United States law and policy on transitional justice : principles, politics, and pragmatics

383 Pages·2016·3.209 MB·English

by  Kaufman, Zachary Daniel

United States Law and Policy
on Transitional Justice
“Why does the United States not consistently embrace prosecution for mass atrocities committed
abroad? Dr. Zachary Kaufman has made a seminal contribution to this topic with this superbly well-
documented and argued book. He improves our understanding of transitional justice, international
governance, and U.S. foreign policy. The 2010 and 2015 U.S. National Security Strategies state that
preventing mass atrocities is a responsibility that all nations share. Following in Kaufman’s foot-
steps, we should seek to understand the transitional justice policies of China, India, Russia, and the
one hundred liberal states parties to the International Criminal Court.”
The Honorable Luis Moreno- Ocampo, first Chief Prosecutor, International Criminal Court;
Senior Fellow, Jackson Institute for Global Affairs, Yale University
“Dr. Zachary Kaufman is at the forefront of the transitional justice movement in the international
sphere. His scholarship, his work experience with the U.S. government and three war crimes tribu-
nals, and his personal philanthropy in Rwanda and elsewhere inform his new book, taking it out
of the ivory tower and into the human and institutional wreckage left by crimes against humanity.”
Peter H. Schuck, Simeon E. Baldwin Professor Emeritus of Law, Yale Law School
“United States Law and Policy on Transitional Justice is a thought provoking study of postwar U.S. for-
eign policy concerning transitional justice, useful for students of diplomatic history, international
law, and international relations alike. Dr. Zachary Kaufman examines U.S. support for international
criminal tribunals and other transitional justice options to address atrocities abroad in the after-
math of World War II and the Cold War, arguing that U.S. policy is best explained by ‘prudential
factors’ that mix law, pragmatism, and politics.”
Dr. David W. Kennedy, Manley O. Hudson Professor of Law and Faculty Director, Institute for
Global Law and Policy, Harvard Law School
“Dr. Zachary Kaufman’s book makes an important contribution to our understanding of the how’s
and why’s of America’s transitional justice policies. His ‘prudentialism’ account of the making of
U.S. transitional justice policies is deftly executed, backed up by substantial primary sources, and,
ultimately, persuasive. A superb achievement.”
Dr. Yuen Foong Khong, Li Ka Shing Professor of Political Science, Lee Kuan Yew School of
Public Policy, National University of Singapore; former Professor of International Relations
and Professorial Fellow of Nuffield College, University of Oxford
“In United States Law and Policy on Transitional Justice, Dr. Zachary Kaufman offers a historically-
rich and nuanced account of how the U.S. government has addressed perpetrators of the most seri-
ous international crimes from 1945 up to the present day. He reminds us that the prosecution of
alleged perpetrators has not always been the first or only preference of the U.S., and that its behavior
has been shaped less by a principled commitment to the rule of law, and more by a case-specific
balancing of normative beliefs on the one hand, and pragmatic and political considerations on the
other. The result has been an inconsistent pattern of transitional justice responses that combines
prosecution with amnesty, and unilateral with multilateral action. At a time when both interna-
tional organizations and national governments are trying to bring perpetrators of atrocity crimes
to justice, and when the project of international criminal justice itself is under scrutiny, this book is
an important resource for understanding the motivations and track record of U.S. law and policy.”
Dr. Jennifer M. Welsh, Professor and Chair in International Relations, European University
Institute; Senior Research Fellow, Somerville College, University of Oxford; Special Adviser to the
UN Secretary-General on the Responsibility to Protect
“Illuminating and trenchant, Dr. Zachary Kaufman’s book takes us behind the scenes and sheds
needed light on the high stakes policymaking guiding the U.S. role in transitional justice and
humanitarian intervention.”
