Tag Archives: ICTR

The Cost of Women War Criminals’ Gendered Defenses

 

Izabela Stefjia and Jessica Trisko Darden, Women as War Criminals:

Gender, Agency, and Justice

(Stanford Briefs/Stanford University Press, 2020)

Most people, female as well as male, think of war crimes as the ignominious reserve of the male of the human species.  But in Women as War Criminals: Gender, Agency, and Justice, Izabela Stefjia and Jessica Trisko Darden, professors at Tulane and Virginia Commonwealth  University, respectively, contend that the gender “violence gap” in war crimes – the difference between the rate at which men and women commit violent acts – is “not as wide as is often thought, in part because women’s historical participation in wartime violence has willfully been ignored” (p.122).  Women war criminals, the authors contend, have gone unnamed or been underestimated, all part of an attempt to “preserve archetypal images of women as victims and men as perpetrators” (p.122; the authors cite Wendy Lower’s seminal work,  Hitler’s Furies: German Women in the Nazi Killing Fields, a nuanced study of women who joined the Nazi cause and in surprising numbers abetted willingly and enthusiastically the Holocaust, reviewed here in 2016).

While no single document defines war crimes, the 1899 and 1907 Hague Conventions, the 1949 Geneva Convention, and the 2002 Rome Statute of the International Criminal Court all identify and prohibit behaviors in the conduct of international and domestic conflicts that transgress internationally accepted norms, including torture, forced displacement and genocide.  Women as War Criminals revolves around four women charged with war crimes.  The four cases illustrate in different ways how gendered stereotypes can distort the outcome in proceedings to address those crimes, and how specific social and political contexts influence the construction of gendered arguments.

Stefjia and Trisko Darden bring to their work a perspective that could be described as both feminist and prosecutorial.  Violence by women, they argue, should be treated when proven as a prosecutor would treat it: an “autonomous choice clearly indicative of the human capacity for violence” (p.9).  The four cases are intended to demonstrate how gendered arguments in legal proceedings almost invariably deny or lessen women’s agency, often resulting in women being treated more leniently and escaping full accountability for their crimes.  Women who are “willing to cater to gender stereotypes through compliance, obedience, and apology are more likely to evade the full weight of their crimes” (p.126), the authors write.  However, context is critical in assessing women accused of war crimes.  In some contexts, gendered arguments can result in women being treated more harshly than men for similar offenses.  Focusing on women as war criminals, the authors add, does not “diminish the important and well-established fact that women are among the greatest victims of armed conflict” (p.121-22).

The first two of the four cases involve women accused of war crimes during the 1990s: Biljana Plavšić, charged with participation in the ethnic cleansing of Bosnian Muslims in the former Yugoslavia; and Pauline Nyiramasuhuk, indicted as an architect of the genocide against ethnic Tutus in Rwanda.  Each was a high-level official in her government and both were well into their adult years when they were implicated in war crimes.  Their cases, tried before recently established United Nations international tribunals, the International Criminal Court for the Former Yugoslavia (ICTY) and the International Criminal Court for Rwanda (ICTR), reflect the optimism of the 1990s that such tribunals could assign responsibility for war crimes in an unbiased fashion and thereby ameliorate the post-conflict political conditions in the two countries.

The last two cases involve women who found themselves engaged on opposite sides of the 21st century American-led “global war on terror” in the Middle East: Lynette England and Hoda Muthana.  Both were 20 when they entered conflict, decades younger than Plavšić and Nyiramasuhuk, and both were at or near the bottom of their respective organizations.  Both, moreover, became pregnant by male co-perpetrators and gave birth while in service to their organizations.

England was the US Army soldier famously photographed in 2004 abusing suspected terrorists captured in Iraq.  She faced a military court-marital in the United States.  Muthana was an American-born Muslim woman who traveled to Syria to join the Islamic State in Iraq and Syria (ISIS) during the 21st century’s second decade.   While with ISIS, she allegedly incited violent acts against civilians, including urging the killing of Americans and the assassination of then-President Barack Obama.  Muthana married three times during her ISIS tenure, earning her the media moniker of “ISIS bride.”  Her first two husbands died in conflict.

