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U.S. Government Support for Multilateral Prosecution

The USG favored multilateral prosecutions for reasons that turned on politics, pragmatics, and normative beliefs. First, the USG argued that prosecution through an ICT would be diplomatically beneficial, by promoting a durable end to conflict. In response to a possible question about whether investigating and prosecuting war crimes would help the opposing sides establish long-term harmony, the U.S./DoS’s talking point was that “[a] multilateral approach to war crimes will help set the foundations for a last[ing] peace. It will show that justice, and not violent retribution, is an available response.”137 As part of that lasting peace, the USG stressed that an ICT could facilitate reconciliation among the warring factions: “The [ICTY] can also promote reconciliation in the [FRY], by holding individuals—rather than ethnic groups—responsible for atrocities. Retribution through due process of law can, we hope, break the cycle of vengeance many have noted in the [FRY].”138

Path dependence was a prominent pragmatic factor in determining the USG’s preferred ICT form for the FRY. The USG noted that the UNSC already was addressing the situation and so should continue doing so. In response to a possible question about why the USG did not prosecute alleged atrocity perpetrators from the FRY in the USG’s own courts, the U.S./DoS explained that “[t]he [UNSC] has taken the initiative in addressing war crimes in [the FRY]. It should decide whether persons accused of war crimes are to be prosecuted and, together with the nations in which war crimes have occurred, in what tribunals.”139 Path dependence also factored into the USG’s preference for a multilateral transitional justice option because multilateral efforts had successfully uncovered evidence of war crimes. The U.S./DoS therefore reasoned that “[i]nformation concerning war crimes will be gathered and developed by the [UNSC], through the [CoE] we advocate. Unilateral action on the basis of internationally-held information may prove difficult and would not send an appropriate signal.”140

The USG cited its own possible lack of jurisdiction as an additional pragmatic factor favoring a multilateral approach to prosecution, despite Bassiouni’s and the CoE’s claims about invoking universal jurisdiction for these offenses. In explaining why the United States likely could not prosecute alleged atrocity perpetrators from the FRY in its own courts, the USG claimed that

It is clear that we have jurisdiction to prosecute enemy prisoners of war (EPWs) under the Uniform Code of Military Justice [(UCMJ)], which would provide the basis for conducting prosecutions of persons accused of war crimes. Persons accused of war crimes but who are not EPWs—that is, who are not captured by our military in hostilities or, after being captured by others in combat, are transferred to our government in accordance with the Geneva Convention—might not fall within the UCMJ.141

The USG reiterated this point a few months later when it stated in a classified memorandum that “[i]t is unlikely that U.S. courts would have jurisdiction under current domestic law to try persons who committed war crimes in ... the [FRY].”142 More important, even if the USG had jurisdiction, it would not necessarily have sought to exercise that power. Walker recalls that the USG favored an ICT because “the US did not want to take responsibility.” 143

Indeed, USG officials did not believe that the FRY itself should or even could exercise jurisdiction over alleged atrocity perpetrators. Walker asserted that “[t]here were no local courts that were viable in the region ... .”144 Shattuck agrees, recalling: “Because national institutions of justice in the [FRY] were increasingly affected by the war, the only possible instrument of justice that might be used to prosecute war criminals had to be international.”145

Yet another pragmatic factor the USG cited in supporting multilateral prosecution was the effect this broad-based effort would have on both specific and general deterrence of potential atrocity perpetrators. In response to a question about whether “the effort and expense are worth” an ICT for the FRY, the U.S./DoS’s prepared response was: “The international tribunal will deter violations ... . Deterrence can only grow as the prospect of prosecution grows more realistic, as it will over the coming months.”146 Pointing to the CoE’s deterrent effect just a few months after it was established bolstered the U.S./DoS’s faith in the deterrent effect of an ICT for the FRY. As the U.S./DoS’s talking points observed: “after the [UNSC] established a [CoE] to investigate violations of international humanitarian law in the [FRY][,] some detention facilities were made accessible to relief workers and some combatants expressed concern over their exposure to prosecution.”147 The USG also touted the ability of an ICT for the FRY to promote general deterrence: “we must not forget that this Tribunal may send a message to other regions where ethnic fighting has begun. We should make it clear that the international community will insist upon respect for international humanitarian law.”148

 
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