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

Recent events have reinforced the salience and impact of transitional justice, and the more specific issue of what drives USG policy in that domain. Which transitional justice option is chosen to address a particular atrocity matters both to the states and societies directly involved as well as to the international community as a whole. For example, in response to the Rwandan genocide, the international community (through the UNSC acting under Chapter VII of the UN Charter) established the ICTR, which claimed primary jurisdiction,54 or the right to decide which cases it would prosecute. Consequently, the international community could prosecute whomever it chose, and, regardless of its own preferences, the Government of Rwanda (GoR) was required to defer to and abide by the international community’s preferences over the number and identity of defendants as well as the logistical features of the trials and any punishment.

To be sure, the importance and consequences of the varying transitional justice options remains a controversial topic. For example, when debating which transitional justice option to pursue in response to a recent atrocity (in Darfur), some suggested that what mattered was merely “doing something.” Others argued that the transitional justice option chosen was crucial because it effectively determined otherwise sovereign decisions, namely when, where, how, which, and by whom suspected atrocity perpetrators would be brought to justice.55

The ICC, which was established by the Rome Statute in 1998 and which officially launched in 2002,56 is currently investigating atrocities allegedly committed in eight countries—the Central African Republic (CAR), Cote d’Ivoire, the Democratic Republic of Congo (DRC), Kenya, Libya, Mali, Sudan, and Uganda57—and is currently conducting preliminary investigations in nine other situations—Afghanistan, Colombia, Georgia, Guinea, Honduras, Iraq, Nigeria, Palestine, and Ukraine.58 In each case, as well as in some others, the international community has considered whether, how, and when to address the suspected perpetrators of these atrocities. This book’s analysis of why the United States supported the establishment of past transitional justice institutions therefore may illuminate how and why decision-makers reach their transitional j ustice policies in the present day.

Transitional justice has also caught the attention of current U.S. foreign policymakers. The USG’s priorities and distribution of resources with respect to conflicts and post-conflict situations help determine decision-making on transitional justice. Particularly since the events of September 11, 2001, the USG has contemplated how to address suspected terrorists, foreign government

(e.g., Iraqi Ba’ath Party) leaders, and suspected atrocity perpetrators in its own military and civilian command. The U.S.-led campaign to combat terrorism (formerly known as the “Global War on Terror”) has focused on efforts to prevent, mitigate, and stop terrorism, including through attempts to capture or kill members of al-Qaeda and other transnational terrorist groups. Though some are unlikely, Scheffer theorizes that there are at least nine judicial fora that the USG could use to prosecute suspected terrorists (some of whom are being detained indefinitely in a U.S. military facility in Guantanamo Bay, Cuba). These options include civilian and military courts within the United States or abroad, ad hoc ICTs established by the UNSC or the UN General Assembly (UNGA), a coalition treaty-based criminal tribunal, and a special Islamic court.59 Before settling in December 2003 on an Iraqi-led war crimes tribunal (as opposed to a hybrid or international tribunal), the USG considered various options for handling captured Iraqis (including Saddam Hussein), such as exile, assassination, a war crimes tribunal that was either unilateral or multilateral, and a domestic truth commission.60

Finally, the USG has become embroiled in a controversy over whether and how to handle cases involving Americans accused of committing atrocities (particularly war crimes, crimes against humanity, and torture). Such cases have included suspected abuses against civilians in Haditha, Iraq, as well as against inmates at the Abu Ghraib prison in Iraq, the Bagram Air Base in Afghanistan, and the U.S. military detention facility at Guantanamo.61 This controversy stems from the fact that no institution outside the USG, including the ICC and the ICJ, has clear jurisdiction, leaving the USG complete latitude to make its own decisions. Such discretion has been criticized for being too lenient on American citizens and too harsh on foreigners.

The contemporary debate within the United States about whether and how to bring suspected terrorists and other alleged atrocity perpetrators to justice has sparked controversy over military tribunals/commissions, with commentators debating whether they are—or are even perceived to be—legal and/or just, and, regardless, what the consequences of using them might entail.62 This debate also occurs against the backdrop of the USG’s decision not to ratify the treaty that established the ICC, the international community’s only permanent transitional justice institution and the one with the greatest territorial jurisdiction.63 With these issues not fully resolved, in 2008, the administration of President George W. Bush (Bush, Jr.) opened the first war crimes trial since WWII, against Salim Hamdan,64 who was subsequently transferred to his home country of Yemen and released.65

At least two U.S. Supreme Court rulings relevant to the case studies explored in this book directly concern and are often cited in these matters. In the 1942 case of Ex parte Quirin, the Court held that the USG could lawfully constitute and use military commissions to try alleged war criminals.66 Six years later, in his concurring opinion in Hirota v. MacArthur, Associate Justice William O. Douglas offered a prescient warning, one crucially relevant to current events. Justice Douglas argued that the Court’s denial of motions by those convicted by the IMTFE for leave to file petitions for writs of habeas corpus

would have grave and alarming consequences ... . Tomorrow or next year an American citizen may stand condemned in ... a military court or commission. If no United States court can inquire into the lawfulness of his detention, the military have acquired, contrary to our traditions . a new and alarming hold on us ... . It leaves practically no room for judicial scrutiny of this new type of military tribunal which is evolving. It leaves the power of those tribunals absolute. Prisoners held under its mandates may have appeal to the conscience or mercy of an executive; but they apparently have no appeal to law.67

Justice Douglas, while agreeing with the majority that the Court has “no authority to review the judgment of an international tribunal,” nonetheless foreshadowed the USG’s reluctance to embrace the ICC, noting his concerns with allowing U.S. citizens to be tried and convicted by an international tribunal without the right to challenge in domestic courts that tribunal’s legality, jurisdiction, procedures, verdict, or sentencing.68

But contemporary interest in policymaking concerning transitional justice is not limited to foreign affairs. In 2014, the deans of Yale and Harvard law schools jointly cited transitional justice institutions abroad in suggesting reforms to the American legal system.69

The central contribution of this book is to understand how and why the USG has developed its transitional justice policy. I document the history of and key issues in the USG’s preference for or opposition to various transitional justice options, including the USG role in establishing four ICTs—the IMT, the IMTFE, the ICTY, and the ICTR. In so doing, I demonstrate that, although many options for addressing transitional justice have theoretically been available to the USG, it has considered and ultimately supported only a fraction of these alternatives. This book explains what dynamics made some options more attractive than others and how larger issues (e.g., the nature of crimes) factor into the formulation of USG responses to certain atrocities. In addition to explaining past U.S. foreign policymaking, my research helps illuminate paths that the USG might take in the aftermath of future atrocities, and what the USG’s preferences are likely to be regarding various transitional justice options.

 
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