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

Overview of Transitional Justice Options and the United States Role in Transitional Justice

I. Introduction

This chapter provides background and context for U.S. policy on transitional justice by presenting the panoply of options for addressing suspected atrocity perpetrators and the U.S. experience with them.1 There are numerous and widely differing (in terms of purpose and design) transitional justice options that have been or could be created, and the USG has employed many of them. Transitional justice issues can be complicated and controversial because of the number, attractiveness, precedence, and pitfalls of the alternatives. This chapter therefore enumerates and describes various transitional justice options and explores their benefits and drawbacks. As Bass notes, states have contemplated or used a wide array of methods to deal with suspected atrocity perpetrators, including prosecutions through an ICT, executions on sight, en masse executions later, show trials followed by executions, exile, concentration camps, and amnesty. FDR and British prime minister Winston Churchill even suggested castrating suspected atrocity perpetrators in WWII.2 A more complete list includes the general options of and specific variations on inaction, lustration, amnesty, exile, indefinite detention, lethal force, and prosecution. Figure 2.1 displays these general transitional justice options, their various permutations (except for prosecution), and how they interrelate. Figure 2.2 displays specific prosecutorial transitional justice options, their various permutations, and how they interrelate.

As this book documents, the political and pragmatic context, as well as U.S. officials’ normative beliefs, make some transitional justice options more appealing to the USG than others, including those options the USG has previously supported. Indeed, as displayed in Figure 2.3, especially since September 11, 2001, the USG has favored four general transitional justice options—inaction, indefinite detention (primarily in Guantanamo Bay, Cuba), lethal force (especially

Transitional Justice Options Tree for Suspected Atrocity Perpetrators—General

figure 2.1 Transitional Justice Options Tree for Suspected Atrocity PerpetratorsGeneral.

Transitional Justice Options Tree and Table for Suspected Atrocity Perpetrators—Prosecution

figure 2.2 Transitional Justice Options Tree and Table for Suspected Atrocity Perpetrators—Prosecution.

U.S. Government Transitional Justice Options Tree for Suspected Atrocity Perpetrators—Since 9/11

figure 2.3 U.S. Government Transitional Justice Options Tree for Suspected Atrocity Perpetrators—Since 9/11.

through drone strikes), and prosecution (through military commissions and civilian courts)—as methods of responding to suspected atrocity perpetrators.

The IMT and the IMTFE represent the only U.S. experience with prosecution through multilateral military war crimes tribunals. The American role in other transitional justice institutions and processes is noted and explored in this chapter, although these experiences are much less important than the IMT and the IMTFE for establishing precedent and serving as models for the ICTY and the ICTR. Investigating the factors that drove the USG to back the IMT, the IMTFE, the ICTY, and the ICTR is all the more interesting, considering that those options were somewhat unprecedented and conceptually distinct from other past, contemporaneous, and future USG decision-making regarding transitional justice, including USG consideration of and support for a variety of prosecutorial and non-prosecutorial options.

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