Journal article
The (Re)collection of Memory after Mass Atrocity and the Dilemma for Transitional Justice
New York University journal of international law & politics, Vol.47(4), pp.799-853
01 Jul 2015
Abstract
In societies where the state is implicated in mass violence, questions of how such unspeakable brutality could occur and vows of "never again" abound. Many advocates view the development of an enduring and shared memory of events as an essential step to healing the wounds of a rattled national conscience and preventing the recurrence of mass atrocities. While legal scholars have extolled the cathartic and formative role that legal processes (in particular trials) play in establishing collective memory in periods of transition, holding trials in the immediate aftermath of mass violence is frequently infeasible due to the political instability and judicial insecurity that precipitates such heinous crimes. In the vacuum created by state inaction, those most intimately affected by mass violence often band together and through discussion and ritual merge their fragmented recollections into a holistic narrative. Through these communal conversations, their memories are reframed so they no longer belong to the individual, but the collective. Given the legal tradition's emphasis on individualism and autonomy, when justice finally does come, victims must provide an individual recount of their experience in written statements or at a hearing. As a consequence, lawyers must deconstruct the collective memory of their clients, possibly undoing the healing that has been accomplished through dialog and community identification. During this process, there is a grave risk of re-traumatization. This article argues that human rights mechanisms and lawyers should instead endeavor to incorporate collective memory into judicial proceedings seeking to address mass violence. There are several reasons why a nuanced approach is warranted. First, recent psychological studies have found collective memory to be more accurate than individual memory, casting doubt on the judicial proceedings' preference for individual memory. Moreover, justice in the face of systematic mass violence perpetrated and normalized by the state has very different objectives than justice in societies where such crimes are anomalies. Aims such as promoting reconciliation, creating a historical record, nation-building, and instituting legal reform, may take precedence over the traditional goals of retribution and deterrence. The consideration of collective memory by tribunals would further these goals by facilitating a better understanding of the collective nature of the harm suffered, and contributing to remedies that are more narrowly tailored to the needs of recovering communities.
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Details
- Title
- The (Re)collection of Memory after Mass Atrocity and the Dilemma for Transitional Justice
- Creators
- Rachel Lopez - Drexel University, Thomas R. Kline School of Law
- Publication Details
- New York University journal of international law & politics, Vol.47(4), pp.799-853
- Number of pages
- 55
- Resource Type
- Journal article
- Language
- English
- Academic Unit
- Thomas R. Kline School of Law
- Identifiers
- 991021863006404721