Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
II. Transitional Justice Options
Transitional justice options, like many other policy choices, can be mutually supportive, mutually exclusive, or conflicting. For example, killing an individual likely precludes resort to any other methods for dealing with that person.3 From a logistical standpoint, choosing one option also may preclude others because of limited resources or time. Choices pertaining to a transitional justice situation as a whole may not be mutually exclusive, however, as the same or related suspected atrocity perpetrators may be concurrently or sequentially addressed through alternative options.4 As Scheffer has argued, “[t]here may well be occasion to prosecute different terrorist suspects in different courts in different jurisdictions simultaneously.”5 The transitional justice options listed below begin with the decision surrounding whether to pursue some version of transitional justice at all. The options then are listed in no particular order.
A. ACTION VERSUS INACTION
In confronting suspected atrocity perpetrators, the first decision is whether to do anything at all.6 For example, in the immediate aftermaths of the Armenian and Cambodian genocides, the USG chose not to pursue the individuals allegedly responsible for these heinous crimes.
Some government officials may not want to help foreign states or societies address suspected atrocity perpetrators. Doing nothing may serve both humanitarian and political ends by encouraging combatants to stop fighting, surrender themselves, or testify without fear of punishment. However, inaction (which, as discussed below, could also be referred to as implicit or de facto unconditional amnesty) carries serious moral implications because it may result in allowing suspected atrocity perpetrators to evade accountability. Furthermore, inaction can be considered illicit when states are legally obligated to proactively bring suspected atrocity perpetrators to justice. For example, signatories to the 1948 Genocide Convention, including the United States, “confirm that ... they undertake to prevent and to punish” genocide.7
The grounds for declining to pursue transitional justice may be legal, normative, practical, or some combination, and often echo arguments against humanitarian intervention.8 The normative reasons frequently emphasize pessimistic warnings against paternalistic, imperialistic, or even well-i ntentioned efforts that may be counterproductive. Transitional justice efforts may promote justice at the expense of peace, in the sense that such efforts could spur further conflict between and among victims and their victimizers, a potential tension explored further in Chapter III.9
Alternatively, states may decide not to pursue transitional justice elsewhere because of the normative and legal commitment to nonintervention—the notion that states should refrain from interfering in the affairs of other states. This principle, dating back to the 1648 Treaty of Westphalia and enshrined in the UN Charter, holds that states are generally proscribed from violating the political sovereignty or territorial integrity of other states.10 Such legal arguments against foreign involvement in transitional justice usually stress that the post-atrocity society or state has jurisdiction, and it would therefore be an illegal usurpation of that society or state’s rights to impose options, procedures, and/or staff that the local population would not choose voluntarily. A related normative concern focuses on the notion of self-determination.11 Under this principle, foreign powers should allow or perhaps even enable a post-atrocity society to select and then implement the society’s preferred transitional justice institution. The reasoning is that, as the people of victimized societies emerge from their horrific experiences, it should be their prerogative to enjoy final discretion over how to move forward. As international relations scholar Jennifer Welsh observes, citing philosopher John Stuart Mill, this objection to intervention “is based on the belief that our highest moral duty is to respect the right of self-determination ... . It is through the act of selfgovernment that political communities—and by extension, individuals—realize freedom and virtue.”12
Several practical concerns relate to whether a foreign state becomes involved in a post-atrocity society. In some instances, participation by a post-atrocity society in its own transitional justice process may be crucial for reconstruction and reconciliation. Unwanted interference from foreign powers might make matters worse in the short term, perhaps by further traumatizing survivors by forcing them to undergo the ordeal of reliving the past. Finally, involvement in addressing suspected atrocity perpetrators might be too costly (both in terms of resources and time) for foreign states, especially in a post-atrocity society or state that has suffered devastation to its infrastructure and professional ranks.
One justification for “doing nothing” that often lacks credibility is that state leaders did not know of the atrocities. Given worldwide media accounts, reports by NGOs, and global intelligence collection, especially by the USG in the modern era, it is unrealistic today to believe that many if not all states could possibly remain unaware of atrocities, wherever they occur. In that case, a state’s decision to “do nothing” is likely made in conscious neglect of realities on the ground. Advances in journalism, technology, and advocacy make ignorance of atrocities less plausible over time.
Some pragmatists argue that a deliberate or de facto strategy of inaction, either due to insufficient demand for justice and accountability or because efforts to pursue these goals were effectively deterred, need not constitute failed policy. For example, as these commentators argue, remaining passive toward suspected atrocity perpetrators has been a strategy in Namibia and Afghanistan, which may have contributed to peace-building and post-conflict reconstruction in both states. No attempt to apprehend and hold individuals accountable was pursued in either case, thus insulating peace settlements from the often politically fraught transitional justice process.13
On the other hand, there are several, either discrete or mutually reinforcing, reasons that state leaders may wish to confront suspected atrocity perpetrators. These reasons may be normative, political, or some combination.