Despite apparent similarities between England and Muthana, and between Plavšić and Nyiramasuhuk, each woman’s case is significantly different from the other three.  If there is a common denominator among the four, it lies in the readiness of all to downplay their own agency by arguing in their defense that they had been manipulated by males and predominantly male institutions.  These gendered defenses, the authors contend, disguise the “noteworthy ideological commitment to the cause they took up.”  All four believed, “with conviction, that they were fighting for the right side” (p.123).   Until we recognize that women can be as violent as men, capable of committing such heinous crimes as torture, rape, enslavement, mass murder, ethnic cleansing and genocide, the authors suggest, “we cannot expect their equal treatment under the law or in society” (p.131).

* * *

Biljana Plavšić was an accomplished agricultural scientist who held a PhD and had been a Fulbright scholar.  In 1992, she became co-president, along with the notorious war criminal Radovan Karadžić,  of Republika Srpska, the Serbian entity created within the larger state of Bosnia and Herzegovina.  She was the only woman among 16 individuals indicted by the ICTY on war crimes charges involving the ethnic cleansing of non-Serbs.  Unlike the 15 males, Plavšić surrendered voluntarily and did not use the tribunal theatrically, either to ridicule it as the “ultimate enemy of their people” or to “express extreme nationalist narratives” (p.18), as did several of her male co-defendants.  She was originally indicted on nine counts, but eight, including genocide, were dropped in exchange for a guilty plea to one count of persecution on political, racial and religious grounds.

At her sentencing, Plavšić’s lawyers presented their client as the compliant “Mother of the Serb nation.”  Her lawyers seemed to be “seeking to prove that Plavšić was an obedient and virtuous woman” (p.27).  She regretted publicly the role she had played in heinous war crimes.  She too was a victim, she argued, “not of The Hague [or] the international community but of the political elite in Republika Srpska” and its “rogue leadership” (p.28) which she left.

Portraying Plavšić as a woman who was duped by her male peers proved to be an effective defense, as she was given a modest sentence, 11 years in prison minus 245 days spent in pre-trial detention.  She was released in October 2009 for good behavior, after serving about two-thirds of her sentence.  Many men considerably lower in the hierarchy and facing less serious charges received longer prison terms.  But rather than being duped by her Republika Srpska peers, Plavšić might better be seen as the woman who duped the ICTY and the international community.

While in prison, Plavšić wrote a scorching two-volume political memoir in Serbian, never translated into other major European languages, in which she all but admitted that her defense at the ICTY had been an act – that she fully supported the aims of Bosnia’s Serbian nationalists, even if she didn’t admit explicitly to participation in the specific war crimes of which she was accused.  Her memoir dismissed Serbian atrocities as a “fabrication;” portrayed NATO as the enemy of the Serbs; and contended that the United States sought to eradicate Serbia.  Diverging drastically from the image Plavšić sought to create at the ICTY, the memoir  demonstrated “disrespect and disregard for international criminal law and displayed extreme nationalism and racism” (p.38).   The ICTY, the authors note woefully, clearly “did not manage to convert a key female perpetrator into a reconciliatory figure through leniency and a reduced sentence” (p.42).

* * *

The Rwandan genocide of ethnic Tutsis in 1994, one of the most infamous episodes of mass violence and war crimes in modern history, was organized by a small group from the Hutu ethnic group that had been excluded from and disagreed with a power sharing agreement executed in 1990 between Hutus and Tutsis, Rwanda’s two major ethnic groups.  Three quarters of Rwanda’s Tutsi population were killed in the genocide, along with others who either “looked Tutsi” or were more moderate Hutus.

