B. CAUSAL LOGIC
The weaknesses in legalism’s empirical claims in turn call into question the causal logic underpinning the theory.26 As this book has shown, legalism fails to account both for why at least one liberal state, the United States, supports war crimes tribunals over or alongside other transitional justice options, and for why the same liberal state supports some types of war crimes tribunals over or alongside others in particular contexts. In addition, legalism’s concession about the concern liberal states have for their own soldiers and citizens further undermines legalism’s overall contention. And that concession relates to one of the biggest distinctions between legalism and prudentialism: whether the theory accounts for a country’s security interests in formulating policy on transitional justice.
War Crimes Tribunals Versus Other Transitional Justice Options
Although liberal states may have provided the overwhelming support to establish war crimes tribunals, they have not necessarily done so because they are liberal. As discussed in Chapter III, legalism argues that liberal ideals—such as a belief in the rule of law under which it is correct and necessary to bring alleged atrocity perpetrators to justice—drive liberal states to put those individuals on trial. Specifically referring to the post-WWII prosecution of Nazis through the IMT, legalism asserts that the USG was motivated to support this transitional justice option “because of an American belief in the rightness of its own domestic legalism.”27 Prudentialism, by contrast, suggests that liberal states may not be motivated by this normative belief at all, or perhaps only partially. Even then, prudentialism contends, normative commitments remain less significant factors than politics or pragmatics.
This book directly challenges legalism’s assertion that a sense of outrage and responsibility necessarily drives liberal states to investigate, prosecute, and, when convicted, punish suspected atrocity perpetrators through war crimes tribunals. As this book has shown, liberal states, including the United States, often have pursued non-prosecutorial transitional justice options instead of or in addition to prosecutorial ones for the same atrocity. The same outrage and responsibility that would have compelled these states to support the creation of a war crimes tribunal (as Bass might argue) presumably also would have motivated these states to pursue more consistent prosecution of suspected atrocity perpetrators. Rather, as discussed in Chapter II, the USG supported each of the other general transitional justice options—inaction, amnesty, lustration, lethal force, exile, and indefinite detention—in cases besides the six investigated in this book. Moreover, as discussed in Chapters IV, V, and VI, the USG supported non-prosecutorial transitional justice options for at least some—and, in the case of WWII, the overwhelming majority—of the suspected atrocity perpetrators in four of the six cases analyzed (Germany, Japan, Iraq, and the FRY).
This phenomenon confirms that factors other than a principled commitment to the rule of law actually motivated USG officials to support the establishment and operation of the IMT, the IMTFE, the ICTY, the ICTR, and perhaps other war crimes tribunals as well. Additional factors beyond normative beliefs clearly are included in liberal states’ calculus when they are confronted with suspected atrocity perpetrators.
As discussed in Chapter II, the war crimes tribunal is but one of many transitional justice options. Like the other possibilities, the war crimes tribunal may be a legal tool, but the decision to implement it in the first place is, as Beigbeder notes, a “political process.”28 As Justice Jackson remarked in discussing the fate of Nazis after WWII:
It’s a political decision as to whether you should execute these people without trial, release them without trial, or try them and decide at the end of the trial what to do. That decision was made by the President, and I was asked to run the legal end of the prosecution.29
Like Beigbeder and Justice Jackson, Bass concedes that it is a political judgment to use legalistic options to address suspected atrocity perpetrators; he writes: “Once a president or prime minister has turned the judgment of defeated enemies over to the judges, the outcome is in the hands of laws that developed from domestic traditions.”30 As discussed above, Bass further concedes that political authorities only “sometimes” opt to do so.31 Prudentialism contends that, quite separate from or at least in addition to normative beliefs, there are political and pragmatic reasons any state—liberal or illiberal—will become involved in the establishment of a war crimes tribunal (or, for that matter, any transitional justice response to an atrocity). Prudentialism, unlike legalism, thus accounts for the political decisions and processes Beigbeder, Justice Jackson, and even Bass acknowledge are at play in U.S. policymaking on transitional justice. Further, prudentialism does so without reference to the frequency of any particular outcome.