On Presidential Leadership and Moral Responsibility

You're listening to On the Record from the Council on Foreign Relations, bringing you select conversations from leading minds in foreign policy. Hello, everyone. Welcome to today's Council on Foreign Relations meeting, which is entitled Reckoning with History, Presidential Leadership, and Moral Responsibility. I'm Jacob Weisberg. I'm the executive chairman of a podcast company called Pushkin Industries. I'm also the chair of the committee to protect journalists and a longtime council member. And I'd like to introduce the rest of our panelists, starting at the far end. Mina Bose is the executive dean, public policy and public service programs, and the director of the Calico Center for the study of the American presidency. which is at the Calico School of Government at Hofstra. That's a long title. I know. Everyone left. And to me and his left is David Chaffer, who is a senior fellow at the Council on Foreign Relations and very relevant to tonight's conversation. He is also the former U.S. ambassador for war crimes. And... To David's left is Rudy Title, who is the author of the book that is going to be the centerpiece of tonight's conversation. We all have it here. We've all read it on the panel. We're all recommending it very highly. The book's full title is transitional justice, an American legacy of responsibility and reconciliation. And Rudy is the stifle professor of comparative law and co-director. at the Center for International Law at New York Law School. She's also a CFR member. I'd like to remind everyone tonight's conversation is on the record. And we'll get started and then we'll open it up for questions at the usual time about halfway through. So welcome everyone. Rudy, I'd like to start with you. This idea of transitional justice. And you coined the term. This is a field of study, really, which you founded whether intentionally or not. But I wonder if you can start by giving us a kind of overview of the idea of transitional justice. And then talking about this book, how you located in the history of the American presidency. I was fascinated to read that you take this back to the end of the American Revolution and George Washington. and the J Treaty. So there's, you know, there's a lot to cover, and you cover multiple episodes over American history in the course of the book. But get us started on the, on the idea in the early history. Sure, thanks a lot. And great to have this conversation here at the CFR. So transitional justice, as you say, as I coined it, as I defined it in the early 90s, was the conception of justice in periods of radical political change. And so essentially that first book got going because I'm originally from Argentina and I was following the developments of the post-dirty war, the accountability, the attempt to, you know, the trials of the leaders.

of the military junta and the rest of the other countries in latin america as well as and then eastern europe right in you have the fall of the berlin wall in 89 and then there was much more to cover and so it turned and you know essays and articles turned into that first book transitional justice and of course you remember south africa in the mid 90s so that was You know, I would say that was that stage, right, where, you know, because of the end of the Cold War, you had a tremendous, almost a factory of transitional justice because so many countries were dealing with those issues of both political transition but also economic transition in Europe. Fast forward, generally the U.S. was kept out of those conversations. You didn't have, you know, you had the U.S. exporting transition. You had the U.S. defining what was rule of law. But generally, I can't think of a truth commission in Latin America that seriously dealt with American role in that period in supporting the, you know, in many cases, the advent of the military. So. What was interesting about this book is it got going and, you know, took me in a different direction than I'd been working in and I've been teaching in because of the last year of the Obama administration. And his last year, just to recall, in 2016, he went around. He went around Latin America and he went to Asia. He went to Buenos Aires and Havana. He went to Hanoi, Laos, Hiroshima. as far back as Hiroshima, and he talked about the American role in those conflicts, and he basically called for a reset on the Cold War. And this was very intriguing to me. I'd never seen anything like this, and, you know, I thought. And so I started writing and pursuing that line of inquiry. And then one thing led to another, because the question I posed after that was, you know, here's an American president. taking responsibility of, you know, again, flawed, not for the immediate, you know, events of the Bush period, right? Not for Iraq and Afghanistan, but going back to the American rule during that period of the Cold War and calling for a reset. And then I went back in time to say, you know, the conceit, the question that got the book going was, what about other periods of conflict and conflict resolution? And so, as you say, I went back to the post-revolutionary period, George Washington, working closely with Chief Justice John Jay, coming up with the J treaty, coming up with ways to adjudicate claims that the Brits had, that U.S. states had basically avoided dealing with. And we were a debtor nation then. We were very close to going back to war. Most people don't know that, even though there had been this Paris treaty. So George Washington very cleverly with the Supreme Court Justice at the time, who he named as his envoy, and that's why it's called the J Treaty. They came up with something called the J commissions, and the J commissions essentially arbitrated these claims and basically took over from the states and decided that this was a question for the new nation. There was a constitution that would force this upon the states, and you avoided the disaster of returning to war.

