Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
As discussed in this chapter, transitional justice creates particular challenges for international security and international cooperation, especially when the United States is involved. That transitional justice implicates both security and cooperation raises questions that are addressed throughout this book. For example, why, given the drawbacks to security and cooperation that establishing ICTs may present, did the USG decide to collaborate with other states to create the IMT, the IMTFE, the ICTY, and the ICTR? Given those same concerns, what explains the variation in form among each of these USG-backed ICTs? What factors have driven USG decision-making in this issue-area?
Extrapolating from two of the dominant international relations theories— realism and liberalism—the following analysis provides answers to these vexing questions by exploring why the United States favored ICTs instead of—or in addition to—alternative transitional justice options in this book’s four primary case studies and opposed ICTs in this book’s two secondary case studies. Legalism claims that the USG was primarily driven by a principled commitment to the rule of law, whereas prudentialism asserts that the USG was motivated by a case-specific balancing of politics, pragmatics, and normative beliefs.
The following four chapters present a history and analysis of the USG role in transitional justice concerning (1) Germany; (2) Japan; (3) Libya, Iraq, and the FRY; and (4) Rwanda. These chapters—and then the Conclusion—consider whether legalism or prudentialism provides a more compelling explanation for why and how the USG was involved in the creation of groundbreaking ICTs as well as other transitional justice mechanisms. Which theory is more persuasive will depend on their respective abilities to explain the factors that animate and constrain U.S. action. Specifically, the stronger theory would explicate more than just the United States’ support for a legalistic transitional justice option, given its liberal status. First, taking into account the array of transitional justice options outlined in Chapter II, what explains the USG’s preference for a particular option? Second, why might the USG support a non-legalistic transitional justice option over a legalistic one? Third, why might the USG support both legalistic and non-legalistic transitional justice options for the same atrocity? Fourth, why might the particular transitional justice options the USG supports vary across time and space? I begin these considerations with the first and perhaps most famous ICT in history, the IMT.
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