[applause] [inaudible conversations] .. ..

>> today starting at noon eastern on booktv on c-span2, author gary joiner on the union army's failure in louisiana from one damn blunder to beginning to end the red river campaign of 1864 and then a look at the james smith null book and then a walking tour of shreveport and boshier city and on american history tv on c-span3, tomorrow on c-span, a look at the base's role on 9/11 plus a history of the b-52 bomber, has visit the founding father's exhibit from the museum and from the pioneer heritage center, medical and medicine during the civil war. next week on c-span2 and 3. >> even a person who's a

senator, even a person who now is president of the united states faces a predicament when they talk about race. they face all types of predicaments. they face the fact there are a some appreciable numbers of americans who are racially prejudice. they face the fact that a much larger portion of the american populace wants to deny the realities of race even now. >> sunday, harvard law professor and former law clerk to justice thurgood marshall randall kennedy, on racism, the process. and he'll take your emails and tweets for three hours on booktv on c-span2. >> next from the u.s. holocaust museum in washington, dc. a panel discussion on war crimes tribunals, both past and present. it's about an hour and a half.

>> my name is kevin. and on behalf of the united states holocaust memorial museum and its committee on conscience, the aspen institute justice and society program and the united nations institute of peace, i'm pleased to welcome you all here this evening. as a member of the museum's lawyers committee, i've had the pleasure to be associated with this institution for quite a long time. like you, i am moved by the force of will of the survivors and the compelling nature of their stories. and i am struck by the museum's many partnerships and educational programs that allow it to reach a wide and diverse audience. but perhaps most impressive is the extraordinary relevance that this one horrific historical event has for so many people who seemingly have no personal connection to it. in fact, with the millions of

people that the museum reaches every year, there really is no limit to the issues that we deal with today that can and should be informed by holocaust history. >> in our respective professional capacities to better understand the nature of our profession and the nature of our individual responsibility as a member of that profession and as a member of civilized society. this is especially true for the legal profession, one that many of us here tonight share. after all, it is a fact of history that the holocaust occurred through the rule of law not in spite of law. and similarly any measure of justice or accountability as it relates to the holocaust or any

other genocide will largely be realized through law. ellie wazell said a memorial unresponsive to the future would violate the memory of the past. this museum embodies the commitment of the holocaust memory will stand in perpetuity to effect a better future. that is a commitment we all must share. this evening's program will be extraordinary. we have an incredibly distinguished panel and to introduce that panel, i'm very pleased to introduce merit chertoff, director of the aspen's institute's justice and society program. merrill? of >> thank you very much for that very kind introduction. i want to thank mike on the

community of conscience and the leadership of the museum for organizing this evening and on behalf of walter isaacson and the aspen institute how glad we're partnering on this important event but partnering on this particular subject comes to us naturally. i'm proud to say harold coe was a regular moderator at the seminar for judges run for many years at aspen's white river facility by our merida director with professor lewis hankin of columbus law school two key developers and components of the modern field of human rights and humanitarian law. some of the justice and society programs' recent efforts are focused of development of the rule of law around the world including in the arabian gulf and the spring countries and i want to observe that it is through the rule of law, through

vigorous legal and judicial institutions that we are able to prevent the perpetration of the most grievous offenses by the unbrideled against discrete and insular minorities. tonight we'll hear of the courts and more recently the international criminal tribunal for the former yugoslavia and the international tribunal for rwanda in adminering a writ of proclamation of a justice of testimony and reconciliation, in nations where the rule of law has grievously failed. i want to salute the museum's committee on conscience for its work on genocide prevention around the world, a worthy aspect of this museum's mission to educate and to remember. and now i want to turn it over to michael. >> thank you, meryl for that kind introduction. what meryl did not say what i want everyone to know, michael

chertoff, her husband is also the chairman on the committee of tribunal. as she said i'm the director of the genocide prevention program at the museum which has really been an intrical part of the museum's mission since we opened our doors 20 years ago. if you go upstairs and after you go through our permanent exhibition on the holocaust you'll come to our interactive insulation and the of the genocide of the darfur and rwanda and we're working public and policymaker attention on the ongoing problem of genocide in our time. i would like to thank our partners this evening, first of all our new partner at the aspen institute and we're also joined this evening by the u.s. institute of peace which is really a very close and trusted partner for the museum. one current initiative that we are working on with the usip

which i would like to highlight is our joint working group on the responsibility to protect which is co-chaired by secretary madeleine albright and ambassador rich williamson and it's a bipartisan group. as some of you know the responsibility to protect is an important international new norm that's really aimed at making clear that all nations share responsibilities to protect our citizens from genocide, from war crimes, to crimes against mumanatee and we expect our cochairs to issue a report later this year about how to strengthen this norm and improve our capacity to prevent these crimes from happening. our subject tonight is a big one and one that i do believe relates to the issue of prevention because if one cannot -- if we can't deliver justice and accountability for the truly evil, how can we ever hope to teter would-be perpetrators in the future? yet, this is a problem that has vexed democracies and other nations since the nuremberg military tribunal opened its proceedings in late 1945 against

