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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics


Although progress on creating post-IMT/IMTFE ICTs was frozen during—and in large part because of—the Cold War, advancements on relevant fronts still occurred. On the same day as and coupled with its request to the ILC to consider the possibility of establishing a permanent ICT, the UNGA passed resolution 26o(III), which approved and proposed for signature and ratification or accession the Convention on the Prevention and Punishment of the Crime of Genocide (also known as the Genocide Convention).11 Even though the Genocide Convention received sufficient state support to enter into force on January 12, 1951, it did so without the approval of the USG. Because of concerns over sovereignty constraints, the USG did not ratify the treaty until November 25, 1988, and, even then, limited its obligations through official reservations.12

The Genocide Convention embodies multiple objectives, one of which is to define the crime of genocide in international law.13 The treaty enumerates the responsibility of signatories when genocide is afoot: that “they undertake to prevent and to punish” the crime.14 Moreover, the Convention describes the two forums in which individuals charged with genocide or other enumerated crimes shall be tried: either “a competent tribunal of the State in the territory of which the act was committed” or “by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”15

The USG ratified the Genocide Convention in 1988, before atrocities were committed in the FRY. Thus, if these offenses rose to the level of genocide, then the USG was obligated not only to respond proactively but also to do so through supporting a prosecutorial mechanism. Yugoslavia, for its part, became a party to the Genocide Convention in 1948; USG officials highlighted this point when justifying international intervention as the Balkan atrocities unfolded and when seeking to bring perpetrators to justice.16 By emphasizing the Convention, the USG implicitly called attention not only to the nature of the crimes enumerated in the treaty but also to the possible form the corresponding transitional justice solution could take, including an ICT.

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