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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics
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III. Traditional International Relations Theories

This Part considers what the traditional international relations theories of realism and liberalism would posit about transitional justice issues.39 Neither theory, as originally formulated, specifically discusses transitional justice, nor does either theory specify conditions under which a state would support particular types of transitional justice options. However, each theory does speak to related issues. Part IV then discusses prudentialist and legalist variants of these two theories.

A. REALISM

The international relations theory of realism is, according to political scientist William Wohlforth, a “centuries-old foundational school of thought.”40 With its stated focus on how international relations actually operates, rather than how it should, realism posits a state-centric worldview in which the anarchic international system compels states, as rational unitary actors, to seek power and security. Realism is deeply skeptical of the role that international law plays in influencing state behavior; realists view international rules and norms as epi- phenomenal. There are several variants of realism, such as classical realism41 and neorealism.42 Classical realists assert that states seek power, whereas neorealists argue that states seek security—with power as only a means to that end.43

Realism has enjoyed a long and prominent place in U.S. policymaking, especially on foreign affairs. Modern realist foreign policymakers include George Kennan and Henry Kissinger. Kennan, the architect of the USG’s Cold War containment policy, cautioned against U.S. policymaking that was grounded in what he called “the legalistic-moralistic approach to international relations.”44 As Bass points out, Kissinger, in his epic review of diplomacy (published in 1994, but before the Rwandan genocide), never once mentions the IMT (nor, would I add, does Kissinger mention the IMTFE or the ICTY).45 Apparently, Kissinger—a skeptic about the significance and utility of international law and institutions— did not think that ICTs merited mention in even a voluminous tome on international relations.

Realists should be presumptively skeptical of ICTs’ value. Citing philosopher and political scientist Raymond Aron and other realist theorists and practitioners, Bass notes that realism levies two significant criticisms against war crimes trials: “such efforts will perpetuate a war, or destabilize postwar efforts to build a secure peace.”46 Recognizing that the pursuit of transitional justice may and often does compromise the maintenance of international security, realists argue for what they believe to be more productive methods of dealing with suspected atrocity perpetrators than, say, ICT-convened trials. Such a prosecutorial strategy, according to Snyder and Vinjamuri, “risks causing more atrocities than it would prevent, because it pays insufficient attention to political realities.”47 Because convictions cannot be guaranteed, realists would question the wisdom of risking scenarios in which international criminals are freed. Also, as trials can be expensive, complicated, and lengthy, realists would doubt that they are the most efficient use of resources. This concern is especially compelling when a state that would otherwise cooperate in establishing and operating an ICT already shoulders the burdens of halting the atrocity in which the accused criminal was involved and providing aid for post-conflict reconstruction. Because international criminals also might be useful in some way, such as in promoting post-conflict peace and order, realists also would hesitate to punish them immediately or automatically and therefore foreclose the possibility of having those individuals serve as potentially helpful interlocutors and collaborators.

Realism, of course, allows for the possibility that states, especially hegemons, will support the establishment of ICTs if doing so would further state interests. More specifically, supporting the creation of ICTs could, as discussed above, promote international security and cooperation in a region of importance to that state, or it could enable countries such as the United States to solidify their hegemonic positions. Alternatively, realists might concede that cooperating to create an ICT would occur as long as such a move does not threaten a state’s material interests. If, for example, the creation of an ICT did not upset the distribution of power in the international system, which it would be unlikely to do, or if the ICT’s financial and staffing requirements were not too great, then U.S. willingness to cooperate on such transitional justice, according to realists, should not necessarily be inhibited.

 
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