22 leading nazis for war crimes, crimes against humanity and the waging of aggressive war. as william shawcross to my left writes in his first chapter of the book, the judgment of evil is never simple and this is a problem that is very much with us today, whether we are talking about the -- how to bring justice to the architect of the killing fields in cambodia, how do we arrest a president of sudan who has been accused of genocide in darfur or how we properly try khalid sheikh mohammed and others in al-qaeda who have murdered thousands of others and aspire to the destruction of western society and so we are surely lucky this evening a great team of stars to discuss these issues and i suspect to disagree a little bit. so david scheffer has been intimately involved in these issues over many years first as a senior in the delegation of the united nations and then as

the first war crimes ambassador for the united states working for then secretary of state albright, in his new book, all the missing souls, david gives a real insiders account of the creation of the first international tribunal since nuremberg, set up to try the perpetrators of the wave of killings that took place in the 1990s. and i should also say that david is a very good friend of the museum, and we have worked with him over the years on many projects and most recently on a project that we're going to do on the cambodia war crime trial. i should say david has been appointed -- he has a new job, he's a special expert for the, your honor, on the trials so he's in the middle now of the controversies over how to handle that important set of cases. william shawcross has addressed these issues from a different perspective. as really one of the leading a journalists of his generation and who first made his mark actually chronicling the terrible events in cambodia, but

injustice and the enemy, william tackles a different issue which is how we're going to deliver justice to the new breed of stateless islamic terrorists that would challenge the west over the past decade and the problem now is that two american presidents has brought about just as at nuremberg a new judicial body within the military to try suspects. i'm going to ask william and david to discuss their books which address these issues from slightly different frameworks and then i'm going to turn haired coe and he worked as the second secretary of state for human rights, democracy and labor. did i get that in order? and then he became dean of yale law school and he returned to government service as the legal advisor at the state department where he routinely deals with such noncontroversial subjects as drone strikes, the legality of killing osama bin laden

and/or cooperation with the international criminal court so i will ask harold to react to the points raised by harold and david and we'll ask you the audience to ask some brief questions of us. so i'm going to lead off with william. your book focuses on a very large and important subject which is how best to bring justice to the al-qaeda terror suspects that are now being held for the most part at guantanamo bay. but i want to first talk about how the proceedings at nuremberg shaped your own thinking about this question. your father, lord hartley shawcross was the chief british prosecutor at nuremberg and i want take a moment to show you a clip that we have in our film and video collection here in the museu museum. >> the purpose of the action is

to liquidate those jews. day by day, over the years, women were holding their children in their arms and pointing to the sky while they're waiting take their place in glass co. 12 million men, women and children have died, millions upon millions more today, their mothers, their mothers, their mothers, their children walked a day and a half, however -- [inaudible] >> okay.

so that is lord shawcross delivering i believe his statement before the international military tribunal so it's clear, william, you grew up thinking about the meetings and it's clear that there's something about that trial from 60 years ago that is relevant to the question of how we try al-qaeda suspects today. what is it? >> those words i heard all through my childhood because we had 78 records of the proceedings at home and i was born in 1946, and in the '50s i used to listen to them with morbid fascination and heard these accounts of my father reading accounts of the atrocities that you just heard a clip from. it was very much -- it formed my childhood and my youth and nuremberg was with us all the time because it was such an important issue and my father was then 42 which is

extraordinary and i think nuremberg there's controversy today about military tribunals in the united states, but one should remember that nuremberg was very controversial at the time. it's not seen so much. it seems. >> good success and i think it was. there was very little agreement on what should be done with the nazis who were eventually to be captured. wanting to liquidate germans and churchill said over my dead body and he thought it would probably be simplest and best for the allies to give summary execution to the 10, 12 top nazis they captured from hitler on down and to the united states the different views came and different people prevailed. roosevelt had thought the tribunal must in some way be figured and truman appointed justice robert jackson, a

supreme court justice to try to create nuremberg, what became nuremberg and it was an inspired choice and robert jackson is in the way my hero in the book. he went to europe and two weeks after d-day traveled the company, a wreckage of a continent and found in nuremberg itself that the courthouse miraculously had not been bombed by the allies and thought we could do it here and the u.s. army started to build facilities for our proceedings in nuremberg he went to paris and found that the u.s. army had already collated in paris wagon loads of hundreds of husband -- millions of pages of nazi documents and jackson said i can't believe that men could have been so stupid and so brought to record their crimes in this way but they did. that remained an important part -- it became an important part of the evidence. and the trial opened amazingly but even at this stage there was controversy. the british were reluctant to

get involved and the chairman of the supreme court said i want no part of bob jackson's lynching expedition in nuremberg and it's still controversial and it opened in november of '45 and the trial ended in july of 1946, astonishing and after 22 defendants, 12 were sentenced to death, 7 were sentenced to long-term imprisonment and two were let go. and the russians wanted everybody to be sentenced to death. but the speed with which it took place and the record that it created, i think, were both extraordinarily important and my father said at the time that nuremberg recreated -- nuremberg will provide a touchstone and a record of future historians to seek the truth and for future politicians to see a warning. and i think that nuremberg has -- has acquired a sort of mythic status in a way in 2008, senator obama campaigning said

nuremberg was the example of which we should aspire. >> so let's bring it up to the current moment. so how did you get from nuremberg thinking about khalid sheikh mohammed and the appropriate way to -- give us -- i mean, i take one of the major themes of your book as really that the problem of trying to people like khalid sheikh mohammed is much more different and colleagues and critics and ordinary people think and you play that throughout the pages of your book. talk about that a little bit. >> it's incredibly complicated to try these al-qaeda people. i mean, there's no absolute comparison, of course, between the nazis and al-qaeda but nuremberg -- nuremberg we created a vehicle to remove evil, men imbued with evil. and one of the most threatening forms of evil in my view is

fundamentalismists which the leaders have been al-qaeda. they threaten western civilization and they threaten mostly muslims, most of their victims have been muslims and they are most devastating and visible attack, of course, was on 9/11. but, yes, you're right. there are a lot of critics of military bunlz and it seems to me that it's important to criticize military nurembergs. and military tribunals were said to take place for guantanamo bay at khalid sheikh mohammed. if any nazi defendant was transported by time machine from nuremberg to guantanamo he would be overjoyed by the extra privileges and safeguards. in nuremberg there was no right of appeal. the judgment of the tribunal was that. that was final. it was the -- the judgment was

