Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
Bass argues that totalitarian show trials (of the sort conducted by the Nazis and Stalinist Soviets) represent the antithesis of legalism. He notes that bona fide trials, subscribed to by legalists, include “an independent judiciary, the possibility of acquittals, some kind of civil procedure, and some kind of proportionality in sentencing.”82 In contrast, Bass contends, a show trial “has no chance of returning an acquittal, keeps the judges in thrall to the prosecution and behind that the state, cares little for procedure or standards of evidence, and has a propensity toward the quick execution.”83 Such show trials, Bass suggests, represent “the complete subversion of legal norms” by involving, inter alia, a judiciary that is not independent and “arbitrary terror.”84 I offer another interpretation: the true antithesis of legalism is a theory that explains why states support transitional justice options—even legalistic ones—for reasons other than fidelity to the rule of law.
Call this approach “prudentialism.” Prudentialism follows from the concept of “prudence,” already well established in international relations.85 Such prudence, according to political theorist Alberto Coll, is a sort of “practical wisdom” that addresses ethical dilemmas in the theory and practice of state- craft.86 Coll identifies two main types of prudence, the first of which is “normative prudence,” as represented by philosophers Aristotle, Thomas Aquinas, Edmund Burke, and Reinhold Niebuhr. This school of thought argues that prudence “is not value-free; it remains under the guidance, however ambiguous or indirect, of moral principles.”87 International relations scholar Martin Wight, in an examination of Western values in diplomacy, argues that prudence, which he declares is a “moral virtue,” reflects the desirable intertwining of political expedience with moral value to create a particular kind of “political morality.”88 Coll’s second strand of prudence appears in the writings of secular realists, such as Thucydides, Niccolo Machiavelli, and Thomas Hobbes, who “define prudence as the skill of discerning that course of action which best serves one’s self-interest and, therefore, as unconnected to morality, which is supposedly the pure or unencumbered search for the truly good.”89 Some modern realists adopt this latter conception of prudence, which is pragmatically focused on achieving certain desired ends rather than adhering to particular principles or employing particular means. Hans J. Morgenthau, for example, conceives of prudence as “the weighing of the consequences of alternative political actions—[what realism considers] to be the supreme virtue in politics.”90 Relatedly, in his discussion of a “prudentialist approach to order and justice,” Hurrell argues that a “strong account” of philosopher Max Weber’s ethic of responsibility91 dictates that “there are no overarching global principles of justice that apply to foreign policy.”92 Similarly, international relations scholar Chris Brown describes the role of prudentialism in realism thusly:
Some realists dismiss the role of morals in politics at all levels, others are amoralist only in international relations. The characteristic position is that to be concerned with morals is likely to lead to a “moralizing” attitude to international affairs and this in turn is likely to lead to disaster. Prudence is the only virtue of the statesman. The important point here is the assumption that the alternative to the prudentialism of the realist is a universalist code in which principles of conduct appropriate to private life are applied inappropriately to international affairs.93
It is this latter type of prudence—represented by secular realists—that I draw upon in formulating my own theoretical framework articulated in this book. My explanatory approach suggests that creating an ICT may be the best outcome after a state conducts a case-specific balancing of relevant politics, pragmatics, and normative beliefs. Prudentialism allows for the possibility that a state, even one that is liberal, will not support the establishment of an ICT if that state’s balancing dictates otherwise.
Prudentialism deviates from legalism, which is based on a principled commitment to the rule of law, by positing that states are not necessarily committed to normative beliefs in transitional justice. In other words, even liberal states do not necessarily adhere to the view that putting suspected atrocity perpetrators on trial is (morally and legally) “right.” According to my version of prudentialism, addressing suspected atrocity perpetrators through trials may be the best transitional justice option in some cases after considering a combination of relevant politics, pragmatics, and normative beliefs. Unlike legalism, prudentialism contends that it is neither correct nor essential in all circumstances for war criminals to be prosecuted.
Accordingly, despite the nature or severity of an atrocity, supposedly liberal states may decide to address the case outside of a courtroom, if at all. Where politics and pragmatics conflict with principles, prudentialism contends that the former two factors will prevail. For example, prudentialism takes into account states’ security interests, whereas legalism does not. Consequently, contrary to legalism, pru- dentialism predicts no necessary consistency in whether and how states pursue transitional justice. And where consistency does appear, the reason, prudentialism suggests, may relate less to principle and more to “path dependence.”94
Prudentialism, then, resembles realism; it emphasizes underlying rational- actor motivations to address suspected atrocity perpetrators through particular transitional justice institutions—including judicial institutions. As realism does not explicitly determine what would drive a state to support the establishment of ICTs, the remainder of this chapter is dedicated to formulating such an explanation.
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