So that, you know, was an early chapter. And then I went on to Teddy Roosevelt and Roosevelt that is known for a period of expansion. And it's... for many overly muscular presidency, but what is less known is that he essentially changed the international law surrounding conflict at the time. He pushed out the Spaniards. He prevented gunboat diplomacy by the Europeans that were used to essentially using violent means in order to punish Latin American states that were in breach of contract. And there was a lot of investment of Spain and other countries in the Americas. He displaced the Spaniards, but he also called for arbitration. And his speech, he was the first U.S. Nobel Peace President, the first president to get the Nobel Peace Prize. And in Jon Ossoff, he says that every, yes, quote, civilized countries should have arbitration treaties and that this is what is essential to peace in the future. And he supported the permanent court of arbitration. So those are just... Two examples, and I would add Woodrow Wilson, who, you know, was a very energetic in the post-World War I period and trying to avert really what we ended up having, which was a retributive justice. in Europe. And many think that if he had succeeded, we would have avoided World War II. He was for peace without victory. He was against collective rep—the whole idea of these punitive reparations on Germany. He was against carving up Germany. And so, you know, he took his own, you know, physician to Versailles to fight for this concept of— of non-triamphalism and peace without victory. And so that, you know, as another turned into another chapter, and of course we can see that, you know, with the vantage point of time and perspective, that actually Wilson's ideas, the Wilsonian peace comes to fruition, one might think at the end of World War II, when we support the Nuremberg trials, individual trials, individual punishment. and then a much more forward-looking view of peace, the Marshall Plan, Reconstruction, et cetera. So these, you know, I then obviously have a chapter on the post-Civil War period and a chapter on Obama, as I've mentioned. So let me stop there. Yeah, well, there's lots of we want to come back here, including where you started with the Obama's so-called apology tour. But first I want to turn to David to give us maybe a little more of a practitioner's perspective because, David, you've been involved. in these issues since I think the Clinton administration working on the Balkan, the post-conflict justice in the Balkans. And I just, can you give us kind of your experience about what this has been like? I'll give you speed history. But first, I want to say it took me a little over three hours, three and a half hours to get on the train from Washington to New York this morning. In that period of time, I read this book cover to cover. That's how fast you can read it. It's a page turner.

If you were to tell me a book entitled transitional justice is a page turner, I would say what? It is because what Rudy has done is she's brought you the human interest stories of how presidents in various stages, Washington, Roosevelt, Lincoln, Wilson, they... They managed how to deal with the past by projecting into the future a sense of apology, sometimes reparations, arbitration commissions, resolving things through judicial panels, the Permanent Court of International Justice, a Wilson dream. That is what's told here, and it's a historical walk that we have kind of all forgotten about. I was telling Rudy's students this morning over at New York Law School. You know, after I read this, I kind of remembered what I was taught 50 years ago in law school and in college about some of these significant developments like the J Treaty, you know. Who remembers the J Treaty? Well, she tells you the story of the J Treaty. So you got to pick this up, you got to buy it, et cetera. Now, what I'd like to say is that my... in government was primarily during the Clinton administration, although I was on the hill a bit before then. And it was in the Clinton administration that this concept of transitional justice was translated by my boss, Madeline Albright for eight years, as the building of the modern war crimes tribunals to address the issue of justice in the aftermath, sometimes during the armed conflicts. So we did the Yugoslav War crimes tribunal, the Rwanda Tribunal, the Special Court for Sierra Leone, the extraordinary chambers in the courts of Cambodia, and the permanent international criminal court. Five tribunals, all of them dealing with how do you address the past, jumping forward into the future to achieve justice in a trial, investigation and trial process that, frankly, the Yugoslav Tribunal, you know, it took... It more than 20 years. It took the Rwanda Tribunal more than 20 years. And so, and the extraordinary chambers in the courts of Cambodia took, oh, I don't know, about 15, 15, 16 years. So it's a long process, but it's part of the transitional justice story. And I just wanted to say when we were thinking about transitional justice in the Clinton administration, at least in my area of the block, We were talking about the justice side of it. There's a lot of other aspects, obviously, to transitional justice, but I'll give you just a couple of examples of the other side of things that we were dealing with at the time. You remember the Pinochet saga, you know, where he's in London. They're trying to arrest him to stand trial in Spain, you know, should he be sent back to Chile because of health reasons, you know, et cetera, et cetera, a big long story.