Pauline Nyiramasuhuko, the Rwandan Minister of Family and Women’s Development, was one of the key inner circle members of the government which planned the massacre of Tutsis and opposition Hutus.  Nyiramasuhuko was tried at the ICTR in a group of six, with five men, all considered to be at the top of the criminal pyramid.  Like the five men, she was accused of crimes against humanity that included aiding and abetting in the slaughter of Tutsis.  She allegedly encouraged men, including her son, to commit rape of Tutsi women.

At Nyiramasuhuko’s trial, her lawyers cast her as an “unaware, uninformed, innocent victim of male leaders,” suggesting that she was a “passive participant” (p..62).  They sought to normalize her image by “portraying her as a pious and devoted mother” (p.46).  But for her victims and the accusers, Nyiramasuhuko was “especially guilty and vicious because she [was] a woman and a mother” (p.59).  That she was a mother made her participation worse for her victims and accusers, the authors sardonically observe, “as if somehow being a father and a perpetrator is not a common characteristic of male genocidaires” (p.54).

The ICTR didn’t buy gendered arguments from either side.  The court was “not open to the argument that Nyiramasuhuko was a woman duped by genocidal men” (p.62).  It convicted her of genocide, conspiracy to commit genocide, violence to life, and outrages against personal dignity, along with the crimes against humanity of extermination, persecution and rape.  She became both the “only woman tried and convicted by an international court for the crime of genocide” and the “only woman to be tried and convicted by an international criminal trial for rape as a crime against humanity” (p.49), thereby “shattering the image of men being exclusive perpetrators of rape” (p.55).  The ICTR gave Nyiramasuhuko and her son life sentences, with her sentence reduced in 2015 to 47 years.

The ICTR’s rejection of gender-related arguments cast the court as an “objective legal institution, interested only in the facts” (p.64).  But the authors nonetheless characterize the court’s avoidance of gender as a missed opportunity to probe more deeply into how masculinity and femininity in the Rwandan context affected the horrific violence.  Treating Nyiramasuhuko’s case as no different from that of her co-accused males, the authors contend, resulted in the court fitting her into what they characterize as the “violent ‘African savage’ stereotype” (p.70).  The ICTR case against Nyiramasuhuko was thus “influenced by ingrained biases about how African actors behave in conflicts” (p.46).

“Relying exclusively on gender to understand female war criminals diminishes their social, political, and material motives,” the authors conclude in their summary of Nyiramasuhuko’s case.  But removing gender entirely, as the ICTR did,“denies the gendered context in which the crimes took place” (p.65).

* * *

Lynette England gained notoriety in the spring of 2004, when renowned investigative reporter Seymour Hersh reported in the New Yorker magazine on torture and extensive prisoner abuse at Abu Ghraib, the Iraqi prison that was once home to Saddam Hussein’s torturers and became, as the authors put it, “synonymous with the excesses of America’s War on Terror” (p.71).  Among the photos accompanying Hersh’s article was one of England in a t-shirt and fatigues, “holding what appeared to be a leash wrapped around the neck of a naked man” (p.72).

England, who grew up in Appalachia, had been diagnosed with a learning disability as a child.  While in high school, she signed up for the U.S. Army Reserves.  After graduation, she married her boyfriend and mobilized with her reserve unit for deployment.  Shortly after her arrival in Iraq, England, still legally married, met Charles Graner.  Contrary to Army regulations, England and Graner began a sexual relationship which resulted in England’s pregnancy.  She gave birth to her son, Carter, about six months after the abuse scandal had broken.

After a first court-marital, in which the military judge refused to accept her guilty plea, England’s second court-martial generated far more media attention than those of the males who were more deeply involved in abuse of Iraqi prisoners.  In that proceeding, England’s defense team “intentionally used her gender and status as a mother to minimize her role in the abuse by depicting her as sexually and emotionally exploited by an older, higher ranked man” (p.73-74).  England was portrayed as an “uncivilized, promiscuous Hillbilly-turned-Torturer” (p.79), at the bottom of both the American social hierarchy and the military hierarchy – “incapable of making good decisions as evidenced by her divorce, pregnancy, and participation in torture” (p.80).  As a so-called “Hillbilly,” England’s social status was “seen by some observers as enforcing her culpability” (p.81).

