Transnational Justice and National Sovereignty
Vindicating the Rule of Law: Balancing Competing Demands for Justice
Sandra Day O'Connor
Associate Justice, United States Supreme Court

The rule of law is fundamental to the existence of a free society. To maintain the rule of law, accountability for transgressions against the law is essential. Generally, accountability is achieved when the state prosecutes and punishes those who break its laws, or when international tribunals prosecute certain crimes, such as genocide and war crimes, under universal jurisdiction. Pursuing accountability, however, becomes more complicated in certain contexts. For example, states that are in transition from an authoritarian to a democratic regime face conflicting pressures. In these situations, there is tension between the international obligation to prosecute certain crimes and the countervailing domestic interests in nurturing the transition to democracy by foregoing prosecution.

As we enter the millennium, we are faced with an increasing trend toward using international institutions to prosecute certain crimes. At the same time, many nation-states are undergoing the transition to democracy. Finding the best way for these emerging democracies to achieve accountability for mass crimes perpetrated by the previous regime is an enormous challenge. There is no right answer to which approach is the best way to secure the rule of law. Every situation will be different and will require the balancing of different factors.

As Martha Minow has noted, responding to genocide or mass atrocity with legal prosecutions is to embrace the rule of law. At the same time, international prosecutions are susceptible to charges of politicization and selectivity. States that are in the process of emerging from a totalitarian regime marked by criminal abuses may therefore decide that the national sovereignty interests in pursuing a peaceful transition to a democratic regime trump that state's interest in holding the perpetrators accountable for their actions through criminal prosecutions. Accordingly, some states have pursued other paths to accountability, notably through truth and reconciliation committees. This approach also has advantages and disadvantages. Reconciliation may promote accountability by focusing on exposure and acknowledgment of crimes, but generous amnesties may undermine accountability by allowing the perpetrators to escape punishment.

Although every situation will be different, there are some factors that may help determine which approach is best in a given situation. For example, when crimes create refugee flows across borders, the potential threat to international peace and security counsels in favor of prosecution. On the other hand, where prosecution would clearly undermine the peaceful transition to democracy, a conditional amnesty approach may be appropriate. One relevant criterion that may be helpful in determining whether to defer to national sovereignty interests is whether the government in question respects popular will and the rule of law.

To preserve liberty we must preserve the rule of law. Balancing the tension between international and domestic approaches to accountability is a tremendous challenge, but we must take the route that best vindicates democracy and the rule of law in each situation.