given in july, 1946, and the accused took place in november, 1946. and there was no appeal to that. in the case of khalid sheikh mohammed should he or his codefendants wish after they're found guilty, if they are found guilty he can appeal all the way through the federal system of the united states to the supreme court be. now -- there's no better safeguard than that anywhere in the world. in guantanamo, these people will be given much greater legal protection than in any other justices throughout the world. and they'll be given as much protection as people in the federal courts in the united states and that's an extraordinary -- extraordinary privilege if you like that has been given by the united states. >> so do you think we have lurched our way collectively to a reasonable system for trying to these kinds of suspects? >> i do. i do. i mean, i think -- i take the view that the united states has been subbed particularly in

europe to a lot of very uninformed and unfair perhaps deliberately unfair criticism by european allies and politicians and intellectuals and in one way i was trying to address that in this book and look at the criticisms and i think many of them are not there. in guantanamo these people will be given as much protections as they would be given in the federal courts. there's another -- another thing which i think -- a name that everyone here should remember which is there is a new successor to robert jackson who was appointed by the pentagon to be the new u.s. military prosecutor and he is a very fine military lawyer who has -- was a former infantryman and he has studied the history of military tribunals in the united states from george washington onwards. he knows their shortcomings and he knows how they can work and

succeed. he take the positions that most terrorists will continue to be tried in the federal court systems but there are some who will have to be tried in guantanamo and for one reason, the congress has said that nobody -- none of the prisons in guantanamo can be brought to the united states for any purpose or whatever. if you don't try khalid sheikh mohammed in guantanamo you won't be able to try him at all and general martin made a speech to the american bar association a few weeks ago in which he listed the ways in which he's determined to make these cases in guantanamo open and transparent and proper and i'll just read you a couple of his sentences. the accused is presumed innocent. the prosecution must prove his guilt beyond a reasonable doubt. the accused has the right to charges, the right to council and the choice to counsel and the right to be present during proceedings. the right against self-incrimination protection -- this is very important. protection against any use of statements october through torture cruel or inhuman or

degrading treatment. the right to examine evidence, cross-examine witnesses and compel witnesses in his own defense and so on. basically all the rights that he would have in the federal courts. >> all right. we're going to try to jump now to david. and david's book which i talk about also deals with the treatment of evil but i think largely from a different category of perpetrators. the statesmen and their followers who perpetrated mass murder and genocide in places like rwanda in the former yugoslavia, in sierra leon and cambodia. you really served in -- at the center of this when you were in the clinton administration. and lived through these terrible episodes with the jep side and the situation in the balkans. he we obviously should not lay

blame for these events or responsibility i should say on the united states alone. this is a collective responsibility that was -- that was dropped by the international community during that time but i think you write very openly and honestly in your book about the failures south of tragedy. so before we talk about trying them, i would like you just to say a little bit about, you know, what you see in your book about -- you reflected about what you learned from how we can stop those kinds of tragedies. what were the failures that happened that you saw firsthand? >> well, i would say the failures could be summed up quite simply and when we faced the rwandan genocide we confronted it with conventional thinking for an extraordinarily unconventional crisis, in other words, our first reaction was to look at what was occurring and

so impose conventional formula on that event. if you're on the state department you talk about a failed peace process, how to get the peace process back on track. if you're in the defense department, you think about and talk about, well, the peacekeeping force there isn't fulfilling all the criteria that we needed to fulfill in order to be properly deployed in rwanda, and if not, should we be withdrawing those peacekeeping forces and talking about the possibility of combat-ready forces sometime in the future but certainly not now. it's far too premature to do that and also extremely difficult. so those are conventional ways of responding to a situation that was unfolding very, very rapidly, 8,000 people a day were being butchered with machetes in rwanda. and so as those bodies were stacking up, back in washington, we were talking about the peace

process, let's talk about how to get the parties back to the table and by the way, in the meantime, let's get as many foreigners out of rwanda as possible. that's our first priority and secondly on the military side, let's not talk about engagement. let's talk about how do you rationalize removing the peacekeepers because they're really not there for the purpose of dealing with atrocities of this character. they're there to mediate a peace agreement. those are conventional ways and as i try to point out in my book, we have to learn how to think unconventionally out of the box very, very quickly in response to atrocities not only while they're occurring but also have the wisdom to understand that when we see signals of this coming over the horizon we need to understand how to plan for and react to those signals as effectively and as wisely as possible. in the genocide of 1995, again,

we didn't understand how our presumptions could be reversed by a few decisions in that case bosnian serb commanders on the ground to completely reverse presumption about take advantage of it and move very, very quickly and to do so under the cover of means of what was happening. we had to have that stage a better ability to get on top of situations like that and to plan for them much better than we did. and the book tries to explain both in rwanda where our make sure were. it really provides an insider's view within the united states government of where we were going wrong step-by-step and so

genocide unfolded. >> what the bulk of the book is creating these bunlz to try the perpetrators of the crimes that you just outlined and i think william alluded to this in his discussion of nuremberg you can look back at these events with kind of rose colored glasses but when you get into the weeds they're very messy complicated political bargaining behind all of it which i think really is one of the themes of your book. and i'm wondering if you could just expand upon that a little bit and tell us from your perspective what did you find -- why it was so difficult to achieve what really all good people want which is justice, to punish the perpetrator. >> recognize, michael, in 1993 and '94 in particular when this started we had gone 40 years since nuremberg and tokyo without any international

