Exceptional Apologies

Guest Blogger

For the Balkinization Symposium on Ruti G. Teitel, Presidential Visions of Transitional Justice: An American Legacy of Responsibility and Reconciliation (Oxford University Press, 2025).

David Gray

Justice is a funny thing. At once abstract and concrete, ambiguous and precise, deeply complex and kindergarten-simple. It’s a perennial question for philosophers—remember Plato’s Republic? And what’s more abstract than ethereal Forms illuminating the souls of the right-living? But justice is also an immediate, material question put daily to judges and juries—how much money, how many months’ incarceration, is just in this specific case. Thus the ambiguity. Among other questions, justice might ask about the proper distribution of resources, the right amount of compensation, or the correct punishment. These are hard questions that have spawned thousands of books, dissertations, and essays, and yet every five-year-old knows injustice when she sees it—and isn’t afraid to tell you!

          Despite all this squishiness, most conversations about justice share something: a referent—a community, a state, a god, Forms—the constitution of which is prior to claims about what justice is and what it requires. Justice therefore has a critical ethical dimension. It relies on “truths [we hold to be] self-evident.” It also has an ethnographic dimension. It exists in a socio-political and linguistic context. Often there is a state involved. This is not to suggest that debates about justice beg the big questions. They often entail heated contests about who we are and what we value; but those conversations assume a “we.” The fundamental question for justice in most cases is therefore some variation on a theme. Justice asks what must be done to reify (symbolic), to pay tribute (retributive), to protect (utilitarian), or to support (distributive) something that already exists—a marriage, a family, a linguistic community, a people, a social order, a state.

Transitional justice is different.

Transitional justice is liminal. It lives in periods between an ancien régime characterized by authoritarian rule and systematic violations of human rights, on one side of history, and a society committed to democracy, human rights, and the rule of law, on the other. Where stable state justice is referential; transitional justice is constitutional. It is also Janus-faced. Transitional justice looks to the past to identify the atrocities perpetrated under the predecessor regime and to diagnose the ethical commitments and structural conditions that rationalized and justified systematic, targeted violence. It asks who we were. But it also looks to the future, to what comes next, and to what must be done to bring forth a better future. It asks who we will be. And then transitional justice sets about the project of creating. It constitutes, lays foundations, and ultimately manifests something new: the we that will be, must be, in light of the rejected past. 

By nature, the traditional role for transitional justice is national in scope. Think Athens after the Thirty Tyrants. Germany after World War II, South Africa after it abandoned apartheid, or Argentina after the Dirty War. These are the familiar contexts for transitional justice. There is a state and society that went terribly wrong and did awful things. There is a crashing moment of separation from the past. There is a period betwixt and between when that society asks tough questions, learns, teaches, and constitutes. Then there is a moment of reincorporation when the new state assumes its status, rights, and duties. What is perhaps most challenging about Ruti Teitel’s new book is that it moves transitional justice out of this familiar context into the arena of international law writ large, shifting the scope of the conversation in two directions and expanding ambitions.

In Presidential Visions of Transitional Justice, Professor Teitel both narrows and expands the scope of transitional justice. There is no doubt that most transitional justice projects lean on the leadership of a few key protagonists. Without Nelson Mandela, Desmond Tutu, and Alex Boraine, South Africa may well have taken a different path. But the transitional justice project is fundamentally collective. In contrast with this familiar form, Professor Teitel’s book focuses on individuals, identifying the potential of US presidents to act single-handedly as agents of transition, often without political support. At the same time, Professor Teitel expands the scope of transitional justice outside national borders to show how US presidents have engaged transitional justice tools as means of constituting an international order, a community of nations, and a global humanity.  

So, we get George Washington confronted with what some might characterize as odious debts—money owed by former colonies and colonists to the British. Many of these debtors had good reason to refuse to pay. Others were merely opportunistic. How to sort them out while also avoiding a war of repossession? How about creating an arbitration panel charged with not just sorting the wheat from the chaff, but doing so based on recognitions of the ancien régime’s usurious abuses of power? How about leveraging that effort to constitute a new country, then on shaky grounds internally and externally? And how about laying the groundwork for a new means of settling commercial disputes between nations that requires neither musket nor man-o-war, thereby constituting a new identity for the community of nations? By Professor Teitel’s telling, that is precisely what President Washington did with the Jay Treaty. He recognized a moment of transition and deployed transitional justice tools to constitute a new nation and a new world order.