Ruti G. Teitel, Ernst C. Stiefel Chair of Comparative Law, New York Law School; author, Transitional
Justice and Globalizing Transitional Justice
“Dr. Zachary Kaufman’s original research and first- rate analysis deepen our understanding of the
role played by the United States in establishing international criminal tribunals. His book casts new
light on the interplay of politics, pragmatism, and the declared support for international norms in
making the policy decisions to submit alleged perpetrators ‘to the judgment of the law.’ ”
The Honorable Stephen J. Rapp, former Chief of Prosecutions, UN International Criminal Tribunal
for Rwanda; former Chief Prosecutor, Special Court for Sierra Leone; former U.S. Ambassador- at-
Large for Global Criminal Justice
“This important, original, and unique contribution to the literature on transitional justice examines
one of its foremost practitioners, the United States, starting with the post- Second World War context
in Germany and Japan to the challenges of Yugoslavia, Rwanda, and the modern day. Profound new
insights, of relevance to many parts of the world, emerge from such a compelling comparative approach.”
Dr. William A. Schabas, Professor of Human Rights and International Criminal Law, University of
Leiden; author, The International Criminal Court: A Commentary on the Rome Statute and Unimaginable
Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals; former Commissioner, Sierra Leone
Truth and Reconciliation Commission
“In a world of recurrent barbarism, should perpetrators of atrocities be held accountable and, if
so, how should they be brought to justice? In this thoughtful and impressively researched volume,
Dr. Zachary Kaufman explores how American policymakers have sought to grapple with this vexing
question. Kaufman provides a comprehensive analysis of transitional justice options and detailed
analysis of six major cases, showing how politics and practical factors have shaped the impact of
normative and legal considerations in American policy on transitional justice. This is an important
argument, well made.”
Dr. Steven E. Miller, Director, International Security Program, Belfer Center for Science and
International Affairs, John F. Kennedy School of Government, Harvard University; Editor- in- Chief,
International Security
“In a world that has accepted international criminal justice as law’s predominant response to mass
atrocity, Dr. Zachary Kaufman presents a valuable realist perspective on the factors, political and
pragmatic, that influence state choices to pursue justice, via prosecutions, for the gravest episodes of
abuse. Through succinct but well- documented and revealing accounts of U.S. decisions to support
the key specialized international tribunals since World War II, this book analyzes considerations
that affected those decisions and their inconsistencies and contradictions.”
James J. Silk, Clinical Professor of Law and Director, Orville H. Schell, Jr. Center for International
Human Rights, Yale Law School
“United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics offers a mag-
nificent and detailed examination of the domestic and international politics of international crimi-
nal tribunals, from Nuremberg and Tokyo to Arusha and The Hague. Dr. Zachary Kaufman shows
that not only does the study of such tribunals and other transitional justice mechanisms belong
in the realm of international relations, but it can also inform international relations theory itself.”
Dr. David J. Simon, Director, Genocide Studies Program, and Lecturer, Department of Political
Science, Yale University
“An important contribution to our understanding of the politics of international criminal justice.
Dr. Zachary Kaufman emphasizes the calculations that American leaders made about the costs and
benefits of backing war crime tribunals in the aftermath of the Second World War. These same
cost- benefit calculations have continued to shape America’s choices in this increasingly prominent
foreign policy domain.”
Dr. Leslie Vinjamuri, Co- Director, Centre for the International Politics of Conflict, Rights and
Justice, and Associate Professor in International Relations, School of Oriental and African Studies,
University of London
“Dr. Zachary Kaufman has provided an intricate examination of attempts to restore the rule of law
after war and regime collapse. Selectivity of prosecutions, the loss of interest by sponsoring states,
and the stubbornness of regime habits are all part of the problem that Dr. Kaufman tackles, in the
hope of doing it better next time around.”