In the Clinton administration, I was put in charge, I was the Ambassador to Large for War crimes issues at the time, and I was, Albright asked me, will you chair a committee now, figure out what the United States can do to demonstrate our commitment to the people of Chile with respect to what they've been through and how we need to search and reveal the truth for them. Because this whole mess, you know, with where is Pinochet and where will he stand trial, et cetera, et cetera, lots of other parties are dealing with that. You know, the Brits are dealing with it, the Chileans, the Spaniards, everyone else is dealing with that. What can we do? So what we decided to do in this, you know, usual bureaucratic committee process is to really speed up the opening up of America's files on. the Pinochet era and the demise of the Yende and the rise of Pinochet. So that was our kind of contribution to transitional justice was to get that truth to the Chilean people. Another example I'll tell you where it was more complicated was with Bosnia. While we were building the Yugoslav Tribunal providing it with a tremendous amount of support, you know, et cetera, et cetera. That was a huge priority. Meanwhile, the people in Bosnia were beseeching us through NGOs and other ways of influencing the U.S. government to build a truth commission in Bosnia. Good idea. We've got truth commissions and all sorts of transitional justice scenarios. The problem is the Yugoslav Tribunal was up and running very dynamically, and they did not want any testimony before a truth commission to be to undermine what the prosecutor would want to bring in the courtroom in real cases against real perpetrators of atrocity crimes. So we had the prosecutor saying, no, don't create the truth commission. This is terrible. This is going to undermine everything I'm trying to get done. Meanwhile, we have NGOs and others, you know, beseeching us to please, we need a truth commission for the people. Well, finally, one day Madeline called me into her office and she said, Dave, You know, they're still after us. Everyone's after us on this. And I have now made a decision. I said, well, what is that? And she said, The United States of America does not always have to decide exactly what will be done in every situation in the world. And therefore, I have decided not to decide on Bosnia and the Truth Commission. And you get to tell the NGOs. So, you know, I got that little task ahead of me. Meanwhile, the prosecutor of the Yugoslav Tribunal was ecstatic. So I just will wrap this up by saying that... Justice was a huge component of how we saw transitional justice, but I will also say that I think if we were to shoot forward to the modern day now, Jacob, there's a lot going on domestically, not just in international tribunals, but domestically in...

criminal law systems that have evolved over the last 30 years that are also a big, big part of the transitional justice picture. Not everything has to be international. A heck of a lot of it is national now. You know, when we look at transitional justice in the context of the American presidency and American politics, certainly looks like... taking responsibility for wrongdoing, whether you use the term apology or not, is something that Democratic presidents are willing to do, even like to do, Carter, Clinton, Obama, Biden, and that Republican presidents don't believe in Reagan, Bush, Bush, and especially Trump. Is that right? I mean, is that, yes, David, you. Well, I don't want to, I mean. No, please, go ahead. I think it would make a point. Well, I would say it's more nuanced. I have to respond, Blake, very quickly. I think we all have an instance. You can all nuance in form. Let's give Ronald Reagan a little bit of credit here, because after he walked through in 1986 that Nazi cemetery in Germany, which he got severely criticized for doing. He asked his staff, how in the world do I get myself out of this difficulty? I've, you know, walked through the wrong cemetery in Germany. And the staffer said to him, well, you could ratify the genocide convention. The United States is not yet ratified. You ratify the genocide convention and no one will remember that cemetery to the rest of their lives. So that's how we got the genocide convention finally ratified through the Senate with the necessary conservative Republican votes to get to 66, two-thirds in the U.S. Senate, because Ronald Reagan weighed in and said, you got to do this for me. In a minute ago, please continue with why the question was flawed, which I acknowledge it was. Not at all, no. It actually gets right to the question of cycles of presidential history and of presidential politics. And let me just echo what's already been said on this panel. This is a marvelous book. For me, it brought back graduate school memories of the best of American politics and international relations because you have concept and then you have empirical material to engage in. And the sweep of history. do this in 200 pages, less than, from George Washington, all the way up through the last year of the Obama administration, it's really a tour de force, and I recommend it highly. The question for me, as someone who studies the American presidency, is kind of more of the U.S. politics side, which David, you kind of alluded to, and maybe we'll get into questions of restorative justice, reparations, and other domestic questions. But to keep the focus on international relations, As I look at the last year of the Obama administration, almost 10 years ago now, right? And I read, as I was reading Rudy about the apology tour, thinking that when we look back at the 2016 election.

