The Political Price of Apologies: Why States Balk at Historical Apologies Despite Limited Legal Risk

[Britta Redwood is a Visiting Assistant Professor at Howard University School of Law, where she serves as the Interim Director of the Thurgood Marshall Civil Rights Center and lead a legal clinic focused on reparatory justice. She is also the founder of the Historical Redress Network.]

Recently, a poll conducted in Britain revealed that six in ten people believe that the descendants of enslaved people are entitled to a formal apology by those who were involved in the exploitation associated with slavery—including the British government, the royal family, and private companies. Calls for apology are growing louder outside of Britain. Still, there has been a real reluctance to issue formal apologies for slavery and the worst excesses of colonial rule. From an international law perspective, this reluctance is curious: while formal apologies for historical injustices have political force, they havealmost no legal consequences.  

By contrast, when a country issues a formal apology for some contemporary violation of international law—as did U.S. Secretary of Defense Donald Rumsfeld for the abuse of Iraqi prisoners at Abu Ghraib—there is an implication that that country is committing itself not to act in that manner in the future. Such an apology can further serve as evidence of the fact that the apologizing state has a particular view on or interpretation of its duties under international law that may estop it from making arguments to the contrary at a later point. In this way, apologies may bind states to (refrain from) a certain course of action or to a particular interpretation of international law going forward. 

Apologies for Historical Injustices Generally have no Negative Legal Consequences

Apologies for historical injustices—especially when they are already prohibited under international law—do not constrain countries in the same way. First, they often would apply to conduct a state has no realistic chance of repeating, and is already well-established as prohibited under international law. For instance, slavery was abolished in most countries that practiced it by acts of parliament during the 1800s; it was prohibited by multilateral treaty when the Slavery Convention entered into force in 1927. A country that apologizes for slavery is not committing itself to any principle or interpretation of international law to which it has not already bound. Prohibitions on slavery are such important principles that they have passed from positive law into jus cogens—peremptory norms that endure even if they are not set forth in treaties or other legal instruments. 

Furthermore, they do not generally function as an admission of responsibility for violating international law. Apologies for historical injustices do not necessarily establish state responsibility for an internationally wrongful act. “Internationally wrongful acts” are narrowly defined. According to Article 1 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), “[e]very internationally wrongful act of a State entails the international responsibility of that State,” including the duty to make reparations. However, as is set forth in Article 2, an internationally wrongful act only creates this kind of liability when: “[the conduct] constitutes a breach of an international obligation of the state.” Ironically, although the prohibition on slavery is now a jus cogens norm, the fact that it was widely practiced until the mid-19^th century by many European States means that it is unlikely to have been seen to be in violation of State obligations at the time. 

States are further protected from such responsibility by the intertemporality principle, which holds that states can only be held responsible for breaches of international law that existed at the time of the conduct. Because slavery was legal until its abolition, states that practiced it, while morally culpable, may not have committed legally wrongful acts under the laws of the time. It is worth briefly noting here that the notion that slavery was legal until the mid-19^th century has been criticized by several scholars, and the intertemporality principle has also been critiqued from a TWAIL perspective, but these critiques remain—for the moment—outside the conventional interpretation of international law.  

Moreover, apologies alone do not trigger liability. In domestic legal regimes, apologies for perceived wrongdoing may be admissible as evidence in a tort hearing. However, Commentary on ARSIWA further characterizes apologies as a non-standard form of reparation. According to ARISA, apologies are a secondary form of reparation rather than an action that demonstrates liability, which would, in turn, obligate a State to make restitution or issue compensation. 

Why, then, are so many States Reluctant to Apologize for Historical Injustices?

If apologies for historical injustices do not clearly trigger obligations under international law, why are so many States reluctant to make them? I argue that states refuse to apologize because they perceive the gesture as opening them to legal, political, and moral risk. Apologies create opportunities for confrontation and turn up the heat on demands for reparations that many see as obligatory, even if international law—for now, at least—has little to say about it. 

Apologies Unaccompanied by Reparations Force States to Make Unsavory Legal Arguments

While States that choose to apologize for historical conduct do not—simply by apologizing—open themselves up to liability under international law, they may still cause a state to be faced with claims that arise from those injustices. For instance, government emails shared with the media earlier this year indicate that at least four individuals or entities approached the Dutch government with legal claims related to slavery. These claims seem to have been made only a few weeks after the Dutch Prime Minister apologized for the country’s involvement in slavery in the West Indies in late 2022. 

Claims that emerge from slavery or its legacy are unlikely to succeed in court because of the intertemporality principle or even due to the principle of sovereign immunity, which prohibits claimants from suing the government unless it has given explicit consent to suit through constitutional or statutory law. However, the mere existence of these claims—especially if they are attended by an advocacy campaign—can force the government to take legal positions that it may find unsavory and embarrassing. 

The German Government, for example, acknowledges that German officers engaged in genocide in present-day Namibia from 1904-08 but uses the term genocide “in its historical rather than its legal sense because the Genocide Convention of 9 December 1948 cannot be applied retrospectively.” In making this distinction, Germany is invoking the intertemporality principle and shielding itself from obligation under international law. At the same time, though, Germany’s hair-splitting causes moral outrage and arguably heightens the sense of indignation around its treatment of the issue. 

