Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
This chapter makes three points clear. First, there are numerous ways suspected atrocity perpetrators have been or could be handled after identification or capture; legalistic options—such as prosecution through an ICT—are only a subset of such means.
Second, the USG has used a wide array of these transitional justice instruments, including each of the general transitional justice options: inaction, amnesty, lustration, exile, lethal force, prosecution, and indefinite detention. Despite centuries of exalting the principles of due process and the presumption of innocent until proven guilty, the USG’s use of non-legalistic alternatives— including inaction, lustration, amnesty, exile, indefinite detention, and lethal force—is an accepted, if not preferred, means of addressing many of the government’s worst enemies, including some of its own citizens. What sort of “justice” is “done” in these cases is unclear, but that justice surely does not include indicting, prosecuting, convicting, and sentencing a suspected atrocity perpetrator based on legally admissible evidence.
Third, the wisdom and effectiveness of many of these options are dubious. Not only are these mechanisms politically, legally, and morally problematic, but they almost all risk backfiring or generating other unintended consequences—one of which may be, ironically, the commission of more atrocities. Naturally, context matters; an option that works well in one situation may be disastrous in another.
Having sketched this overview of transitional justice options and the USG experience with them, I proceed to consider the two frameworks—legalism and prudentialism—through which I then evaluate six case studies. These cases include four instances in which the USG chose to support the establishment of ICTs—twice in each of the immediate aftermaths of WWII and the Cold War— and two situations in which the USG did not.
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