criminal tribunals and, quite frankly, nuremberg was sort of the fading distant memory by then. and we had no established institutional basis to bring leaders to account for atrocity crimes. we had to invent it again and, of course, we used the template of as our exercise but our challenge if i may say so actually much more complex than nuremberg and tokyo. this was not justice per se. you can argue it was the justice of the strong over the week at that point in history. but we could not simply impose, we had to work it through an international system through the united nations, through the security council and particularly in the case of rwanda, rwanda was a nonpermanent member on the security in 1994 so the government was at the negotiating table right across me throughout all these

discussions. i had to negotiate with the rwandan government as to the composition of the international criminal tribunal for rwanda. that wasn't the case for yugoslav yugoslavia. they were not across the table from us. their conflict was raging at that point. it was a much more complex political dynamic that demanded at times compromise but also it demanded a sense of political will internationally to stand firm, to build institutions of high credibility and independence. and created, you know, a long experience of negotiation and of -- of trying to corral the international community around the creation of courts that really needed the support of the international community to be successful. >> now, the other major institution which you discussed in your book is the

international criminal court and you were the lead u.s. negotiator in negotiating in rome the statute that lead to the creation of the court. give us a little bit of the insider feel of those negotiations. what were you trying to achieve and now looking back 10 years later, the u.s. is not a party to the court. there's lots of controversy within our own country about the wisdom of whether or not to join the court. what's been the legacy of that? >> president clinton stated six times publicly during his presidency that he wanted to see the permanent international criminal court built and in one of those statements he said i want it built by the end of this century. so those were my instructions. i was the ambassador at large for war crimes issues. that was my job. and so the united states actually had a very determined point of view about actually

building the international criminal court and i had, you know, a large interagency process behind me. in fact, my colleague, harold coe was here and a very useful colleague throughout those second four years of the clinton administration. but when you're in an interagency format of that character and as international negotiations progressed year by year, the dynamic and the configuration of issues changes. and it became very clear as the years of negotiation proceeded that some of our original presumptions about what the international criminal court would evolve as and be -- and be constituted as were changing because other countries were involved in negotiations and an international negotiation the dynamic changes so by the time we reached 1998, some of our

positions were deemed modified by other countries. so it became a very, very difficult process for me in washington, the interagency particularly with the defense department as to what this court would ultimately look like in its final form and that's why in rome in 1998, my final position as to the final text of the rome statute was actually a negative one, not because we didn't think 95% of it was fantastic. it was but it was that final 5% that was the final problem. and, of course, we worked on that in the aftermath and ultimately the treaty was signed in the clinton administration at the very end of the administratio administration. >> so i want to have harold an opportunity to respond and maybe just picking up on david to

bring the story of the international criminal court. well, actually let me back up. i would like you to respond, your general reaction to both of these men from your perch now with someone in the government having to deal with these issues on a practical level and then we'll come back to the international criminal court. >> well, my strongest reaction -- i got a book out there. but anyway you can't do that in the government. i should also say what a thrill to be here and with bill shawcross, david scheffer and i were college freshman 41 years ago and he's from oklahoma. my roommate was from oklahoma and since he was from oklahoma and i was a core ren civics major i'll see you in 40 years at the holocaust museum and here we are. [laughter] >> i think i have a couple of

reactions. one is, how difficult the challenge that both books are describing is because it's a two-sided coin. first is, how is it that acts which are put forward as self-righteous are acquired global objective. and then the second is, how do self-interest institutions of justice that are trying to address those acts how do they acquire legitimacy and i think what david and bill have participated in, is this effort. i think it's -- one way to think about it in cyberterms, you know, global justice 1.0, 2.0, 3.0, you know, imagining the machine, building the machine

and operating the machine. nuremberg of, along with tokyo were both military trials as william had said. the fact that they succeeded at all, much of their legitimacy was acquired after the fact. and by self-conscious decisions made by remarkable lawyers like hartley shawcross and robert jackson, david's era and my time in the clinton administration was one of struggling to create a whole series of institutions and not knowing whether they would get traction or not. the u.s. law of tribunals, the sierra leone tribunals and also the international criminal court and at the same time trying to manage the united states' relationship with those tribunals. >> i think now we're in global justice 3.0. we have all of these international tribunals. the question is how do they

interlink with domestic tribunals? how does the domestic by which the domestic tribunals have the lead system of complimentary which david was very much focused. how exactly to get them the invitation that they need to succeed? and then we're adding in now two different elements of that machine, an atrocities prevention piece through the work of this museum and the genocide prevention task force and then the second is how to map that global justice movement onto the counterterrorism movement with adaptation of military trials to al-qaeda suspects? so none of this is easy. and it's a life's work for many people, both to think about it and to record it.

but i think you're someone who wants to understand how to confront evil, what is surprising is that there are certain thing about the nature and means of evil that are unchanging. and shared across many different experiences. david's book, i think, does an amazing job of comparing the ways in which the gross violatorers in many different cultures had a certain sameness about them. but then the means that we used to combat these evils changes. sometimes they are international courts. sometimes they are military tribunals, sometimes it's military actions, sometimes it's publicity. and it's become a much more complex picture. and i think tribunals are part of the solution but they're never going to be all the solutio

solution. >> one thing that i would be interested in your reaction to as he writes of the siren of exceptionalism which -- which david described in his book as the ongoing effort by the united states to kind of carve itself out of the reach of some of these tribunals. i think that would be a good issue to put on the table because i think all three of you have thought about that issue, the role of the united states in international justice. harold, looking forward, do you see greater or less u.s. engagement in leading the way on trying to make these new institutions which you describe successful? will the u.s., for instance, ever sign their own statute in our lifetime? >> well, there are two kinds of exceptionalism, good exceptionalism and bad exceptionalism. just like cholesterol. so, you know, the u.s. has lou hnekins used to say.

