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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics



On November 21, 1945, in his opening address to the International Military Tribunal for Germany (IMT) at Nuremberg, chief U.S. prosecutor Robert Jackson declared: “What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust.”1 Indeed, during the twentieth century, often referred to as “the bloodiest century,”2 some scholars estimate that between 60 and 150 million people were killed through atrocities (including genocides) and other mass murders.3 These horrific events claimed more lives than all wars during the century combined,4 and this “problem from hell” continues in the twenty-first century.5

I. Terms and Parameters

Some terms used in this book—such as “atrocities” and “transitional justice”— are contested. According to former U.S. Ambassador-at-Large for War Crimes Issues and current international law scholar David Scheffer, the following criteria characterize “atrocity crimes”: “high-impact crimes of severe gravity that are of an orchestrated character, result in a significant number of victims or large-scale property damage, and merit an international response to hold at least the top war criminals accountable under the law.”6 Sarah Sewall—current U.S. Under Secretary of State for Civilian Security, Democracy, and Human Rights, and previous director of the Harvard University John F. Kennedy School of Government’s Carr Center for Human Rights Policy as well as the Carr Center’s Mass Atrocity Response Operations Project—defines “mass atrocities” using numerical and temporal thresholds and focusing on noncombatants: “violence directed against civilians that is somewhere in the range of above 500 people over a sustained period of time.”7

Typically, in both international relations and international law, the term “atrocities” has referred to genocide, war crimes, and crimes against humanity.8 Along with the crime of aggression,9 these offenses constitute the subject-matter jurisdiction of the world’s first permanent international criminal tribunal (ICT), the International Criminal Court (ICC).10 Increasingly, as conceptions of heinous crimes have broadened, the United States and other countries have also recognized terrorism11 and non-genocidal ethnic cleansing12 as atrocities. Scheffer has coined the term “atrocity law” to describe the intersection of four disciplines of international law—international criminal law, international humanitarian law, international human rights law, and the laws and customs of war—that comprise the ICTs’ evolving law.13

The extent and persistence of atrocities as well as questions about the most effective means of addressing their perpetrators, victims, and survivors demonstrate how important and timely it is to study the origins, operations, and outcomes of “transitional justice.” Transitional justice refers to both the process and objectives of societies addressing past or ongoing atrocities and other serious human rights violations through judicial and nonjudicial mechanisms.14 The tools available to those seeking and implementing transitional justice are numerous and varied, including, for example, prosecution, amnesty, lustration, truth commissions, exile, indefinite detention, and lethal force.

Just as certain terms used in this book are contested, so too are the parameters of transitional justice. Some scholars seek to distinguish “international criminal justice”15 (often pursued through ICTs16) and transitional justice.17 However, international criminal justice is a crucial component of transitional justice, as transitional justice mechanisms can be international (as opposed to domestic or hybrid) and often involve criminal justice (instead of or in addition to other objectives and processes).18 Rather than separate fields, the two subjects overlap and are inextricably linked because ICTs may be the primary or exclusive mechanisms through which suspected atrocity perpetrators are addressed in a particular context. As such, a holistic view of transitional justice necessarily includes ICTs. Other academics and practitioners agree. For example, Ruti Teitel—who, in 1991, coined the phrase “transitional justice”19—focuses in part on ICTs in her analysis of the field.20 Other leading scholars of transitional justice, including Kathryn Sikkink and Naomi Roht-Arriaza, similarly include ICTs in their work on transitional justice.21 Cambridge University Press’s three-volume Encyclopedia of Transitional Justice features entries on ICTs,22 one of which is my own contribution on the United Nations (UN) International Criminal Tribunal for Rwanda (ICTR).23 The leading periodical and civil society organization in the field of transitional justice, The International Journal of Transitional Justice24 and the International Center for Transitional Justice,25 both regularly publish materials on the establishment, operation, and impact of ICTs. Even scholarship that treats international criminal justice and transitional justice as distinct fields acknowledges that their goals and mechanisms often overlap and can be mutually supportive.26

I acknowledge that I am unusual in including lethal force among transitional justice options. But, as will be discussed throughout this book, just as with ICTs, a full consideration of transitional justice options necessarily includes extrajudicial killing because such a tool is—and has been—seriously considered and actually used as a means of addressing alleged atrocity perpetrators.

The tense and shifting international landscape—especially the rise of violent extremism and enduring conflict in the Middle East, Near East, and sub-Saharan Africa—has at once promoted and impaired international cooperation regarding transitional justice. Specifically, many members of the international community have agreed in principle that they must individually and collectively do more to prevent and stop atrocities,27 but they have disagreed about how to accomplish those goals in practice. This book focuses on the particular role of the U.S. government (USG) in transitional justice. I have chosen to focus on America’s reaction to international crises because it often significantly shapes the larger global response due to its role as a superpower and its preponderance of resources since the end of World War II (WWII).

The immediate aftermaths of WWII and the Cold War were seminal periods for transitional justice. At the conclusion of WWII, the Allies defeated a German dictatorship and its partners in Japan, Italy, and elsewhere bent on fascist world domination. The Allies also liberated states in Europe and East Asia that had endured atrocities, the scale of which had never before been witnessed in the history of mankind. At the end of WWII, the victorious Allies—and the USG in particular, under the presidencies of Franklin Delano Roosevelt (FDR) and then Harry Truman—faced questions of whether, how, when, and where to bring to justice suspected atrocity perpetrators (particularly from Nazi Germany and Imperial Japan), and who among them.

Despite promises made after the Holocaust by the international community to “Never Again” allow genocide and other atrocities to be committed, these crimes against humanity have been perpetrated again and again. The Cold War, which pitted the world’s two nuclear superpowers—the United States and the Union of Soviet Socialist Republics (USSR or Soviet Union)—against each other, and the concurrent process of decolonization, led the rival nations to engage in proxy clashes, resulting in, for example, the Korean War of the early-i95os and the Vietnam War from the late-i95os to the mid-1970s. At the same time, the Cold War’s structure and norms privileged political sovereignty and territorial integrity above all else, providing a perverse carte blanche for states to perpetrate some of the world’s most horrific crimes against peoples within their own borders, such as the Cambodian genocide of the mid- to late-i97os, in which Pol

Pot’s Khmer Rouge regime caused the deaths of approximately 1.7 million people (roughly one-fifth of the country’s population).28

In the immediate post-Cold War era, the world no longer faced potential nuclear war between two superpowers, as one had collapsed. But the end of the Cold War did not signal a complete Pax Americana; rather, instead of indirect or direct war among states, conflict occurred more often within states and involved massive human rights violations perpetrated against specific ethnic, racial, gender, religious, and political groups.29 The 1994 Rwandan genocide (also known as the genocide against the Tutsi in Rwanda)—during which Hutu extremists slaughtered approximately 1 million Tutsi and moderate Hutu30— featured a daily killing rate that was three to five times faster than during the Holocaust.31 Just a year later, in July 1995, the Srebrenica massacre—in which an estimated 7,000 Muslim men and boys were summarily executed during the war in the former Yugoslavia (FRY)32—represented the largest single mass atrocity in Europe since WWII.33

During the immediate post-Cold War period, states were more willing and able to confront atrocity perpetrators in foreign societies, partly because the superpower rivalry that had previously fomented international gridlock had dissolved. Like the FDR and Truman administrations, the presidencies of George H.W. Bush (Bush, Sr.) and Bill Clinton faced difficult questions about addressing suspected atrocity perpetrators, but this time from Libya, Iraq, the FRY, and Rwanda.

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