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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics
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Concern for Own Soldiers and Citizens

Bass states that there are at least two factors that limit whether and when liberal states will support the prosecution of alleged atrocity perpetrators. “First,” he claims, “even liberal states almost never put their own soldiers at risk in order to bring war criminals to book.”33 Chapter VI of this book bolsters this contention, as the USG avoided arresting indicted Balkan war criminals for fear of reprisals against its troops. “Second,” Bass acknowledges, “even liberal states are more likely to seek justice for war crimes committed against their own citizens, not against innocent foreigners.”34 This book presents evidence suggesting, as Bass theorizes, that at least one liberal state, the United States, appears more likely to pursue justice for atrocities committed against its own citizens. However, Chapter V presents a glaring exception to this general rule by documenting that the USG granted amnesty to: (1) the Imperial Japanese emperor, Hirohito, despite his likely involvement in the Japanese commission of atrocities during WWII, (2) more than fifty other Japanese suspected of perpetrating some of the most egregious offenses during the war, and (3) several thousand additional Japanese who may have experimented on American POWs. Bass’s acknowledged limitations of legalism, which this book reinforces, suggest that there are factors other than a principled commitment to the rule of law driving the transitional justice decision-making of at least one liberal polity, the United States.

Security Interests

As one of those additional factors driving transitional justice decision-making, prudentialism, rather than legalism, correctly accounts for U.S. security interests in formulating the country’s policies. As this book has shown, preventing further conflict, protecting American soldiers, and bolstering U.S. scientific and counterintelligence capabilities have all factored into U.S. policymaking in this issue area. That the USG faced no security interests in the case of Rwanda35 accounts for why legalism and prudentialism do not differ in predicting a legalistic response to the genocide. At the same time, as discussed above, legalism is silent on the type of legalistic response the USG supported in this case, whereas prudentialism, as the theory does in all of the cases studied in this book, explains the USG’s specific response as a balancing of politics, pragmatics, and normative beliefs.

 
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