Zachary D. Kaufman joins JiC for this post on recent transitional justice policy-making in the United States. Zachary is a Senior Fellow at Harvard University‘s John F. Kennedy School of Government and the author of ‘United States Law and Policy on Transitional Justice – Principles, Politics, and Pragmatics’ (OUP 2016).

(Cartoon: Gianfranco Uber / Cartoon Movement)

As the presidency of Barack Obama draws to a close, his administration has been wrestling with its legacy on transitional justice (TJ). In May, the U.S. Department of State and the U.S. Agency for International Development (USAID) published a series of policy papers on the subject (2016 TJ Policy Papers). These white papers follow and relate to a presidential study directive (PSD-10) President Obama decreed in 2011 that created an interagency Atrocities Prevention Board (APB). PSD-10 states: “Preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States.”

The executive branch’s recent policymaking on TJ occurred after I published my new book, United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics. In that book, I challenge 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. I develop an alternative theory—“prudentialism”—which contends that any state may support bona fide war crimes tribunals. More generally, prudentialism proposes that states pursue TJ options, not out of strict adherence to certain principles, but as a result of a case-specific balancing of politics, pragmatics, and normative beliefs. As such, prudentialism allows for even liberal states, such as the United States, to support non-legalistic TJ options.

This blog post provides an overview of the 2016 TJ Policy Papers. These white papers and my research show that the U.S. government continues to balance politics, pragmatics, and principles in formulating its policy on TJ. Consequently, given the historical case studies my book examines and more recent situations, prudentialism correctly describes not only the past but also the present U.S. government approach to TJ.

U.S. Policy Papers on Transitional Justice

According to Ari Bassin, Senior Policy Advisor on Transitional Justice in the State Department’s Office of Global Criminal Justice, the 2016 TJ Policy Papers are the executive branch’s first public white papers on the subject. A joint effort of the State Department and USAID, the release of these unprecedented white papers demonstrates that the U.S. government increasingly views and officially acknowledges engagement in TJ as a significant component of its foreign policy.

The six white papers cover TJ generally, amnesties, criminal prosecutions, lustration and vetting, truth commissions, and reparations. The white papers do not address exile, indefinite detention, or lethal force as TJ options. As I establish in my new book, the U.S. government’s TJ toolkit has also featured these latter options as either serious considerations or actual policies.

The white papers describe how the U.S. government engages on TJ: through providing financial and technical support as well as by promoting TJ through diplomacy, public statements, laws, resolutions, and other actions. The white papers omit, however, that the U.S. government has also engaged on TJ through contributing staff to such mechanisms.

The white papers offer the U.S. government’s definition of “transitional justice”: that it “refers to a range of measures—judicial and non-judicial, formal and informal, retributive and restorative—employed by countries transitioning out of armed conflict or repressive regimes to redress legacies of atrocities and to promote long-term, sustainable peace.” This definition of TJ accords with my own: “Transitional justice refers to both the process and objectives of societies addressing past or ongoing atrocities and other serious human rights violations through judicial and nonjudicial mechanisms.” Acknowledging implicitly—as Phil Clark, Kalypso Nicolaïdis, and I argue explicitly—that the first word in the term “transitional justice” may be a misnomer, the white papers also state: “There may be questions about the applicability of the concept of ‘transition’ to all relevant scenarios; consequently the issues noted . . . may also be discussed using the term ‘dealing with the past’ or ‘the promotion of truth, justice, reparation, and guarantees of non-recurrence.’

The white papers invoke PSD-10. In doing so, the U.S. government directly links TJ with atrocity prevention by arguing: “Effectively addressing past atrocities through these approaches is an important tool in preventing the recurrence of atrocities, a goal that is a core national security interest and core moral responsibility of the United States.”

The white papers are mostly descriptive, but they do include some prescriptive commentary. The white papers’ “Guiding Principles” suggest, among other things, that TJ must be comprehensive. Specifically, this principle states that TJ measures

are most effective when they complement each other as part of a comprehensive TJ strategy that addresses truth, criminal justice, reparation, and guarantees of non-recurrence . . . . [I]mplementing a singular TJ mechanism on its own cannot achieve the range of important TJ objectives. It is essential . . . to determine how best to sequence and link TJ measures.

This principle of comprehensiveness accords with one of my findings: that the U.S. government has often simultaneously or sequentially supported multiple TJ options for addressing suspected perpetrators of the same atrocities. The white papers, however, do not offer guidance on how tensions among TJ themes and mechanisms—tensions that Clark, Nicolaïdis, and I have called attention to—should be resolved.

