NYU JILP Symposium: Lopez’ Responses to Comments

by Rachel Lopez

[Rachel Lopez is an Assistant Professor of Law and the Director of the Community Lawyering Clinic at Drexel University’s Thomas R. Kline School 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.

First, I would like to thank Professors Drumbl, Roht-Arriaza, Teitel, and van der Vyver, who so generously offered their time and expertise to comment on my article. I have really enjoyed the opportunity to have these conversations with scholars whose writing has greatly influenced my own in near real time.

Response to Mark Drumbl

In a compelling and exquisitely written commentary, Professor Drumbl illustrates how collective memory (and storytelling more broadly) is evoked by survivors and perpetrators alike and reminds us of how thin the line between the two can be. He also highlights the contested nature of memory, resulting from a power struggle between those seeking to remember and those hoping to forget.

Professor Drumbl and I share much common ground in our assessment of the importance of remembrance after mass atrocity and how judicial proceedings can diminish its significance, which in turn frustrates and disenfranchises victims. We also agree about the notable concerns with permitting collective memory to be a source of evidence in the guilt phase of the criminal prosecutions.

Where Professor Drumbl and I part ways is when he suggests that the penal processes is so ill suited to accommodate collective memory that we should abandon that effort entirely. He astutely notes that the memories of survivors may splinter and diverge in ways that make its inclusion in judicial proceedings unworkable. I contend, however, that it is precisely for this reason that trials are such critical sites for the interjection of collective memory. On this point, I concur with legal scholar Mark Oseil when he argues that because trials are adversarial in nature, they are designed to accommodate dissensus and facilitate public discourse in ways that other institutions cannot. For instance, whereas truth commissions typically collect and catalog victims’ experiences into one official report that presents a single narrative, trials present multiple opportunities for the memories of different groups to emerge depending on who brings the claim and the scope of the conduct and events covered by it.

Professor Drumbl also cautions us that “[p]ushing one correct remembrance, and collectivizing it, risks memorializing the experiences of the strongest among the survivors while neglecting the recollections of the weakest.” I share this concern, but come to a different resolution about how to mitigate it. When lawyers are not permitted to admit collective memory and must rely on individual testimony alone, they are compelled to pick the strongest representative from their client base. That representative may engage in his or her own form of censorship, consciously or unconsciously, thereby excluding the voices of the broader affected community. On the other hand, permitting lawyers to submit victim impact statements in which a community collectively describes the harm from an alleged violation would broaden the number of voices who enter the process.

I also maintain that the lawyers are uniquely suited to act as preservers and promoters of collective memory, because of the trusting relationships they cultivate with their clients over time. In contrast, as Professor Roht-Arriaza and Laura Arriaza warn in Social Reconstruction as a Local Process, “a short-term truth seeking endeavor cannot hope to garner widespread trust among people of a deeply traumatized society, and thus the testimonies taken may be from those less affected, or more articulate…”

Furthermore, because lawyers owe fiduciary duties to their clients, they are better positioned to present their collective narrative. I fear that the external institutions that Professor Drumbl proposes as alternative sites for collective memory are more likely than lawyers to have divided loyalties. Since these institutions would obtain their mandates and likely their funding from external sources, they may be captured by outside interests that deviate from those of the victim group. In the interest of sounding neutral, they might also water down or incompletely portray victims’ stories. The problem of selectively authenticating one memory over another would be compounded.

If we aim to tether collective memory to remedies that more systematically address harms, I also believe that lawyers can play an important role in generating consensus among their clients about what relief is appropriate.

Response to Naomi Roht-Arriaza

Professor Roht-Arriaza offers a carefully considered and thoughtfully crafted commentary that furthers the conversation on the complementarity of collective memory and judicial proceedings.

First, she reminds us that not all post-conflict settings are the same and in some localities, communities may be so disrupted that collective memories are not formed. That observation aligns with my own experience working with societies in transition after mass atrocity and I would like to underscore my agreement with Jaya Ramji-Nogales that transitional justice must be bespoke. Put another way, both the form and objectives of transitional justice must be tailored to the local context and driven by homegrown demands. There is no one size fits all option in transitional justice.