For institutional as much as strategic reasons, England’s defense team did not seek to question the military’s role in creating conditions conducive to torture and perhaps even in directing soldiers to commit abusive acts.  The overall objective of the Abu Ghraib courts-martial , the authors contend, was to “deflect blame away from the Army and toward the individual perpetrators rather than establishing a broader system of accountability” (p.88).  The prosecution too, while recognizing England’s agency, “failed to consider the broader social and institutional environment that the abuse occurred in” (p.88).

England was found guilty on 7 of 8 counts and sentenced to three years in military prison.  The male soldiers’ sentences varied based on their cooperation with the investigation.  Graner received the stiffest sentence as the ringleader of the abuse.  There were a few soldiers higher up in the chain of command who had their career advancement blocked, but most escaped punishment.  The lesson to be derived from England’s court martial, the authors conclude, is that when women soldiers face military justice, they will be judged for “failing not only as soldiers, but as women” (p.94).

* * *

Hoda Muthana was born in New Jersey in 1994 to immigrant parents from Yemen.  Her father was a Yemeni diplomat who chose to remain in the United States after his diplomatic tour ended.  After graduation from high school, Muthana enrolled in business school at the University of Alabama.  In 2014, she left university to join ISIS in Syria, where she became one of its public spokespersons.  On social media, she took the name of Umm Jihad, Mother Jihad.

Early in her tenure with ISIS, Muthana married a 23-year-old man from Australia, of Middle Eastern background.  Her husband was killed in battle less than three months after their marriage and, after a period of mourning, she married a 19-year-old Tunisian who too was killed in combat, when Muthana was 7 months pregnant.  She gave birth to a son, Adam, and remarried still another time, but little detail is known about her third husband.

Muthana fled ISIS-controlled territory in mid-December 2018.  Stressing her youth and  her status as a mother, she described herself as having been “brainwashed,” “traumatized, and “manipulated” by ISIS (p.105).  In January 2019, Muthana surrendered to opposition Kurdish forces and was placed in a holding camp.  As of the authors’ writing, she and her son lived in a tent, along with about 4,400 other women and children affiliated with ISIS.  She expressed publicly a desire to return to the United States to face potential criminal charges for her actions in Syria.  But that path seems to be legally foreclosed.

In 2016, the State Department sought to strip Muthana of her of US citizenship based on a revised understanding of her father’s diplomatic status.  He was still subject to diplomatic immunity when she was born, the Department argued.  Muthana’s father sued in federal district court to challenge that decision, with the case centered around what his daughter had done for ISIS.  The district court affirmed the State Department’s decision, thereby denying Muthana American citizenship.  Last month, the Supreme Court turned down the request to review the district court decision, and it is unclear whether Muthana will ever be called to account in a legal forum.

The authors manifest little sympathy for Muthana’s claims of brainwashing and manipulation while with ISIS, but would plainly like to see those claims and the accusations of terrorist acts attributed to her subject to the scrutiny of a legal proceeding.  Yet she still warrants study as an example of the gendered stereotyping baked into the term “ISIS bride.”  The term attaches a woman to a man’s agenda, they contend, thereby acknowledging women’s agency “only within the framework of marriage” and downplaying the “very real engagement of these women with ISIS’s ideology” (p.102).

There is no evidence that Muthana joined ISIS because she was “persuaded to by a man,” or that she did so for the “primary purpose of getting married” (p.102), the authors argue.  And  there is ample evidence of her strong ideological convictions: she viewed her actions in Syria as in line with God’s laws, in which the founding of a Muslim state or caliphate is an obligation of every Muslim, regardless of gender race, or nationality.  These ideological convictions were wholly absent in media reporting about Muthana and those of other so-called ISIS brides.  That the women of ISIS, and not the men, are able to press claims of youth, manipulation and victimization reflects the “deeply gendered bias in both media portrayals and the legal treatment of ISIS members” (p.108).

