Balancing Principles, Politics, and Pragmatics: U.S. Policy-Making on Transitional Justice

Abstract

As the presidency of Barack Obama draws to a close, his administration has been wrestling with its legacy on transitional justice (TJ). In May 2016, 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.

Keywords: Transitional Justice, Barack Obama, Donald Trump, Syria, Iraq, Genocide War Crimes, Crimes Against Humanity, Atrocity, U.S. Foreign Policy, White House, Atrocities Prevention Board, PSD-10, International Criminal Court, ICC, Rome Statute, Truth Commissions, Truth and Reconciliation Commissions