it's like the flying buttress but unlikely willing to come inside. and, therefore, the united states takes a long time to get involved in tribunals to ratify treaties, et cetera. we have an interesting approach which you could call compliance before ratification. i mean, david's example is pretty good. if you like -- most countries say like 95% of the treaty they ratify it and don't worry about the other 5%. the united states as a very legally conscious society has a pattern of compliance before ratification. so there are very few provisions of the conventions of the rights of the child or the women's rights convention that we don't actually comply with as a matter of practice but getting the 67 votes to get them ratified is another story. so what is the bad exceptionalism is the staying out part. but let's face it, some the united states is an exceptional

nation. its capacity to change events for the good -- that's how i happen to live in this country. it's because of the power of american goodness. if we always say america is a problem, america is the problem, we forget the times when america is the solution and if america is not the solution there will be no solution. and the real question i think is how to prevent a tendency toward bad exceptionalism from weakening our legitimacy that allows us to lead and to do the samples of good exceptionalism that this world desperately needs. >> david, do you have a reaction? >> i might react to what harold has said certainly from my experience in the 1990s as a negotiator working very hard on these five tribunals i projected myself in a leadership role in terms of negotiating on behalf of my country and frankly with

the international community and that was purposeful because when you try to take the lead in negotiations, you're not projecting your own interests and values of your country but you're in a very unique position to persuade otherses the united states of america in america the most powerful nation in the world. we enter the negotiating world and i was always very proud to do so and i had the clout of the united states behind me and it's very different, you know, than being from some other much, much smaller country in the world. that leadership does carry an obligation with it and i think we needed to figure that out much better than we do in our country's history. if we're going to take the lead in these negotiations and work toward building the rule of law internationally and being on the forefront of persuading others to buy in that rule of law we have to understand that once

these institutions are built, many in the international community actually expect us to be part of those institutions, to be part of that ongoing effort internationally and not to stand apart from it. and that's what the great challenge is, is that we do have this tendency to lead, but then we have to participate after we have led. >> william, you know, i think one of the themes of your writings in recent years has been this issue of american exceptionalism. give us a little bit your take on this from the point of view of justice issues. >> well, i agree entirely with harold koh that america is a power for good and is often the solution. and i would go further to say that america has often been the only power -- the only really effective power for good. in 1945, the only really -- there were no human rights organizations like amnesty or human rights watch. there was one magnificent massive human rights organization that was the u.s.

army. and that has liberated millions of people throughout the 20th century. and the united states is exceptional and will remain exceptional, i hope, by reason of its power and its basic good will. it is a benign feeling. and there are many europeans who are foolish when they don't recognize that. and the problem at the international criminal court -- i mean, i understand it derives from nuremberg and the treaty of rome derives from the london charter and i can understand it and i applaud it but i do also understand for any u.s. administration, the threat of frivolous or malicious legal sort by -- by the european allies amongst others is a very dangerous one and so membership of the criminal court is a very

difficult decision to make. i can see why no u.s. administration has wished to commit to that. there was -- another example not involving the international criminal court in 2003 it involved the growing doctrine of universal jurisdiction and under in belgium under a 1990s law, the belgian courts tried to prosecute tommy franks for the invasion of iraq. and donald rumsfeld said to the belgian minister, if you prosecute we will move. the prosecution was very quickly dropped but it's that kind of sort of -- the belgians had never prosecuted saddam hussein or sought to prosecute kim jong-il. it was this kind of malicious prosecution against the united states which is extremely dangerous. >> the flip side of this,

william, i invite william and harold to comment if united states is not part of the international criminal court, how can we really press others to -- to subscribe to the principles? i was struck, for instance, when the president of sudan traveled to kenya and this was an -- a statement was issued from the white house, you know, kenya for welcoming an indicted fugitive from justice and yet we're not part of the court. does it not undermine our credibility on these issues? >> but david and harold understand these issues much better than i do. the court only comes into play if the domestic courts of the country in question do not take action. the united states -- the united states domestic courts and domestic law is very quickly applied. i can't foresee -- imagine any circumstances in which the

united states -- the united states would have to be hold for the international criminal court. it's the rule of law here. >> i don't think anyone here should forget the last three years in the time that this administration has been in place, the administration has shifted its position from -- the united states position toward the international criminal court from one of hostility to engage participation. the united states has attended every meeting the assembly and the states party to america. the u.s. government has made pledges in support. the united states has supported first at the end of the bush administration the referral of the sudan case and then the referral of the libya cases. at the moment the united states is supporting and cooperating with the court on every case that's ongoing, kenya, congo, central africa and the republic. and sudan and that on these

issues -- and david can attest to this, the view is that the united states is very much a part of the process. now, it may take us a while for us to become a party. it took us a while to become a party to the international court of justice and other international institutions. but i don't think anyone should kid themselves that the atmosphere between the united states and the court at the moment bears any resemblance to where it was back in 2003 and 2004. the mood is very fundamentally changed. i have colleagues here from the state department when we went to the assembly states party meeting in new york of the icc, there was applause as the united states entered the room, you know, the deep freeze was over. the period of engagement has begun and the point where you get to more formal kinds of relationships will always take time for the united states which is a country that has been

worried about entangling alliances since george washington but i think a mood is very, very different than what it was. >> i'm going to open up questions in a sec but i would like to ask one final question for the group and -- which is really the role of justice intervention of atrocities. obviously, there is there was a dimension to this that you want to try these bad people for the things they have done but it's striking that over the last 20 years the atmosphere of impunity for perpetrators has really changed a lot. you know, the president of sudan can't travel freely. milosevic did end up in the hague before he died. charles taylor did too. gadhafi was cornered.