* * *

The four cases, disparate as they may be, reveal women war criminals to be like their male counterparts,  Stefjia and Trisko Darden write,  “political actors willing to act on their convictions and use their trials and notoriety to further their messages” (p.123). Women implicated in war crimes, moreover, are uncomfortably similar to other women across the globe in at least one sense – they too are “committed to making a mark and having a voice in a man’s world” (p.123).

Thomas H. Peebles

Bordeaux, France

February 1, 2022

 

 

2 Comments

Filed under Gender Issues, Rule of Law

Do Something

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Zachary Kaufman, United States Law and Policy on Transitional Justice:

Principles, Politics, and Pragmatics 

             The term “transitional justice” is applied most frequently to “post conflict” situations, where a nation state or region is emerging from some type of war or violent conflict that has given rise to genocide, war crimes, or crimes against humanity — each now a recognized concept under international law, with “mass atrocities” being a common shorthand used to embrace these and related concepts. In United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics, Zachary Kaufman, a Senior Fellow and expert on human rights at Harvard University’s Kennedy School of Government, explores the circumstances which have led the United States to support that portion of the transitional justice process that determines how to deal with suspected perpetrators of mass atrocities, and why it chooses a particular means of support (disclosure: Kaufman and I worked together in the US Department of Justice’s overseas assistance unit between 2000 and 2002, although we had different portfolios: Kaufman’s involved Africa and the Middle East, while I handled Central and Eastern Europe).

          Kaufman’s book, adapted from his Oxford University PhD dissertation, centers around case studies of the United States’ role in four major transitional justice situations: Germany and Japan after World War II, and ex-Yugoslavia and Rwanda in the 1990s, after the end of the Cold War. It also looks more briefly at two secondary cases, the 1988 bombing of Pan American flight 103, attributed to Libyan nationals, and atrocities committed during Iraq’s 1990-91 occupation of Kuwait. Making extensive use of internal US government documents, many of which have been declassified, Kaufman digs deeply into the thought processes that informed the United States’ decisions on transnational justice in these six post-conflict situations. Kaufman brings a social science perspective to his work, attempting to tease of out of the case studies general rules about how the United States might act in future transitional justice situations.

          The term “transitional justice” implicitly affirms that a permanent and independent national justice system can and should be created or restored in the post-conflict state.  Kaufman notes at one point that dealing with suspected perpetrators of mass atrocities is just one of several critical tasks involved in creating or restoring a permanent national justice system in a post-conflict state.  Others can include: building or rebuilding sustainable judicial institutions, strengthening the post-conflict state’s legislation, improving capacity of its justice-sector personnel, and creating or upgrading the physical infrastructure needed for a functioning justice system. These latter tasks are not the focus of Kaufman’s work. Moreover, in determining how to deal with alleged perpetrators of mass atrocities, Kaufman’s focus is on the front end of the process: how and why the United States determined to support this portion of the process generally and why it chose particular mechanisms rather than others.   The outcomes that the mechanisms produce, although mentioned briefly, are not his focus either.

          In each of the four primary cases, the United States joined other nations to prosecuted those accused or suspected of involvement in mass atrocities before an international criminal tribunal, which Kaufman characterizes as the “most significant type of transitional justice institution” (p.12). Prosecution before an international tribunal, he notes, can promote stability, the rule of law and accountability, and can serve as a deterrent to future atrocities. But the process can be both slow and expensive, with significant political and legal risks. Kaufman’s work provides a useful reminder that prosecution by an international tribunal is far from the only option available to deal with alleged perpetrators of mass atrocities. Others include trials in other jurisdictions, including those of the post-conflict state, and several non-judicial alternatives: amnesty for those suspected of committing mass atrocities, with or without conditions; “lustration,” where suspected persons are disenfranchised from specific aspects of civic life (e.g., declared ineligible for the civil service or the military); and “doing nothing,” which Kaufman considers tantamount to unconditional amnesty.  Finally, there is the option of summary execution or other punishment, without benefit of trial. These options can be applied in combination, e.g., amnesty for some, trial for others.

