A Wolf in Sheep's Clothing? Transitional Justice and the Effacement of State Accountability for International Crimes

Fordham International Law Journal, Mar 2016

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.

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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)


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Laurel E. Fletcher. A Wolf in Sheep's Clothing? Transitional Justice and the Effacement of State Accountability for International Crimes, Fordham International Law Journal, 2016, Volume 39, Issue 3,