NYU JILP Symposium: Collective Memory Focus on the Local, and on Reform

[Naomi Roht-Arriaza is Distinguished Professor of Law, University of California, Hastings College of Law.]

This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.

Rachel Lopez’ article breaks new ground in a few ways. We’ve known of the importance and process of formation of collective memory for nearly a century, as she points out. There’s a whole literature on the reasons for prosecutions in the wake of mass atrocities, and the reasons why those reasons don’t apply. Given that, I appreciated her novel insight that when there’s a long temporal lag between the end of the violations/atrocities/crimes and the ability to bring the perpetrators to justice, that disrupts existing collective memories and opposes them to an individual-centered judicial process.

Of course, an easy answer to the problem would be to hold trials closer to the time of the alleged crimes, while collective memory is still in the process of formation and consolidation. It may be that the erosion through external and civil society pressures of a still widespread preference for impunity, and earlier attention to (re)building a justice infrastructure in the wake of armed conflict or dictatorship, will eventually make that possible. But I’m a bit pessimistic. Judicial processes always take a long time, except if they ride roughshod over due process; judicial processes involving previously, and perhaps still, powerful people who will fight like hell to avoid them, take longer. So the temporal lag is likely to persist.

I’m not sure, though, that the result is necessarily a confrontation between the fruits of collective memory and the individual testimony of witnesses. International courts, and domestic courts applying civil law, do not have strict hearsay rules that preclude witnesses testifying about events involving others in the community. In many local communities that have retained some degree of cohesion in a post-war era, an informal process of discussion, recall and vetting precedes any discussion of sensitive memories with outsiders, whether these are truth commissions, prosecutors or courts. For example, our work in Guatemala found a number of examples of community-level constructions of collective memory through mapping exercises, community museums or rituals around inhumation and reburial of the dead, which later fed into judicial processes in various places.

Collective memory is reproduced and perhaps expanded, but not necessarily challenged, in individual testimony.

However, this is not true everywhere, as war and repression inevitably disperse, degrade and destroy community. This presents a problem for collective memory, both because it’s no longer clear who is included in the collective, and because the internal processes of reconstruction, retelling and comparison of memories that creates collective memory are disrupted. Under these circumstances, trials can actually both reaffirm and reinvigorate collective memories by broadening the sphere of the “collective” to those listening to trial testimony, who find their individual memories validated. Of course, they can also give rise to counter-narratives, a “dissensus” that can in theory enrich civic discourse but that in practice is often intimidating, silencing, and violent. The Guatemalan Rios Montt genocide trial offers one example.

The other aspect of Rachel Lopez’ article that I found provoking was her recommendation to use the tools of community lawyering to better allow communities more of a collective say in processes of reparations and in the design of guarantees of non-repetition. To some extent, as she recognizes, this is already done, not least by the Inter-American Court of Human Rights, which regularly recognizes injuries to collectivities and orders appropriate redress. A number of national reparations programs have, at least in design, been attentive to the dimension of collective harm and collective redress, for example Peru, Colombia and Cambodia.  No doubt more could be done.

Where the big gap lies, in my view, is in the design and implementation of measures of non-repetition. Intended to respond to the underlying causes and amplifiers of armed conflict and/or repression, these have often been framed with a donor-driven or elite-driven logic that makes no room for the on-the-ground experiences of communities.   So they have focused on a narrow band of civil and political rights violations, ignored or underestimated continuities of violence—around women’s rights, or extraction of natural resources and expropriation of community lands, for example—and been accorded insufficient resources, imagination, or importance. Even where broad-ranging reforms are incorporated into peace agreements or transitional justice plans, as was the case in 1996 in Guatemala, these are not translated into practice. Here is where the overlap and synergies between community lawyering, bottom-up consultation and collective interests, economic development and transitional justice provides fertile ground for further research and discussion.