Ruth Wedgwood, Edward B. Burling Professor of International Law and Diplomacy, School
of Advanced International Studies, Johns Hopkins University; President, International Law
Association; former U.S. member, United Nations Human Rights Committee
“Dr. Zachary Kaufman’s excellent book highlights the United States’ complicated role in legal
approaches to transitional justice since the Second World War. While the United States has refused to
sign the Rome Statute of the International Criminal Court, it has consistently supported— and often
catalyzed— international justice efforts across the globe. The six cases in this book draw on unprec-
edented interviews with elite actors and documents unearthed through Freedom of Information
Act requests. These materials highlight not only the profound influence of the United States in pros-
ecuting atrocity perpetrators but also the impact of international justice on U.S. policymaking and
practice. This book is a must- read for anyone who wants to understand why international crimi-
nal law persists today as a central component of transitional justice, despite major setbacks since
Nuremberg and Tokyo, and the key role of the United States in encouraging international trials.”
Dr. Phil Clark, Reader in Comparative and International Politics, School of Oriental and African
Studies, University of London; co- founder, Oxford Transitional Justice Research, University
of Oxford
“Dr. Zachary Kaufman pierces the legalist bubble that has dominated our understanding of U.S
involvement in transitional justice globally. Highlighting the extensive deliberations about other
options, like extrajudicial killings, and emphasizing the undeniably political factors driving prag-
matic policymakers, Kaufman challenges those who would suggest that a normative commitment
to justice was the defining factor in the American response to atrocities.”
Akshaya Kumar, Deputy United Nations Director, Human Rights Watch
United States Law and Policy
on Transitional Justice
Principles, Politics, and Pragmatics
Zachary D. Kaufman
1
1
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Library of Congress Cataloging- in- Publication Data
Names: Kaufman, Zachary D. (Zachary Daniel), 1979- author.
Title: United States law and policy on transitional justice : principles, politics, and pragmatics /
Zachary D. Kaufman.
Description: New York : Oxford University Press, 2016. | Includes bibliographical references
and index.
Identifiers: LCCN 2015032004 | ISBN 9780190243494 ((hardback) : alk. paper)
Subjects: LCSH: Transitional justice—Government policy—United States. | International
criminal courts. | Transitional justice. | War crime trials. | Transitional justice—United States. |
United States—Foreign relations.
Classification: LCC KF9390 .K38 2016 | DDC 345.73/0231—dc23 LC record available at
http://lccn.loc.gov/2015032004
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This book is dedicated to the victims of atrocities (including my relatives)
committed by Nazi Germany and Imperial Japan during World War II; in the
Balkans, Rwanda, Iraq, and Kuwait in the 1990s; and in numerous other places
before and since. We will always remember you. This book is also dedicated to
survivors of atrocities, who inspire us with your strength, courage, and hope.
Finally, this book is dedicated to my brilliant and wonderful wife, Elizabeth,
who also provides me with strength, courage, and hope.

{ Contents }
List of Figures and Tables  xiii
Acknowledgments  xv
Abbreviations  xxiii
Citations  xxvii
Glossary  xxix
Actors  xxxi
1. Introduction  1
I. Terms and Parameters  1
II. Central Research Questions  4
A. Scholarly Relevance  6
B. Policy Relevance  9
III. Focus of Analysis  11
IV. Methodology  13
A. Case Study Approach  13
B. Case Study Selection  14
C. Sources  16
1. Source Sets— Types  16
2. Source Sets— Potential Pitfalls and Mitigations  17
D. Outline of Argument  18
2. Overview of Transitional Justice Options and the United States
Role in Transitional Justice  21
I. Introduction  21
II. Transitional Justice Options  23
A. Action Versus Inaction  24
B. Amnesty  27
C. Lustration  29
D. Exile  30
E. Lethal Force  32
F. Prosecution  36
G. Indefinite Detention  38
