Tag Archives: Harry S. Truman

Portrait of a President Living on Borrowed Time

Joseph Lelyveld, His Final Battle:

The Last Months of Franklin Roosevelt 

            During the last year and a half of his life, from mid-October 1943 to his death in Warm Springs, Georgia on April 12, 1945, Franklin D. Roosevelt’s presidential plate was full, even overflowing. He was grappling with winning history’s most devastating  war and structuring a lasting peace for the post-war global order, all the while tending to multiple domestic political demands. But Roosevelt spent much of this time out of public view in semi-convalescence, often in locations outside Washington, with limited contact with the outside world. Those who met the president, however, noticed a striking weight loss and described him with words like “listless,” “weary,” and “easily distracted.” We now know that Roosevelt had life-threatening high blood pressure, termed malignant hypertension, making him susceptible to a stroke or coronary attack at any moment. Roosevelt’s declining health was carefully shielded from the public and only rarely discussed directly, even within his inner circle. At the time, probably not more than a handful of doctors were aware of the full gravity of Roosevelt’s physical condition, and it is an open question whether Roosevelt himself was aware.

In His Final Battle: The Last Months of Franklin Roosevelt, Joseph Lelyveld, former executive editor of the New York Times, seeks to shed light upon, if not answer, this open question. Lelyveld suggests that the president likely was more aware than he let on of the implications of his declining physical condition. In a resourceful portrait of America’s longest serving president during his final year and a half, Lelyveld considers Roosevelt’s political activities against the backdrop of his health. The story is bookended by Roosevelt’s meetings to negotiate the post-war order with fellow wartime leaders Winston Churchill and Joseph Stalin, in Teheran in December 1943 and at Yalta in the Crimea in February 1945. Between the two meetings came Roosevelt’s 1944 decision to run for an unprecedented fourth term, a decision he reached just weeks prior to the Democratic National Convention that summer, and the ensuing campaign.

Lelyveld’s portrait of a president living on borrowed time emerges from an excruciatingly thin written record of Roosevelt’s medical condition. Roosevelt’s medical file disappeared without explanation from a safe at Bethesda Naval Hospital shortly after his death.   Unable to consider Roosevelt’s actual medical records, Lelyveld draws clues  concerning his physical condition from the diary of Margaret “Daisy” Suckley, discovered after Suckley’s death in 1991 at age 100, and made public in 1995. The slim written record on Roosevelt’s medical condition limits Lelyveld’s ability to tease out conclusions on the extent to which that condition may have undermined his job performance in his final months.

* * *

            Daisy Suckley, a distant cousin of Roosevelt, was a constant presence in the president’s life in his final years and a keen observer of his physical condition. During Roosevelt’s last months, the “worshipful” (p.3) and “singularly undemanding” Suckley had become what Lelyveld terms the “Boswell of [Roosevelt’s] rambling ruminations,” secretly recording in an “uncritical, disjointed way the hopes and daydreams” that occupied the frequently inscrutable president (p.75). By 1944, Lelyfeld notes, there was “scarcely a page in Daisy’s diary without some allusion to how the president looks or feels” (p.77).   Lelyveld relies heavily upon the Suckley diary out of necessity, given the disappearance of Roosevelt’s actual medical records after his death.

Lelyveld attributes the disappearance to Admiral Ross McIntire, an ears-nose-and-throat specialist who served both as Roosevelt’s personal physician and Surgeon General of the Navy. In the latter capacity, McIntire oversaw a wartime staff of 175,000 doctors, nurses and orderlies at 330 hospitals and medical stations around the world. Earlier in his career, Roosevelt’s press secretary had upbraided McIntire for allowing the president to be photographed in his wheel chair. From that point forward, McIntire understood that a major component of his job was to conceal Roosevelt’s physical infirmities and protect and promote a vigorously healthy public image of the president. The “resolutely upbeat” (p.212) McIntire, a master of “soothing, well-practiced bromides” (p.226), thus assumes a role in Lelyveld’s account which seems as much “spin doctor” as actual doctor. His most frequent message for the public was that the president was in “robust health” (p.22), in the process of “getting over” a wide range of lesser ailments such as a heavy cold, flu, or bronchitis.

