Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
III. Explaining the United States Role in Transitional Justice for the Former Yugoslavia
This Part first considers USG decision-making at each of the most critical decision points leading to the establishment of the ICTY and then identifies and resolves certain puzzles in that decision-making process.
A. DECISION POINTS
In the course of endorsing what would become the ICTY, the USG backed general and specific transitional justice options. This section discusses the USG’s rationale for each of those decisions, namely (1) to support action, (2) to support punitive action, (3) to support prosecution, (4) to support multilateral prosecution, and (5) to support multilateral prosecution organized by the UNSC.
U.S. Government Support for Action
The USG claimed its motivation to “do something” in response to the deteriorating situation in the FRY was because of U.S. officials’ outrage over the violence. For example, as part of its announcement supporting the establishment of a war crimes commission through the UN, the USG stated: “We are appalled by the crimes alleged in [the FRY].”116 As Michael Matheson, then the Principal Deputy Legal Advisor at the U.S./DoS, also argues: “One motivation for wanting to do something about the Balkan atrocities was of course the general moral revulsion against these crimes, which I think was the main factor for everyone I dealt with.”117 John Shattuck, then the Assistant Secretary of State for Democracy, Human Rights, and Labor, concurs, stating that USG officials were “appalled” at atrocities in the FRY.118
But there were other, possibly more important factors that drove USG involvement. Specifically, the international community, including the USG, identified a political opportunity. The outrage the USG expressed had not been sufficient to prompt an earlier, more robust American intervention in the FRY. Consequently, some scholars theorize that the effort by the USG and others to support some transitional justice mechanism for the FRY served to compensate for the muddied and highly criticized approach adopted during the crisis. As Bass argues, “the establishment of the [ICTY] was an act of tokenism by the world community, which was largely unwilling to intervene in [the FRY] but did not mind creating an institution that would give the appearance of moral concern. The world would prosecute the crimes that it would not prevent.”119 Stephen Walker, the U.S./DoS’s Croatia Desk Officer in 1993, agrees, arguing:
Public/media pressure created the need to appear to do something, but policy makers wanted to avoid committing US troops or political capital. ICTY was the ideal substitute for real action ... . The Clinton Administration was desperate to create a Potemkin Village policy—look like they were doing something without actually doing anything to stop the genocide.120
Walker resigned from the USG on August 24, 1993, stating that he did so in protest over the Clinton administration’s policy toward the FRY. Walker viewed that policy as a weak response to the atrocities, one that legitimized aggression and
For certain USG officials, this political opportunity may have been particularly salient. Bush, Sr. may have viewed greater involvement in transitional justice issues in the FRY as a strong response to opponent Clinton’s criticism during the 1992 presidential campaign. During that election season, Clinton repeatedly called for a more effective and aggressive USG response, including military intervention if necessary, to the Balkan atrocities.122 Bush, Sr.’s decision to support the creation of an ICT for the FRY thus may have partially been an attempt to head off criticism of his foreign policy decision-making while seeking re-election, especially after his historically high public approval rating plummeted when he reneged on his 1988 presidential campaign pledge of “no new taxes.” Likewise, after entering office himself, Clinton pursued an active Balkans policy reportedly because he felt obligated to carry out his campaign “promise to address human rights issues” in the FRY.123
Some individuals who served in the USG at the time, however, reject the explanation that the USG supported the creation of an ICT for the FRY to substitute for military intervention. Scheffer, for example, who then served as Senior Adviser and Counsel to Albright, responds directly to Bass’s assertion of tokenism by arguing:
discussions and decisions regarding military and other enforcement options ... were not propelled by the excuse that establishment of the criminal tribunal covered our backside. The failure to act militarily resulted from policies and circumstances that coexisted with the [ICTY] but were not driven by its presence in The Hague.124
Regardless of the political opportunity, the USG certainly believed that involvement in the FRY represented a pragmatic one. The USG consciously sought to seize the occasion of the Balkans crisis to combat the creation of transitional justice mechanisms the USG considered problematic. Foremost in the minds of USG officials was a potentially flawed transitional justice institution stemming from the 1990-1991 Persian Gulf War. To counteract this development, establishing a transitional justice institution for the FRY that would be unbiased and followed the rule of law was a high priority. According to U.S./DoS talking points,
Saddam Hussein attempted to convene a multilateral forum in Algeria in December 1990, to try President Bush for war crimes, inter alia. Such perversions of the concept reiterate the importance of establishing a responsible procedure [for the FRY] in which allegations will be investigated impartially and, if a tribunal is established, due process is observed.125
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