United States
Panelists discuss how U.S. presidents have leveraged executive power to confront political violence, human rights abuses, and other global challenges, highlighting the ways presidential leadership has shaped America’s legacy of responsibility, reconciliation, and transitional justice.
WEISBERG: 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 chair of a podcast company called Pushkin Industries. I’m also the chair of the Committee to Protect Journalists and longtime Council member.
And I’d like to introduce the rest of our panelists, starting at the far end.
Meena Bose is the executive dean, Public Policy and Public Service Programs and the director of the Kalikow Center for the Study of the American Presidency, which is at the Kalikow School of Government at Hofstra. That’s a long title.
BOSE: I know. (Laughs.)
WEISBERG: And to Meena’s left is David Scheffer, 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 Ruti Teitel, who is the author of the book that is going to be the centerpiece of tonight’s conversation. We all have it here. We all—we’ve all read it, on the panel. We’re all recommending it very highly. The book’s full title is Transitional Justice: Aan American Legacy of Responsibility and Reconciliation. And Ruti is the Stiefel professor of comparative law and codirector 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.
Ruti, I’d like to start with you. This idea of transitional justice—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 Jay Treaty. So, 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 idea and the early history.
TEITEL: 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? 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, it took me in a different direction than I then I’d been working in and I’d been teaching in because of the last year of the Obama administration.
In 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 of the Bush period, right? Not for Iraq and Afghanistan, but going back to the American role 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 Jay Treaty, coming up with ways to adjudicate claims that the Brits had, you know, 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 Jay Treaty—they came up with something called the Jay Commissions. And the Jay Commissions essentially arbitrated, you know, 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, you know, 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 is known for a period of expansion and, for many, an overly muscular presidency. But what is less known is that he essentially changed the international laws 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. So 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 Oslo he says that every, yes, quote, “civilized country” 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 very energetic in the post—the post-World War I period in 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—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 non-triumphalism and peace without victory. And so that, you know, is 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. And, yeah, yeah.
WEISBERG: Yeah, well, there’s lots that we want to come back to, including where you started with the Obama 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?
SCHEFFER: 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. (Laughter.) It’s a page turner. If you were to tell me a book entitled Transitional Justice is a page turner, I would say, what? (Laughter.) It is. Because what Ruti has done is she’s brought you the human interest stories of how presidents in various stages—Washington, Roosevelt, Lincoln, Wilson—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 Ruti’s students this morning over at New York Law School, you know, after I read this I kind of remembered what I was taught fifty years ago in law school and in college about some of these significant developments, like the Jay Treaty. You know, who remembers the Jay Treaty? (Laughter.) Well, she tells you the story of the Jay Treaty. So you got to pick this up. You got to buy it, et cetera. (Laughter.)
Now, what I’d like to say is that my tour 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, Madeleine 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 Tribunals, the Rwanda Tribunal, the Special Court for Sierra Leone, the Extraordinary Chambers and 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 twenty years. It took the Rwanda Tribunal more than twenty years. And so—and the Extraordinary Chambers in the Courts of Cambodia took, oh, I don’t know, about fifteen, sixteen 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. Big, long story. In the Clinton administration, I was put in charge—I was the ambassador-at-large for war crimes issues at the time. And I was—Albright asked me, will you chair a committee now to 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 Allende, 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, and 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 in 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 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 Madeleine called me into her office and she said, Dave, you know, they’re still after us. Everyone’s after us on this. (Laughs.) And I have now made a decision. I said, well, what is that? (Laughs.) 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. (Laughter.) And therefore I have decided not to decide on Bosnia and the truth commission. And you get to tell the NGOs. (Laughs.) So, you know, I got that little task ahead of me. Meanwhile, the prosecutor 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 thirty 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.
WEISBERG: You know, when we look at transitional justice in the context of the American presidency and American politics, it certainly looks like taking responsibility for wrongdoing—whether you use the term apology or not. It’s 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—
SCHEFFER: Well, I don’t want to—
BOSE: No, please go ahead. I think you wanted to make a point.
TEITEL: Well, I would say it’s more nuanced than that.
SCHEFFER: I have to respond, Jacob, very quickly.
TEITEL: Yeah, I think we all have a—
WEISBERG: Nuance—you can all nuance it for me. (Laughter.)
SCHEFFER: 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. (Laughter.) And a staffer said to him, well, you could ratify the Genocide Convention. The United States has not yet ratified it. You ratify the Genocide Convention and no one will remember that cemetery for 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 sixty-six, two-thirds in the U.S. Senate, because Ronald Reagan weighed in and said, you got to do this for me.
WEISBERG: Meena, please continue with why the question was flawed, yeah. Which I acknowledge it was. (Laughter.)