First, foreign leaders may accord significant weight to humanitarian ideals, namely that all human beings should be treated equally and uniformly protected from harm. The humanitarian leader may choose to intervene, trumping competing concerns about state sovereignty and self-determination as well as risking unintended negative consequences.
Another possible normative motivation is backward-looking and remedial but also includes a political aim. Foreign leaders may conclude that they should take proactive, public steps to compensate for previous unwillingness or inability to prevent or mitigate an atrocity through more effective and timely (e.g., military) action. Such leaders may seek to offset recent inaction or failures in the region through a singular foreign policy success: bringing suspected perpetrators of the atrocity to justice. A successful effort could resuscitate a foreign leader’s credibility and reputation by demonstrating that the state can operate successfully in that region. One risk inherent in this context is that observers may interpret the foreign leader’s decision-making as motivated by feelings of guilt.
A third possible normative reason is forward-looking and rehabilitative: foreign leaders may realize belatedly the particularly egregious nature and scope of crimes and only then feel compelled to become involved as a logical, appropriate, and necessary response. These leaders may conclude that they should aid victims, stop victimizers, and deter potential atrocity perpetrators, regardless—or even because—of how many individuals have already suffered.
Yet a fourth normative motive concerns the moral obligations of power, particularly as such conceptions impact national identity. A foreign leader may feel a sense of duty in addressing suspected atrocity perpetrators, stemming from the leader’s conception of his or her home state’s role in the world as a peacemaker and strong pro-democratic force. As Scheffer, an American, argues:
We must, indeed, do something [about atrocities]. That is my view of what America, as the dominant power in the world, is all about. Otherwise, our understanding of dominance becomes so insular and self-protective that it is no longer dominance, no longer leadership, and no longer the moral high ground. It is just plain lethargic power, intimidated by the challenges of the world. The issue, when confronted with atrocities, is what must be done, not whether something should be done.14
Politics also factor into many of the reasons state leaders may decide to “do something” to confront suspected atrocity perpetrators. First, public demand for action—especially from survivors of atrocities, citizens of intervening states, and other domestic or foreign special interest groups—may be so strong as to make inaction a politically risky option.
A second possible political explanation is backward-looking: intervening state leaders may invoke a foreign regime’s past behavior as justification for the intervention. A state may seek to expose or publicize the atrocities of a foreign regime in order to validate how harshly the state treated that foreign regime after the latter planned or perpetrated those offenses. For example, after the USG invaded Iraq in 2003 and failed to uncover the weapons of mass destruction the Bush, Jr. administration had claimed justified the intervention, the USG shifted the impetus for its action to confronting Saddam Hussein’s human rights violations.15 Some commentators argue that the subsequent trial of Saddam himself provided the opportunity for the USG to achieve its political objective of bolstering its supposed humanitarian motivations for intervening in Iraq.16
A third conceivable political motivation is forward-looking: leaders of an intervening state may want to become involved in a current transitional justice solution because of its perceived impact on future transitional justice initiatives. Especially if the intervening state views a transitional justice solution as inevitable and not necessarily against its own interests, the intervening state may support that transitional justice option because it wants to ensure the most favorable design of that institution relative to its interests. When institutions potentially serve as important precedents and models for subsequent transitional justice institutions, the intervening state has a clear stake in their design. For example, if U.S. hegemony were in decline (or at least perceived to be), then the USG might have an incentive to inject its own preferences into transitional justice negotiations either to reassert its hegemony or to benefit from the structure it helped erect if U.S. hegemony expires.
A fourth political reason that state officials may address suspected atrocity perpetrators is that government leaders are concerned with the act or perception of applying consistent transitional justice solutions. In other words, leaders may wish to frame their state’s participation in transitional justice as fairly constant over time and across victimized communities. Inaction might be considered tantamount to racism and regionalism in prioritizing the tragedy of, for example, a European country and its white inhabitants over that of an African country and its black inhabitants, especially if the latter had arguably suffered even more. If the leaders of a state choose not to “do something” about suspected atrocity perpetrators, particularly after having taken bold action against other suspected atrocity perpetrators, they may be politically and morally obligated to justify their inaction, and their reputation may suffer at home and abroad unless and until they do so. Such motivations played a role in the USG response to the Rwandan genocide, as discussed in Chapter VII.
When state leaders decide to take action against suspected atrocity perpetrators, they face six general transitional justice options: (1) amnesty, (2) lustration, (3) exile, (4) lethal force, (5) prosecution, and (6) indefinite detention.
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