C. COMPARATIVE HYPOTHESES
One can use both legalism and prudentialism to generate hypotheses about when and why a state would support the establishment of a war crimes tribunal for trying alleged atrocity perpetrators. Some of these hypotheses are at odds, whereas others overlap.
Bass offers five propositions rooted in legalism concerning the origins of war crimes tribunals. The first and most significant, for purposes of this study, is the empirical claim that “it is only liberal states, with legalist beliefs, that support bona fide war crimes tribunals.”95 As discussed above, this claim is based on the legalist belief Bass ascribes to liberal states that “war criminals must be put on trial.”96 As applied to the case studies in this book, legalism thus would predict that, if the USG were to address suspected atrocity perpetrators from Germany, Japan, Libya, Iraq, the FRY, and Rwanda, its position as a liberal state would compel the use of a genuine judicial process. Moreover, the USG would have been motivated primarily to pursue legal methods out of a principled commitment to the rule of law. Legalism would also predict that no illiberal states would support authentic and valid prosecutorial responses to these—or other—conflicts.
Legalism makes other claims, as well, about states’ motivations to deal with suspected atrocity perpetrators. The theory’s second proposition is that “liberal states tend not to push for a war crimes tribunal if so doing would put their own soldiers at risk.”97 Third, legalism posits that “liberal states are more likely to be outraged by war crimes against their own citizens than war crimes against foreigners. The more a state has suffered, the more likely it is to be outraged.”98 Legalism’s fourth assertion is that “liberal states are more likely to support a war crimes tribunal if public opinion is outraged by the war crimes in question. And they are less likely to support a war crimes tribunal if only elites are outraged.”99 Finally, legalism claims that “nonstate pressure groups can be effective in pushing for a tribunal, by shaming liberal states into action and providing expertise.”100