A Wolf in Sheep's Clothing? Transitional Justice and the Effacement of State Accountability for International Crimes
Journal
Accountability for International Crimes
A WOLF IN SHEEP'S CLOTHING? TRANSITIONAL JUSTICE 0
Laurel E. Fletcher 0
0 University of California-Berkley, School of Law , USA
Copyright c 2016 by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
-
2016
Article 1
A
Wolf in
Sheep’s
Clothing?
Transitional
Justice and the
Effacement of State Accountability for International Crimes
A Wolf in Sheep’s Clothing? Transitional
Justice and the Effacement of State
Accountability for International Crimes
Laurel E. Fletcher
If international atrocity crimes are acts so egregious that their impunity cannot be legally
tolerated, why don’t we punish States that commit them? The rise of international criminal law is
celebrated as an achievement of the international rule of law, yet its advance effectively may come
at the expense of holding States accountable for their role in mass violence. Transitional justice
has emerged as the dominant normative framework for how the international community responds
to mass violence. Liberalism strongly influences transitional justice, which has produced
individual criminal accountability as the desired form of legal accountability for atrocities. Transitional
justice rejects punishing States for atrocities as illiberal (collective punishment) and illegitimate
(lack of positive law). In fact, transitional justice theorization of justice largely ignores legal
accountability for States. Without legal accountability, States enjoy moral and legal impunity for
their crimes. States escape their legal obligations to repair the injury they cause and to institute
reforms that secure a fuller measure of justice and peace. This Article examines how international
law and transitional justice have developed conceptually to effectively prevent legal accountability
for States that commit atrocity crimes, and argues that a new politics of transitional justice is
necessary to harness the productive potential of State legal accountability to achieve a fuller measure
of international justice.
If international atrocity crimes are acts so egregious that their
impunity cannot be legally tolerated, why don’t we punish States that
commit them? The rise of international criminal law is celebrated as
an achievement of the international rule of law, yet its advance
effectively may come at the expense of holding States accountable for
their role in mass violence. Transitional justice has emerged as the
dominant normative framework for how the international community
responds to mass violence. Liberalism strongly influences transitional
justice, which has produced individual criminal accountability as the
desired form of legal accountability for atrocities. Transitional justice
rejects punishing States for atrocities as illiberal (collective
punishment) and illegitimate (lack of positive law). In fact,
transitional justice theorization of justice largely ignores legal
accountability for States. Without legal accountability, States enjoy
moral and legal impunity for their crimes. States escape their legal
obligations to repair the injury they cause and to institute reforms that
secure a fuller measure of justice and peace. This Article examines
* Clinical Professor of Law, University of California-Berkeley, School of Law; J.D.,
Harvard Law School, 1990; B.A., Brandeis University, 1986. I am grateful to Kathryn
Abrams, Roxanna Altholz, Christopher Kutz, Saira Mohamed, Eric Stover, and Harvey M.
Weinstein for their valuable feedback and engagement with this project. Participants in the
International Workshop at the Frankfurter Cluster of Excellence “The Formation of Normative
Orders,” the ASIL Research Forum, and faculty workshops at Berkeley Law and UCLA also
provided helpful comments on earlier drafts of this article. I am indebted to Abigail Ludwig
‘15, Sahar Maali ‘15, and Bina Patel ‘16 for their research contributions, to the Berkeley Law
librarians for their research support, and to Olivia Layug Balbarin for her generous
administrative assistance.
FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447
how international law and transitional justice have developed
conceptually to effectively prevent legal accountability for States that
commit atrocity crimes, and argues that a new politics of transitional
justice is necessary to harness the productive potential of State legal
accountability to achieve a fuller measure of international justice.
INTRODUCTION
Referring to the violence in Syria, Navi Pillay, then UN High
Commissioner for Human Rights, declared: “It’s the Government that
is mostly responsible for the violations and all these perpetrators
should be identified and can if there is a referral to the International
Criminal Court.”1 This logic is as familiar as it is constructed. Ever
since the Nuremberg trials, the international community has embraced
individual criminal accountability as a value and goal necessa (...truncated)