This book reveals several crucial examples in which liberal states did not seek to investigate, apprehend, prosecute, and, when convicted, punish suspected atrocity perpetrators. Those examples undermine Bass’s legalist claims that—in reference to, among other situations, the IMT, the IMTFE, the ICTY, and the ICTR—rather than “merely to purge[,] ... [victorious liberals saw their foes as war criminals deserving of just punishment.”4
As discussed in four of this book’s six cases (Germany, Japan, Iraq, and the FRY), the USG (and, to varying extents, other liberal states) sought nonprosecutorial transitional justice options for many—i ncluding some of the worst—suspected atrocity perpetrators. Bass asserts that “at the end of America’s most brutal war ever, the Germans would be accorded the benefit of legal procedure as it had evolved in America ... .”5 Overall, Bass claims, “legalism meant that, at the end of the greatest conflagration in human history, the victors extended the protection of due process to their defeated enemies in Nuremberg and Tokyo.”6 Although it is true that the victorious Allied powers extended the protection of due process to a few dozen of their defeated Axis enemies via the IMT and the IMTFE as well as to others through related unilateral war crimes trials, most of the Allies’ other Axis enemies were not treated similarly. As discussed in Chapters IV and V, the USG not only deliberately granted amnesty to, and even employed, thousands of Axis scientists and officials, but also broadly instituted lustration throughout postwar Germany and Japan.
Bass makes a similar claim with respect to atrocities committed in the 1990s. He asserts that “[w]hen war and massacre tore apart Yugoslavia and Rwanda, the reaction of the great liberal powers was legalist.”7 It is true that the United States and several other liberal-state members of the UNSC reacted to those atrocities— in part—by establishing the ICTY and the ICTR. This book substantiates Bass’s claim about Rwanda, since the USG did not support non-l egalistic transitional justice options in that case. However, this book repudiates Bass’s claim about the FRY, where, as with during the immediate post-WWII era, the response of intervening states included non-legalistic options. As discussed in Chapter VI, the USG may have granted conditional amnesty and did implicitly grant unconditional amnesty to alleged and indicted atrocity perpetrators in the FRY. And around the same time (as also discussed in Chapter VI), the USG explicitly offered Saddam Hussein, who directed atrocities against Kurds and Kuwaitis, amnesty in exile.
Bass partly acknowledges the limits of his theory. “Even the British government,” he states, “soured on trials by Leipzig, would only hear of executing fifty to one hundred top Axis leaders at the end of World War II.”8 Recalling Churchill’s and other senior British officials’ initial demands for the extrajudicial execution of major Nazi officials, Bass observes that “British officials ... were sharply skeptical about legalism for the top German leaders.”9 He thus appends the following caveat to his theory of legalism: “This book does not argue that liberal states will always be legalist, but that they will overwhelmingly tend to be legalist.”10 Bass thus portrays Churchill’s strongly held initial preference for a lethal, non-legalistic means of addressing suspected atrocity perpetrators as “an uncomfortable exception” to his overall theory, rather than a case that undermines it.11 However, British war crimes policy in 1944-1945 does undermine the explanatory power of legalism. First, this episode actually presents not one but two “exceptions” to Bass’s theory. Indeed, as discussed in Chapter IV, some USG officials (e.g., FDR, Morgenthau) initially supported Churchill’s preference for extrajudicial execution. Certain leaders of both the United States and the United Kingdom thus preferred a lethal, nonlegalistic transitional justice option. Second, in articulating his theory, Bass does not make the case that it is consistent with legalism for a liberal state—let alone two—to consider extrajudicially executing “only” up to 100 of an atrocity’s most egregious suspected perpetrators. To the contrary, that impulse is consistent with prudentialism, particularly as one of the reasons the British held the position was to avoid mistakes made at Leipzig, where only a few suspected atrocity perpetrators were held accountable. This impulse was motivated not by a principled commitment to the rule of law but by a political and pragmatic desire to prevent errors that occurred during the course of such past efforts.
I argue instead that prudentialism better explains American and British war crimes policy in 1944-1945 and other examples drawn from U.S. policy on transitional justice (the focus of this book). In fact, as discussed in Chapter II, the
United States, as just one liberal state, has pursued all general transitional justice options, including those that are non-legalistic in nature: inaction, amnesty, lustration, lethal force, exile, and indefinite detention. As a result, it appears inaccurate to claim, as Bass does, that liberal states “will overwhelmingly tend to be legalist.”12 Indeed, as this book has demonstrated, a prominent liberal state (the United States) apparently tends not to be legalist in addressing suspected atrocity perpetrators much of the time. As this book has also shown, contrary to other scholarship on this subject,13 the USG has often pursued transitional justice options that are not retributive.
This book’s findings suggest that future research should examine U.S. transitional justice policy in cases beyond the six studied here to determine how the USG confronted suspected atrocity perpetrators in those other instances. This book’s findings also suggest that future research should examine the transitional justice policy of liberal states aside from the United States to understand how politics, pragmatism, and normative beliefs might have influenced their handling of suspected atrocity perpetrators.14 If these inquiries reveal other instances in which liberal states (including the United States) supported non-l egalistic transitional justice options, then prudentialism’s explanatory power would be further bolstered at the expense of legalism’s.