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E. ICTY PROGRESS

Finally, why did the USG support ICT-Tied despite having reason to be concerned about the ICTY precedent and operations? The USG was discouraged by the ICTY’s progress at the same time it was considering an ICT for Rwanda that would share at least some bureaucracy with the ICTY. Between May 25, 1993, when the ICTY was established, and November 8, 1994, when the ICTR was created, the ICTY suffered significant delays and setbacks. Among the more critical problems, the first ICTY chief prosecutor, Ramon Escovar-Salom, resigned almost immediately after his appointment on October 21, 1993,285 and the UN/

ICEfY was terminated on April 30, 1994, “prematurely,” according to Bassiouni, its chairman.286 The ICTY did, however, achieve some progress between May 25, 1993, and November 8, 1994, including the election of judges,287 the meeting of the first plenary session, the ICTY president’s affirming of state obligations to cooperate with the ICTY,288 the entering into force of the tribunal’s Rules of Procedure and Evidence,289 and Goldstone’s appointment as the second chief prosecutor.290 The ICTY then took more steps forward, especially in the cases against Dusko Tadic and Dragan Nikolic.291

Despite these signs of improvement, the ICTY’s overall lack of progress raised serious doubts among USG officials about its prospect for lasting success. As Albright recalls: “There seemed a real possibility that the [ICTY] would flop and that, once again, the world community would be accused of promising much while delivering little.”292 Shattuck recollects discussions over whether the ICTY was even a worthwhile model for Rwandan transitional jus- tice.293 Scheffer remembers condemnations hurled at the ICTY, especially after Escovar-Salom’s resignation,294 and Matheson recalls many early challenges.295 Stanton recollects that

[ICTY officials] had, up to that point, failed to get their hands on the top perpetrators of the crimes in the [FRY] and there hadn’t been any trials yet. So they were looking very impotent at this point ... . Up to the date we established the ICTR, the results from the ICTY were disappointing.296

Some outside observers also have noted the poor progress the ICTY made during its first eighteen months. As political scientist Howard Ball observes: “Although there was a formal opening ceremony in the Hague in November 1993, the ICTY immediately adjourned, for there were no judges, no chief prosecutor, and no prosecutorial staff.”297

At least two theories might explain the USG decision to support the ICTY model for Rwanda despite the ICTY’s minimal progress and the real possibility of its failure. One, offered by Scheffer and Stanton, is that the USG recognized that the period between May 25, 1993, and November 8, 1994, was not sufficient to determine the likelihood of the ICTY’s ultimate success.298 An ICTY official from that time agrees, arguing: “Anybody who claimed that they based the decision to establish the ICTR on the success—or lack thereof—of the ICTY is kidding themselves. It was much too soon to make any reasonable assessment of the ICTY’s work.”299

Another explanation is that the USG had no reason to believe that alternative options would be any less problematic, or that investment to date in the ICTY, even though the tribunal had difficulties, would be more than merely a sunk cost. Furthermore, the problems the ICTY had faced related to implementation and not to institutional design; organizational execution theoretically could be rectified over time for both the ICTY itself and an ICT for Rwanda. As Matheson recalls:

The problem was not the concept but the practicalities of getting people appointed and resources provided and so on. Those problems would have been equally if not more serious in any other potential option. At least we had begun to address them in the Yugoslav context. And so we had some reason to believe we could do the same for Rwanda. But if we had started completely differently, there would have been no [UNSC] support for it legally, and there would have been no UN funding. No other option gave any greater hope, and in most ways a lot less hope, in providing a quick, efficient startup.300

Consequently, the USG supported ICT-Tied despite having reason to be concerned about the ICTY precedent because the ICTY had not yet had enough time to work out its early missteps, and because there was no obviously better alternative to the ICTY model.

 
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