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IV. Frameworks for Explaining State Behavior on Transitional Justice
The traditional international relations theories of realism and liberalism do not speak directly to the theoretical underpinnings of transitional justice, so their insights must be extrapolated into more specific explanations of state behavior in this issue-area. In his Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, Bass developed the theory of “legalism” to describe what the liberal tradition would proffer about state behavior with respect to supporting ICTs. I respond here by developing a derivative of realism, what I term “prudentialism,” to serve as a competing theory to legalism. Each of these transitional justice theories lays out a different framework for why states participate in establishing ICTs. This Part describes those frameworks and generates corresponding hypotheses that are tested in later chapters through this book’s case studies. I begin with legalism.
Bass states that government leaders sometimes accept the risks inherent in prosecuting alleged atrocity perpetrators “because they, and their countries, are in the grip of a principled idea.”65 Bass employs the term “legalism” to describe this idea: a belief in the rule of law that leads one to think it is correct66 and necessary67 for suspected atrocity perpetrators to be prosecuted. Legalism thus derives from a normative belief about whether and how to confront suspected atrocity perpetrators. Legalism predicts that certain states will consistently pursue transitional justice and will do so in the form of trials.
Legalism, as Bass has articulated it, contends that particular liberal ideals matter to states’ foreign policymaking. Bass’s overall argument is that “liberal ideals make liberal states take up the cause of international justice, treating their humbled foes in a way utterly divorced from the methods practiced by illiberal states ... . Liberal states are legalist: they put war criminals on trial in rough accordance with their domestic norms.”68 He also argues that “legalism is a concept that seems only to spring from a particular kind of liberal domestic polity. After all, a war crimes tribunal is an extension of the rule of law from the domestic sphere to the international sphere.”69 He further contends that “[l]egalists remain devoted to the idea that a trial is the proper way of dispensing justice ... . The accusation may be murder, rape, or theft—or genocide, or aggression—but the case will wind up in a court.”70 Bass goes on to claim that a commitment to legalism explains the decision by the USG, as well as other liberal states, to establish war crimes tribunals.
Bass offers two pieces of evidence to support legalism: “First, every international war crimes tribunal that I am aware of—Leipzig, Constantinople, Nuremberg [(the IMT)], Tokyo [(the IMTFE)], The Hague [(the ICTY)], and Arusha [(the ICTR)]—has rested on the support of liberal states. Second, conversely, when illiberal states have fought each other, they have never established a bona fide war crimes tribunal.”71
In order to present his work as accurately as possible, I have deliberately quoted Bass’s articulation of legalism at length in this chapter and elsewhere in the book instead of paraphrasing it in my own words. Although he never explicitly characterizes legalism as a theory and does not use the term “transitional justice” in his book, a fair reading of Stay the Hand of Vengeance indicates that legalism is indeed a theory concerning the transitional justice policymaking of states, including the United States. In explicitly asking “[s]o why not adopt a realist approach?”72 Bass presents legalism as an alternative to the theory of realism (including its modern variant of neorealism), at least with respect to states’ foreign policymaking when confronting suspected atrocity perpetrators.73 Then, citing such theorists as Kant, David Lumsdaine, and Moravcsik, all of whom Bass says subscribe to “a long tradition of seeing domestic politics as critically important for foreign policy,”74 Bass situates legalism within the broader theory of liberalism.75 Bass acknowledges that his “argument is related to” Democratic Peace Theory,76 the subset of liberalism described in the previous Part. Tipping his hat to legalism’s subject-matter origins, Bass explains that his book “owes its greatest debt to a work of political theory, not international relations, which emphasizes moral questions over political ones.”77
Although not specifically referring to “transitional justice,” legalism does fit squarely within that field. The term “transitional justice” has become much more popular today than when Bass published his book, in 2000. Perhaps for that reason, and because Stay the Hand of Vengeance narrowly focuses (to a fault, as I will discuss later) on war crimes tribunals, Bass uses the term “international justice”—a phrase occasionally used as a synonym for transitional justice on the international level—throughout his book.78 In asking “Why support a war crimes tribunal?”79 Bass’s book explicitly and implicitly questions states’ preferences in certain situations for this particular prosecutorial mechanism over (and, as I will discuss later and to Bass’s neglect, alongside) other transitional justice options discussed in the previous chapter. The appropriateness of situating Bass’s book in the field of transitional justice is further demonstrated by its frequent inclusion in the syllabi of courses on the subject.80 Some scholars also explicitly locate Stay the Hand of Vengeance within the field of transitional justice.81
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