A wolf in sheep's clothing ? : transitional justice and the effacement of state accountability for international crimes
Laurel E. Fletcher
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Fordham international law journal, Vol. 39, issue 3, 2016, p. 447-531
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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