In other words, the arguments available to the Dutch government against claimants who aimed to use the 2022 apology as an opportunity to bring legal claims may be legally successful but morally repugnant. States may refuse to apologize because they are reluctant to provoke a flood of requests for reparations that they would then have to publicly respond to with arguments of sound legal but dubious moral value. It is worth pointing out, however, that such claims can be mounted even absent a formal apology. An apology just endows the decision to ignore or deny such requests with a special degree of moral irony. 

Apologies Require Domestic Political Appetite and may have Negative Domestic Political Consequences or Grate Against a State’s Self-Concept

Although the legal significance of apologies for historical injustices is limited, their political significance is substantial. Nicholas Tavuchis, among the first scholars to investigate the subject of political apologies, characterized apologies as “both magical and mundane,” setting the parties on a “moral expedition” that could repair damaged social relations and allow them to move beyond past injustices. He described apologies as  Apologies are speech acts that have the power to, in the words of Barkan, “amend the past so that it resonates differently in the present for those who feel aggrieved by it or responsible for it.” For the magic of these speech acts to be realized, however, it must be preceded by an internal process of critical self-examination and self-interrogation that makes the political event of an apology possible. For colonial states, this usually means reckoning with significant parts of their history, their self-image and their political self-concept. One cannot simultaneously apologize for and glorify the past. This may pose challenges in a country’s domestic politics.

Additionally, elements of a colonial state’s leadership or population may resist apologizing, claiming that an apology is not justified or desirable. As recently as spring of 2020, about a third of Britons polled said their former colonial empire as a point of pride, and roughly the same number of people said that former colonies were better off as a result of British presence.

Unsurprisingly, then, the willingness to engage in this kind of internal reckoning comes down to a domestic political question in former colonial states. In October 2021, the Belgian Parliament received the expert report it had commissioned on its colonial past in the Congo, Rwanda, and Burundi. The report included several recommendations, including issuing a formal apology for “atrocities committed during colonization.” The report argued that an apology would be restorative for the country’s relationships with the communities in its former colonies as well as for Belgians of Congolese, Rwandan, and Burundian descent. However, none of the Commission’s recommendations were taken up by the Belgian government. Although an official statement was drafted by consensus, and apologized for “colonial domination and exploitation, the violence and atrocities, the individual and collective human rights violations during this period, as well as the racism and discrimination that accompanied them.” Parties on the right turned their back on the statement. Meanwhile the Christian Democrats preferred to refrain from apologizing and instead express “regret.” 

Around the same time, the Netherlands, ruled by a coalition led by a conservative-liberal party, underwent a similar process with a different result. The government created the “Slavery History Dialogue Group Advisory Board,” which recommended that the government issue a formal apology and make specific reference to the slave trade as a “crime against humanity.” When Dutch Prime Minister Mark Rutte finally apologized in 2022, he took up the recommendation and noted that the legacy of slavery has ongoing effects into the present. The far-right remains critical of the apology, and some suggest that Rutte rushed the apology in order to preempt more criticism from that direction. 

Apologies are Seen to Entail a Confrontation and an Implied Demand for Reparations

But perhaps the most significant obstacle to international apologies for historical injustices is the overwhelming sense that they should or even must be accompanied by some form of reparatory justice. Because the perpetrators and even the direct victims of these historical crimes are often long gone, this usually comes down to compensation and restitution. In Belgium, part of the reluctance of the far-right parties to support the text of the apology—which had been approved of by consensus at an earlier point—was the perceived risk that it would be accompanied by a duty to pay reparations. The Dutch apology was accompanied by a separate but unequivocal statement that the Dutch government would not issue reparations to its former colonies or to the descendants of enslaved people. It has been roundly criticized for this decision, not least by those in its former colonies, who did not receive the apology with a counteroffer of forgiveness. 

These fears and statements may even suggest that opinio juris about liability for historical injustices is crystallizing, or at least in productive tension. Although apologies for historical wrongs do not obligate states to pay reparations under international law, and there are no clear-cut ways for victims of these historical wrongs or their descendants to pursue reparations in international tribunals, the prevalence of the notion that reparatory justice is due may exert a slow but building pressure on traditional doctrines of intertemporal law. There seems to be growing recognition of the notion that state responsibility may extend even to long-past historical injustices, triggering an obligation to repair that is like that of contemporary wrongful acts. 

Perhaps the most quintessential or complete formal apologies—those of Germany following World War II and France for its crimes under the Vichy regime in the 1990s—were both accompanied by robust reparations programs for victims. To be sure, Nazi Germany and Vichy France committed internationally wrongful acts during World War II that clearly required reparation under international law, while liability for countries that engaged in slavery or exploitative colonial practices is less clear. Still, these significant apologies—one of them more than forty years after the fact—set the tone. 

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Calls for apology are growing increasingly loud for former colonial governments—both from their citizens and from those who live in the shadow of the past. The work of scholars, archivists, and activists in recent years has made the notion that colonialism was beneficial and should continue to be celebrated utterly stale. Countries continued unwillingness to issue apologies for their role in the transatlantic slave trade and colonialism comes down—it would seem—primarily to political cowardice. Even though international law does not impose heavy financial burdens for historical injustices, apologies provide opportunities for confrontation and invite demands for reparations. The moral and political pressure to take reparatory measures is real, even if the law remains—for the moment, at least—unable to reckon with this past.