A key turning point in Lelyveld’s story occurred in mid-March 1944, 13 months prior to Roosevelt’s death, when the president’s daughter Anna Roosevelt Boettiger confronted McIntire and demanded to know more about what was wrong with her father. McIntire doled out his “standard bromides, but this time they didn’t go down” (p.23). Anna later said that she “didn’t think McIntire was an internist who really knew what he was talking about” (p.93). In response, however, McIntire brought in Dr. Howard Bruenn, the Navy’s top cardiologist. Evidently, Lelyveld writes, McIntire had “known all along where the problem was to be found” (p.23). Breunn was apparently the first cardiologist to have examined Roosevelt.

McIntire promised to have Roosevelt’s medical records delivered to Bruenn prior to his initial examination of the president, but failed to do so, an “extraordinary lapse” (p.98) which Lelyveld regards as additional evidence that McIntire was responsible for the disappearance of those records after Roosevelt’s death the following year. Breunn found that Roosevelt was suffering from “acute congestive heart failure” (p.98). He recommended that the wartime president avoid “irritation,” severely cut back his work hours, rest more, and reduce his smoking habit, then a daily pack and a half of Camel’s cigarettes. In the midst of the country’s struggle to defeat Nazi Germany and imperial Japan, its leader was told that he “needed to sleep half his time and reduce his workload to that of a bank teller” (p.99), Lelyveld wryly notes.  Dr. Bruenn saw the president regularly from that point onward, traveling with him to Yalta in February 1945 and to Warm Springs in April of that year.

Ten days after Dr. Bruenn’s diagnosis, Roosevelt told a newspaper columnist, “I don’t work so hard any more. I’ve got this thing simplified . . . I imagine I don’t work as many hours a week as you do” (p.103). The president, Lelyveld concludes, “seems to have processed the admonition of the physicians – however it was delivered, bluntly or softly – and to be well on the way to convincing himself that if he could survive in his office by limiting his daily expenditure of energy, it was his duty to do so” (p.103).

At that time, Roosevelt had not indicated publicly whether he wished to seek a 4th precedential term and had not discussed this question with any of his advisors. Moreover, with the “most destructive military struggle in history approaching its climax, there was no one in the White House, or his party, or the whole of political Washington, who dared stand before him in the early months of 1944 and ask face-to-face for a clear answer to the question of whether he could contemplate stepping down” (p.3). The hard if unspoken political truth was that Roosevelt was the Democratic party’s only hope to retain the White House. There was no viable successor in the party’s ranks. But his re-election was far from assured, and public airing of concerns about his health would be unhelpful to say the least in his  re-election bid. Roosevelt did not make his actual decision to run until just weeks before the 1944 Democratic National Convention in Chicago.

At the convention, Roosevelt’s then vice-president, Henry Wallace, and his counselors Harry Hopkins, and Jimmy Byrnes jockeyed for the vice-presidential nomination, along with William Douglas, already a Supreme Court justice at age 45. There’s no indication that Senator Harry S. Truman actively sought to be Roosevelt’s running mate. Lelyveld writes that it is tribute to FDR’s “wiliness” that the notion has persisted over the years that he was “only fleetingly engaged in the selection” of his 1944 vice-president and that he was “simply oblivious when it came to the larger question of succession” (p.172). To the contrary, although he may not have used the used the word “succession” in connection with his vice-presidential choice, Roosevelt “cared enough about qualifications for the presidency to eliminate Wallace as a possibility and keep Byrnes’s hopes alive to the last moment, when, for the sake of party unity, he returned to Harry Truman as the safe choice” (p.172-73).

Having settled upon Truman as his running mate, Roosevelt indicated that he did not want to campaign as usual because the war was too important. But campaign he did, and Lelyveld shows how hard he campaigned – and how hard it was for him given his deteriorating health, which aggravated his mobility problems. The outcome was in doubt up until Election Day, but Roosevelt was resoundingly reelected to a fourth presidential term. The president could then turn his full attention to the war effort, focusing both upon how the war would be won and how the peace would be structured. Roosevelt’s foremost priority was structuring the peace; the details on winning the war were largely left to his staff and to the military commanders in the field.