he chose -- he could have gone to the hague if he had been willing and avoided his fate. so it does seem it's much more dangerous to stay if you're a perpetrator who's a head of state. and i wanted to know if you agree with that and whether you think this track record is going to deter future -- future perpetrators. i'd like each of you -- we'll start with you, david. >> well, i think as my book tries to describe we have gone through a transformational period in not only world history but really the history of international justice in the last 17 years or so. and that transformation is a reversal of all sorts of assumptions we used to have 17 years ago about official leadership impunity, about the lack of any institutional capacity to actually bring these individuals to justice. and even the fact that we didn't used to have experienced jurists

in our legal academy. now we do who can take on international cases of this character with great skill and experience and knowledge. that is all possible now. it happened in our lifetime. i think on the issue of deterrence, we need to keep reminding ourselves these tribunals should not be burdened with the arguments that they should only exist or their legitimacy relies upon whether or not i can prove to you that they're tetering future crimes. their first and foremost responsibility is justice. justice that is paired with punishment. they're criminal courts. they're not huge geopolitical machines. they're criminal courts first and foremost. and their job is to render punishment and acquittal and they often do acquit. if the turn comes that's a good bonus if that comes along. i think empirically we've been able to establish -- establish

academically now that over the last 30 years, societies which have focused on human rights prosecution whether it's at the domestic level or the international level even having them imposed internationally that those societies are grav stating away from human rights abuses. that i have modernizing for its humanity. that's empirically happening in the last 30 years and it's a combination of both domestic prosecutions and the international prosecutions. and that to me is a sign ultimately of deterrence. >> harold, what are your thoughts on this issue? >> well, i agree with david that a function -- international criminal tribunals play many functions one of which is deterrence and the other is truth telling. the other is the legitimatization of people to make it impossible for people who commit certain kinds of acts to participate in a political process. but another critically important

one is to separate out those who are most guilty from those who will go on and be part of a new process. and it happens in an age of soft power to be a tool that saves us military resources. we did not occupy belgrade, nevertheless milosevic and others are all at the tribunal. and it is -- and our relations with all three parts of the former yugoslavia goes on so there's a way in which the new kind of -- the modern international criminal justice plays multiple functions. and it's an absolutely critical tool in transitional justice. >> william? >> i understand all of that and i think these courts are also in the very early stage of

existence and it's difficult to -- and they will develop and improve. i think david knows much better than i that the ad hoc tribunals in rwanda, sierra leone and cambodia had serious problems, problems with delays and so on. and in sierra leone i would argue perhaps that not even the right people were put on trial. and i wonder -- two things, whether a lot of the money that is spent on these international tribunals which come and take place and then go away or will go away again eventually, whether that money would not much better spent on building up justice systems within those countries themselves. sierra leone and cambodia there's no justice system and no money for them and cambodia as david knows much better than i know, theories immense attempts by the cambodian government to interfere politically with the tribunal. and getting back to your other

point about gadhafi, there is also a sense, i suppose, on some occasions that indictment by the international criminal court deter -- forces monsters like gadhafi to stay on and fight till the end. if gadhafi had been eased out and encouraged to go to venezuela rather than indicted there may have been a settlement of the violence in libya would have come earlier and fewer people would have died. and the duvalliers were eased out and feeling they have no way to go out and there were examples like that. not everything -- not everything of international justice that we have done so far is necessarily to the instant benefit of the populations to whom it's directed. >> now, that last point we could spend three hours arguing about with this group. >> that's why i brought it up. >> but i want to let the audience -- because we have a

limited amount of time and i want to hear from our friends in the audience -- we have two microphones set up here and i'd encourage you if you want to ask a question, please come to the microphone. we'll try to collect a few questions for our group. i would encourage everyone in coming forward to pose a question so we could try to get through this and give everyone an opportunity to say and not use it as a chance to make a statement. so, sir, go ahead. >> thank you so much. we know because we've heard many numerous reports about continuing atrocities going on in the former belgian congo. my question is, why has there not been anything done about that, especially, since we know of the trials, and you were mentioning yugoslavia and other

items so that's my question. >> okay. >> you, sir, question. >> okay. my question concerns bashar alsad in syria, they are pursuing in the security council a motion to demand the actions in syria. my question for your panel is whether or not do you believe that this would be an effective measure or an indictment from the icc would be a more effective pursuit? >> okay. and let's take one more question over here, ma'am. go ahead, you. >> i feel like it's a different type of a question. i just wanted to say that my mother is a survivor of the holocaust and she tried to get into the nuremberg trials but they wouldn't let her in. so i'm interested -- i would be -- i hear that your father was the prosecutor. >> i didn't hear the question but that is not my question is, to the first speaker, you say

khalid sheikh mohammed is getting all these rights given to americans, is presumed innocent, yet, at one of the debates for the republicans scott pelley asked newt gingrich whether it's okay to kill an american without ever charging them with a crime and ron paul said it's unconstitutional and three or more people had been killed maybe more probably the only ones caught and newt gingrich says it's legal to kill americans without charging them. he says that there's legal panel. they report terre haute president and that's how it's done. >> okay. so i'm going to ask harold to take that last question. [laughter] >> and then maybe --

