wielding, permanent seat on the UNSC.229 A third explanation lies in the fact that not just the UN in general but the UNSC specifically already was dealing with the genocide. The UNSC had sent UNAMIR troops to Rwanda and was debating further action during the genocide. Bushnell recalls that, as a result, the USG viewed the UNSC as the expected and path-dependent forum for continued discussions post-genocide over whether and how to prosecute genocidaires.230

A further reason some USG officials offer for their choice to support UNSC- led prosecutions related to the end of the Cold War, which created a permissive atmosphere for the Great Powers to reach agreement on transitional justice issues.231A fifth explanation contends that the USG believed a UNSC-led prosecution was especially superior to at least one of the alternatives at this decision point: a hybrid UN/Rwanda ICT. The USG perceived the GoR to be an unwilling and undesirable partner for the international community on a hybrid court because, as Shattuck explains, the GoR “was both skeptical and weak.”232

A sixth impetus for supporting UNSC-led prosecutions was that the establishment of a post-ICTY, UNSC-led ICT would reinforce or even increase the legitimacy of the ICTY and of the UNSC’s Chapter VII powers to establish ICTs.233 Finally and relatedly, the ongoing ICTY precedent again provided a focal point for decision-making, in this case a UNSC-l ed prosecution. USG officials argue that the political climate favored replicating or expanding the ICTY over alternatives for four reasons. First, a UNSC-created ICT for the FRY predisposed the UNSC (including the USG) to support the same option for Rwanda to ensure equal treatment of the two atrocities.234 Second, the ICTY precedent established the acceptability and legitimacy of that option.235 Third, the perceived need to make a decision quickly to promote the USG’s transitional justice goals (e.g., deterrence, punishment) constrained innovation, perhaps by creating a hybrid UN/GoR tribunal or a permanent international criminal court.236 Finally, the ICTY precedent laid the political groundwork for this option. The UNSC could easily replicate in the ICTR the theoretical, legal, procedural, and structural design of the ICTY.237

 
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