Another of the white papers’ principles stresses the importance of transparency, independence, and impartiality to TJ measures’ legitimacy in the eyes of victims and other members of the post-conflict society. I agree, but describe in my book how other actors’ views on legitimacy also matter. The book observes that the international community generally—apart from specific stakeholders, such as survivors and perpetrators—may feel that a TJ process is legitimate only if certain states are involved or excluded. Thus, while the perspective of domestic actors is certainly crucial, one of my findings is that the view of international actors—including the U.S. government’s former adversaries and current allies—may be as well. For example, several U.S. officials claimed that one reason the U.S. government decided to support prosecutions of suspected Rwandan génocidaires through the UN was to bolster the global legitimacy of prosecutions in Africa and elsewhere more than a narrower coalition or single state could.

One of the white papers’ other principles proposes that TJ be “context-specific”: “TJ measures and strategies should fit the cultural, judicial, legal, and economic context. They should also be shaped in a manner that responds to the nature and scope of the abuse, and the needs and priorities of the victims.” As such, the white papers do not endorse strictly prosecutorial TJ mechanisms, which the advent of the International Criminal Court (ICC) arguably promotes (both through its own trials and the Rome Statute’s complementarity principle). Given that the U.S. government has not ratified the Rome Statute and has a history of supporting non-prosecutorial and even non-legalistic TJ options, this principle is unsurprising.

Relatedly, the white paper on criminal prosecutions states what may be taken for the latest articulation of the U.S. government’s compromise approach to the ICC: “Although the United States is not a party to the Rome Statute, the U.S. engages with States Parties to the Rome Statute on issues of concern and supports the ICC’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law.” This policy reflects what some scholars have viewed as the U.S. government’s active engagement with the ICC without any likelihood of ratifying the Rome Statute in the near future.

The white paper on criminal prosecutions also states the importance of due process “as opposed to dealing with alleged criminals extra-judicially.” However, as discussed in my book, the U.S. government continues to employ extrajudicial mechanisms, such as indefinite detention, that do not afford due process. As such, the white paper articulation of due process in promoting justice abroad does not appear to apply at home.

The separate white paper on lustration and vetting cautions against wholesale cleanses to avoid targeting “individuals with no history of abuse who may have valuable expertise.” This recommendation implicitly acknowledges disastrous mistakes the U.S. government made in implementing lustration for Iraq after Saddam Hussein’s ouster. In that case, the U.S. government replaced its overly broad, counterproductive policy of “de-Baathification” with a new process that came to be known as “reverse Baathification,” “re-Baathification,” or “de-de-Baathification.”

Already, some commentators are identifying inconsistencies in—or at least limitations of—these white papers. In considering whether the U.S. government might employ truth commissions to address racial tensions and other domestic problems, a columnist for the New York Times asked the State Department whether the relevant white paper applied at home. A State Department spokesperson replied: “By their terms . . . [the white paper relates to] countries transitioning out of conflict and from authoritarian regimes.” The columnist thus concluded: “Truth and reconciliation are . . . ‘a core moral responsibility of the United States.’ But not for the United States. The State Department’s endorsement of truth and reconciliation applies, potentially, to any country on earth but its own.” My book already notes that truth commissions have been established (in, for example, Maine and North Carolina) and additional truth commissions have been proposed (to address race relations, slavery, police violence, and the treatment of terrorism suspects) within the United States. Other such TJ mechanisms have also been considered or created recently, including by civil society members in Michigan and Missouri. The proliferation of such mechanisms has led some scholars to identify a “truth and reconciliation movement in the United States.” It appears that American activists, skeptical of the conventional domestic criminal justice system’s ability to address unresolved abuses as well as legacies of racism and inequality, are increasingly importing TJ principles and models—including non-legalistic ones supported abroad by the U.S. government itself. Consequently, in addition to explaining the TJ approach of U.S. officials, prudentialism, with its allowance for even liberal states to support non-legalistic TJ options (including truth commissions), could also be used to understand the TJ approach of American civilians.

Conclusion
A gulf persists between the rhetoric and the reality of U.S. policy on atrocity issues, including TJ. The incoming presidential administration of Donald Trump will have the opportunity to further refine U.S. law and policy on TJ and potentially close the gap among American politics, pragmatics, and principles. In a world in which mass atrocities show no sign of abatement, President Obama and President-elect Trump must actually lead on atrocity prevention and response, including TJ. Institutions, trainings, and reports are helpful; the government’s will to act is essential.

The 2016 TJ Policy Papers are welcome initiatives. They hold great promise for meaningful TJ. However, as the ongoing crisis in Syria demonstrates, politics and pragmatics continue to trump the U.S. government’s self-declared principles in confronting suspected atrocity perpetrators. Prudentialism thus remains a compelling theory to explain the U.S. government’s approach to TJ.