United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics by Zachary D. Kaufman (review)

In his new book United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics, Zachary D. Kaufman establishes a novel framework to explain how and why the United States government (USG) has made decisions in the aftermath of mass atrocities. His framework is based as much on politics and pragmatics as it is on legal tradition and commitment to norms. In his introduction, Kaufman outlines his central research questions, which he addresses through relevant case studies throughout the book. The book centers around two such questions: (1) Why did the USG support particular transitional justice (TJ) options in the immediate aftermaths of World War II and the Cold War? and (2) What theoretical framework best explains USG policy on TJ? In addressing these two questions, Kaufman introduces his new theory, “prudentialism,” which contrasts with the theory of “legalism” that Gary Bass presents in his book, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals.

In his first three chapters, Kaufman outlines the different policy options that the USG has considered and taken in the aftermath of genocide and other mass atrocities, and he argues how these policy decisions stem from prudentialism rather than legalism. Kaufman defines his theory of prudentialism as based in realism by focusing on the relationship between three factors: normative beliefs, politics, and pragmatics. Kaufman describes Bass’ contrasting legalism theory as grounded in a liberal and normative commitment to due process and other legalistic principles and traditions. By introducing prudentialism as a case-specific balance of normative beliefs, politics, and pragmatics, Kaufman challenges the legalistic proposition that liberal states will generally choose to prosecute perpetrators of atrocity crimes. Kaufman therefore introduces greater—and more accurate—nuance to our understanding of policy decisions during and after atrocity crimes. His theory is compelling, for without completely discarding the influence of normative values of liberal states, Kaufman demonstrates through his case studies that politics and pragmatics matter at least as much when states make TJ decisions.

Kaufman chooses a case study approach to test and compare prudentialism and legalism. The cases Kaufman chooses are Nazi Germany and Imperial Japan; the bombing of Pan Am flight 103 over Lockerbie, Scotland; the 1990 to 1991 Iraqi offenses against Kuwaitis; the atrocities in the Balkans in the 1990s; and the Genocide against the Tutsi in Rwanda in 1994. In his discussion of these six cases, Kaufman impressively uses an enormous amount of primary source data, including hundreds of previously classified USG documents he obtained and elite interviews conducted with key decision-makers. His meticulous research and sophisticated analysis of these cases reveal that, instead of consistently supporting prosecutorial TJ mechanisms, as legalism would suggest, the USG considered and implemented a range of TJ options—legalistic and not. Kaufman thus demonstrates the confluence of norms, politics, and pragmatics driving USG policymaking on TJ.

For example, in the case of atrocities committed by Japan during World War II, the USG implemented amnesty and lustration as TJ options in addition to prosecution. Kaufman describes the prominent role the USG played in the Tokyo Tribunal, serving as the most prominent convener of discussions on creating the court, producing the initial draft of the tribunal’s charter, dominating the prosecution team, assisting the defendants, and presiding over the trials. Based on his new theory of prudentialism, Kaufman offers the following explanations for this central US involvement. First, the US was highly sensitive to the fact that Americans suffered at the hands of the Japanese during the war, as the Japanese abused American POWs and attacked the US itself at Pearl Harbor. In addition to retrospective concerns, the US wished to assert its presence in Asia, where American and Soviet spheres of influence were emerging at a time when the US sought to stem the spread of communism. Finally, racism likely also drove American decision-making.

Alongside the Tokyo Tribunal, the USG provided amnesty to...