BOSE: (Laughs.) Not at all. No. It actually gets right to the question of cycles of cycles of presidential history and of presidential politics. And let me just echo what’s already been said on this panel. Ruti, 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—to 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 as 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 kind of to keep the focus on international relations, as I look at the last year of the Obama administration—almost ten years ago now, right? And I read—as I was reading, Ruti, about the apology tour, thinking that, you know, when we look back at the 2016 election there’s 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 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 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 kind of twelve years with two presidents, right, not FDR, was Andrew Jackson to Martin Van Buren. It’s 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 Ruti discusses. It’s 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.
TEITEL: Yeah, can I? So I think, to introduce some of the, you know, kind of, I don’t know, nuance to that—and I totally agree with you that—and not only is there the problem of administration’s terms, but, you know, we’ve also seen a trans-partisan—president of one (party ?), you know, a Congress of another. That’s not the case right now, but that, you know, was something that—(off mic)—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 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—you know, and once you have an acknowledgement or something like an apology, it isn’t taken back. I mean, you know, Jenny Lind talks about the possibility of better relations because of these. And so if you think about his work in Asia, Obama’s tour in Asia, going to Hanoi, going to Laos, and trying to work with Vietnam and the TPP, right, this idea of a new set of alignments of the U.S., you know, with a certain number of nations vis-à-vis China, I think that continues to be the case.
And Biden was, you know, equally, you know, I would say—or moved in a hawkish direction vis-à-vis China. And so, you know, and we’re seeing that with this administration. You know, that—you know, some of those—building on those realignments. So I don’t think that the—that it’s quite, you know, as cyclical. I think there are certain areas where, given those conversations and given those visits, that can’t be taken back. You know, and it helped foster new relationships. I mean, we couldn’t go to Laos, the most bombed city in the world, before the last campaigns in Israel-Gaza, and just present ourselves and want to work with Vietnam and work with the other countries in the region that had been our enemies during the Cold War. So, yeah.
WEISBERG: So, I mean, framing this in terms of the president, I mean, around these historical episodes. You know, there’s no danger of the Cold War returning because we overdo the kind of retrospective justice. But with current conflicts, there is obviously some trade-off where the expectation that justice will be served can work against the end of the conflict. Whether you think about Ukraine. I mean, if you look at these examples, you know, some of the most kind of familiar examples, like South Africa and Ireland, where there’s, you know, essentially a built-in amnesty because it’s necessary for the end of the conflict. And then you want to come back and see what you—what kind of justice you can provide. But how do we think about that? That is, how do we provide, what kind of Meena was suggesting, in terms of an expectation that there will be transitional justice, without working against the opportunity for conflict resolution?
TEITEL: Well, I mean, we’ve seen the twenty-point plan, and the nineteen-point plan. You know, there were amnesties contemplated in the Israel-Palestine situation. That doesn’t mean that that’s going to end. You know, there’s been no investigation yet in Israel, but there but domestically that’s a very big—in high demand. You know, and any pardon, for example, for Netanyahu is going to be conditioned on his withdrawal from political office. You know, it’s not going to be a blanket pardon. So that’s my view. And with respect to Ukraine-Russia, you know, as we know, there are other actors outside of the peace plan.
And so it can be kicked—the ball can be kicked down the road a bit, but we know that there is an aggression tribunal that the Europeans have supported, something we’ve talked about. And there’s also domestic work in Ukraine, regarding Russian war crimes. And I would imagine that there’s also some Ukrainian war crimes that will be addressed in—(off mic). 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—(off mic)—no longer in the peace plan.
WEISBERG: Is that right?
TEITEL: Yeah.
WEISBERG: Yeah. Yeah.
TEITEL: So that’s, you know, putting it to the side. Time will tell. That would be the short answer, yeah.
WEISBERG: David, were you going to add something?
SCHEFFER: Yeah. Let me just amplify what Ruti’s has 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 of Europe. You’ve got the International Criminal Court, which has already, you know, indicted Putin, and Belova, and other senior military officials. You’ve also got the Ukrainian court system, which will go on for twenty, thirty 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 do that in Ukraine.
But what I—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 thirty 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 thirty, thirty-five 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.
WEISBERG: Was it Bosnia that changed that? And if so, why was that?
SCHEFFER: 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.
BOSE: I would just respond too that I agree that cyclical doesn’t mean erasing past actions, right? By no means that. I think that President Obama’s visit, the first sitting president to visit Hiroshima, 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.
WEISBERG: 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. Yes.
Q: Hello. My name is Remi Meehan. I’m a researcher at Science Po in Paris.
I just had a quick question, Have anybody—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 into all the politics of it. Thank you.
TEITEL: 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 Netanyahu apologize for the Qatari strike. And he—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, from Canada, about the ad, you know? So apologies, on the one hand, are not important, but they’re—as, you know, we’re not supposed to do them, but they’re important for other people. But I’m intrigued, because how would you find out about private apologies? Somebody’s got to leak it, write it in a memoir. So that would be a good research project. So I’d leave it to you. Yeah, yeah. (Laughter.)
