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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. CASE STUDY SELECTION

I have deliberately selected six 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), consistent with case study selection theory,81 based on seven criteria. First, the number of case studies—six—is large and varied enough to take into account certain trends in USG policy on transitional justice while being sufficiently manageable for rigorous analysis within this book’s space constraints. Such a “small-N” study therefore allows me “to introduce nuance and complexity into the understanding” of transitional justice.82 The set permits comparative analysis and avoids the pitfalls of single case study research, such as misinterpreting multivariate causation.83

Second, I have chosen the IMT, the IMTFE, the ICTY, and the ICTR for their historical innovation (they were the first ICTs), their precedential value (as both legal and political institutions), and the challenges accompanying their creation. Furthermore, any analysis of the ICTY and the ICTR necessarily requires a corresponding study of the objectives and institutional design relating to the establishment of the IMT and the IMTFE, as I argue that the ICTY and the ICTR are modeled primarily on them. As these four tribunals are not entirely isolated developments, they should be considered together, as I do in this book.

Third, my research also reveals that USG policy objectives on transitional justice issues in the immediate aftermaths of WWII and the Cold War were similar and interrelated. For example, USG officials pursued many of the same transitional j ustice objectives in each case and j ustified doing so by referring to the government’s precedent. Consequently, studying these transitional justice situations collectively provides a more complete picture of the motivations driving the USG role in designing and establishing such institutions.

Fourth, I have chosen the six cases in part for the overlapping historical eras in which they were created. For example, each contemporary pair of tribunals (the IMT and the IMTFE, and the ICTY and the ICTR) was established in a separate two-year time frame (1945-1946 and 1993-1994), corresponding with the administrations of Presidents FDR and Truman, on the one hand, and President Clinton, on the other. When comparing contemporary pairs of ICTs, it is possible to analyze transitional justice during periods when much of the political, social, and economic landscapes (particularly domestically in the United States) remained the same. Thus, it is feasible to hold some variables during those eras relatively constant in order to better determine key factors influencing USG policymaking on transitional justice. In other words, because the two pairs of ICTs were created almost simultaneously and under similar conditions, I can isolate more credibly the elements leading to certain ICTs.

Fifth, these transitional justice situations occurred during great upheavals in global affairs. For example, each coterminous pair of tribunals was fashioned as a radical shift in the international structure emerged—the IMT and the IMTFE were created as the international system evolved from multipolarity to bipolarity, and the ICTY and the ICTR were established as the international system changed from bipolarity to unipolarity.84 As such, it is possible to explore how, if at all, such revolutionary changes in world politics influenced U.S. policy on transitional justice in these cases.

Sixth, the particular forms of the four ICTs investigated were unprecedented and conceptually different from prior transitional justice institutions, even within overlapping pairs. This variance (including why the USG supported it) needs explanation. The IMT and the IMTFE were the first and only ad hoc multilateral military war crimes tribunals yet were different from each other in important ways (as explored in Chapters IV and V).85 The ICTY and the ICTR are the first and only purely international ad hoc war crimes tribunals (as opposed to, for example, hybrid UN/successor state war crimes tribunals, such as the SCSL and the ECCC, or the world’s first permanent ICT, the ICC) to have been established through the UNSC acting under Chapter VII of the UN Charter. However, the ICTY and the ICTR certainly differ along several dimensions (as discussed in Chapters VI and VII).

Finally, because of the requisite passage of time, relevant primary documents from each of the six case studies could be declassified. In addition, USG policymaking on Libya, Iraq, the FRY, and Rwanda occurred recently enough (in the 1990s) that it was also possible to conduct interviews with key decision-makers and observers.

Some suggest that deliberately selecting cases based on the dependent variable undermines the quality of the analysis.86 In each of this book’s four primary cases (Germany and Japan in the immediate aftermath of WWII and the FRY and Rwanda in the immediate aftermath of the Cold War), an ICT, with a limited range of variation, was established following an atrocity; thus there is little variation in these outcomes. However, as the goal of this book is to analyze actual instances of the outcome studied (including variation across outcomes in which an ICT emerged), it is necessary to study these types of cases.87 In addition, because instances in which such outcomes did not occur can provide additional insight into policy choices and underlying motivations, the book also explores such occurrences both within and outside the four primary cases. Chapters II and III consider state motivations about whether to confront suspected atrocity perpetrators, whereas Chapters IV, V, and VI discuss Nazis, Imperial Japanese, and Serbs who were not addressed immediately or at all through ICTs. Moreover, Chapter VI investigates why an ICT was not established following atrocities concerning Libya and Iraq.

Though I have chosen the six case studies because they are representative of responses to atrocities in many ways, they are unrepresentative in one crucial way. The atrocities examined in this book were state-sponsored or, in the case of Libya,88 were suspected of being such. Considering the impact of al-Qaeda, Daesh (also known as the Islamic State of Iraq and the Levant (ISIL) and the Islamic State of Iraq and Syria (ISIS)), associated or copycat groups, and other nonstate actors, future research should also explore U.S. policy on transitional justice as responses to atrocities, such as terrorist attacks, that are not state-sponsored.

 
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