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

Prudentialism does not dispute the second, third, fourth, or fifth propositions of legalism. Concerning the second proposition, both theories would suggest that if apprehending and then trying suspected atrocity perpetrators from Germany, Japan, Libya, Iraq, the FRY, or Rwanda would have imperiled American soldiers, then the USG likely would not have supported the establishment of corresponding ICTs. Relating to the third proposition, both theories agree that the USG would have been more motivated to establish tribunals to prosecute Germans, Japanese, and Libyans than Iraqis, Yugoslavs, and Rwandans. After all, Americans fought in WWII and suffered casualties at the hands of Germans and particularly the Japanese (e.g., Pearl Harbor, Bataan Death March) and Americans flew on Pan Am flight 103. On the contrary, Americans were not the target of atrocities committed in Kuwait, the Balkans, or Rwanda. With respect to legalism’s fourth and fifth claims, legalism and prudentialism would again find agreement. Both theories allow for the possibility that the USG would be more inclined to support the establishment of an ICT for those conflicts concerning WWII, Libya, Iraq, the FRY, and Rwanda about which public opinion expressed outrage. Moreover, both theories allow for the possibility that the USG would be more inclined to support the establishment of an ICT where NGOs lobbied for the establishment of some sort of transitional justice institution and provided expertise. Within the prudentialist framework, this possibility would arise when supporting the establishment of the ICT is consistent with the USG’s independent balancing of relevant politics, pragmatics, and normative beliefs. As discussed above, states could use ICTs to share information and expertise. Thus, prudentialism would intimate USG support for such a transitional justice institution if it provided this pragmatic benefit, so long as other relevant political dynamics and normative beliefs were not impaired.

According to prudentialism, however, any state—liberal or illiberal—may support bona fide war crimes tribunals, and would do so not out of a principled commitment to pursuing justice through the rule of law, but as a result of a case- specific balancing of politics, pragmatics, and normative beliefs. This hypothesis directly contrasts with legalism’s first proposition. The following table, Table 3.1, compares the empirical claims and causal logics of legalism and prudentialism.

When prudentialism’s empirical claim and causal logic is applied to this book’s case studies, the USG would have supported or led the establishment of the IMT, the IMTFE, the ICTY, and the ICTR if it believed that, in each case, the benefits to the United States of the relevant politics, pragmatics, and normative

table 3.1 Legalism Versus Prudentialism: Empirical Claims and Causal Logics

Legalism

Prudentialism

Empirical claim: Type of state that supports bona fide war crimes tribunals?

Only liberal states, never illiberal states.

Any state—liberal or illiberal.

Empirical claim: Consistency in whether and how liberal states pursue transitional justice?

Yes.

No.

Causal logic?

Leaders of liberal states have legalistic beliefs: it is correct and necessary for suspected atrocity perpetrators to be prosecuted.

Case-specific

balancing:

  • (1) Normative beliefs,
  • (2) Politics, and
  • (3) Pragmatics.

beliefs outweighed their costs. The relevant explanations would thus find no or only partial purchase in the profound moral convictions that legalism claims drive liberal states to act in such contexts. Conversely, prudentialism holds, the USG would support alternative transitional justice options for Germany, Japan, Libya, Iraq, the FRY, and Rwanda (e.g., inaction) if the benefits of supporting such options outweighed their costs. For example, the USG may have calculated such a significant strategic benefit in working with alleged atrocity perpetrators from those conflicts that prosecution would prove too costly. Prudentialism also allows for the possibility that illiberal states would support the IMT, the IMTFE, the ICTY, and the ICTR, because this transitional justice option emerged as the most preferable after a case-specific balancing of political factors, pragmatic features, and normative beliefs. Moreover, prudential- ism predicts that this case-specific balancing would lead the USG to support different forms of prosecution, as described in the previous chapter, whereas legalism contains no such insight.

Unlike legalism, prudentialism does not generate a hypothesis about whether a specific type of state would support ICTs. If a state did not believe that an ICT would serve as a useful precedent or that its establishment was not inevitable, that state would be less compelled to play a role in its creation. More important, if a state believed that an ICT would negatively affect its economic or political interests, the state might resist supporting the ICT’s creation. One potential negative consequence to a state of contributing to the formation of an ICT would be if the tribunal’s jurisdiction extended to the supporting state’s citizens and actions. If jurisdiction were that broad, the state might decide not to become involved in— or might actively work to undermine—the establishment of that ICT. In doing so, the state may seek to protect its sovereignty or to preserve its ability to decide unilaterally how, if at all, to address atrocities allegedly committed by its citizens and/or within its borders. Overall, when states—liberal or not—abjure from supporting a given tribunal, prudentialism asserts that promoting the rule of law takes a back seat to a cost-benefit analysis in which the state’s interests are assigned primary weight.

 
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