C. GOVERNMENT OF RWANDA’S OPPOSITION
A third puzzle is why the USG decided to support ICT-Tied even though the GoR opposed it. As described above, commentators consider the GoR’s preferences to have been influential in most decision points (except the final one), mostly out of deference to its people’s suffering, especially when the international community (including the USG) had done little to help them during the genocide. As Bushnell explains,
you have an international community that did nothing to stop the genocide. And you have the victims who end up being the next government ... . [T]he victims/victors had their own sense of what needed to be done and they felt very, very strongly ... . [T]he international community, if not in agreement with them, was certainly not in any position to say no.261
But the international community did say no. Despite the GoR’s vote against UNSCR 955, the USG (and all other UNSC member states except China) voted for it.
Before examining the reasons the USG opposed the GoR, it is important to understand the GoR’s vote. The GoR publicly offered seven objections or concerns: (1) the temporal jurisdiction of calendar year 1994 was inadequate to encompass previous planning and practice massacres; (2) the ICTR did not include enough trial chamber judges, and inappropriately shared an appeals chamber and chief prosecutor with the ICTY; (3) the subject-matter jurisdiction was overly broad and did not prioritize any of the crimes, including genocide, as the most important; (4) UNSC member states that participated in the Rwandan civil war (which the GoR stated “need not be named” but likely referred to France262) would inappropriately be able to propose and vote on judicial candidates; (5) suspects and convicts would inappropriately be held in states outside of Rwanda and those states would make decisions regarding these detainees; (6) the ICTR should include the death penalty as a potential sentence; and (7) the ICTR should be located in Rwanda.263 Of the reasons offered, some believe that the lack of capital punishment was the GoR’s main objection,264 even though the country’s Justice Minister, Nkubito, personally opposed its use.265
Yet some experts believe that there may have been other reasons for the GoR’s negative vote. One theory, proposed by Shattuck, is that the GoR did not trust the UN to prosecute genocidaires, as the UN had proven unreliable and inept during the genocide.266 A second theory, offered by Des Forges, is that the GoR feared that the ICTR could backfire on it by prosecuting RPF officials for their retaliations against Hutu during and immediately after the genocide.267
One explanation for why the USG voted for UNSCR 955, despite the GoR’s opposition, is that the USG viewed some of the GoR’s objections as impractical or insufficient to compel USG opposition to the resolution. As Scheffer argues: “We believed at that stage we had done all we could with the Rwandans, who after all would not in the end dictate the UNSC process or decision-making.”268 For one, the GoR wanted the ICTR to include the death penalty as a possible punishment notwithstanding the fact that many members of the UNSC were and are in principle opposed to capital punishment. The GoR felt that execution was an appropriate punishment, and believed it would be inconsistent if the ICTR did not make this sentence available because judges overseeing less serious offenses tried in the domestic Rwandan judiciary could and did impose the death penalty.269 As Scheffer recalls:
The European states of the [UNSC] will never, ever support the creation of a court with the death penalty—it’s off the table, it’s not negotiable, it will not happen ... . We were not going to fall over our sword defending Rwanda’s desire to have the death penalty. It was simply an unrealistic proposal. It’s like saying Rwanda desires the resurrection of Alexander the Great to preside over the Rwanda tribunal—it’s not going to happen.270
Instead, the USG prioritized the creation of an ICT through the UNSC’s Chapter VII powers over including capital punishment among the possible penalties for genocidaires. Although the USG considered capital punishment to be legitimate in its own criminal justice system, it recognized that other states crucial to supporting the ICT vehemently opposed the penalty.
Another GoR objection the USG did not find compelling concerned the ICTR’s proposed location. The GoR wanted the ICTR to be in Kigali, Rwanda’s capital. However, because the USG viewed post-genocide Rwanda as unstable and inhospitable to hosting the ICTR, the USG did not agree.271 In sum, Scheffer recalls:
at the end of the day, we were going to stand with the vast majority of the [UNSC] as to how the ICTR was going to be structured as opposed to take an extreme minority and, frankly, surreal, unrealistic position, which is, in the end, what the Rwandan government was arguing.272
A third explanation for the USG vote, according to Shattuck, is that the USG suspected GoR officials or their associates of committing some of the crimes, specifically in the Kibeho massacre, that would come under the jurisdiction of the ICTR. Consequently, the USG did not want to bend to GoR demands about reconfiguring the ICTR’s temporal jurisdiction or prioritizing the tribunal’s subject-matter jurisdiction that would bar those crimes and individuals from the tribunal’s ambit.274
A fourth reason for the USG’s vote, according to Scheffer, Stanton, and Shattuck, was that the GoR was so late in voicing its objections to UNSCR 955 that the USG found it difficult to resist the momentum that had been building to pass it.275 Scheffer claims it was not until the day before the vote that the USG learned that the GoR would cast a negative vote.276 In other words, the international community’s investment of diplomatic and political capital up to that point had created path dependency and policy inertia in favor of establishing the ICTR over any remaining GoR concerns.
A fifth explanation is that the GoR reflected, or did not oppose, the USG’s position on earlier decision points. Yet when the GoR resisted the USG’s preference for ICT-Tied, the USG decided to go forward with its intentions. As Scheffer observes, “we were constantly seeking for [the GoR] to adjust their position so that they could support the consensus or the near-consensus position.”277 When convenient, the USG supported GoR preferences; when inconvenient, the USG ignored them.
A final explanation for the USG decision to support the establishment of the ICTR over the GoR’s objections is that the USG received assurance that the GoR would cooperate with the ICTR regardless of the latter’s negative vote. As scholar Virginia Morris and Scharf argue: “Kagame indicated that Rwanda would cooperate fully with the tribunal if it were set up over Rwanda’s objections. This assurance of cooperation by Rwanda cleared the way for the [UNSC’s] decision to establish [the ICTR].”278 Scheffer agrees, stating: “I knew from my consultations that Rwandan officials intended to support the tribunal following the vote.”279 Not only did the GoR signal these intentions, but the fact that the ICTR had been created through Chapter VII also compelled the GoR to cooperate regardless. As Albright, then the UNSC/P, declared after the vote to establish the ICTR, “we urge the [GoR] to honor its obligation to cooperate fully with the [ICTR] and the investigation it must undertake in order to prosecute those guilty of the unspeakable acts of genocide and other atrocities.”280
Given that GoR preferences were cited at all decision points except the last one (regarding the type of ICT the UNSC would establish), one of two rationales might explain the ultimate divergence of views between Rwanda and the United States. Either the USG followed the GoR’s preferences up to a limit beyond which it would be impractical, illegitimate, unacceptable, or unnecessary to do so, or the GoR’s preferences reflected the USG’s own except at the final decision point. Considering that each of the first four decision points was overdetermined, independent of GoR preferences, the latter explanation is likely correct.