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15 Harv. Hum. Rts. J. 39 (2002)
Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice

handle is hein.journals/hhrj15 and id is 43 raw text is: Extraordinary Evil, Ordinary Crime:
A Framework for Understanding
Transitional Justice
Miriam J. Aukerman°
A. The Prosecution Preference
The international debate about the use of prosecutions in transitional jus-
tice has focused on the conditions that permit prosecuting those who com-
mit human rights violations. Some critics suggest that international law
imposes a duty to prosecute a former regime's atrocious crimes, and contend
that states have overstated claims that prosecutions are impossible.' These
critics contend that while governments should not press prosecutions when
there is a genuine and serious threat to national life,2 states should assume
reasonable risks associated with prosecution, including military discon-
tent.3 Other scholars, however, criticize the proponents of prosecutions for
assuming that prosecutions will be possible in the wake of human rights
disasters. Not only is an amnesty for human rights abusers often a precondi-
tion for securing a smooth political transition,4 they argue, but tm]any
fledgling democracies have simply not had the power, popular support, legal
tools, or conditions necessary to prosecute effectively.'
* Miriam J. Aukerman is currently a staff attorney for Westem Michigan Legal Services. She has
clerked for Judge Pierre N. Leval of the United States Court of Appeals for the Second Circuit, worked
for the New York and Moscow offices of the Ford Foundation, and served as the United States' rcepmn-
tative for the Gulag Museum, based on the site of the Perm-36 Gulag camp in Perm, Russia. The author
would like to thank Alex Boraine, David Garland, Priscilla Hay ne r Charles Pazdernk, John \Witt. and
the editors of the HARVARD HumtN RIGHTS JOURNAL for their thoughtful comments on this Article.
1. See Diane E Orenlicher, Setting Accounts: Tke Duty to Prcs rtae Hvt.n RIgtk V:latirs' cf a Pn.r Re-
gime, 100 YALE LJ. 2537, 2548 (1991) (arguing that international law requires pmeecution of human
rights violations).
2. Id
3. Id. at 2549.
4. See Paul van Zyl, Dilemmas of TranritionalJustix Tk. Case cf Sc:th Afitwuos Trmtb a=J Rerm.thlzatt=
Commission, 52J. Ia'r'LAFF. 647,651(1999).
5. Stephan Landsman, Alternative Responses to Serious Huan Risks Awes: Of Prc mastt arJ Truth C .--
missions, 59 LAW & CONTMP. PsoBs. 81, 84 (1996); See also Charles Villa-Vicencio, Why Perparatt:m
Should Not Always Be Punishuk Where the Intromticnal Crziinal Ccirt arJ Th'ih Cc-zzm:r.s ,if-s. 49
EMORY I.J. 205, 220 (2000) (describing the challenge of deciding whether or not to pro.ecute as Mdiang
between Scylla and Charybdis: t(rhe duty to prosecute ... can shipwreck non-prosecutonal iruttaives;

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