Roosevelt badly wanted to avoid the mistakes that Woodrow Wilson had made after World War I. He was putting together the pieces of an organization already referred to as the United Nations and fervently sought  the participation and support of his war ally, the Soviet Union. He also wanted Soviet support for the war against Japan in the Pacific after the Nazi surrender, and for an independent and democratic Poland. In pursuit of these objectives, Roosevelt agreed to travel over 10,000 arduous miles to Yalta, to meet in February 1945 with Stalin and Churchill.

In Roosevelt’s mind, Stalin  was by then both the key to victory on the battlefield and for a lasting peace afterwards — and he was, in Roosevelt’s phrase, “get-at-able” (p.28) with the right doses of the legendary Roosevelt charm.   Roosevelt had begun his serious courtship of the Soviet leader at their first meeting in Teheran in December 1943.  His fixation on Stalin, “crossing over now and then into realms of fantasy” (p.28), continued at Yalta. Lelyveld’s treatment of Roosevelt at Yalta covers similar ground to that in Michael Dobbs’ Six Months That Shook the World, reviewed here in April 2015. In Lelyveld’s account, as in that of Dobbs, a mentally and physical exhausted Roosevelt at Yalta ignored the briefing books his staff prepared for him and relied instead upon improvisation and his political instincts, fully confident that he could win over Stalin by force of personality.

According to cardiologist Bruenn’s memoir, published a quarter of a century later, early in the conference Roosevelt showed worrying signs of oxygen deficiency in his blood. His habitually high blood pressure readings revealed a dangerous condition, pulsus alternans, in which every second heartbeat was weaker than the preceding one, a “warning signal from an overworked heart” (p.270).   Dr. Bruenn ordered Roosevelt to curtail his activities in the midst of the conference. Churchill’s physician, Lord Moran, wrote that Roosevelt had “all the symptoms of hardening of arteries in the brain” during the conference and gave the president “only a few months to live” (p.270-71). Churchill himself commented that his wartime ally “really was a pale reflection almost throughout” (p.270) the Yalta conference.

Yet, Roosevelt recovered sufficiently to return home from the conference and address Congress and the public on its results, plausibly claiming victory. The Soviet Union had agreed to participate in the United Nations and in the war in Asia, and to hold what could be construed as free elections in Poland. Had he lived longer, Roosevelt would have seen that Stalin delivered as promised on the Asian war. The Soviet Union also became a member of the United Nations and maintained its membership in the organization until its dissolution in 1991, but was rarely if ever the partner Roosevelt envisioned in keeping world peace. The possibility of a democratic Poland, “by far the knottiest and most time-consuming issue Roosevelt confronted at Yalta” (p.285), was by contrast slipping away even before Roosevelt’s death.

At one point in his remaining weeks, Roosevelt exclaimed, “We can’t do business with Stalin. He has broken every one of the promises he made at Yalta” on Poland (p.304; Dobbs includes the same quotation, adding that Roosevelt thumped on his wheelchair at the time of this outburst). But, like Dobbs, Lelyveld argues that even a more physically fit, fully focused and coldly realistic Roosevelt would likely have been unable to save Poland from Soviet clutches. When the allies met at Yalta, Stalin’s Red Army was in the process of consolidating military control over almost all of Polish territory.  If Roosevelt had been at the peak of vigor, Lelyveld concludes, the results on Poland “would have been much the same” (p.287).

Roosevelt was still trying to mend fences with Stalin on April 11, 1945, the day before his death in Warm Springs. Throughout the following morning, Roosevelt worked on matters of state: he received an update on the US military advances within Germany and even signed a bill, sustaining the Commodity Credit Corporation. Then, just before lunch Roosevelt collapsed. Dr. Bruenn arrived about 15 minutes later and diagnosed a hemorrhage in the brain, a stroke likely caused by the bursting of a blood vessel in the brain or the rupture of an aneurysm. “Roosevelt was doomed from the instant he was stricken” (p.323).  Around midnight, Daisy Suckley recorded in her diary that the president had died at 3:35 pm that afternoon. “Franklin D. Roosevelt, the hope of the world, is dead,” (p.324), she wrote.