For that reason, in some respects, what I suggest is quite narrow. As I explain in my article, “[w]hen I advocate for the admission of collective memory into judicial proceedings in this article, I am referring to the collective memory of groups of victims who were present or directly affected by the same event or experience.” Two preconditions are necessary: 1) there must be a group of survivors of the same event or alternatively groups of survivors who share a common experience and 2) they have must engaged in memory work and arrived at a common understanding of events.

As Professor Roht-Arriaza points out in her commentary, and I explain in my article, some of the rules of international and domestic courts may already lend themselves to the admission of collective memory. At the same time, other rules discourage attorneys from pluralizing the attorney-client relationship. For instance, pursuant to the International Criminal Court’s rules of evidence, attorney-client privilege is waived if the client discloses information to a third party, including fellow survivors. In addition, human rights lawyers, who were educated in countries with western legal traditions that propagate an individual-centered understanding of the law, may feel intrinsically wary of collective representation.

Professor Roht-Arriaza invites further discussion about how we might incorporate the on-ground experience of communities into the design and implementation of measures of non-repetition. It is my view that one critical step to accomplish that goal is to be more intentional about creating space for collective voices in judicial proceedings.

Response to Ruti Teitel

Professor Teitel implies that I believe that collective memory should take precedence over individual justice. My position is not nearly so dichotomous. I would like to take this opportunity to clarify my position about the relationship between the two and hopefully further crystalize it.

As I explained in the introduction, “[a]bove all, in this Article, I seek to cultivate a conversation amongst scholars and human rights lawyers about how best to incorporate collective memory in the unique context of transition after state supported mass violence.” I do not urge us to do so at the expense of individual justice. In fact to do so would be foolhardy. Rather, I see the inclusion of collective memory in judicial processes as a complement to, and even an enhancement of, justice. In sum, my contention is that the inclusion of victims’ collective memory in judicial proceedings would facilitate a better understanding of the collective harms that characterize mass atrocities and will serve the distinct goals of transitional justice, including reconciliation, the creation of a historical record, nation-building, and legal reform.

Nor am I trumpeting the goal of pushing for one unified or unifying collective memory of an atrocity or conflict, which is more akin to Durkheim’s vision of a “collective consciousness.” As I have explicated above, the formation of collective memory must be organic and not forced by external actors.

I do believe, however, that there is currently a tension between collective memory and justice proceedings due to the “justice delay” after mass atrocity. Judicial proceedings, either locally or globally, often take place decades after the events themselves. In their absence, victim groups may gather together to share and interpret events that are common to the group, thereby forming collective memory. As I highlighted in my response to Professor Roht-Arriaza, this justice lag creates unique challenges when justice and collective eventually collide.

Response to Johan van der Vyver

Professor van der Vyver raises a question that I have yet to fully resolve and hope to continue to explore. Does the accuracy of collective memory matter?

When I have presented this article in various forums, academics frequently resist the admission of collective memory in judicial proceedings out of concern for its accuracy. Warnings about “mob or herd mentality,” or imagines of suicidal lemmings come to mind for some. Interestingly, when I examined the studies by clinical psychologists (described in further detail in my article), I found that many indicate that collective memory is actually more accurate, complete, and concise than individual memory. What is the significance of such findings to transitional justice?

Professor van der Vyver takes a bold stance on this question: “Collective knowledge is not necessarily accurate knowledge of historic events. Nor should it be.” He points out that history as recorded in textbooks is often inexact, but that it serves a broader purpose of establishing a society’s moral compass. Perhaps collective memory serves a similar function of distinguishing between right and wrong, consequently validating victims’ feeling that they have been unjustly treated and wronged.

In my article, I proposed that collective memories could be instructive to courts or commissions that must designate what remedies are needed to make communities feel whole again. In this context, I am not convinced that the accuracy of those statements is relevant. If one of the goals of transitional justice is reconciliation, a restorative justice of sorts, then perhaps whether the affected groups’ account of events is an exact portrayal of actual events might be of secondary concern.

In closing, I would like to reiterate my sincere gratitude to the editors of NYU Journal of International Law and Politics (JILP) and the commentators for the time and energy they devoted to this online symposium. I truly appreciated the space that this forum created for dialogue and deep critique about the inclusion of collective memory in judicial proceedings. I hope that this will be the first discussion of many.

http://opiniojuris.org/2015/11/12/nyu-jilp-symposium-lopez-responses-to-comments/

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