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

The following table, Table 3.2, summarizes the comparative hypotheses of legalism and prudentialism.

As this book focuses on a lone liberal country, the United States, this book will not be able to fully test these hypotheses. Conclusions drawn from the case studies in the next four chapters will necessarily be limited to the United States.

table 3.2 Legalism Versus Prudentialism: Comparative Hypotheses

Legalism

Prudentialism

(1) Whether and how states pursue transitional justice?

States will consistently pursue transitional justice and will do so in the form of trials.

States will not necessarily formulate consistent policies on whether or how to pursue transitional justice.

(2) What types of states support bona fide war crimes tribunals?

“ [I]t is only liberal states, with legalist beliefs, that support bona fide war crimes tribunals.”

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.

(3) Types of transitional justice options states would support?

Liberal states would not support non-legalistic transitional justice options.

Any state—liberal or illiberal—may support non-legalistic transitional justice options.

(4) Types of legalistic transitional justice options states would support?

No prediction.

Any state—whether liberal or illiberal—may support variation in forms of prosecution.

(5) Impact of own soldiers at risk?

“[L]iberal states tend not to push for a war crimes tribunal if so doing would put their own soldiers at risk.”

No difference.

(6) Impact of own citizens suffering?

“[L]iberal 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.”

No difference.

(7) Impact of public opinion?

“[L]iberal 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.”

No difference.

(8) Impact of nonstate pressure groups?

“[N]onstate pressure groups can be effective in pushing for a tribunal, by shaming liberal states into action and providing expertise.”

No difference.

 
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