Daisy was one of several women present at Warm Springs to provide company to the president during his final visit. Another was Eleanor Roosevelt’s former Secretary, Lucy Mercer Rutherford, by this time the primary Other Woman in the president’s life. Rutherford had driven down from South Carolina to be with the president, part of a recurring pattern in which Rutherford appeared in instances when wife Eleanor was absent, as if coordinated by a social secretary with the knowing consent of all concerned. But this orchestration broke down in Warm Springs in April 1945. After the president died, Rutherford had to flee in haste to make room for Eleanor. Still another woman in the president’s entourage, loquacious cousin Laura Delano, compounded Eleanor’s grief by letting her know that Rutherford had been in Warm Springs for the previous three days, adding gratuitously that Rutherford had also served as hostess at occasions at the White House when Eleanor was away. “Grief and bitter fury were folded tightly in a large knot” (p.325) for the former First Lady at Warm Springs.

Subsequently, Admiral McIntire asserted that Roosevelt had a “stout heart” and that his blood pressure was “not alarming at any time” (p.324-25), implying that the president’s death from a stroke had proven that McIntire had “always been right to downplay any suggestion that the president might have heart disease.” If not a flat-out falsehood, Lelyveld argues, McIntire’s assertion “at least raises the question of what it would have taken to alarm him” (p.325). Roosevelt’s medical file by this time had gone missing from the safe at Bethesda Naval Hospital, most likely removed by the Admiral because it would have revealed the “emptiness of the reassurances he’d fed the press and the public over the years, whenever questions arose about the president’s health” (p.325).

* * *

           Lelyveld declines to engage in what he terms an “argument without end” (p.92) on the degree to which Roosevelt’s deteriorating health impaired his job performance during his last months and final days. Rather, he  skillfully pieces together the limited historical record of Roosevelt’s medical condition to add new insights into the ailing but ever enigmatic president as he led his country nearly to the end of history’s most devastating war.

 

Thomas H. Peebles

La Châtaigneraie, France

March 28, 2017

 

 

 

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Filed under American Politics, Biography, European History, History, United States History, World History

Do Something

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Zachary Kaufman, United States Law and Policy on Transitional Justice:

Principles, Politics, and Pragmatics 

             The term “transitional justice” is applied most frequently to “post conflict” situations, where a nation state or region is emerging from some type of war or violent conflict that has given rise to genocide, war crimes, or crimes against humanity — each now a recognized concept under international law, with “mass atrocities” being a common shorthand used to embrace these and related concepts. In United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics, Zachary Kaufman, a Senior Fellow and expert on human rights at Harvard University’s Kennedy School of Government, explores the circumstances which have led the United States to support that portion of the transitional justice process that determines how to deal with suspected perpetrators of mass atrocities, and why it chooses a particular means of support (disclosure: Kaufman and I worked together in the US Department of Justice’s overseas assistance unit between 2000 and 2002, although we had different portfolios: Kaufman’s involved Africa and the Middle East, while I handled Central and Eastern Europe).

          Kaufman’s book, adapted from his Oxford University PhD dissertation, centers around case studies of the United States’ role in four major transitional justice situations: Germany and Japan after World War II, and ex-Yugoslavia and Rwanda in the 1990s, after the end of the Cold War. It also looks more briefly at two secondary cases, the 1988 bombing of Pan American flight 103, attributed to Libyan nationals, and atrocities committed during Iraq’s 1990-91 occupation of Kuwait. Making extensive use of internal US government documents, many of which have been declassified, Kaufman digs deeply into the thought processes that informed the United States’ decisions on transnational justice in these six post-conflict situations. Kaufman brings a social science perspective to his work, attempting to tease of out of the case studies general rules about how the United States might act in future transitional justice situations.

          The term “transitional justice” implicitly affirms that a permanent and independent national justice system can and should be created or restored in the post-conflict state.  Kaufman notes at one point that dealing with suspected perpetrators of mass atrocities is just one of several critical tasks involved in creating or restoring a permanent national justice system in a post-conflict state.  Others can include: building or rebuilding sustainable judicial institutions, strengthening the post-conflict state’s legislation, improving capacity of its justice-sector personnel, and creating or upgrading the physical infrastructure needed for a functioning justice system. These latter tasks are not the focus of Kaufman’s work. Moreover, in determining how to deal with alleged perpetrators of mass atrocities, Kaufman’s focus is on the front end of the process: how and why the United States determined to support this portion of the process generally and why it chose particular mechanisms rather than others.   The outcomes that the mechanisms produce, although mentioned briefly, are not his focus either.

