Conclusion: United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics

United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics (Oxford University Press). 203-14 (Chapter 8), 2016

16 Pages Posted: 22 Aug 2016

See all articles by Zachary D. Kaufman

Zachary D. Kaufman

University of Florida Levin College of Law; Boston University - School of Law; Washington University in St. Louis - School of Law; University of Houston Law Center; Stanford Law School; Yale University - Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: 2016

Abstract

This book chapter is the final chapter in the book United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics (authored by Zachary D. Kaufman, J.D., Ph.D., and published by Oxford University Press). This concluding chapter summarizes the key findings from this book and assesses which of the two explanatory theories articulated in the book (legalism or prudentialism) better accounts for U.S. policy on transitional justices in the book’s six case studies.

In this book, United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics , Dr. Kaufman explores the U.S. government’s support for, or opposition to, certain transitional justice institutions. By first presenting an overview of possible responses to atrocities (such as war crimes tribunals) and then analyzing six historical case studies, Dr. Kaufman evaluates why and how the United States has pursued particular transitional justice options since World War II.

This book challenges the “legalist” paradigm, which postulates that liberal states pursue war crimes tribunals because their decision-makers hold a principled commitment to the rule of law. Dr. Kaufman develops an alternative theory — “prudentialism” — which contends that any state (liberal or illiberal) may support bona fide war crimes tribunals. More generally, prudentialism proposes that states pursue transitional justice options, not out of strict adherence to certain principles, but as a result of a case-specific balancing of politics, pragmatics, and normative beliefs. Dr. Kaufman tests these two competing theories through the U.S. experience in six contexts: Germany and Japan after World War II, the 1988 bombing of Pan Am flight 103, the 1990-1991 Iraqi offenses against Kuwaitis, the atrocities in the former Yugoslavia in the 1990s, and the 1994 Rwandan genocide.

Dr. Kaufman demonstrates that political and pragmatic factors featured as or more prominently in U.S. transitional justice policy than did U.S. government officials’ normative beliefs. Dr. Kaufman thus concludes that, at least for the United States, prudentialism is superior to legalism as an explanatory theory in transitional justice policy making.

Keywords: Transitional Justice, International Justice, U.S. Foreign Policy, International Law, International Criminal Law, War Crimes Tribunals, International Criminal Court, ICC, Nuremberg Tribunal, IMT, Tokyo Tribunal, IMTFE, Rwanda Tribunal, ICTR, Yugoslav Tribunal, ICTY, War Crimes Prosecutions, Genocide

Suggested Citation

Kaufman, Zachary D., Conclusion: United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics (2016). United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics (Oxford University Press). 203-14 (Chapter 8), 2016, Available at SSRN: https://ssrn.com/abstract=2820186

Zachary D. Kaufman (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

HOME PAGE: http://https://www.law.ufl.edu/faculty/zachary-d-kaufman

Boston University - School of Law ( email )

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United States

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

HOME PAGE: http://law.wustl.edu/faculty-staff-directory/profile/zachary-d-kaufman/

University of Houston Law Center ( email )

4104 Martin Luther King Boulevard
Houston, TX 77204-6060
United States

HOME PAGE: http://www.law.uh.edu/faculty/zacharykaufman/

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

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