BOSE: I just think it’s a fascinating question, because in some ways, I mean, the public presidency, what’s the point? What’s private anymore? But I think you do, when you said that—not quite apology, but I’m thinking of the Cuban Missile Crisis, right, and the thirteen days, and the discussion of the Jupiter missiles in Turkey, that would be—kind of the U.S. would remove in 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 possibly 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 diplomacy.
TEITEL: Maybe a series of conciliatory gestures, that would be what it would be, yeah.
BOSE: That might be a better way to put it, yes.
SCHEFFER: 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. (Laughter.) But in 1999, you know, we had the Kosovo conflict. And this was something that Madeleine Albright was, as secretary of state, was deeply involved with. It was actually called Madeleine’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, you know, behind closed doors to 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, the loss to the families, et cetera. 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 of—looking at an old map of Belgrade, and the Chinese Embassy wasn’t on the old map, so.
WEISBERG: But if I could just stick with this apology theme 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 can be used against him, if he went all the way to using apologetic terms. But what is the kind of protocol around this?
TEITEL: 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. (Laughter.) So, you know, the context usually is, you know, a lack of 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, there the message was shared suffering, that there was shared suffering. Vietnam as well. I think the closest it got to a real apology was in Argentina. In Havana, he talked about that, 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 un equipo. We are brothers, blood brothers. And he was received as a hero in a sold-out stadium in Cuba, 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 to a lot to acknowledge, and that mature societies have to deal with the past with transparency and directness. And so it was—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 greenlit. 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 stop—help stop it. So that was—you know, and by some estimates 30,000 civilians died in the repression in Argentina. 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.
WEISBERG: Hmm. It’s easier to apologize in a case where you have secondary responsibility than where you have primary responsibility.
TEITEL: Yeah. 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’s 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 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.
WEISBERG: More questions? Yes, second row. Hi. Arlene.
Q: Thank you. Hi. I’m Arlene Getz. I’m a 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. They’ve been about, what, forty 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 your 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.
TEITEL: 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 greenlit by the ICC. Originally, the ICC had taken the case, but they said this is—this is doing the job. This is accountability.
I would say, with respect to truth commissions, that they vary so much. You know, in Chile and South Africa they were truth and reconciliation. So, 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 were farseeing and were 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 AfricanTRC? 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 have been—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 these truth commissions.
BOSE: 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, Ruti, about victims presenting, right, their stories, their experience, the horrific experiences in truth commissions, 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? That the—if there’s not an accountability and punishment, that there’s some debate over what the effectiveness is.
TEITEL: I would say punitive, but also reparatory.
BOSE: Yes, well that’s—yeah. That’s more complicated.
TEITEL: You know, and 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—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 Sábato 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.
SCHEFFER: 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. We’re 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—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.
WEISBERG: I think I saw a question. Yes, on the left there.
Q: Dan Lifton with Maypro Ventures.
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 de-Baathification in Iraq, or post-Khmer 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’s just that the execution of transitional justice wasn’t effectively implemented?
TEITEL: Well, just on de-Baathification, 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 lustration, there should be some 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 was similar crude attempts, I think, in Germany. You know, there were many that could be reformable, right? And the large extent of population, OK, some, you know, were—they 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, OK, well, lustration of all teachers, lustration—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 that—and it comes up in the post-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, you know, the political leaders, the ideologues, but for others. I forget what your second example was, I’m sorry. Maybe some other folks—
SCHEFFER: Cambodia. Yeah, he mentioned Cambodia. I’ll just say there—
TEITEL: Maybe you want to talk about that, yeah, yeah.
SCHEFFER: I’ll just say there that the ECCC, 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, you know, 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, et cetera. 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 it’s—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. You do not burden it with trying to solve the country’s enormous range of problems all on the back of those institutions.
WEISBERG: I think we have time for a few more questions. A little hard to see, are there—yes, in the back row.
Q: (Off mic)—Soveyesky (ph). Thank you for speaking tonight.
So my question is for Mr. Scheffer. 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 thirty 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?
SCHEFFER: 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 Lieber Code, which Ruti 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 test it 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—we all sort of know this now. We all know that the guardrails are there. And they’ve been strengthened over the last thirty, thirty-five 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—it’s a huge issue. But, you know, if you look at international law, it actually vests within it the human—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?
TEITEL: 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 noncombatants, 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. (Laughs.) 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 in 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 cellphone, 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 U.N. 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.
BOSE: And I would just add with that, because, Ruti, 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 on 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.
TEITEL: Yes.
WEISBERG: I’m afraid we’re out of time. But I really want to thank Ruti, David, and Meena for a super stimulating discussion, and all of you for coming out on this crisp evening. Thank you. (Applause.)
TEITEL: Thank you, Jacob.
(END)
This is an uncorrected transcript.
Event
with Meena Bose, David J. Scheffer, Ruti G. Teitel and Jacob M. Weisberg
December 2, 2025
Council of Councils
Think Global Health