III. Conclusion  39
3. Competing Theories of United States Policy on Transitional
Justice: Legalism Versus Prudentialism  41
I. Introduction  41
II. Transitional Justice as an International Relations Phenomenon  42
A. Transitional Justice and International Security  42
viii Contents
B. Transitional Justice and International Cooperation  44
1. Transitional Justice as a Special Case of International Cooperation  45
a. Dilemma of Common Interest or Indifference  45
b. No Zero- Sum Game  46
c. Relative Versus Absolute Gains  47
d. Cheating  47
e. Low Politics  48
f. Free Riders  48
g. Returns  48
h. Cost  49
2. Potential Benefits and Drawbacks of International Cooperation
on Transitional Justice  50
III. Traditional International Relations Theories  52
A. Realism  53
B. Liberalism  54
IV. Frameworks for Explaining State Behavior on Transitional Justice  55
A. Legalism  56
B. Prudentialism  57
C. Comparative Hypotheses  59
1. Legalism  59
2. Prudentialism  60
3. Comparative Hypotheses  62
V. Conclusion  63
4. The United States Role in Transitional Justice for Germany  65
I. Background  65
A. Negotiations Leading to “Nuremberg”  65
1. January 1942: Declaration of St. James’s  65
2. October 1942: Establishment of the United Nations War Crimes
Commission  67
3. October 1943: Moscow Declaration  68
4. 1943– 1945: The Allies’ Deliberations  69
5. 1945: The U.S. Government Reaches Internal Consensus and Agreement
with Allies  72
6. August 1945: London Agreement  74
B. The International Military Tribunal’s Trials  75
II. Transitional Justice Options Seriously Considered and Actually
Implemented for Alleged Nazi Atrocity Perpetrators  75
A. Transitional Justice Options Seriously Considered  77
1. Transitional Justice Options the Allied Powers Seriously
Considered  77
2. Transitional Justice Options the U.S. Government Seriously
Considered  77
B. Transitional Justice Options Actually Implemented  78
1. Multilateral Prosecution Through an Ad Hoc International Military
Tribunal  78
2. Unilateral Prosecution Through Ad Hoc Allied Military Tribunals  79
Contents ix
3. Conditional Amnesty  80
4. Lustration  83
C. Transitional Justice Options Not Seriously Considered  83
III. Explaining the United States Role in Transitional Justice for Germany  85
A. The Evolution of the U.S. Government’s General Transitional
Justice Preferences  85
B. Jackson’s Threats to Pursue a Unilateral Transitional Justice
Institution  87
C. The U.S. Government’s Preference for Executive Agreement  88
IV. Conclusion  88
5. The United States Role in Transitional Justice for Japan  93
I. Background  93
A. Negotiations Leading to “Tokyo”  93
1. Early American Responses to Japanese Atrocities During WWII  93
2. July 1945: Potsdam Declaration  96
3. August– September 1945: Critical Developments  97
4. October– December 1945: Negotiating the Specific Features
of Transitional Justice  98
5. December 1945: Moscow Agreement and American Reflections  99
6. Early- 1946: Establishment of the International Military
Tribunal for the Far East  100
B. The International Military Tribunal for the Far East’s Trials  101
II. Transitional Justice Options Seriously Considered and Actually
Implemented for Alleged Japanese Atrocity Perpetrators  102
A. The Precedent of Addressing Nazis  103
B. Primary Japanese War Criminals  104
1. Prosecution  104
2. Unconditional Amnesty  104
3. Lustration  105
C. Lower- Level Japanese War Criminals  105
1. Prosecution in U.S. Military Tribunals  105
2. Appeal in a U.S. Civilian Court  106
3. Prosecution in Military Courts Established by Other States  107
4. De Facto Conditional Amnesty  107
5. Lustration  108
III. The United States Role in “Tokyo”  108
IV. Explaining the United States Role in Transitional Justice for Japan  112
A. The United States Government’s Motivations to Lead the Primary
Transitional Justice Institution for Japan  112
B. Other States’ Motivations to Defer to the United States in Leading the
Primary Transitional Justice Institution for Japan  113
C. The Appointment of a Non- American as President of the International
Military Tribunal for the Far East  114
D. American Provision of Amnesty to Alleged Japanese Atrocity
Perpetrators  116
V. Conclusion  118