>> you want to do congo and then william will do assad and so forth. >> and you can comment on any of the questions. i'll start with harold. >> well, let me say first william talked about the privileges that defendants have. i actually think they're rights. and the question then becomes what happens in an armed conflict? in an armed conflict which is one that began with al-qaeda formally on 9/11. 3,000 people were killed on their home soil for going to work. that's a massive human rights violation on a mavs scale. the united states congress initiated an armed conflict against al-qaeda and its associated forces. ..

is that something in which the fact of american citizenship of a combatant resolve the situation in favor of a judicial solution, process that must be applied in wartime. american citizens, i don't know how much newt gingrich knows about the procedures, at the end

of the day we are talking about a situation in which the laws of war have been restricted. the rights of american citizens and their due process rights have been taken into account fully and completely. >> i want to address condo. >> why isn't justice be rendered for real? one of the largest situations in the world not only in our own time but during the 1990s particularly the latter half of the 1990s. i spent a lot of time in the condo trying to address what i saw as a very significant set of

atrocity crimes erupting at that time and trying to figure out how we could possibly build a tribunal to bring these leading perpetrators to difficult process. there was no tribunal at that time and we still have the crimes of the 1990s in the democratic republic of the condo unanswered. with e emergence of the criminal court and the fact that it is a state party. the state criminal court. and jurisdiction for any crimes committed across july 1st, 2002. not during the nineties. that is what happened. there are number of indicated individuals. several of them have arrived in

the hague. one has gone through a complete trial and we are awaiting the trial, judgment, he has gone the distance with one of them at least and others are lining up to be prosecuted for atrocity crimes in the condo. we need to reflect that we have no justice available at this time. >> not to be a provocateur but you have -- the osama bin laden situation -- [talking over each other] >> recognizing all of the arguments harold stated about the law of war situation reverses what we might regard as anti-terrorism law situation. how do you bring those two together a coherent policy?

accomplice formula. i don't think it is one way or the other all-time that all. i do think -- since osama bin laden was under federal indictment, during that operation -- if there was a kill order. if have judgment placed on that, captured and wound or kill if necessary for government purposes, capture this man bring him back to justice. >> i rejoice in the killing of osama bin laden. it was a very good thing and arbitrary justice if you like but under the rules of law, it was the appropriate way of

dealing with this very evil mass murderer and one of the interesting things that happened in the last few years is whereas president bush was this created for interrogation -- water boarding of three detainees, president obama has taken a very different -- adopt a different policy in which 1500 al qaeda operative believed to be al qaeda operatives have been killed in pakistan and afghanistan and those where, american citizens in yemen. most of these people were targeted and the cia or other government agencies, that they

were plotting strikes on terrorism attacks but what is interesting to me is it is so much easier for the administration to arrest and interrogate and put people on trial. trials have become so complicated and in the united states and military commissions and continue to argue have been created in a responsible way to make sure -- it was transparently administered and the rights of the detainee's are expected. it has become so complicated and such fierce criticism would lead many people -- is up to me -- a phrase from viet nam, termination with extreme

prejudice is easier for president to escape criticism -- >> i am going to let harold and david -- i saw him shoot up. [talking over each other] >> on our side is an interesting dilemma. for at a sod to be given the fact that for him -- for him to be indicted by international criminal court and beside he will fight to the death. and thousands of syrians will be killed. >> i need to respond to the last comment as well. we are confronted with this.

it is a question of timing. gadhafi was not under indictment when it was triggered over libya by the u.n. security council. there was a statement of time before any indictment came down and an enormous amount of dialogue or monologue suggesting that you have an opportunity, you are not yet indicted. take it. go to countries that is a sanctuary. that opportunity is in your hands right now. take it. if they don't take that opportunity and decide to stay until the day they're indicted then the dynamic changes. they're indicted fugitives as of that day. mr. assad has that opportunity.

there's not even any jurisdiction over him yet. but he has the opportunity as a political leader and someone who presumably has a stake in all of this to understand he has an opportunity to talk to his russian colleagues, i am ready to go and he will be outside of this jurisdiction. but if you wants to wait until the jurisdiction is triggered by the international community and wait for the indictment to be prepared and then say you should never have gone down this path and get the opportunity, that is a surreal argument. take the opportunity now while it is before you. >> it hasn't happened yet and may not for a long time because of russian freedom. >> exactly. i am debating in response to your argument. i am not going to hold this

against international injustice that they have the capacity to actually bring someone to justice and then argue that in fact we should put that aside as an option and only talk about the opportunity to avoid justice for mr. assad and give him every opportunity. there will come a point that has to face up to accountability for his actions. >> one more round of actions. we will try to be brief. >> i would like to thank you -- mr scheffer for his hard work and exposing genocide. and slobodan milosevic died after five years of trial.

all these cases -- there is in justice and set up. and more efficiently. >> in 1996, a veteran of world war ii. he died -- deeper sympathy and 27 things. foreign policy proposal. any country that denies the holocaust will be denied a position -- and other people. a policy that is instituted --

need support for that. [applause] >> thank you for that. question about forensics. the prosecutors were astonished at the degree of records and truck full of information deriving from that. crimes against humanity in ethiopia were very easy because it was coaching -- and presumably people who perpetrate human rights atrocities are beginning to not take a wonderful record. what will be the difficulty and how high will the bar before the future of obtaining enough forensic evidence to prosecute things. >> a set of cases does not involve genocide but does

involve actions by a powerful stake abroad, that interfere with the democratic expressed wishes of local population in small country. for example -- cia actions in guatemala in the 1950s. another would be russia and chechnya, and the legitimacy of that kind of rejection of state power when incredible argument can be made that is contrary to democratic wishes and values. my question is should there be a set of rules for really powerful states like the united states, russia and china as they project power in their interests abroad.

