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Types of Prosecution

One of legalism’s “basic questions” is: “What makes governments support international war crimes tribunals?”32 But that question neglects the multitude of tribunal designs, as discussed in Chapter II and as illustrated in Chapters IV, V, VI, and VII. This book has sought to determine not only what made a particular government—the USG—support ICTs in general, but also why the USG supported specific types of ICTs over time. This additional question is one of the most important ways in which prudentialism differs from legalism.

As a theory, legalism offers only general propositions; it does not offer an explanation for the more particular policy choices liberal states make in the realm of transitional justice. Bass’s work refers very generally to “war crimes tribunals,” but does not seek to specify the particular forms they can take. As discussed in Chapter II (and illustrated in Figure 2.2), there are several different types of prosecution, including a variety of war crimes tribunals (e.g., through versus outside the UN, military versus civilian courts, unilateral versus multilateral scope, with or without the successor regime, domestic versus international versus hybrid construct). A liberal state could pursue—and many liberal states, including the United States, have pursued—any one of these types of tribunals. The type of prosecution dictates which authorities are involved and what procedures and penalties they employ. These features, in turn, determine whether the different forms of prosecution are—and are perceived to be—legal and just in addition to the consequences of using them. For example, as discussed in Chapters IV and V, alongside the IMT and the IMTFE, respectively, the USG and the other quadripartite Allies imposed unilateral prosecution on their defeated Axis enemies.

Prudentialism contends that liberal states, if they choose to prosecute suspected atrocity perpetrators at all, do so not out of a principled commitment to the rule of law, as legalism argues. Rather, prudentialism asserts that when seeking to try alleged atrocity perpetrators, states impose a case-specific balancing of three factors—politics, pragmatics, and normative beliefs—to decide among the various types of war crimes tribunals and other prosecutorial transitional justice options. As this book uncovered, the USG was motivated by a combination of these three factors in deciding (1) whether to support a war crimes tribunal, and (2) if so, which type of war crimes tribunal.

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