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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics
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в. un/icer’s OPPOSITION

A second puzzle considers why the USG ultimately supported ICT-Tied when the UN/ICER’s interim report recommended against this option, and instead advocated for ICTY-Expanded. There are two possible political explanations. Some USG officials suggest that the UN/ICER’s recommendations had little impact on the USG’s ultimate decision because that UN body, like other ad hoc UN commissions, exerts little influence on USG decisions generally. As Scheffer recalls: “The fact that a Commission of Experts recommends something is very interesting, but it has absolutely no—it has very little determinative effect on how governments decide to make sovereign decisions.”256 Matheson and Bushnell agree.257 An anonymous former USG official similarly argues that independent commissions such as the UN/ICER “don’t necessarily or typically have any direct impact on U.S. policy.” This may have been particularly true for the UN/ICER because, given its limited mandate and short time frame, it was apparently a fact-finding commission that held little weight. Rather, it may have been merely a cosmetic aspect of a standard operating procedure established during the creation of the ICTY. As Bassiouni argues:

The [UNSC] may establish a Commission because it sees the need, at that time, for that issue to go through a particular process. The [UN/ICER] was one such case ... . Its function was essentially window dressing. At the time, the [UNSC] wanted to follow its precedent of the Yugoslavia Commission that preceded the [ICTY] and that called for its establishment as stated in Resolution 808.258

Another explanation, offered by Scheffer, is that the UN/ICER’s recommendation to support ICTY-Expanded was nothing more than a reflection of the USG’s own initial position. By the time it published its preliminary report, the UN/ ICER simply had not amended its recommendations to match the USG’s revised position in favor of ICT-Tied.259 This theory rests on the lag time between the date, if ever, that the UN/ICER received the U.S./DoS/US-UN’s guidance indicating the USG’s revised position in favor of ICT-Tied, and the publication of the UN body’s preliminary report. Bassiouni supports Scheffer’s theory: “More frequently than not, the reports produced [by UN independent commissions] are designed to please ... certain governments, particularly the three Western permanent members [of the UNSC] and a number of Western European countries that champion human rights.”260

Given its limited mandate, especially compared to the UN Independent Commission of Experts on the former Yugoslavia (UN/ICEfY), and the fact that USG officials seem not to hold these bodies in high esteem, it should not be surprising that the UN/ICER lacked influence over USG decision-making regarding the precise form of the Rwanda ICT. It appears that the UN/ICER was created mostly to mirror the process of establishing the ICTY. As a result, USG officials had no qualms about rejecting the UN/ ICER’s recommendations, especially as those recommendations may have been nothing more than a reflection of the USG’s own initial preferences. Competing interests—such as addressing Russian and French concerns, locating the ICT near Rwanda, and creating a separate ICT that could handle the Rwandan caseload—t rumped what little influence the UN/ICER may have exerted.

 
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