A lot to discuss, right? And the expectation really was that Obama's first Secretary of State, Hillary Rodham Clinton, right, was running for the Democratic nomination, would continue this, that in some ways, policymaking would be linear. And The challenge, of course, is that American politics is dictated by fixed terms of office and fixed elections. And so when, and of course, when you have shifts in power, which in some ways, and I'm... I'm making this inference from the nature of President Obama's tour in that last year in office, that there would be this continuation. In fact, to have one party hold the White House for more than eight years is very unusual. It happened from Ronald Reagan to George H.W. Bush. Before that, the last time that you had 12 years with two presidents, right, not FDR, was Andrew Jackson to Martin Van Buren. unusual. And it makes the concept of transitional justice, of kind of receiving not just peace, right? This is kind of, Jacob, you brought up Democrats versus Republicans. I was thinking of realists versus idealists, right? Kissinger Wilson, right? The kind of balance of power politics versus moving toward not just peace, but peace with justice, as Rudy discusses. difficult in American politics to build that lasting framework when you have elections in which you can shift very dramatically. And just to go from Bush, Obama, Trump, Biden, Trump, right? As we're seeing right now, I think for me, the challenge in reading this is how you build transitional justice for the long term. recognizing that American politics and really no democratic politics is linear. Yeah. So I think to introduce some of the, you know, kind of, I don't know, nuanced to that, and I totally agree with you that, and not only is there the problem of administration firms, but, you know, we've also seen a transpartisan, a president of one, you know, Congress of another. That's not the case right now, but that, you know, was something that. had to deal with to some extent. What I would say is that we're still building on some of these changes, that it isn't as radically zero sum as... as one might think. So for example, when Obama, and I don't call it an apology tour, that was what Trump called it. I call it an acknowledgement, a reset. He called for a reset for drawing a line on the Cold War. I think that line has been drawn. I think there's no question. The realignments and the re-regionalization that the current administration is involved in, it bears no similarity to the world that we were living in during the Cold War. So I think that...

So I think that, you know, it's actually better if not, if everything is not in the peace plan because that would, you know, create more problems for the future. And it's been, apparently it's been knocked out the amnesty in the peace. Is that right? Yeah. So that's, you know, putting it to the side, time will tell. That would be the short answer. Yeah, David, were you going to add something? Yeah, let me just amplify what Rudy's been saying. First of all, when you look at these current peace negotiations, particularly Ukraine, it is important to, I think, emphasize that you don't have to have justice on the table. Justice will propel itself outside of the peace negotiations. You have now the special tribunal on the crime of aggression against Ukraine that's getting geared up through the Council on Europe. You've got the International Criminal Corps, which is already, you know, indicted Vladimir Putin and Bolova and other senior military officials. You've also got the Ukrainian court system, which will go on for 20, 30 years, just like the Bosnian one has, you know, focusing on individual perpetrators of atrocity crimes down to the lowest level. And the Ukrainian courts have the jurisdiction to indict and prosecute and convict in absentia if necessary. They actually can do that in Ukraine. But what I would also say is this, I think just historically, and I'm in a very historical frame of mind after reading this, I would say that in the last 30 years, the big shift that has been taken, that has taken place in the global psyche about all of this, is that it is not plausible anymore. It is not plausible anymore. to argue that senior leaders in military or political positions who mastermind and orchestrate atrocity crimes on a large scale, genocide, war crimes, crimes against humanity, the crime of aggression, it is not plausible anymore to argue that they get a free pass, that they're somehow endowed with impunity through their power. to do that righteously. Now, they may never face a court. They may never be captured. But there is no longer a presumption, as there was, about 30, 35 years ago, that just because you're in a position of power, you can actually argue that you have... the authority and the legality to proceed with the commission of such crimes and get away with it without being held accountable at least in the public view for those crimes. That presumption is now dead. It's gone. And was it Bosnia that change that? And if so, why was that? Well, it's not just Bosnia. It's the whole, we've gone through now.

a long period since 1993 of building war crimes tribunals to defeat that presumption. And I would argue the presumption has been defeated. I would respond to that. I agree that cyclical doesn't mean erasing past actions, right? By no means of that. I think the President Obama's visit, the first sitting president to visit Hiroshima, for example. These are significant turning points in American history. And a little bit of what David was just discussing of what was established in the 1990s about holding leaders accountable, right, for war crimes. That is... That is a significant legacy. I guess what I was referring to more, and it's actually in one of the endorsements for your book, someone doesn't use the term apology tour, but talks about apology as a sign of strength rather than weakness. And I think what we... That's where, I think, from an American politics perspective, you see the difficulty of this kind of two steps forward and then maybe a little bit of retrenchment when public opinion and political elites are less inclined to engage abroad, right, or engage selectively. And so it becomes, you see different mechanisms. and varying U.S. engagement based on the president. Yeah. All right. At this point, I'd like to open it to members to ask questions. So please put your hand up. I think there are microphones making the rounds. And I'll remind everyone we're on the record. Hello, my name is Remy Me and I'm a researcher at Science Po in Paris. I just had a quick question. Has anybody on the panel done work on this idea of public versus private apologies? Because I imagine that a public apology has a lot of political calculations and implications, but a private apology maybe between two world leaders or two delegations could have a positive intended impact without necessarily. going to all the politics. Thank you. Not as such, but I do think it's interesting that, as you say, Trump criticized the Obama apology tour and said America does not apologize. On the other hand, he values an apology and certainly... You know, he made Benjamin Netanyahu apologize for the Qatari strike, and that became a turning point in the negotiations for Middle East peace. It was a very important moment that it be public, the public aspect of it, because it was understood that that meant that the U.S. could be an honest broker and didn't know about the strike and so on and so on.

