Almost from the beginning of the US-supported regime-change project in Syria, US policymakers have incorporated several kinds of planning for what is called “transitional justice” into their pursuit of the project. Transitional justice (TJ) is a field that came into great vogue in the mid-1990s, after two key developments in the post-Soviet world: (1) the UN Security Council’s creation of a special International Criminal Tribunal for the Former Yugoslavia and (2) the agreement of the African National Congress in South Africa to negotiate an end to the Apartheid system- but with the proviso that the most heinous of the rights violators of the Apartheid era all ‘fess up to all their actions in a specially created Truth and Reconciliation Commission (TRC); and if those confessions were deemed full and heartfelt, then the perpetrators could escape prosecution for their actions.
From the early 1990s, these two approaches to TJ were in tension with each other; and that tension has lain at the heart of the rapidly burgeoning field of TJ projects ever since.
For its part, the prosecutorial/criminal-justice approach claimed descent from, crucially, the two US-dominated international courts established immediately after WW-II, in Nuremberg, and Tokyo. (The above photo is of Herman Goering on the stand, in Nuremberg.) The creation of ICTY was followed, two years later, by the Security Council’s creation of a parallel special court for Rwanda; and meantime, a broad movement emerged to press for the establishment by treaty among nations of a permanent “International Criminal Court” (ICC) which could hold accountable perpetrators of the worst forms of atrocities- described as war crimes, crimes against humanity, and genocide- in a criminal proceeding. In 1998, 120 governments adopted the “Rome Treaty” that established and set the rules for this court. In 2002, the requisite 60 countries had ratified the Rome Treaty and the ICC came into existence, headquartered in The Hague.
I have reflected at length in many earlier writings (including this 2006 book and these earlier articles: 1, 2) on some of the shortcomings of the ICC and the criminal-justice approach it adopts to dealing with the aftermath of atrocities. Suffice it here to note the following:
- The United States is not a member of the ICC; but all the…