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.