Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
II. Transitional Justice as an International Relations Phenomenon
This Part explores challenges transitional justice represents for international relations, with a particular focus on issues related to security and cooperation.
A. TRANSITIONAL JUSTICE AND INTERNATIONAL SECURITY
The first lens through which transitional justice can be considered is that of international security. International security traditionally has been defined in international relations as “state security.” This conception of international security, based on state sovereignty and survival, was embodied in the 1648 Treaty of Westphalia and reinforced by threats to and breaches of state sovereignty during the two World Wars and the Cold War. The primary concern of this type of international security is interstate warfare, and the principles expounded to promote security are the sovereign equality of states, the nonintervention of states in each other’s internal affairs, and the right of states to respond militarily to existential threats.1
Especially since the end of the Cold War, the dominant view of international security has expanded to include or even prioritize “human security.” Political scientists S. Neil MacFarlane and Khong define human security as “freedom from threat to the core values of human beings, including physical survival, welfare, and identity.”2 MacFarlane and Khong observe that
[t]he notion of human security is based on the premise that the individual human being is the only irreducible focus for discourse on security . . . . [H]uman security is distinct in its focus on the human individual as the principal referent of security. Many proponents of human security would go further to argue that it is also distinct in its recognition that the security needs of individuals go beyond physical survival in the face of violence to access to the basic necessities of life and to the establishment of the basic rights that permit people to lead lives in dignity.3
This alternative conception of international security was a liberal response to the failure of states to ensure the safety and basic needs of their citizens. This view recognizes that international and civil conflict directly caused human rights violations and exacerbated underlying humanitarian crises, such as poverty, famine, and disease. In many cases, a state either deliberately caused these problems or was unable or unwilling to address them. Moreover, this perspective identifies nonmilitary threats,4 such as environmental disasters or degradation,5 as hazards to human life and liberties beyond the desire or capacity of states to address. Proponents of human security, such as the UN Secretary-General’s High-Level Panel on Threats, Challenges, and Change and the International Commission on Intervention and State Sovereignty, have therefore declared that there is a “Responsibility to Protect” individuals that can politically, legally, and morally justify violating a state’s political sovereignty and territorial integrity.6
Transitional justice relates to both state and human security. On the one hand, the pursuit of transitional justice—at least through the potential of retributive transitional justice options (e.g., exile, prosecution, lustration, lethal force) to prevent or respond to atrocities by deterring or punishing atrocity perpetrators— can promote the maintenance of international security. Atrocities threaten state security by upsetting regional stability and balances of power. Atrocities may engulf an entire state or extend to neighboring states, causing refugee flows and, as a result, possible health and financial crises. Atrocities also can jeopardize access to valuable resources, such as oil, if those resources are located in areas that are rendered perilous from the violence.7 Atrocities threaten human security by violating individual rights and endangering entire communities. Atrocities thus imperil the stability and survival of regions, states, groups (e.g., ethnic, racial, religious), and individuals regardless of whether they are contained within a state or spill over borders.
Transitional justice can promote state and human security by building or rebuilding domestic and international infrastructure that prevents or stops atrocities. In addition, transitional justice institutions, especially those that are retributive (e.g., ICTs), may deter the commission of future atrocities by promoting accountability and punishment for perpetrators, thus reducing threats to human, domestic, and international security.8 Furthermore, transitional justice activities may be designed, among other purposes, to identify, apprehend, and incapacitate atrocity perpetrators; to render a full, accurate history of atrocities; and to promote reconciliation among former antagonists.
On the other hand, the pursuit of transitional justice may and often does compromise the maintenance of international security. Attempting to hold individuals or groups accountable may hamper peace processes and otherwise foment conflict. Classifying and punishing individuals and groups as suspected atrocity perpetrators (by the issuance of arrest warrants or through less formal actions, such as “naming and shaming” campaigns) may lead them or their interlocutors to resist or cease negotiations as well as precipitate further violence. Suspected individuals and groups may resent the perpetrator label or may commit more atrocities in the process of attempting to flee justice.9 Furthermore, the process of apprehending, investigating, prosecuting, and punishing individuals may require authorities to cross boundaries or to try individuals without the permission of their home governments. Such efforts may violate territorial integrity and political sovereignty—critical components of international order as defined by the UN Charter and recognized as fundamental principles of international law.10
In these situations, the pursuit of justice can present a fundament tension with international security.11 Part of the challenge of transitional justice is to reconcile potentially conflicting goals (e.g., trade-offs between short- and long-term justice and security) when possible and to prioritize them when not. Whether transitional justice fosters or hampers international security depends on the particular transitional justice option pursued, its location, its scope, and its pace.
In promoting security, the objectives of transitional justice matter and might include achieving durable peace, individual or group accountability, general or specific deterrence, or some other goal. For example, although transitional justice often focuses on punishing individuals suspected of committing atrocities, even successful imposition of individual accountability may not halt ongoing or prevent future atrocities. Disciples or imitators may assume the mantle of the defanged. The current U.S.-led campaign to combat terrorism (formerly known as the “Global War on Terror”) is a case in point. Incapacitating the planners and perpetrators of the atrocities of September 11, 2001, certainly will not avert future terrorism. The National Commission on Terrorist Attacks Upon the United States reported:
al Qaeda represents an ideological movement, not a finite group of people.
It initiates and inspires, even if it no longer directs. In this way it has transformed itself into a decentralized force. Bin Laden may be limited in his ability to organize major attacks from his hideouts. Yet killing or capturing him, while extremely important, would not end terror. His message of inspiration to a new generation of terrorists would continue.12
This report recognizes that addressing individual suspected atrocity perpetrators, even if they are leaders of a group responsible for atrocities, is a necessary but sometimes insufficient tactic to prevent, mitigate, or stop atrocities.
Transitional justice, for whatever type of atrocity, is inextricably linked to international security. The pursuit of transitional justice may either help or hinder international security; thus, policymakers must pay particular attention to the method, form, location, and timing of transitional justice. The theories explored below help us understand why countries, particularly the United States, make such decisions.
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