Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
A seventh attribute of transitional justice is that its returns are not necessarily tangible. In other issue-areas, such as economic policy or national security, many state efforts are obvious and concrete (e.g., arms control agreements to reduce the amount and type of weapons of mass destruction held by participating states).
Although some aspects of transitional justice are certainly measurable, such as the number of suspected atrocity perpetrators prosecuted or convicted, more general goals of promoting reconciliation are not necessarily quantifiable. As a result, gauging the respective contributions of participating states or evaluating the success of a particular transitional justice can be difficult, if not impossible.
A final trait of transitional justice that makes it a special problem for international cooperation is that its pursuit is relatively inexpensive for dominant actors. As compared to, for example, the more “high politics” activities of waging and winning large-scale wars,22 transitional justice is much less costly in monetary terms. Even at the expense of $100 million per year that the ICTY and the ICTR each roughly cost,23 an individual, wealthy state could single-handedly establish and maintain one or more transitional justice institutions.
The fact that transitional justice is relatively inexpensive means that the USG has possessed sufficient resources to propose, as it occasionally has, that it unilaterally or disproportionately fund certain transitional justice institutions.24 As these institutions are relatively inexpensive, the USG retains flexibility in lobbying for or unilaterally pursuing its optimal outcome. The USG is not necessarily reliant, at least not for financial support, on other actors in the international community to establish and maintain these institutions. Especially since—and as a direct result of—the establishment of the ICTY and the ICTR, whose budgets are significant, the international community has prioritized the expense of an ICT’s design—whether it is completely international or a hybrid tribunal involving local staff, structures, and laws—when ad hoc ICTs have been created.25 If that trend continues, the USG may enjoy even wider latitude to pursue its preferences, despite the opposition of other states, because of its peculiar willingness and ability to support such transitional justice institutions financially. A powerful state actor, such as the USG, may have an incentive and the capability to eschew joint in favor of independent decision-making because it believes the former could produce suboptimal, inefficient, or counterproductive results.26 One example is the IST, established in 2005. Despite criticisms by humanitarian organizations and legal experts that the IST would lack impartiality and competence and that it suffered other design and operational shortcomings,27 the USG supported an Iraqi-led tribunal to prosecute Saddam and his Ba’ath Party cohorts instead of an ICT because the USG believed the former method would be more effective and efficient.28
Transitional justice is a relatively inexpensive, popular, but not necessarily zero-sum game of “low politics,” the outcomes of which are not necessarily tangible. Furthermore, it is a cooperative enterprise that is comparatively unconstrained by concerns over relative gains or cheating, which exert little impact on this issue-area. Transitional justice also seems not to be inhibited by concerns over the problem of free riders. As such, one would expect neorealists not to be overly skeptical about cooperation in this issue-area.
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