And he accepted an apology from Carney and from Canada about that ad. You know, so apologies on the one hand are not important, but they're, you know, we're not supposed to finish them, but they're important for other people. So, but I'm intrigued because how would you find out about private apologies? Somebody's got to leak it, write in a memoir. So that would be a good research project. So I leave it to you. Yeah. I just think it's a fascinating question. Because in some ways, I mean, the public president What's the point? What's private anymore? But I think you do. When you said that, it's not quite apology, but I'm thinking of the Cuban missile crisis, right? In the 13 days and the discussion of the Jupiter missiles in Turkey that would be kind of the U.S. would remove exchange for the missiles leaving Cuba. So it's not an apology, but you have right negotiation. Or Ronald Reagan and Mikhail Gorbachev and the four Soviet meetings and the conversations that were happening as they, you know, in Reykjavik, kind of approaching the idea of possible. getting rid of all nuclear weapons. So all of these become public, but are not necessarily public at the time. And so it's not quite apology, but I think it's more kind of private negotiations and public deployments. Maybe a series of conciliatory gestures. Maybe that would be what it would be, yeah. Well, I can give you one example. And actually, I think I wrote about this in all the missing souls that maybe I was revealing it at the time. But. During in 1999, you know, we had the Kosovo conflict. And this was something that Madeline Albright was, as Secretary of State, was deeply involved with. It was actually called Madeline's War. And NATO jets or NATO bombers bombed Belgrade as part of that war. And one of the bombs hit the Chinese embassy in Belgrade. mistakenly. And there's a long story as to why it was a mistake, but it was a mistake. We were in a tough situation with that one because the Chinese were infuriated. And I remember, you know, sitting with Thomas Pickering, who was our Undersecretary of State for Political Affairs, a brilliant Foreign Service officer of great repute. And what we did was we figured out, well, we're just going to have to fess up to this. And we arranged for Pickering to fly to Beijing, where he privately, at least diplomatically, he offered a private apology behind closed doors through the Chinese government. And he also brought along reparations. I think it was like $24, $25 million or so to pay for all the damage and the loss to the families, etc. So that's the one example that I remember where I know that ultimately Pickering's trip was known and we sort of made an announcement about it, but there was a private channel to it at first to make sure the Chinese understood how apologetic we were for this incredibly weird mistake. back at the agency about thinking, looking at an old map with Belgrade. And the Chinese embassy wasn't on the old map. I could just stick with this apology scene for a minute. If I'm not mistaken, I think I got this from your book.

Obama in these trips in his last year was very careful not to use the term apology or sorry. At the same time, he was very much making the argument that apologizing was not a sign of weakness. It was a sign of strength. So where are we in terms of, I mean, first of all, I assume, you know, that was just. clearly a kind of political calculation and probably a very good one that you know it's seen as can be seen as a sign of weakness and to be used against him if he went all the way to using apologetic terms but what is the kind of protocol around this so several things one is the context was and that's what was so such a whirlwind tour the last part of his last, the last semester, if you want to call it, of his last year. And so it was most of it in March, 2016. So he waited until there would be no, you know, no immediate, you know, he's not coming up for re-election. Washington also stepped down after the Jay Treaty. So did Jay. He became governor of New York, a real executive job. So. You know, the context usually is, you know, a lack of a political accountability that he had more space to operate. Having said that, the concern for backlash is real. And Jenny Lind is a scholar, a leading scholar of political apologies. And so it was a very narrow, you know, you have to navigate this. the thin line, a thin line where you can make inroads with the other country, but not have a domestic audience respond negatively. So I would say that Hiroshima, the message was shared suffering, that was shared suffering, Vietnam as well. I think the closest it got to a real apology was in Argentina. In Havana, he talked about, you know, lamenting. The decades of conflict and that we are all, you know, he referred to us as the U.S. and Cuba as the same team. Somos unequipo. We are brothers, blood brothers. And he was received as a hero in a sold-out stadium in Cuba. But in Havana, but with respect to Argentina, there, you know, it became very clear. He, as you mentioned, the opening of the national security files. He opened more files than had been open before. And he met with the then new president, Macri. And he said, you know, we both have a lot to acknowledge and that mature societies have to. deal with the past, with transparency and directness. And so it was just in light of that, he said the U.S. would open the files and acknowledge our own past here. And it was clear that, you know, what went along with it was that we had green lit. We knew about the, what the file showed was we knew about the military.

