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



I. Introduction

In this final chapter, I summarize the key findings from this book. In addition, I assess which of the two explanatory theories articulated in Chapter III— legalism or prudentialism—better accounts for U.S. policy on transitional justice in the six cases discussed in Chapters IV through VII: Germany and Japan in the immediate aftermath of WWII as well as Libya, Iraq, the FRY, and Rwanda in the immediate aftermath of the Cold War.

II. Summary of Findings

Chapter II demonstrated the wide array of transitional justice options—including inaction, amnesty, lustration, exile, lethal force, prosecution, indefinite detention, and each of their various permutations—and how the USG has employed many of them in the past. Especially recently (since September 11, 2001), however, the USG has most often supported only four of these options to address suspected atrocity perpetrators: inaction, indefinite detention, lethal force, and prosecution.

Chapter III explored the particular problems and challenges transitional justice represents for international relations, focusing on security and cooperation. After reviewing two prominent traditional international relations theories— realism and liberalism—and concluding that they do not specifically relate to transitional justice issues, I illustrated how variants of those theories—my prudentialism and Bass’s legalism—are useful frameworks to explain state behavior regarding transitional justice. Legalism analyzes liberal states’ transitional justice behavior by explaining their commitment to a normative belief, based on the rule of law, that it is both correct and necessary to prosecute war criminals. Conversely, prudentialism asserts that states, regardless of their liberal posture, formulate policies on transitional justice not out of a principled commitment to the rule of law, but rather as a result of a case-specific balancing of politics, pragmatics, and normative beliefs. The chapter also compared hypotheses that each framework would proffer, some of which conflict while others do not. The four most significant dueling hypotheses are: (1) legalism contends that states will consistently pursue transitional justice and will do so in the form of trials, whereas prudentialism postulates that states will not necessarily formulate consistent policies on whether or how to pursue transitional justice; (2) legalism contends that only liberal states support bona fide war crimes tribunals whereas prudentialism postulates that any state—liberal or illiberal—may support such tribunals; (3) legalism contends that liberal states would not support non-legalistic transitional justice options, whereas prudentialism postulates that any state—liberal or illiberal—may support such options; and (4) legalism offers no contention on the type of legalistic transitional justice options states would support, whereas prudentialism postulates that any state—liberal or illiberal— may support variation among forms of such options.

Chapters IV through VII then focused on the role that a particular liberal state, the United States, played in transitional justice for Germany and Japan in the immediate aftermath of WWII as well as for Libya, Iraq, the FRY, and Rwanda in the immediate aftermath of the Cold War. As indicated at the end of Chapter III, puzzling aspects of U.S. policy on transitional justice required explanation. What accounts for the USG’s preference for certain transitional justice options over others in particular cases? Why would the USG support non-legalistic transitional justice options over or alongside legalistic transitional justice options for responding to the same atrocity? Why and how did the particular transitional justice options the USG supported vary among the six cases?

Each of the six case studies revealed that a combination of politics, pragmatics, and normative beliefs drove U.S. decision-making on transitional justice. For example, in all four primary cases (Germany, Japan, the FRY, and Rwanda), USG officials believed that cooperating through a multilateral initiative (specifically, in the case of the Germany and Japan, using WWII alliances, and, in the case of the FRY and Rwanda, using the UNSC) would generate certain political and pragmatic benefits: resources; credibility and legitimacy; access to suspects, witnesses, and evidence; and the approval and participation of former adversaries, current allies, and other crucial international actors. At the same time, both secondary cases (Libya and Iraq) highlight circumstances in which USG officials viewed certain political and pragmatic aspects of multilateral initiatives as hindering, rather than helping, transitional justice processes. Where the primary targets of the atrocity included nationals of their own country, as in the bombing of Pan Am flight 103, USG officials preferred a unilateral, domestic response. And where key international actors were unsupportive of a multilateral initiative, as in Iraq, the USG disfavored such a configuration.

Path dependency stands out as a significant pragmatic and political factor, both among and between the pairs of ICTs (the IMT/the IMTFE and the ICTY/the ICTR). This pattern of path dependency compelled decision-makers to embrace existing, available models for enacting transitional justice. For each pair of ICTs, the latter’s existence and form were due in large part to the strong influence of its predecessor’s creation and design. In addition, path dependency arising from the IMT (and possibly also the IMTFE) narrowed the transitional justice option and design that the ICTY (and thus also the ICTR) would embody. Path dependency also propelled decision-makers to work within the forum already involved in the corresponding atrocities to pursue transitional justice. In the case of Germany and Japan, those fora were international alliances from WWII, and the UNSC played the same role in the case of the FRY and Rwanda.

Whether the USG already held suspected atrocity perpetrators in custody served as a further pragmatic factor driving its transitional justice decisionmaking. The political dynamics of the Cold War’s beginning and ending (particularly the relationship between the United States and the Soviet Union and then Russia) also feature prominently in transitional justice for Germany/Japan and the FRY/Rwanda, respectively.

In all four primary cases, a normative belief that at least some suspected atrocity perpetrators should be punished for their offenses shaped USG officials’ preferences. In the cases of Nazi and Japanese suspects from WWII, USG officials were also driven by the normative belief that convicted perpetrators should suffer capital punishment. When it came to Iraq and Rwanda, however, it appears that a normative belief in resolving the perceived tension between peace and justice in favor of the former temporarily dampened USG officials’ efforts to pursue punishment.

In three of the four primary case studies (Germany, Japan, and the FRY), the USG not only supported the creation of an ICT, but also simultaneously or sequentially supported non-legalistic transitional justice options for addressing suspected perpetrators of the same atrocities. For Nazis and Japanese, besides prosecutorial transitional justice options (the multilateral tribunals and unilateral trials), the USG supported amnesty and lustration. For individuals suspected of committing atrocities in the FRY, aside from the prosecutorial option of the ICTY, the USG temporarily supported amnesty. In each instance, the USG employed amnesty as a means of addressing known atrocity perpetrators the USG considered useful. In addition, the USG sought to prosecute alleged atrocity perpetrators from the FRY and Rwanda through an ICT after not doing so for near-contemporaneous atrocities concerning Libya and Iraq.

The remainder of this concluding chapter considers whether legalism or pru- dentialism provides a more compelling explanation for why and how the USG pursued transitional justice in this book’s six case studies.

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