Transitional Justice as a Special Case of International Cooperation
Transitional justice represents a unique collective action manifestation of international cooperation. As discussed above, many actors with myriad motives— states, NGOs, IGOs, and individuals—can be involved in transitional justice. However, as this book focuses on the U.S. role in transitional justice, the following discussion concentrates on state actors.
A. DILEMMA of Common INTEREsT oR INDIFFERENcE
Many international actors (e.g., IGOs, states, NGOs, peoples, individuals) involved in transitional justice agree (or purport to agree) that the goals of transitional justice (e.g., accountability of and punishment for atrocity perpetrators, post-conflict reconstruction and reconciliation) are desirable and that the international community should, if possible, cooperate to achieve them. Those who disagree unsurprisingly are often the potential targets of transitional justice. Opponents of transitional justice may also be strict realists who deprioritize or delegitimate such goals relative to order, security, or competing demands in other regions. Instead of the transitional justice objectives themselves, then, it is the application of those goals (i.e., the kind of transitional justice institution that should be established and the amount of resources that should be invested) that generally causes disagreement in the international community. Transitional justice is thus largely a “dilemma of common interest” or a “dilemma of common indifference,” not a “dilemma of common aversions.”14
This facet of transitional justice—that it is often either a “dilemma of common interest” or a “dilemma of common indifference”—yields important consequences. Unlike with some other issue-areas, such as climate change,15 the international community does not need to expend valuable time, especially as an atrocity is rapidly occurring, debating the merits of transitional justice principles. Instead, the international community usually can proceed to a discussion of whether and how to pursue such transitional justice. This more advanced starting point does not necessarily mean that transitional justice will be pursued; it only suggests that the debate about its pursuit begins further ahead of some other issue-areas.
Despite favoring transitional justice generally, some states may have principled or practical objections to, or preferences for, particular types of transitional justice. For instance, although each option arguably promotes the overarching transitional justice goal of accountability, some states may prefer to address suspected atrocity perpetrators through formal legal means, such as prosecution, whereas other states may prefer expedient political methods, such as exile, lustration, indefinite detention, or lethal force. (Some options, such as amnesty, may be legal, political, or both.) A state’s particular transitional justice option preference may depend on, among other considerations, whether the state is ideologically committed to a retributive or reconciliatory method of justice or a process that is strictly domestic versus one that involves the international community.