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


Examining USG policy on transitional justice is important for several theoretical reasons. First, a conspicuous disparity exists between the analytical emphasis regarding, on the one hand, U.S. policy with respect to military intervention and, on the other hand, whether and how the United States is involved post-conflict.42 However, the baseline question of what U.S. foreign policy is with respect to postconflict reconstruction and reconciliation in general, and to transitional justice in particular, is a crucial and recurring one.

Second, the nature of U.S. foreign policy differs across the six transitional justice cases (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) and therefore requires explanation. A precise form of transitional justice the USG supported in each of the four primary case studies (Germany, Japan, the FRY, and Rwanda)—an ICT—shared some characteristics, given that each (1) used prosecution instead of—or in addition to—other transitional justice options; (2) was multilateral rather than unilateral;43 (3) focused on only a few dozen of the suspected atrocity leaders; (4) commenced within a few years after the relevant atrocities occurred; and (5) operated on or near the site of the relevant atrocities. But the two contemporary pairs of ICTs (the IMT and the

IMTFE, and the ICTY and the ICTR) also differed crucially. For example, in the case of the first pair, the USG supported separate, ad hoc, narrowly multilateral (limited to just the victors of WWII rather than a broader international consortium), military tribunals, which could institute capital punishment, and which operated outside the auspices of the nascent UN. Judicial decisions of the IMT (in which only four states supplied judges and prosecutors) could not be appealed, while those of the IMTFE (in which eleven states were represented as judicial and prosecutorial officials) could be. The ICTs of the immediate post-Cold War period broke with the design precedent established by the IMT and IMTFE by involving the UN Security Council (UNSC) as the overall administrator of the transitional justice mechanism. The ICTY and the ICTR also deviated from the IMT and the IMTFE by foreclosing a particular punishment, the death penalty, which the USG employs domestically. Furthermore, unlike the IMT and the IMTFE, the ICTY and the ICTR were not completely separate. After the ICTR was established, the two ad hoc UN tribunals overlapped bureaucratically, although the degree changed over time (as discussed in Chapters II and VII). The question is why, even though each of these four ICTs was established as a transitional justice response to a mass atrocity, the USG supported design mechanisms that were similar across certain dimensions but different across others.

Furthermore, in exploring the nature of USG policy on transitional justice, it is crucial to understand certain “puzzles,” that is, counterintuitive, inconsistent, or surprising developments in the design and establishment of these ICTs. For example, why did the USG withdraw its initial support for extrajudicial execution in favor of prosecution as the method for handling the principal suspected atrocity perpetrators from Nazi Germany? Why did the USG provide amnesty to thousands of Japanese suspected of committing atrocities, including against Americans, during WWII? Why did the USG support the establishment of an ICT to address atrocities in the FRY but not contemporaneous atrocities allegedly involving Libya and Iraq? And why did the USG support an ICT for Rwanda that would be tied to the ICTY despite genuine concerns about the ICTY’s precedent and operations?

Third, studying the reasons the USG supported particular transitional justice options is critical to understanding the development of international law during and immediately after the Cold War as well as relations among states both outside and inside the UNSC. The four ICTs are particularly significant in this respect in two ways. First, the tribunals specifically addressed atrocities in Central Europe, East Asia, and sub-Saharan Africa. Second, the tribunals generally influenced post-atrocity activities in those regions. These four ICTs also have established important legal, political, and moral precedents: they have served as models for the design of subsequent war crimes tribunals, such as the Special Court for Sierra Leone (SCSL), the ICC, the Iraqi Special Tribunal

(1ST), the Special Tribunal for Lebanon (STL), and the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (ECCC). The IMT, the IMTFE, the ICTY, and the ICTR—on which vast resources were or have been expended—also have contributed significantly to the development of international criminal jurisprudence.

Finally, my analysis of competing explanations for USG behavior toward transitional justice carries implications for theoretical debates in international relations and international law. Transitional justice is an important subject for both disciplines.44 More specifically, this project provides an opportunity to explore how both international relations theories focused on institutional design as well as foreign policy analysis apply to the cases of the IMT, the IMTFE, the ICTY, and the ICTR. A rich literature exists on why states, particularly powerful states, create international institutions. That literature focuses primarily on traditional economic and security concerns.45 This book explores states’ creation of a comparatively new category of institutions: those concerning transitional justice. Furthermore, holding individuals, in addition to states, accountable for atrocities is a relatively recent phenomenon in international relations. The International Court of Justice (ICJ), the principal judicial organ of the UN established in 1946 to succeed the Permanent Court of International Justice, can only hear cases between states,46 whereas the IMT (1945), the IMTFE (1946), the ICTY (1993), the ICTR (1994), the ICC (1998), the SCSL (2000), the ECCC (2001), the IST (2003), and the STL (2007) were established to prosecute individuals.47 As a result, this study constitutes one of the few efforts to explain state behavior with respect to this trend.48 Unlike some of the existing literature,49 however, this book focuses on more than merely a single transitional justice institution or context. And unlike some other existing literature,50 this book concentrates on the particular role of the USG in transitional justice. The only other book to date focusing specifically on U.S. foreign policy on transitional justice centers on different case studies and reaches other conclusions.51

As my research deepens our understanding of how the USG has addressed suspected atrocity perpetrators from Europe, East Asia, the Middle East, and Rwanda, students of the history of the United States and each of those regions also will benefit from this analysis. The transitional justice institution(s) implemented in each case impacted post-conflict reconstruction and reconciliation, which have been critical historical drivers in each region. Better understanding of those dynamics is especially crucial in the case of the IMTFE. Considering that the IMTFE comprised eleven states representing more than half of the world’s population, and also given that institution’s role in addressing some of the most egregious atrocities perpetrated during WWII, this ICT showcased, according to one of its prosecution staff members, “one of the most important trials in world history.”52 And yet there is a relative dearth of scholarly analysis about this particular institution.53

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