         Kaufman weighs two models, “legalism” and “prudentialism,” as potential explanations for why and how the United States acted in the cases under study and is likely to act in the future.  Legalism contends that prosecution before an international tribunal of individuals suspected or accused of mass atrocities  is the only option a liberal democratic state may elect, consistent with its adherence to the rule of law.  In limited cases, amnesty or lustrations may be justified as a supplement to initiating cases before a tribunal. Summary execution may never be justified. Prudentialism is more ad hoc and flexible,with  the question whether to establish or invoke an international criminal tribunal or pursue other options determined by any number of different political, pragmatic and normative considerations, including such geo-political factors as promotion of stability in the post-conflict state and region, the determining state or states’ own national security interests, and the relationships between determining states. Almost by definition, legalism precludes consideration of these factors.

          Kaufman presents his cases in a highly systematic manner, with tight overall organization. An introduction and three initial chapters set forth the conceptual framework for the subsequent case studies, addressing matters like methodology and definitional parameters.  The four major cases are then treated in four separate chapters, each with its own introduction and conclusion, followed by an overall conclusion, also with its own introduction and conclusion (the two secondary cases, Libya and Iraq are treated within the chapter on ex-Yugoslavia).  Substantive headings throughout each chapter make his arguments easy to follow.   General readers may find jarring his extensive use of acronyms throughout the text, drawn from a three-page list contained at the outset. But amidst Kaufman’s deeply analytical exploration of the thinking that lay behind the United States’ actions, readers will appreciate his decidedly non-sociological hypothesis as to why the United States elects to engage in  the transitional justice process: a deeply felt American need in the wake of mass atrocities to “do something” (always in quotation marks).

* * *

          Kaufman begins his case studies with the best-known example of transitional justice, Nazi Germany after World War II. The United States supported creation of what has come to be known as the Nuremberg War Crimes tribunal, a military court administered by the four victorious allies, the United States, Soviet Union, Great Britain and France. The Nuremberg story is so well known, thanks in part to “Judgment at Nuremberg,” the best-selling book and popular film, that most readers will assume that the multi-lateral Nuremberg trials were the only option seriously under consideration at the time. To the contrary, Kaufman demonstrates that such trials were far from the only option on the table.

        For a while the United States seriously considered summary executions of accused Nazi leaders. British Prime Minister Winston Churchill pushed this option during wartime deliberations and, Kaufman indicates, President Roosevelt seemed at times on the cusp of agreeing to it. Equally surprisingly, Soviet Union leader Joseph Stalin lobbied early and hard for a trial process rather than summary executions. The Nuremberg Tribunal “might not have been created without Stalin’s early, constant, and forceful lobbying” (p.89), Kaufman contends.  Roosevelt abandoned his preference for summary executions after economic aspects of the Morgenthau Plan, which involved the “pastoralization” of Germany, were leaked to the press. When the American public “expressed its outrage at treating Germany so harshly through a form of economic sanctions,” Roosevelt concluded that Americans would be “unsupportive of severe treatment for the Germans through summary execution” (p.85).

          But the United States’ support for war crimes trials became unwavering only after Roosevelt died in April 1945 and Harry S. Truman assumed the presidency.  The details and mechanics of a multi-lateral trial process were not worked out until early August 1945 in the “London Agreement,” after Churchill had been voted out of office and Labor Prime Minister Clement Atlee represented Britain. Trials against 22 high level Nazi officials began in November 1945, with verdicts rendered in October 1946: twelve defendants were sentenced to death, seven drew prison sentences, and three were acquitted.