or might makes right and deal with that in some future age? >> i heard -- >> question about the forensic evidence especially in the cases you write about. and the question of disability. and question of support for of holocaust denial. >> the last questioner talked-about, united states, russia and china. governed by the rule of law.

and are do believe in this regard -- the forensic evidence is a question for herald and david. is not justice but in the age of tweeting and exit ring and e-mail, not only crime but i write a biography and historical documents depend on people -- many lessons. >> i do thing we have to recognize there is an explanation for why many of these trials support international people's lasted as many years as they have. they're dealing with massive

investigative challenges. that is not easy particularly when the documentary evans is more shallow. you have to figure out how fears that the very top planned and executed policy through their support who is going to testify against them. this is respectful of due process and part of the due process, defense counsel finds they have every right to an enormous range of means to delay trials because they are representing the interests of their clients. they have a very talented

intervention -- jane come in to play. trial motions and advocacy. significant delay factors. not that it is bad but the principle we believe in it is due process. on the forensic side, that is very true. the forensic challenge is very challenging and time consuming and has to go beyond ease of documentary evidence and many forms of evidence, including background intelligence information that have to remain classified, to be declassified. all of that takes an enormous amount of time and effort. we talk about complex commercial litigation, antitrust litigation

and enormously complex litigation and frankly we need to get used to it. >> the issue of forensics goes through a broader question. we don't know how many come forward. they are tweeting -- an enormous impact. satellite image related impossible to identify the location of mass graves. people use cellphone. and information extremes, people's privacy puts that risk

in a way that it was not before but we have to balance the capacity of these technologies against them. and pro-democracy intervention, some academics have asserted that but the international community has gone only so far the emerging concept to protect civilians who are being killed or restless various forms of humanitarian intervention. the elaboration of that comes through in our lifetime. driven by the absence of action to delay action in bosnia, kosovo and with regard to libya. >> i am going to take two more

questions. and i am going to cut it off because these guys signed books. >> just curious, most of these -- usually when the country is stronger or bigger like the united states of england, they bend the truth in a sense, water boarding is not torture or whatever. they were committing a lot of things more than any other country would have done for the court of justice. the united states -- i don't feel sorry for those terrorists but what bothers me is the

prisoners in guantanamo claim that is not american soil. i have a problem with that. american embassies in england or france is american soil. once on a low is an american -- guantanamo is an american possession or whatever it is. people ruled by law. power in the world can you explain if nazi torture was wrong and somebody else does it is overlooked? that somehow -- military courts, once in my life i would like to see if they belong to military court or a civilian court. give them a fair trial if that is what they want to do but when you bend this any direction you want it doesn't make sense. >> any marino from allegheny college. would you suggest the united

states do about very dangerous subjects who have been detained with evidence provided by torture when they might be released or put into the process? >> you really ask two questions on the same issue will be personal torture. >> that is much more lazy. it seems to me guantanamo was chosen as a place to put detainees from afghanistan in the aftermath of the fall of the taliban because it was beyond the region but now it is the only detention center that is actually completely supervised by the courts and every detainee

comes down considerably. defense lawyers and habeas corpus rules and much less detection. it is difficult to get these changes. on the question of torture all torture is an orange -- abhorrence. there was a consensus that water boarding of three men in guantanamo in the aftermath of 9/11 did produce life-saving information. the british head of m i 5 set last year it was torture and should not have happened. i say that even though i know it produced life-saving information. you have the dilemma.

which michael wolf wrote about the brutal very eloquently. which is the lesser evil? saving lives by water boarding or water boarding is a greater evil and that is the question any politician has to face for the rest of his life. >> i would take a slightly different deal of that. we have reached a bizarre situation in our society whereby you actually discuss whether or not you need to water board in order to obtain information through interrogation. we know how to interrogate people without water boarding them without access to information as a result of that. that has been proven empirically as a social science, research,

etc.. interrogators generally would confirm that they don't want to use that particular tool, could elicit false information far more often than it could accurate information. it tells you exactly what you want to know because you want water boarding to stop whether it is true or false. a lot of empirical work on how to interrogate. we have demonstrated in the obama administration has accepted the veracity of that empirical knowledge to interrogate the individual rather than undertake those torturous activities. i would say on the military commissions, you said this accurately throughout the evening, we have reached the point with military commissions in guantanamo where they are of

superior quality than they were ten or eight years ago. when this whole situation started we had a terrible problem with those commissions down there and it had to work its way through federal courts and the supreme court on many occasions to correct serious problems of due process and fairness within those tribunals. you can make an argument today that as they are currently constituted they reach a certain threshold of fairness and due process. a lot of my colleagues at the legal academy would argue we are not there yet but it is a better situation than it was. we need to say that because that explains why so low many lawyers and true advocates of due process and constitutional law in our society far for ten years

to correct, to right the situation that was a very flawed situation in the very beginning. >> i will give you the last word. >> one of the most remarkable public documents i received is president obama's nobel prize where he says i am winning a peace prize. not the commander in chief of a very large military force. how do i reconciled this? the answer is i must defend my country using the rules of law and following the principles of morality. the approach had been taken to al qaeda has been multi prong. writes that satisfied due process. attempt to achieve criminal

prosecution. those who must be detained until the end of the conflict do so with due process of law, try to transfer people from guantanamo. humane treatment under all circumstances and in the ongoing conflict with those who are still conducting attacks use methods to carry out that conflict. that is a multi pronged approach. now congress has spoken strongly against two features of that. they want to keep guantanamo but the administration wants to close it. they don't want to transfer people out. there has been a battle over whether the whole array of tools can be used. the most fundamental one has been a no tolerance policy toward torture under any circumstances. at the beginning of