Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
Potential Benefits and Drawbacks of International Cooperation on Transitional Justice
Although transitional justice presents unique challenges as a collective action problem, benefits certainly exist, as suggested by NLI,29 for states to cooperate on transitional justice. International cooperation through ICTs illustrates such potential benefits. States can use ICTs to facilitate reciprocity by demonstrating that the international community would help successor regimes in atrocity locations render justice if the successor regime, in turn, supports the international community by providing witnesses, documents, and other evidence crucial to investigations and prosecutions. States can also use ICTs to promote the sharing of information and expertise across the participating governments by creating an institution that investigates and centralizes data about the atrocity. As unique institutions that specialize in investigation and prosecution using dedicated and expert staff, ICTs also can help lower transaction costs. Similarly, as particular organizations with identifiable staff in a specific location sharing data and otherwise collaborating, ICTs can serve as focal points for interstate coordination. This construct is likely to be more efficient than any single state acting or multiple entities separately (whether simultaneously or sequentially) pursuing transitional justice, especially if those actors work at cross purposes. ICTs can facilitate burden-sharing among states by distributing the costs and responsibilities of identifying, apprehending, trying, and, where appropriate, punishing suspected atrocity perpetrators through collective participation in an international criminal justice system. ICTs can make commitments more credible by having all participating states ratify the statute that creates the tribunal, dedicate resources and staff, or affirm minimum budgetary contributions. These actions would convey that signatories are invested in the ICT and legally devoted to helping the ICT fulfill its mandate. Finally, states can use ICTs to create issue linkages in several ways. The investigation and prosecution of suspected atrocity perpetrators can be connected to stability and reconstruction in the post-atrocity location and its surrounding region by removing individuals who foment conflict. Yet another way in which states may use ICTs to promote issue linkage is in the great game of power politics. States may understand war crimes trials as opportunities through which international law and institutions can neutralize the military and economic superiority of opponents by employing legal tools that favor their interests and undermine their enemies’ power.
When considering the United States in particular, additional benefits— beyond those suggested by NLI—may exist for transitional justice cooperation. Applying notions from economist Charles Kindelberger’s hegemonic stability theory,30 the United States, as a dominant power, can provide crucial capital toward and foster coordination during the process of identifying, investigating, apprehending, prosecuting, and punishing suspected atrocity perpetrators. That said, Kindelberger’s theory is not wholly relevant, as ICTs can be established and maintained by states less powerful than hegemons,31 and because transitional justice institutions (such as ICTs) often require much less financial backing than the economic institutions about which Kindelberger was concerned (such as the International Monetary Fund, the World Bank, and the World Trade Organization).
The composition of states involved in the transitional justice process may matter significantly for the process’s credibility and effectiveness. Only a subset of states has the ability to provide financial support, competent staff, witnesses, evidence, and other resources that help ensure a successful transitional justice process. Furthermore, the international community generally or specific stakeholders, such as survivors and perpetrators, may feel that a transitional justice process is legitimate only if certain states are involved or excluded.
In sum, establishing an ICT can be a mutually beneficial, strategic endeavor among members of the international community. States cooperating through the ICT framework could reduce the probability of creating a potentially more costly, practically and legally chaotic, ineffective, and illegitimate transitional justice solution. The benefits that transitional justice presents for international cooperation are clear; it is difficult or nearly impossible for any state, even a hegemon, to secure its transitional justice interests unilaterally.
However, as with the potential benefits, the potential drawbacks of international cooperation on transitional justice are also significant. One possible downside of pursuing cooperation through international institutions is that those institutions may unexpectedly prevent necessary or desirable action. For example, UNSC vetoes can and have paralyzed important international action.32 The international community’s joint decision not to intervene in atrocities, including genocide, has been an excuse for inaction. In such cases, it may be both necessary and desirable for states not to cooperate, by pursuing unauthorized interventions. The defense of human rights and the bolstering of deterrence against future atrocities may compensate for what is lost in terms of the violation of international law. In such instances, there is a double standard at work: often only the United States has the capabilities to respond, yet it is criticized whether or not it acts.
There are multiple reasons the USG sometimes does not cooperate in global affairs. The USG and other actors in the international system periodically face principled disagreements based on domestic ideas and values. These fundamental differences of opinion inform their decisions to pursue conflicting paths, which sometimes lead to noncooperation. One point on which the USG and other actors may disagree is the physical threat a particular state or group poses and what the most effective and ethical response would be. Another example involves the proper status of international law in domestic jurisprudence.33 The USG may in such contentious situations be accused of caring too little (or not at all) about issues of concern to other actors, as well as being unwilling to cooperate.
Noncooperation in the international community may also manifest when the USG prioritizes some issues above those deemed important by other actors and pursues those priorities even if they are at odds with other actors’ preferences. This situation can occur when the USG perceives threats to its vital interests, such as terrorism, and is willing to pursue what it considers necessary and appropriate acts of self-defense (such as torture, rendition, and extrajudicial incarceration), even if other actors disagree.34 Another example of interstate disagreement stemming from varying preference orderings arises in the climate change debate. The USG reportedly did not ratify the Kyoto Protocol because the USG valued its own economic well-being above the global environment.35
Yet another rationale for U.S. noncooperation in global affairs is that the USG deliberately pursues policies to assert its primacy in the international system. Through these acts, the USG seeks to maintain American hegemony and, in turn, to ensure other actors’ relative powerlessness. There is some basis in this claim: the 2000 report of the Commission on America’s National Interests declared one of the “six cardinal challenges for the next US president,” and the means through which its vital interests would be enhanced and promoted, to “maintain the United States’ singular leadership, military, and intelligence capabilities ... .”36 The same report also listed preventing “the emergence of a regional hegemon in important regions, especially the Persian Gulf” as one of its “extremely important” interests.37 Similarly, fifteen years later, the United States’s National Security Strategy stated: “America must lead. Strong and sustained American leadership is essential to a rules-based international order that promotes global security and prosperity as well as the dignity and human rights of all peoples.”38
Countries, including the United States, often confront the aforementioned benefits and drawbacks to international cooperation on transitional justice. Attempts to explain how states resolve these situations are presented through the theories discussed in this chapter’s following two Parts.
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