          In each of the four primary cases, the United States joined other nations to prosecuted those accused or suspected of involvement in mass atrocities before an international criminal tribunal, which Kaufman characterizes as the “most significant type of transitional justice institution” (p.12). Prosecution before an international tribunal, he notes, can promote stability, the rule of law and accountability, and can serve as a deterrent to future atrocities. But the process can be both slow and expensive, with significant political and legal risks. Kaufman’s work provides a useful reminder that prosecution by an international tribunal is far from the only option available to deal with alleged perpetrators of mass atrocities. Others include trials in other jurisdictions, including those of the post-conflict state, and several non-judicial alternatives: amnesty for those suspected of committing mass atrocities, with or without conditions; “lustration,” where suspected persons are disenfranchised from specific aspects of civic life (e.g., declared ineligible for the civil service or the military); and “doing nothing,” which Kaufman considers tantamount to unconditional amnesty.  Finally, there is the option of summary execution or other punishment, without benefit of trial. These options can be applied in combination, e.g., amnesty for some, trial for others.

         Kaufman weighs two models, “legalism” and “prudentialism,” as potential explanations for why and how the United States acted in the cases under study and is likely to act in the future.  Legalism contends that prosecution before an international tribunal of individuals suspected or accused of mass atrocities  is the only option a liberal democratic state may elect, consistent with its adherence to the rule of law.  In limited cases, amnesty or lustrations may be justified as a supplement to initiating cases before a tribunal. Summary execution may never be justified. Prudentialism is more ad hoc and flexible,with  the question whether to establish or invoke an international criminal tribunal or pursue other options determined by any number of different political, pragmatic and normative considerations, including such geo-political factors as promotion of stability in the post-conflict state and region, the determining state or states’ own national security interests, and the relationships between determining states. Almost by definition, legalism precludes consideration of these factors.

          Kaufman presents his cases in a highly systematic manner, with tight overall organization. An introduction and three initial chapters set forth the conceptual framework for the subsequent case studies, addressing matters like methodology and definitional parameters.  The four major cases are then treated in four separate chapters, each with its own introduction and conclusion, followed by an overall conclusion, also with its own introduction and conclusion (the two secondary cases, Libya and Iraq are treated within the chapter on ex-Yugoslavia).  Substantive headings throughout each chapter make his arguments easy to follow.   General readers may find jarring his extensive use of acronyms throughout the text, drawn from a three-page list contained at the outset. But amidst Kaufman’s deeply analytical exploration of the thinking that lay behind the United States’ actions, readers will appreciate his decidedly non-sociological hypothesis as to why the United States elects to engage in  the transitional justice process: a deeply felt American need in the wake of mass atrocities to “do something” (always in quotation marks).

* * *

          Kaufman begins his case studies with the best-known example of transitional justice, Nazi Germany after World War II. The United States supported creation of what has come to be known as the Nuremberg War Crimes tribunal, a military court administered by the four victorious allies, the United States, Soviet Union, Great Britain and France. The Nuremberg story is so well known, thanks in part to “Judgment at Nuremberg,” the best-selling book and popular film, that most readers will assume that the multi-lateral Nuremberg trials were the only option seriously under consideration at the time. To the contrary, Kaufman demonstrates that such trials were far from the only option on the table.

        For a while the United States seriously considered summary executions of accused Nazi leaders. British Prime Minister Winston Churchill pushed this option during wartime deliberations and, Kaufman indicates, President Roosevelt seemed at times on the cusp of agreeing to it. Equally surprisingly, Soviet Union leader Joseph Stalin lobbied early and hard for a trial process rather than summary executions. The Nuremberg Tribunal “might not have been created without Stalin’s early, constant, and forceful lobbying” (p.89), Kaufman contends.  Roosevelt abandoned his preference for summary executions after economic aspects of the Morgenthau Plan, which involved the “pastoralization” of Germany, were leaked to the press. When the American public “expressed its outrage at treating Germany so harshly through a form of economic sanctions,” Roosevelt concluded that Americans would be “unsupportive of severe treatment for the Germans through summary execution” (p.85).