       Many lower level Nazi officials were tried in unilateral prosecutions by one of the allied powers.   Lustration, barring active Nazi party members from major public and private positions, was applied in the US, British, and Soviet sectors.  Numerous high level Nazi officials were allowed to emigrate to the United States to assist in Cold War endeavors, which Kaufman characterizes as a “conditional amnesty” (Nazi war criminals who emigrated to the United States is the subject of Eric Lichtblau’s The Nazis Next Door: How America Became a Safe Haven for Hitler’s Men, reviewed here in October 2015; Frederick Taylor’s Exorcising Hitler: The Occupation and Denazification of Germany, reviewed here in December 2012, addresses more generally the manner in which the Allies dealt with lower level Nazi officials). By 1949, the Cold War between the Soviet Union and the West undermined the allies’ appetite for prosecution, with the Korean War completing the process of diverting the world’s attention away from Nazi war criminals.

          The story behind creation of the International Military Tribunal for the Far East, designed to hold accountable accused Japanese perpetrators of mass atrocities, is far less known than that of Nuremberg, Kaufman observes.  What has come to be known as the “Tokyo Tribunal” largely followed the Nuremberg model, with some modifications. Even though 11 allies were involved, the United States was closer to the sole decision-maker on the options to pursue in Japan than it had been in Germany. As the lead occupier of post-war Japan, the United States had “no choice but to ‘do something’” (p.119).   Only the United States had both the means and will to oversee the post-conflict occupation and administration of Japan. That oversight authority was vested largely in a single individual, General Douglas MacArthur, Supreme Commander of the Allied forces, whose extraordinarily broad – nearly dictatorial — authority in post World War II Japan extended to the transitional justice process. MacArthur approved appointments to the tribunal, signed off on its indictments, and exercised review authority over its decisions.

            In the interest of securing the stability of post-war Japan, the United States accorded unconditional amnesty to Japan’s Emperor Hirohito. The Tokyo Tribunal indicted twenty-eight high-level Japanese officials, but more than fifty were not indicted, and thus also benefited from an unconditional amnesty. This included many suspected of “direct involvement in some of the most horrific crimes of WWII” (p.108), several of whom eventually returned to Japanese politics. Through lustration, more than 200,000 Japanese were removed or barred from public office, either permanently or temporarily.  As in Germany, by the late 1940s the emerging Cold War with the Soviet Union had chilled the United States’ enthusiasm for prosecuting Japanese suspected of war crimes.

           The next major United States engagements in transitional justice arose in the 1990s, when the former Yugoslavia collapsed and the country lapsed into a spasm of ethnic violence; and massive ethnic-based genocide erupted in Rwanda in 1994. By this time, the Soviet Union had itself collapsed and the Cold War was over. In both instances, heavy United States’ involvement in the post-conflict process was attributed in part to a sense of remorse for its lack of involvement in the conflicts themselves and its failure to halt the ethnic violence, resulting in a need to “do something.”  Rwanda marks the only instance among the four primary cases where mass atrocities arose out of an internal conflict.

       The ethnic conflicts in Yugoslavia led to the creation of the International Criminal Tribunal for Yugoslavia (ICTY), based in The Hague and administered under the auspices of the United Nations Security Council. Kaufman provides much useful insight into the thinking behind the United States’ support for the creation of the court and the decision to base it in The Hague as an authorized Security Council institution. His documentation shows that United States officials consistently invoked the Nuremberg experience. The United States supported a multi-lateral tribunal through the Security Council because the council could “obligate all states to honor its mandates, which would be critical to the tribunal’s success” (p.157). The United States saw the ICTY as critical in laying a foundation for regional peace and facilitating reconciliation among competing factions. But it also supported the ICTY and took a lead role in its design to “prevent it from becoming a permanent [tribunal] with global reach” (p.158), which it deemed “potentially problematic” (p.157).

             The United States’ willingness to involve itself in the post-conflict transitional process in Rwanda,   even more than in the ex-Yugoslavia, may be attributed to its failure to intervene during the worst moments of the genocide itself.  That the United States “did not send troops or other assistance to Rwanda perversely may have increased the likelihood of involvement in the immediate aftermath,” Kaufman writes. A “desire to compensate for its foreign policy failures in Rwanda, if not also feelings of guilt over not intervening, apparently motivated at least some [US] officials to support a transitional justice institution for Rwanda” (p.197).

