Reponse to the Balkinization Symposium on Presidential Visions of Transitional Justice

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).

Ruti Teitel

Professors Grey, Hay and Murphy engage in the Balkinization Symposium on my book Presidential Visions of Transitional Justice: An American Legacy of Responsibility and Reconciliation (OUP 2025).

My book looks at transitional justice as political leadership and as a form of diplomacy. My aim is to rebalance what has been a recent emphasis on legalism and bureaucratization in the theory and practice of transitional justice. Second, if we think of how American scholars look at transitional justice generally, it is transitional justice for thee not me; what America can contribute to transitions elsewhere, rather than how we reckon with our own past. (Contrast scholars such as  Neil Kritz[1];Natalie Davidson,[2])

I was originally inspired by President Barack Obama’s second term and his then revisiting of America’s Cold War legacy, especially in Asia and Latin America. Also, following on from Obama, the emergence of the Black Lives Matter and the reparations movement in the US underscored the need to revisit the transition from slavery post-civil war in the contemporary context of George Floyd.

An enlarging American global footprint through the nineteenth and twentieth centuries is the context for chapters in the book indeed, for example the administration and foreign policy established by Teddy Roosevelt. As David Grey observes[3] that there is often a layered dimension to American presidential diplomacy in this area: to be sure it is always promoting American interests—while, on the other there have been transformative moments in the promotion of different dimensions for international law—again always also overlapping with US interests. Thus, he notes  the presidency of Theodore Roosevelt was one of the most gnarly chapters in US history : that on the one hand we see period of empire and acquisition while at same time we also see along with US taking control and displacing older empires, while developing a concept of international law designed to serve perceived US interests.  He rightly asks:  “Did Roosevelt’s hubris set the stage for a century of American adventurism that led to precisely the actions for which Obama later feel compelled to apologize?” I would answer with an emphatic “yes.” : The book tells a story of continuity of the state and its responsibility for past wrongs- and also the continuity of the Presidency—as the actor who ought to take responsibility for his predecessor (fellow Commander in Chief). across administrations and over US history.  Indeed it is plain that there is today an ongoing force of Rooseveltian hubris evident in Trump’s foreign policy ventures –but he was also greatly admired by number of successors in the office—and is widely seen as the author of the President of action.

Moving into the more contemporary period David observes “Clinton’s apology [for not halting the genocide in Rwanda] embraces American exceptionalism and calls for something different.”  In this regard his actions reflect the leadership characteristic of the Presidents taken up in my book.  What would emerge are a number of innovations as a matter of international law; first the ad hoc tribunals of judgment at the time, yet given their limitations, in terms of deterrence of atrocities at the time, e.g. Srebrenica; the further innovation would be the development in international law of the” Responsibility to Protect,”  a new doctrine that notwithstanding UN Charter prohibitions could lay the basis for humanitarian intervention where atrocities occur.  Yet, implementing such duties in the face of humanitarian threat has been difficult.   Indeed, Libya where the UN did actually authorize intervention appears to have backfired and seen in retrospect as morphing into regime change and unstable and volatile one at that.  Yet as Gaza and Congo recently remind us equally or perhaps even more problematic are the moral failures of non --intervention.  As we can see, these tensions are present in international law and politics today making the question of leadership and decision making all the more critical.

Is Presidential Visions offering a normative account?

Bradley Hays seems persuaded that the book shows the role of presidential leadership in efforts to deal with moral and political standing after conflict—and related issues of constitutionalism.   Yet the goes on to raise the pressing question regarding the direction of narrative in my book light of current politics.  To what extent is there a break?      “Hays writes, “The book’s central claim regarding the presidential role in transitional justice—that presidential involvement in transitional justice is part of a repertoire of constitutional and political authorities—takes on particular resonance when viewed against the recent rejection of such politics by the Trump administration (2-3).”

 Or put another way, Hays questions how in light of the efforts of a President like Obama, how to understand the opposition in the current administration to notions of repair for slavery and segregation --- even opposition to history and memorialization?  I.e., what kind of story –to what extent is there a tradition in the book’s accounting  and now a disrupture?     As he puts it in light of what we are seeing now, “The stark partisan backlash against the practices raises difficult questions.”

Colleen Murphy poses a related question about whether some kind of historical directionality is evident in the narrative set out in the book. Surely, when we put side by side Presidents Obama and Trump, it cannot be one of linear historical progress, but something perhaps more cyclical.

To what extent does Presidential Visions help us better understand contemporary US Politics?

Colleen and Bradley  ask whether and how the book helps us understand American politics . I am inclined to agree here with  Colleen’s observation that : “Scholarship on transitional justice offers resources for more systematic understanding of the purposes.”     Accordingly one might conclude that  the discourse that can help us understand the purposes and the context of this debate and that there is an ongoing contestation about American identity.   

Let us consider where the historical narrative can illuminate current politics.   Again reconsidering Hay and Murphy’s inquiry-- discussed above— Is Trump in or out of the book’s account?

We might consider to what extent the Trumpian practices emulating Roosevelt vis a vis the US role in the Americas. The story of transitional justice in my book could help us see where these actions lie in terms of US actions in of leadership in the Western Hemisphere. If we look closely,  we would see that in some ways the contemporary actions follow those of TR—ie in the President Teddy Roosevelt’s muscular use of force to push non US empire out of the continent, or the violent creation of the Panama Canal and how it enabled expansion of US trade to the world.   They appear analogous to the current moment—yet with notable differences  that are best encapsulated in the vocabulary introduced here.  Thus Trump‘s recent actions[4] vis a vis Venezuela[5] have been  utterly lacking in the rule of law associated with at least some of the Roosevelt administration practices, where he explicitly rejected the “gunboat diplomacy”  of the European colonialists—indeed rejected these as unjust wars——in fact Roosevelt’s involvement was crucial to the concerted move away from then  international law’s support for states of military enforcement of contract breaches and the pivoting instead to alternative forms of conflict resolution such as arbitration of which he was an enthusiastic champion ---indeed—the subject of his Nobel Peace Prize address.

Another illustration of the extent to which the diplomatic history here may help us understand the backlash associated with the Trump presidency / and the Maga movement against the agenda of diversity and equity and putting in question any possibility of federal reparations.   Here, the perspective laid out in Presidential Visions may well be helpful to offering context and re -situating the conflict : we might understand the attacks on Obama’s statements as evidence of contestation going back to the Post Civil War and Reconstruction---as taken up in chapter three of my book underscoring the extent to which the problematique of transitional justice is buried in our history but also that the story has been  one of forced reconciliation/ Union, and failure over many decades to meaningfully grapple with issues of repair and transformation.  

What we experience today is the detritus of the grief and grievance, which reflects the failure of reconstruction and post Civil War transitional justice.   What will it take for us to move on? Knowing more about our history and in particular about the potential of political leadership regarding transitional justice can help us understand our fault lines in need of reckoning.  The historical episodes taken up in my book remind us that even centuries later it is not too late and that leaders can make significant change with their acknowledgments and other decisive actions.

Ruti Teitel is the Ernst C Stiefel Professor of Comparative Law, NY Law School. You can reach her by e-mail at teitelruti@aol.com.