          But the United States’ support for war crimes trials became unwavering only after Roosevelt died in April 1945 and Harry S. Truman assumed the presidency.  The details and mechanics of a multi-lateral trial process were not worked out until early August 1945 in the “London Agreement,” after Churchill had been voted out of office and Labor Prime Minister Clement Atlee represented Britain. Trials against 22 high level Nazi officials began in November 1945, with verdicts rendered in October 1946: twelve defendants were sentenced to death, seven drew prison sentences, and three were acquitted.

       Many lower level Nazi officials were tried in unilateral prosecutions by one of the allied powers.   Lustration, barring active Nazi party members from major public and private positions, was applied in the US, British, and Soviet sectors.  Numerous high level Nazi officials were allowed to emigrate to the United States to assist in Cold War endeavors, which Kaufman characterizes as a “conditional amnesty” (Nazi war criminals who emigrated to the United States is the subject of Eric Lichtblau’s The Nazis Next Door: How America Became a Safe Haven for Hitler’s Men, reviewed here in October 2015; Frederick Taylor’s Exorcising Hitler: The Occupation and Denazification of Germany, reviewed here in December 2012, addresses more generally the manner in which the Allies dealt with lower level Nazi officials). By 1949, the Cold War between the Soviet Union and the West undermined the allies’ appetite for prosecution, with the Korean War completing the process of diverting the world’s attention away from Nazi war criminals.

          The story behind creation of the International Military Tribunal for the Far East, designed to hold accountable accused Japanese perpetrators of mass atrocities, is far less known than that of Nuremberg, Kaufman observes.  What has come to be known as the “Tokyo Tribunal” largely followed the Nuremberg model, with some modifications. Even though 11 allies were involved, the United States was closer to the sole decision-maker on the options to pursue in Japan than it had been in Germany. As the lead occupier of post-war Japan, the United States had “no choice but to ‘do something’” (p.119).   Only the United States had both the means and will to oversee the post-conflict occupation and administration of Japan. That oversight authority was vested largely in a single individual, General Douglas MacArthur, Supreme Commander of the Allied forces, whose extraordinarily broad – nearly dictatorial — authority in post World War II Japan extended to the transitional justice process. MacArthur approved appointments to the tribunal, signed off on its indictments, and exercised review authority over its decisions.

            In the interest of securing the stability of post-war Japan, the United States accorded unconditional amnesty to Japan’s Emperor Hirohito. The Tokyo Tribunal indicted twenty-eight high-level Japanese officials, but more than fifty were not indicted, and thus also benefited from an unconditional amnesty. This included many suspected of “direct involvement in some of the most horrific crimes of WWII” (p.108), several of whom eventually returned to Japanese politics. Through lustration, more than 200,000 Japanese were removed or barred from public office, either permanently or temporarily.  As in Germany, by the late 1940s the emerging Cold War with the Soviet Union had chilled the United States’ enthusiasm for prosecuting Japanese suspected of war crimes.

           The next major United States engagements in transitional justice arose in the 1990s, when the former Yugoslavia collapsed and the country lapsed into a spasm of ethnic violence; and massive ethnic-based genocide erupted in Rwanda in 1994. By this time, the Soviet Union had itself collapsed and the Cold War was over. In both instances, heavy United States’ involvement in the post-conflict process was attributed in part to a sense of remorse for its lack of involvement in the conflicts themselves and its failure to halt the ethnic violence, resulting in a need to “do something.”  Rwanda marks the only instance among the four primary cases where mass atrocities arose out of an internal conflict.

       The ethnic conflicts in Yugoslavia led to the creation of the International Criminal Tribunal for Yugoslavia (ICTY), based in The Hague and administered under the auspices of the United Nations Security Council. Kaufman provides much useful insight into the thinking behind the United States’ support for the creation of the court and the decision to base it in The Hague as an authorized Security Council institution. His documentation shows that United States officials consistently invoked the Nuremberg experience. The United States supported a multi-lateral tribunal through the Security Council because the council could “obligate all states to honor its mandates, which would be critical to the tribunal’s success” (p.157). The United States saw the ICTY as critical in laying a foundation for regional peace and facilitating reconciliation among competing factions. But it also supported the ICTY and took a lead role in its design to “prevent it from becoming a permanent [tribunal] with global reach” (p.158), which it deemed “potentially problematic” (p.157).