takeover before it happened. And then we went along with it. We didn't help stop it. So that was, you know, and 30, by some estimates, 30,000. civilians died in the repression in Argentina. Yeah. So that is, I think, as close as it gets where he does say that, you know, we, you know, we have to confront our past and particularly where mistakes were made. And he does refer to those to mistakes. Yeah. Yeah. It's easier to. apologized in a case where you have secondary responsibility. Yeah. And where you have primary responsibility. True. And people always point that out, you know, that of course the torture, you know, what happened in Afghanistan and, you know, what was happening in Iraq. Of course, Obama did draw a line. He said torture would not be, you know, that was, you know, a change under his administration. And he did try to shut down Guantanamo. No question, but, you know, we have to focus also here on state responsibility. And the president is a political actor who can take responsibility for past, you know, administrations. And so that's part of what he's doing. And he talks about the law as memory and that we are in a continuous narrative of struggling with our past in America. And in particular, he's talking about our racial past and, you know, in a number of sections of his memoir. And so, you know, I... I don't think this is kind of just for show with Obama. This is something that he has struggled with. And this does become a matter of state responsibility and not just a matter of one-offs, you know. Yeah, yeah. More questions. Yes. Second or third. Hi. Thank you. Hi, I'm Aline Getsammer journalist. Thank you very much for this discussion. Truth commissions, it's come up a lot in this discussion. And you've mentioned Argentina. You've mentioned South Africa. There've been about, what, 40 others around the world in that period and since then. Are they, what have they taught us about transitional justice? Are truth commissions a good vehicle for transitional justice? Or are they a feel good measure and you move on? Because, you know, David, I thought you'll mention of the inherent tension between testimony to a truth commission and testimony to a court of law. you know, that's a hard thing to overcome. So I know it's a big question, but I'm interested to hear if you've got any takeaways, any changes of mind, because we're now a generation away from those truth commissions. Well, you know, I can address it. You know, obviously the answer is it depends, right, if it's possible to have more significant, you know, prosecutions and also.

truth plus reparations. I think Colombia has been doing this amazing job because they have the special jurisdiction for the peace has, you know, works with the Truth Commission, but also provides for, you know, lesser sentences, but trials for those who cooperate. So that has been a combined truth commission and criminal justice that was green lit by the ICC. Originally, the ICC had taken the case, but they said this is doing the job. This is accountability. I would say with respect to truth commissions, they vary so much. You know, in Chile and South Africa, they were truth and reconciliation. You know, what kind of purpose are we talking about? You know, part of my book is really about the extent to which these were political actors, American presidents, that we're far seeing and we're talking about political transformation. A truth commission that doesn't point in that direction, you know, may not have a transformative purpose if it's very narrow and only focuses on a set of incidents and doesn't have a bigger picture. You know, why did we go along? Why did the world support the South African TRC? Well, part of it is it went hand in hand with a new constitution. You know, if there had been amnesties but not the commitment to racial equality in the future and, you know, that commitment to a new constitution, it would have been a completely different thing. So, you know, Chile has been revisited. It was a TRC, but there still was the deep state in Chile. And there's been litigation since then in Chile, even in South Africa. The new generation in South Africa finds it lacking because there weren't reparations. There wasn't enough material change in the townships, in the lives of the people who had been oppressed. So, you know, it really, you know, I think with, as you say, decades later, it really has to do with the extent of political transformation that was committed to in the East Truth Commission. I just, I didn't do, I haven't done research on this myself, but just in preparation for this talk, the point you brought up, Rudy, about victims presenting, right, their stories, their experience, the horrific experiences in truth. My understanding is that there's some debate over the uses of that without some form of a clear punitive process for the people who committed those, right? if there's not an accountability and punishment, that there's some debate over what the effectiveness it is. I would say punitive, but also reparatory. Yes. You know, that's what in South Africa. They were able to tell the story, but they didn't have, you know, significant material support. But, you know, you can tell your story in a court of law, right? There would be other ways to do it. And Argentina, for example, the one that I'm most familiar with. It was an open-ended Truth Commission. It was about the truth, but then it went on. You know, you had Ernesto Sabato as the chair, and then they immediately sent the files to the courthouse and started the trials, which if you haven't seen Argentina, 1985, for the young people in the room that might not know about those trials. It's a really wonderful kind of capturing of the trials. So truth commissions can vary a lot. It really depends on their purposes, you know. But, you know, you're right. Victims, you know.

