Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
II. Central Research Questions
This book features two central research questions. First, I analyze USG policy on transitional justice in certain cases. The aim is to understand why the USG supported particular transitional justice options in the immediate aftermaths of WWII and the Cold War. (The purpose is not to argue whether the USG should have supported or should support particular transitional justice options, such as ICTs.34 As such, this inquiry is more descriptive than prescriptive.)
In particular, this book analyzes USG support for various transitional justice options, including the establishment of four ICTs: the IMT (also known as the “Nuremberg Tribunal”), the International Military Tribunal for the Far East (the IMTFE, also known as the “Tokyo Tribunal”), the UN International Criminal Tribunal for the FRY (the ICTY, also known as the “Yugoslavia Tribunal”), and the ICTR (also known as the “Rwanda Tribunal”). In doing so, I determine why and how the USG backed ICTs and other particular solutions to the problem of transitional justice for suspected perpetrators of atrocities in Europe and East Asia during WWII as well as the FRY and Rwanda in the 1990s. I also examine why and how the USG chose not to support ICTs for some of the alleged atrocity perpetrators in the first three situations as well as individuals suspected of committing heinous crimes in some contemporaneous contexts, particularly the 1988 bombing of Pan Am flight 103 over Lockerbie, Scotland, and the 1990-1991 Iraqi offenses against Kuwaitis.
This book’s second research objective is to posit a theoretical framework to explain USG policy on transitional justice. I contrast my theory, “pruden- tialism,”35 with the most established theory on the subject, “legalism,” a term political scientist Gary Bass repurposed36 in his canonical book on transitional justice.37
As will be discussed further in Chapter III, legalism derives from the international relations theory of liberalism whereas prudentialism derives from the international relations theory of realism. A legalist approach emphasizes normative beliefs about transitional justice. By “normative beliefs,” I do not mean “norms” as constructivists do; for example, international relations scholars Michael Barnett and Kathryn Sikkink define “norms” as intersubjective “standards of appropriate behavior.”38 Rather, I mean certain beliefs held by individual decision-makers that may be embraced by a state as part of its collective national identity, ideology, and foreign policy.39 Legalism analyzes liberal states’ transitional justice behavior by explaining their commitment to the normative belief that suspected atrocity perpetrators should be prosecuted.40 Legalism is thus a parsimonious theory that, if accurate, is quite favorable to U.S. policy on transitional justice for taking such a principled approach to addressing individuals who allegedly commit atrocities.
Whereas legalism emphasizes this single, consistent factor, prudentialism focuses on three interrelated factors that are often in tension. In addition to normative beliefs about transitional justice, prudentialism considers the role politics and pragmatics play. Prudentialism theorizes that individual decisionmakers may hold conflicting normative beliefs about transitional justice and therefore that states, whether liberal or illiberal, may not embrace a consistent policy preference about transitional justice.41 Prudentialism’s political factors concentrate on the dynamics of different bureaucratic relationships, both within and outside the state. Internally, these political factors focus on the relationship among government officials and agencies as well as the relationship between government officials and the citizenry. Externally, these political factors concern the relationship between a state’s government and its key allies and adversaries. This external political factor includes the attention a state’s government pays to its position of power within international institutions and the international system as a whole. Prudentialism’s pragmatic features concentrate on the logistics of transitional justice. Such factors concern the efficiency, effectiveness, and expense of transitional justice options. Prudentialism thus explains liberal and illiberal states’ policies on transitional justice as a function of a case-specific balancing of politics, pragmatics, and normative beliefs. Whether the two theories consider the security interests of states is thus a main difference of them; legalism does not, whereas pru- dentialism does. Prudentialism is thus less parsimonious than legalism and offers both a more complex as well as a more critical view of U.S. policy on transitional justice.
The following table, Table 1.1, provides an overview of these differences between prudentialism and legalism:
table 1.1 Legalism Versus Prudentialism: Overview
There are a number of ways in which this research is valuable and salient to both the scholarly and policy-related worlds.
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