        Once the Rwandan civil war subsided, there was a strong consensus within the international community that some kind of international tribunal was needed to impose accountability upon the most egregious génocidaires; that any such tribunal should operate under the auspices of the United Nations Security Council; that the tribunal should in some sense be modeled after the ICTY; and that the United States shouldtake the lead in establishing the tribunal. The ICTY precedent prompted US officials to “consider carefully the consistency with which they applied transitional justice solutions in different regions; they wanted the international community to view [the US] as treating Africans similarly to Europeans” (p.182). According to these officials, after the precedent of proactive United States involvement in the “arguably less egregious Balkans crisis,” the United States would have found it “politically difficult to justify inaction in post-genocide Rwanda” (p.182).

           The United States favored a tribunal modeled after and structurally similar to the ICTY, which came to be known as International Criminal Tribunal for Rwanda (ICTR). The ICTR was the first international court having competence to “prosecute and punish individuals for egregious crimes committed during an internal conflict” (p.174), a watershed development in international law and transitional justice.  To deal with lower level génocidaires, the Rwandan government and the international community later instituted additional prosecutorial measures, including prosecutions by Rwandan domestic courts and local domestic councils, termed gacaca.

          No international tribunals were created in the two secondary cases, Libya after the 1998 Pan Am flight 103 bombing, and the 1990-91 Iraqi invasion of Kuwait. At the time of the Pam Am bombing, several years prior to the September 11, 2001 attacks, United States officials considered terrorism a matter to be addressed “exclusively in domestic contexts” (p.156).  In the case of the bombing of Pan Am 103, where Americans had been killed, competent courts were available in the United States and the United Kingdom. There were numerous documented cases of Iraqi atrocities against Kuwaiti civilians committed during Iraq’s 1990-91 invasion of Kuwait.  But the 1991 Gulf War, while driving Iraq out of Kuwait, otherwise left Iraqi leader Saddam Hussein in power. The United States was therefore not in a position to impose accountability upon Iraqis for atrocities committed in Kuwait, as it had done after defeating Germany and Japan in World War II.

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         In evaluating the prudentialism and legalism models as ways to explain the United States’ actions in the four primary cases, prudentialism emerges as a clear winner.  Kaufman convincingly demonstrates that the United States in each was open to multiple options and motivated by geo-political and other non-legal considerations.  Indeed, it is difficult to imagine that the United States – or any other state for that matter — would ever, in advance, agree to disregard such considerations, as the legalism model seems to demand. After reflecting upon Kaufman’s analysis, I concluded that legalism might best be understood as more aspirational than empirical, a forward-looking, prescriptive model as to how the United States should act in future transitional justice situations, favored in particular by human rights organizations.

         But Kaufman also shows that the United States’ approach in each of the four cases was not entirely an ad hoc weighing of geo-political and related considerations.  Critical to his analysis are the threads which link the four cases, what he terms “path dependency,” whereby the Nuremberg trial process for Nazi war criminals served as a powerful influence upon the process set up for their Japanese counterparts; the combined Nuremberg-Tokyo experience weighed heavily in the creation of ICTY; and ICTY strongly influenced the structure and procedure of ICTR.   This cumulative experience constitutes another factor in explaining why the United States in the end opted for international criminal tribunals in each of the four cases.

         If a general rule can be extracted from Kaufman’s four primary cases, it might therefore be that an international criminal tribunal has evolved into the “default option” for the United States in transitional justice situations,  showing the strong pull of the only option which the legalism model considers consistent with the rule of law.  But these precedents may exert less hold on US policy makers going forward, as an incoming administration reconsiders the United States’ role in the 21st century global order. Or, to use Kaufman’s apt phrase, there may be less need felt for the United States to “do something” in the wake of future mass atrocities.

Thomas H. Peebles

Venice, Italy

February 10, 2017

 

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