sometimes have found them useful, you know, David. Oh, I was just going to add that, you know, an example for your question is Sierra Leone, because in Sierra Leone, we built the special court for Sierra Leone. This is the Civil War in the 1990s in Sierra Leone that had to be dealt with. So the special court for Sierra Leone had its purpose, but. its target list of defendants was really quite small, very small number of, you know, five, six people in Sierra Leone, really responsible at the very top of the leadership chain for the atrocities that took place there. It wasn't going to focus on people below that range, even though there were lots of them, obviously involved in the perpetration of the crimes. So that opened up a large area of opportunity for... creating a Truth Commission in Sierra Leone, and the prosecutor of the Tribunal, David Crane at the time, an American, he orchestrated this such that the testimony that he needed for those top five got it. Those people don't have to appear before the Truth Commission were good. A lot of people can appear before the Truth Commission now and talk about a lot of things going on during the Civil War and imbue that Truth Commission with a tremendous amount of content for the people of Sierra Leone. So if you can just orchestrate it, but the advantage was we only had a small number of targets for that court. Whereas in Bosnia, we had so many. Rwanda, we had so many. It was just a different... issue of whether or not a truth commission could be successfully, you know, established. I think I saw a question. Yes, I'm all up there. In Lifton, May Preventures. You touched upon a couple of successful examples, or at least relatively successful examples of transitional justice, but I want to ask about some of the failures, or I think things that are considered failure, so debathification in Iraq or post-KMir Rouge in Cambodia. Do you think there are certain features of certain conflicts that make transitional justice difficult to carry out, or was it an execution issue where those conflicts weren't maybe necessarily fundamentally different, but it just... that the execution of transitional justice wasn't effectively implemented. Well, just on debathification, it was a mistake. I mean, that's the answer there. I mean, because you have a difficult calculation when there's a political transition. You need some expertise, right? And you need some folks that are part of the, you know, that are going to do things, right? And then so you, you know, if you're going to use illustration, there should be some. a reasoning behind it, justification, and, you know, people who, you know, shouldn't be head of human rights if they committed war crimes and crimes against humanity. Well, that makes sense, right? That would be more individual. But the idea of eliminating everyone from a political party, you know, that was a mistake. And I think similarly, you know, there were similar crude attempts, I think, in Germany, you know, there were many that could be reformable, right? And the large extent of population, okay, some.

you know, work, it might have been committed communists, but when you talk about decades, right, of repression, there are folks that are just going along. And so, you know, okay, well, lustration of all teachers. You know, we saw, you know, we've seen the resentment in the East as a result of that, right? That was part of the backlash to that kind of lustration. So I think this was one of the most difficult chapters in my first book, Administrative Justice. What do you, you know, what do you do with the civil service? And it comes up in the post-sillard. Civil War period in the United States. In fact, it's in our Constitution, the questions of whether to, you know, lustrate Confederates, can they take a forward-looking oath, right? That's what Lincoln favored. A forward-looking oath to allegiance to the Union and to the Constitution. And that would be a way, you know, and again, not for leaders, not for the, you know, the political leaders, the ideologues, but for others. I forget what your second example was. I'm sorry, and maybe some other folks. Cambodia, I think he mentioned Cambodia. Yeah, he mentioned Cambodia. And I'll just say there, I'll just say there. The E-T triple C, the extraordinary chambers in the courts of Cambodia, the court that we built negotiated in the late 90s and then it was created in the early 2000s. The issue there was, again, just like the Sierra Leone court, there was really, particularly since the atrocities that occurred in the 1970s, there was only a small number of individuals that could actually be pursued, you know, efficiently and realistically by that court. Because remember, all these courts cost money. What didn't happen in Cambodia was there was no Truth Commission in Cambodia. And it wasn't really an issue on my watch in the Clinton administration because we were just focused on trying to get that court established and not try to address the entire corpus of issues that arise. But also, the Khmer Rouge in Cambodia were a very powerful political force. And of course, They were also a force to be contended with and opposed by other sectors of the Cambodian polity and government, etc. So it kind of plays into you cannot put on the back of the courts, these international tribunals, or even transitional justice mechanisms that are created. You cannot burden them with trying to solve the entire issue in that country of political division, of combative attitudes, of historical grievances. I mean, yes, they can do something, but at the end of the day, it's up to political leaders with their military leaders as well. It's up to them to actually sit down and resolve or seek to resolve the worst issues and the most damaging issues in their society. It is not the court's function to do that. The court is a criminal court. It looks back at evidence of past crimes. That's what it's there for.