             The United States’ willingness to involve itself in the post-conflict transitional process in Rwanda,   even more than in the ex-Yugoslavia, may be attributed to its failure to intervene during the worst moments of the genocide itself.  That the United States “did not send troops or other assistance to Rwanda perversely may have increased the likelihood of involvement in the immediate aftermath,” Kaufman writes. A “desire to compensate for its foreign policy failures in Rwanda, if not also feelings of guilt over not intervening, apparently motivated at least some [US] officials to support a transitional justice institution for Rwanda” (p.197).

        Once the Rwandan civil war subsided, there was a strong consensus within the international community that some kind of international tribunal was needed to impose accountability upon the most egregious génocidaires; that any such tribunal should operate under the auspices of the United Nations Security Council; that the tribunal should in some sense be modeled after the ICTY; and that the United States shouldtake the lead in establishing the tribunal. The ICTY precedent prompted US officials to “consider carefully the consistency with which they applied transitional justice solutions in different regions; they wanted the international community to view [the US] as treating Africans similarly to Europeans” (p.182). According to these officials, after the precedent of proactive United States involvement in the “arguably less egregious Balkans crisis,” the United States would have found it “politically difficult to justify inaction in post-genocide Rwanda” (p.182).

           The United States favored a tribunal modeled after and structurally similar to the ICTY, which came to be known as International Criminal Tribunal for Rwanda (ICTR). The ICTR was the first international court having competence to “prosecute and punish individuals for egregious crimes committed during an internal conflict” (p.174), a watershed development in international law and transitional justice.  To deal with lower level génocidaires, the Rwandan government and the international community later instituted additional prosecutorial measures, including prosecutions by Rwandan domestic courts and local domestic councils, termed gacaca.

          No international tribunals were created in the two secondary cases, Libya after the 1998 Pan Am flight 103 bombing, and the 1990-91 Iraqi invasion of Kuwait. At the time of the Pam Am bombing, several years prior to the September 11, 2001 attacks, United States officials considered terrorism a matter to be addressed “exclusively in domestic contexts” (p.156).  In the case of the bombing of Pan Am 103, where Americans had been killed, competent courts were available in the United States and the United Kingdom. There were numerous documented cases of Iraqi atrocities against Kuwaiti civilians committed during Iraq’s 1990-91 invasion of Kuwait.  But the 1991 Gulf War, while driving Iraq out of Kuwait, otherwise left Iraqi leader Saddam Hussein in power. The United States was therefore not in a position to impose accountability upon Iraqis for atrocities committed in Kuwait, as it had done after defeating Germany and Japan in World War II.

* * *

         In evaluating the prudentialism and legalism models as ways to explain the United States’ actions in the four primary cases, prudentialism emerges as a clear winner.  Kaufman convincingly demonstrates that the United States in each was open to multiple options and motivated by geo-political and other non-legal considerations.  Indeed, it is difficult to imagine that the United States – or any other state for that matter — would ever, in advance, agree to disregard such considerations, as the legalism model seems to demand. After reflecting upon Kaufman’s analysis, I concluded that legalism might best be understood as more aspirational than empirical, a forward-looking, prescriptive model as to how the United States should act in future transitional justice situations, favored in particular by human rights organizations.

         But Kaufman also shows that the United States’ approach in each of the four cases was not entirely an ad hoc weighing of geo-political and related considerations.  Critical to his analysis are the threads which link the four cases, what he terms “path dependency,” whereby the Nuremberg trial process for Nazi war criminals served as a powerful influence upon the process set up for their Japanese counterparts; the combined Nuremberg-Tokyo experience weighed heavily in the creation of ICTY; and ICTY strongly influenced the structure and procedure of ICTR.   This cumulative experience constitutes another factor in explaining why the United States in the end opted for international criminal tribunals in each of the four cases.

         If a general rule can be extracted from Kaufman’s four primary cases, it might therefore be that an international criminal tribunal has evolved into the “default option” for the United States in transitional justice situations,  showing the strong pull of the only option which the legalism model considers consistent with the rule of law.  But these precedents may exert less hold on US policy makers going forward, as an incoming administration reconsiders the United States’ role in the 21st century global order. Or, to use Kaufman’s apt phrase, there may be less need felt for the United States to “do something” in the wake of future mass atrocities.

Thomas H. Peebles

Venice, Italy

February 10, 2017

 

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Filed under American Politics, United States History