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U.S. Government Support for Prosecution through the ICT-Tied Option

Through the UNSC, the USG could have supported ICT-Separate, ICTY- Expanded, or ICT-Tied. The USG did not seriously consider ICT-Separate and initially favored ICTY-Expanded for four reasons. First, USG officials anticipated that ICT-Tied or ICTY-Expanded would facilitate greater burden-sharing and cost efficiency than ICT-Separate. An ICT for Rwanda that bureaucratically overlapped with the ICTY presumably would reduce financial and transactional costs. USG officials argue, for example, that a single chief prosecutor would limit cost (e.g., time, money) in recruiting senior staff for trying offenders of both atrocities. Bushnell and Stanton contend that the exhaustive—and exhausting—negotiations over ICTY chief prosecutor candidates discouraged states from repeating the process for the ICTR.238 The USG thus initially favored ICTY-Expanded to maximize institutional overlap, especially considering the difficulties the ICTY had faced.239 The USG additionally was concerned that any delays in appending Rwanda to the ICTY would lead to further conflict in Rwanda through vigilante justice.240

Second, USG officials viewed both ICTY-Expanded and ICT-Tied as advantageous relative to ICT-Separate because they could maintain the consistent development of international law and prosecutorial process. Prosecuting perpetrators of the Balkan and Rwandan atrocities through at least a common appeals chamber would facilitate the harmony of international jurisprudence. If the prosecution of genocidaires occurred in an ICT unassociated with the ICTY, multiple and potentially conflicting bodies of international criminal law could develop.241

The USG initially favored ICTY-Expanded to create an institution whose jurisdiction could be broadened to include atrocities beyond the Balkans and Rwanda.242 In particular, some USG officials envisioned and supported the establishment of a permanent international criminal court.243 Incidentally, the USG supported an expandable institution in 1994 because it would be subject to USG veto in the UNSC, but the USG would not support the ICC four years later in part because it was created through a non-UN multilateral treaty and therefore would not be subject to USG veto in the UNSC.244

Finally, the ICTY precedent created momentum for ICTY-Expanded or ICT- Tied over ICT-Separate. USG officials recalled the difficulty in creating the ICTY and desired not to reinvent the wheel through a completely separate ICT for Rwanda.245 Riding the momentum of the existing ICTY meant that the international community already had a chief prosecutor in Goldstone who was willing and, many thought, able to take on oversight of the Rwanda cases. Furthermore, Goldstone was a former prominent official from a powerful African state—South Africa, a country simultaneously employing a transitional justice process to handle past atrocities—which presumably would ensure his acceptance throughout Africa and make his work within the continent run smoothly.246

Ultimately, the USG voted for the option that the ICTR embodies: ICT-Tied. There are four main reasons the USG eventually favored this option, especially over ICTY-Expanded. First, although other UNSC permanent member states, especially France247 and Russia, opposed ICTY-Expanded because it might evolve into a permanent international criminal court, the USG was able to forge a compromise with the dissenters by sharing some bureaucratic infrastructure between the ICTY and an ICT for Rwanda (represented by ICT-Tied).248

Second, some USG officials suggest that the United States chose ICT-Tied as a compromise solution because other states felt ICTY-Expanded was insufficient to deal with the enormity and importance of the Rwandan genocide.249 Scheffer specifically cites the GoR’s preference for ICT-Tied over ICTY-Expanded as a reason the USG ultimately favored ICT-Tied, not only because the GoR represented the victims of the genocide but also because, at that time, it sat on the UNSC and opposed having the Rwandan genocide merely tacked on to the ICTY.250

Third, USG officials also suggest that workload and other capacity factors compelled the USG’s ultimate preference for ICT-Tied over ICTY-Expanded. Some felt it was pragmatically too difficult to have the ICTY prosecute genocid- aires in addition to its own caseload.251 Furthermore, the USG also was concerned about the capacity of the ICTY to retain custody over suspected genocidaires in The Hague.252

A final reason that USG officials ultimately preferred ICT-Tied to ICTY- Expanded was that the former could be located in Africa, near Rwanda. As a result, ICT-Tied, which could be centralized in Africa, would ease management of the investigations and prosecutions compared to ICTY-Expanded, which would have been based in the ICTY’s existing offices in The Hague.253 ICT-Tied also better ensured credibility and enabled Rwandans more easily to observe or follow the trials, which may have been as much a symbolic motive as it was

pragmatic.254

This final decision point—the USG’s determination to support prosecution through ICT-Tied—presents the following puzzles.

 
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