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.” Continue reading
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