And we have Woodrow Wilson looking at the unimaginable destruction of World War I, recognizing that these atrocities were a consequence of a deep defect in the international order, identifying it, and struggling mightily to deploy the tools of transitional justice to constitute a new global order where there would be no wars of aggression and all states would be bound to protect the human rights of those within their borders. Of course Wilson was ignored and, like Paul Klee’s Angel of History, we were carried screaming through the Shoah and another world war; but then, as Professor Teitel explains, FDR and Truman were able to carry off what Wilson could not. From their transitional moment, we get the Genocide Convention, the United Nations, the Security Council, and the Universal Declaration, which individually and together created a new world order organized around human rights rather than state sovereignty.

But the real star of this book is Barack Obama. Parsing speeches given during what critics derisively called his “apology tour,” Professor Teitel holds up President Obama as true agent of transitional justice. On her account. Obama leveraged the authority of his office to tell the truth about what the United States had done to facilitate human rights abuses and other atrocities in Asia and the Americas . He acknowledged complicity and responsibility. He identified ethical mistakes. He committed to change as a condition of going forward. And he posited the constitution of a new and better world order.

All of these examples of presidential action are different from familiar transitional justice discourse both because they focus on individual agents and because they have international reach. To be sure, many domestic transitional justice efforts have involved other nations and international organizations. Think Nuremberg, the International Criminal Tribunal for Rwanda, and the International Criminal Tribunal for the former Yugoslavia. But the focus in all these instances was domestic transitional justice. The international community was an outsider looking in. One of the fundamental contributions of this book is to identify and highlight examples that run the other direction with US presidents using transitional moments to construct an international order and, in the process, becoming indispensable citizens of the world—or so one might think.

There is a page toward the end of the book—page 152—that I keep coming back to. It’s another presidential apology. This time Clinton and Kofi Annan apologizing for the United States and United Nations’s failure to act during the building phases of the Rwandan genocide, or even to call it a genocide after the killing was under way—an act of moral cowardice well-documented in Philip Gourevitch’s We Wish to Inform You . . . and Samantha Power’s A Problem from Hell. Professor Teitel writes “these apologies implied that the US and the UN were the only players at the time that could—and thus had a responsibility to—intervene in humanitarian crisis.” For Professor Teitel, there was some good in this insofar as it prompted recognition of the “responsibility to protect,” but there is a deep critique here as well, disclosing a contradiction always already present in the project of tracing presidential visions of transitional justice.

Smack between the bookends of Obama’s apologies, Professor Teitel includes a chapter on Teddy Roosevelt. The original American Exceptionalist, architect of American imperialism in Asia and the Americas, revitalizer of the Monroe Doctrine, aspiring hegemon, and Nobel Laureate. That Teddy Roosevelt. True enough, as Professor Teitel recounts, Roosevelt entered into a host of treaties, including the Drago-Porter Convention, perfecting Washington’s international arbitration project. He surely deserves credit for pushing forward the internationalist project later picked up by Wilson, FDR, and Truman; but Roosevelt also saw the United States as the indispensable nation with authority and duty to police the world. That hubristic arrogation of power and responsibility emboldened him to bring Russia and Japan to the table at Portsmouth Shipyard (good), but it also gave him license to project American power throughout the Americas and to pacify the Philippines (very, very bad). These were bloody and destructive enterprises that found US troops engaged in conduct we would unhesitatingly call war crimes and crimes against humanity.

In a book about presidents as agents of transitional justice, we might expect to find Roosevelt doing an Obama. But, no. When confronted with barbarous actions of US troops in the Philippines, Roosevelt stalwartly refused to take responsibility individually or on the part of the nation. He instead blamed the savage islanders for provoking our troops and a few individual soldiers. He condemned the “bad apples” instead of recognizing “bad policy.” But it’s more than bad policy, right? Weren’t the atrocities perpetrated by American troops in the Philippines a consequence of deep ethical mistakes central to Roosevelt’s presidential identity and the project of American exceptionalism? Didn’t Roosevelt’s hubris set the stage for a century of American adventurism that led to precisely the actions for which Obama would feel compelled to apologize? 

So, back to Clinton: Professor Teitel points to his apology as embracing rather than critiquing American exceptionalism. He, the indispensable man, president of the indispensable nation, the world’s policeman, who achieves peace by projecting power, failed to fulfill the obligations of his office. But from a transitional justice perspective, that is not the right apology at all! With Obama as foil, Professor Teitel suggests to her reader that Clinton should have identified how European and American hubris set the stage for atrocities perpetrated in the second half of the Twentieth Century, some by the United States, and others on our watch. He should then have engaged the liminal project of creating something different. What might that be? To her great credit, Professor Teitel does not indulge in hubris herself by offering easy solutions or pat answers. Like any great teacher, she helps describe the challenge, engages the complexities, and offers a set of conceptual and practical tools. What future presidents do with them, what we do with them, she leaves up to us.

David Gray is Jacob A. France Professor at the University of Maryland, Carey School of Law. You can reach him at dgray@law.umaryland.edu.