Illiberal States

Although this book focuses on liberal states—and one, the United States, in particular—some observations still can be made about illiberal states. Bass argues that “illiberal [states] never have” pursued war crimes tribunals.15 Elsewhere he states that “it is only liberal states, with legalist beliefs, that support bona fide war crimes tribunals.”16 Bass also refers to legalism as an “odd trait of ... liberal countries”17 and claims that “liberal states ... treat[] their humbled foes in a way utterly divorced from the methods practiced by illiberal states.”18 This book challenges Bass’s empirical claims about illiberal states,19 stressing not only that illiberal states sometimes have, in fact, pursued bona fide war crimes trials, but also that they have been at least as crucial to the establishment of some ICTs as have liberal states.

As discussed in Chapter IV, the illiberal Soviet Union initially was more supportive of establishing the IMT—which Bass describes as “legalism’s greatest moment of glory”20—than were the liberal American and British polities. After all, the USG initially supported Churchill’s proposal to execute or exile Nazi leaders without trial—t he epitome of non-l egalistic transitional justice. Moreover, as Chapter IV illustrated, it was the illiberal Soviet Union that helped persuade the liberal Anglo-American allies to pursue trials rather than summary executions. As Gaddis reminds us, “the Nuremberg trials were conducted jointly with the Soviet Union, whose own crimes were certainly comparable to those of the Nazis and, in terms of the number of victims, even worse.”21 Likewise, the Soviet

Union supported and staffed the IMTFE (discussed in Chapter V); it was joined by, among others, China (also an illiberal state).22

Similarly, China and other illiberal states were crucial to the UNSC’s establishment of the ICTY and the ICTR. As discussed in Chapter VI, the UNSC resolution establishing the ICTY was adopted unanimously in 1993, which meant that permanent member China and nonpermanent member Djibouti,23 both of which were illiberal at the time, each voted in favor. As discussed in Chapter VII, three nonpermanent members—Djibouti, Nigeria, and Oman— all of which were illiberal at the time, voted for the UNSC resolution establishing the ICTR. Then-illiberal permanent member China24 chose to abstain rather than vote against the resolution, meaning that its ability to wield a veto did not block the ICTR’s creation. Thus, although Bass is correct that “great liberal powers” supported these two tribunals, illiberal powers—great and small—also supported their creation by voting for them or at least not preventing their emergence.

In addition, illiberal states have supported bona fide war crimes tribunals not considered in this book’s case studies. For example, some of the most illiberal states in the world have ratified or acceded to the Rome Statute, the treaty establishing the ICC, and did so as illiberal states.25

As with liberal states, this book’s findings suggest that future research should examine the transitional justice policies of illiberal states to determine how they have confronted suspected atrocity perpetrators. If these inquiries reveal that illiberal states have supported legalistic transitional justice options in other cases, then legalism’s empirical basis again would be called into question and prudentialism’s further strengthened.

War Crimes Tribunals

Legalism thus fails to account for the fact that liberal states often have pursued transitional justice options other than war crimes tribunals, and that illiberal states have indeed supported bona fide war crimes tribunals. Legalism is also unable to explain why, as this book has shown, states—liberal and illiberal—have pursued a variety of forms of war crimes tribunals.

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