Title:
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From Nuremberg to the Hague : United States policy on transitional justice
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Transitional Justice is a crucial topic in the study and practice of international relations
and international law. Transitional Justice refers to both the process and objectives of societies
employing judicial and/or non-judicial mechanisms to address past or even ongoing atrocities
and other serious human rights violations. By presenting an overview of Transitional Justice
options and the V.S. role in Transitional Justice, and then analyzing four cases studies-the
International Military Tribunal, the International Military Tribunal for the Far East, the UN
International Criminal Tribunal for the Former Yugoslavia, and the UN International Criminal
Tribunal for Rwanda-this thesis seeks to determine why and how the United States has pursued
the Transitional Justice option of war crimes tribunals in certain contexts.
In so doing, this thesis challenges the dominant approach to explaining U.S. Transitional
Justice policy: the "legalist" paradigm developed by Gary Bass. Legalism, a variant of
liberalism, postulates that liberal states pursue war crimes tribunals because their decision-
makers hold a principled commitment to the rule of law. Bass further argues that illiberal states
have never pursued bona fide war crimes tribunals.
This thesis develops an alternative theory-"prudentialism"-which contends that any
state-liberal or illiberal-may support bona fide war crimes tribunals. A variant of realism,
prudential ism postulates that states will pursue tribunals 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.
This thesis's analysis of U.S. policy yields several conclusions about these two
competing explanations. First, legalism cannot account for the fact that the V.S. has frequently
pursued non-legalistic Transitional Justice options instead of or in addition to legalistic
Transitional Justice options. Second, legalism fails to explain why, even in instances where the
U.S. cooperated in the creation of war crimes trials, those trials did not apply to more suspected
atrocity perpetrators from the applicable conflict. Third, legalism fails to explain which of the
many types of war crimes trials or tribunals the U .S. has supported in a given context. Finally,
legalism does not acknowledge that illiberal states have, in fact, supported bona fide war crimes
trials.
This thesis demonstrates that U.S. government officials may have held some normative
beliefs, but that these individuals did so inconsistently. These beliefs included that at least some
suspected atrocity perpetrators should be punished for their offenses. This thesis determines that
political and pragmatic factors featured more prominently in the development of U.S.
Transitional Justice policy. Political factors driving U.S. Transitional Justice policy included the
U.S.'s relationship with its allies and adversaries, particularly at the beginning and end of the
Cold War. Pragmatic factors included U.S. officials' desire to obtain access to suspects,
witnesses, and evidence; whether the U.S. already had suspects in custody; and path dependency
arising from earlier Transitional Justice institutions. I thus determine that, at least in the case of
the U.S., prudential ism is a better theory than legalism in explaining its Transitional Justice
policy.
Future research should examine the Transitional Justice policies of (1) the U.S. in cases
beyond the four studied in this thesis, (2) other liberal states, and (3) illiberal states to determine
how they have confronted suspected atrocity perpetrators in other instances. If these inquiries
revealed that the U.S. and other liberal states have often supported non-legalistic options and that illiberal states have occasionally supported legalistic Transitional Justice options, then those findings would further call legalism into question.
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