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

A fifth quality of transitional justice is that many consider it a “low politics” issue, like social matters. The fact that transitional justice does not rank as a vital interest to most states means that other issues, such as the protection of national security, often assume higher priority.21 As a result, when resources and time are limited, a government will pursue transitional justice after other state goals, and so transitional justice may not be pursued at all.

f. free riders

A sixth characteristic of transitional justice is that it can present a problem of free riders. Transitional justice involves costs: evidence collection, suspect apprehension, case development, staff salaries, and infrastructure building, among others. States or societies emerging from an atrocity may receive assistance along the path from conflict to peace, including through addressing suspected atrocity perpetrators. Furthermore, the entire international community may receive benefits when transitional justice bolsters the rule of law and, especially if accountability and punishment are involved, future atrocities are deterred. Good-faith actors operating in the international community thus have an interest in promoting transitional justice, yet relatively few actors actually contribute to its achievement. As a result, some actors in the international system accrue positive externalities of transitional justice without shouldering any of the expenditures, whether because they are unwilling or unable. These actors free-ride within the system.

As transitional justice can generate free-riding, this quality, like that of creating a “dilemma of common interest” or a “dilemma of common indifference,” is highly consequential. First, the free-rider problem can overburden those actors willing and able to shoulder the costs of transitional justice. Second, free-riding can breed resentment among those actors who incur the expenses against those actors who do not. Third, free riders may criticize a transitional justice process as illegitimate. Without all relevant and capable actors in the international community contributing to transitional justice efforts, the transitional justice process may be severely undermined. Some states may withdraw from the process, perhaps leaving a transitional justice institution stillborn. Observers may criticize the process for not garnering broader or even universal support. As a result, transitional justice may lack sufficient backing or credibility, which may in turn require the process to be amended or even abandoned.

 
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