Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
Recent efforts to bring to justice suspected perpetrators of atrocities in various countries (e.g., Burma, Burundi, Cambodia, the CAR, Chad, Chile, the DRC, East Timor, the FRY, Iraq, Kenya, Liberia, Libya, Mexico, Nigeria, Rwanda, Sierra Leone, South Sudan, Sudan, Syria, Uganda, the United States36) and by certain transnational groups (e.g., al-Qaeda, Daesh/ISIS/ISIL, Lord’s Resistance Army) demonstrate how relevant and crucial issues of transitional justice are today, and, unfortunately, will remain for the foreseeable future. As a result, it is all the more important to determine which theories best explain transitional justice decision-making.
Legalism, Bass contends, is a compelling theory for explaining transitional justice decision-making. He concludes in his book:
The actions of liberal states . . . cannot be explained convincingly without an account of their principled ideas. Liberal states have taken a legalistic approach to the punishment of war criminals, even when so doing has greatly complicated international diplomacy. If the historical episodes in this book are typical, then legalism seems to arise exclusively in liberal states, ones where civil rights are respected at home.37
On the contrary, as this book has shown, the actions of a prominent liberal state, the United States, cannot be explained convincingly without taking into account political and pragmatic factors, as separate from normative beliefs. At least this single liberal state has taken a prudentialist approach to the punishment of war criminals. Even if the historical episodes in Bass’s book—and particularly if the historical episodes in this book—are typical, then prudentialism seems to arise at least in the United States, regardless of the extent to which the USG respects civil rights at home.
Despite the power of legalism in explaining transitional justice policy in some cases, there are a number of factors for which Bass’s theory cannot account. First, legalism does not account for why some liberal states (e.g., the United States) often seriously consider and even pursue non-legalistic transitional justice options instead of or in addition to legalistic transitional justice options.
Second, legalism does not account for the fact that, even in instances where liberal states have instituted war crimes trials, those trials have not applied to all suspected atrocity perpetrators from the same conflict. In other words, legalism does not account for what transitional justice options liberal states seriously considered or, more importantly, actually implemented to address suspected atrocity perpetrators beyond the few prosecuted by war crimes tribunals.
Third, with its general suggestion that liberal states support bona fide war crimes trials, legalism fails to explain which of the many types of war crimes trials or tribunals a liberal state would support in a given context. There are myriad legalistic transitional justice options, and legalism does not theorize why liberal states sometimes prefer one to another.
Finally, legalism does not acknowledge that illiberal states such as the Soviet Union (one of the most illiberal in history) have, in fact, supported what even Bass considers to be bona fide war crimes trials.
In contrast to legalism’s hedged claim—that liberal states “tend to be legalist”— given how seldom war crimes trials or tribunals have been established and used, it appears that at least one liberal state, the United States, tends not to be legalist. And when the USG occasionally does institute legalistic transitional justice options, it does not necessarily do so out of any principled commitment to the rule of law. Instead, drawing from this book’s six case studies, prudentialism offers a more robust and accurate explanation for the USG’s transitional justice policies.
Although Bass makes at least three concessions about his theory of legalism, these admissions are so central and critical that they in fact severely undermine his theory. These concessions indicate that even those who subscribe to legalism acknowledge strategic factors in liberal states’ decision-making with respect to supporting the establishment of war crimes tribunals. First, Bass recognizes the political nature of transitional justice decisions, implicitly conceding that a principled commitment to the rule of law is not the only—or perhaps even primary— rationale behind liberal authorities confronting suspected atrocity perpetrators. Second, Bass grants that endangerment of their own soldiers dampens, whereas victimization of their own citizens spurs, liberal states’ desires to prosecute suspected atrocity perpetrators. Third, Bass confesses the limits of legalism in explaining British policy regarding transitional justice of Nazis after WWII despite unpersuasively dismissing this occurrence as “an uncomfortable exception.”
To paraphrase a critique of Democratic Peace Theory,38 Bass’s admission that “the selfishness of states, even of liberal ones,”39 and other non-legalistic factors matter to states’ transitional justice policies is a concession from legalism’s architect that not only gives the game away to but ends the game decisively in favor of prudentialism.
Given that prudentialism is the more explanatorily powerful theory about the cases of U.S. policy on transitional justice investigated in this book, what implications can be drawn for the future? The USG is unlikely to take a principled or consistent approach to transitional justice. Rather, the USG will prioritize political and pragmatic factors, particularly concerning security. The USG will thus continue to vary its support across and within the panoply of legalistic and nonlegalistic transitional justice options.
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