A truth commission looks back at the horror of the past. That's what it's there for. It's, you do not burden it with trying to solve the country's enormous range of problems all on the back of those institutions. I think we have time for a few more questions. I'm so hard to see. Are there, yes, in the back row. For Sobieski, thank you for speaking tonight. So my questions for Mr. Schaeffer, you mentioned about the veil of world leaders, or world leaders not being able to hide behind this veil of impunity anymore over the last 30 years. What have been the implications for that and what are going to be the implications for that going forward? Is it less conflict, bolder conflict when they occur, a different type of justice? What are your thoughts? Well, my thoughts are somewhat of disappointment because we still have far too many conflicts in the world that are increasingly sweeping large civilian populations and civilian victims into their scope of terror and violence and just armed conflict. And that's not good news because the whole point of international humanitarian law. from the very beginning, all the way back to the Libre Code, which Rudy writes about in this book back in the 1860s, is that you're supposed to orchestrate these conflicts between nations in such a way as to minimize the impact on the civilian population, believe it or not. That's what the law was written to do. Minimize the impact on the civilians. But what we seem to have slipped into now almost without commenting upon it anymore is, oh, there's an armed conflict. Well, I guess we're going to expect a lot of injury and damage to the civilian population because that's just the character of armed conflict now. And then we tested against international law. And international law is saying, no, there are guardrails here that should be observed. But they're not necessarily being observed. So to get back to your question on accountability, essentially, what I do think exists is that we all sort of know this now. We all know that the guardrails are there and they've been strengthened over the last 30, 35 years. They have been strengthened. But the political will to actually pay attention to those guardrails. the desire by some leaders to simply do end runs around them and not care at all because power is the essence of their projection of life, that hasn't left us. And I'll just conclude with this because it's a huge issue. But, you know, if you look at international law, it actually vests within it. the values that human dignity and civilized societies and the world's people actually believe in. Those values are actually in international law. There's a lot that connects international law to religious texts, whether it be the Bible, the Torah, or otherwise.

Those values all intersect, and they're reflected often again and again in international law. And I think we have to focus again on why are these principles there in international law? It's not because some nerdy people sat down and decided to regulate warfare. It's because these reflect the values of our societies in terms of how this transpires warfare. What are those guardrails? And what are the values that establish those guardrails? Just to pick up on that, you know, you mentioned the Lieber Code. It's very interesting that the U.S. was behind that first codification of the international humanitarian law. Why? During our civil war, it was fratricide. And so Lieber, Francis Lieber, had kids on opposite sides of the conflict. Every reason to... try to have some protection for non-combatants, for those who were wounded, et cetera, et cetera. And there were writers there. I think there was a journalist, one of the children, you know, one of the kids pointing to you, and so forth. But, you know, in terms of where to go for... justice when we don't see political leadership, which is what I've been focusing on the book. I would say civil society bangs the drums during those periods. Documentation is very important. You can't have justice of any kind without documentation. And, you know, nowadays, everyone has a cell phone, right? You know, you see civil society in Ukraine taking photos. You have, you know, and again, unfortunately. journalists have been besieged, particularly in the Israel-Gaza conflict. So it's critical to have that documentation. And I think we need to think of ways, you know, more paths to enforcement and not look to only the courts, as you say, and not only even the, you know, and perhaps UN reform, but also the civil society organizations that can. focus on enforcement and paths to enforcement. But, you know, your point is very well taken. And, you know, it's a very difficult time. I would just add with that, because Rudy, you referred earlier to race relations, right? And one of the most interesting parts I think in this book is looking at the post-Civil War reconstruction, right? And I know we're at the Council and Foreign Relations, but when you look at efforts after the Civil War to kind of what is done for punishment. for reunification, what happens after Lincoln's assassination, Johnson, Grant, and then kind of stepping back a little. You see these cycles in American politics. We talked about them. There's a book, Backlash Presidents by Julia Azari that refers to this. But it's important, I think, to recognize that it's kind of a triad, right? You have the judicial system, you have civil society, and you have elected officials. You have the president and Congress. And all of those together can play a role in reconstructive justice. I'm afraid we're out of time, but I really want to thank Rudy, David, and Mina for a super stimulating discussion. And all of you for coming out on a discreet evening. Thank you. This event was brought to you by the Council on Foreign Relations. If you'd like to learn more about upcoming CFR events or catch up on global affairs, head to CFR.org. Thanks for tuning in.