If international atrocity crimes are acts so egregious that their impunity cannot be legally tolerated, why don’t we punish States that commit them? I explore this question in my recent article A Wolf in Sheep’s Clothing? Transitional Justice and the Effacement of State Accountability for International Crimes, published in the Fordham International Law Journal. States and individuals each may be responsible under international law for the same incidents of mass atrocities: individuals under international criminal law and States under the law of state responsibility. Yet when the international community mobilizes to sanction State-perpetrated atrocities, it moves to punish individual perpetrators and side steps States. For example, a 2014 proposal before the Security Council to refer the situation in Syria to the ICC made no mention of legal responsibility of the Syrian State for violation of obligations erga omnes. I argue that part of the reason the international community prefers enforcing international criminal responsibility over holding states accountable is transitional justice.

Transitional justice has emerged as the dominant normative framework for how the international community responds to mass violence. Within transitional justice, the legacy of the Nuremberg trials has produced individual criminal accountability as the highest form of legal accountability for atrocities. Transitional justice rejects punishing States for atrocities as illiberal (collective punishment) and illegitimate (lack of positive law). Advocates justified the ad hoc criminal tribunals for the former Yugoslavia and Rwanda by arguing that punishing individual war criminals was necessary to avoid collective guilt and would promote reconciliation. Transitional justice has focused on legal accountability for individuals and needs to consider what State responsibility offers as a normative and practical matter. 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.

The pursuit of State responsibility for atrocity crimes furthers the aims of transitional justice in important conceptual and practical ways. Accountability for international crimes is a bedrock international principle around which the United Nations has organized international transitional justice policy. Rule of law ideals have thoroughly infused the international justice discourse. Yet international rule of law principles apply equally to States. So when, in the name of accountability for international crimes, transitional justice effectively ignores State legal responsibility, transitional justice undermines the international commitment to rule of law.

In the case of mass atrocities, States violate norms of the highest order—genocide, crimes against humanity, war crimes—and obligations owed to the international community as a whole. Such transgressions deserve to be acknowledged as such. State-perpetrated mass slaughter of civilians is conducted in furtherance of a State policy, and relies on multiple collective dimensions of the State to advance this criminal pursuit. To the extent that transitional justice pursues international criminal sanctions, these acts when carried out by States also should be identified as wrongs, and offending States should be held accountable.

The elision of State accountability in transitional justice shapes the type of politics of accountability that are possible. Current neglect of international State accountability raises the question of whether international criminal accountability is a mere distraction or decoy drawing attention away from addressing the role of States in perpetrating atrocity crimes. Calling for State accountability would symbolically acknowledge State culpability for mass violence. It also would align international opprobrium of States with its treatment of individuals. Doing so would invite renewed attention to how remedies for State responsibility could be applied to reform or to dismantle State structures implicated in the perpetration of international crimes.

Scholars and practitioners have argued that transitional justice should pay greater attention to structural violence and drivers of conflict, yet these critics largely have ignored pursuit of States as legally accountable actors. There is some effort to change this. In his recent report, UN Special Rapporteur for transitional justice Pablo de Greiff calls on States to implement a range of structural reforms including human rights treaty ratification; domestic legislation to criminalize offenses of international law; judicial reforms to promote an independent and effective judiciary; and constitutional reforms to promote individual rights, prohibit discrimination, advance civilian control of the armed forces, and ensure separation of powers. The Special Rapporteur’s focus on structural measures as guarantees of non-repetition is in sync with transitional justice scholars who advocate remedying “root and branch” problems that contribute to mass violence and hamper peace. When States target groups for bloody attack based on sectarian, ethnic, or racial divisions, striking down discriminatory laws that constituted State policy, creating bills of rights, and establishing constitutional courts to enforce these protections are prudent measures to prevent recurrence of State violence.

However, transitional justice should go beyond the Special Rapporteur’s calls for reform as a matter of policy. Scholars and advocates should advance international rule of law by identifying these as legal obligations that States owe to the international community. By way of example, proponents could seek to harness the Chapter VII authority of the Security Council. The Security Council could, as appropriate, refer situations to the ICC and direct States to fulfill their legal obligations for State responsibility through providing compensation, undertaking constitutional reforms, etc.

Identifying State transgressors as responsible for their involvement in international crimes and insisting on commensurate legal remedies advances rule of law values and offers a potentially potent legal tool to secure structural remedies. The conditions under which pursuit of State legal accountability is warranted deserve further study. The debates among realists versus idealists regarding whether justice for war criminals jeopardizes peace are similarly pertinent to the question of State responsibility. This is a discussion that transitional justice should welcome. Without it, transitional justice colludes with the status quo in which State legal responsibility for atrocity crimes is invisible.

Laurel E. Fletcher, A Wolf in Sheep’s Clothing? Transitional Justice and the Effacement of State Accountability for International Crimes appears in the February 2016 issue of the Fordham International Law Journal.