NYU JILP Symposium: The Memories of Collectives, the Gadgetry of Victimhood

[Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington & Lee University, and Visiting Scholar, CICJ, VU University Amsterdam.]

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.

Atrocity begins with story-telling. Elegies lament unrighted wrongs from ancient battles. Fables weave and spin the bravado of national or ethnic superiority. The roll, pitch, and yaw of an entire literature ritualizes dehumanization: stories of vermin, poisonous mushrooms in children’s books, bespectacled intellectuals, enemies of the state. Then come exhortations to cut the tall trees, to take out the garbage, and to make way for Lebensraum. The filth is to be scrubbed, the society purified, the landscape cleansed.

Atrocity metastasizes once these stories become performed. New stories then emerge. These stories narrate pain and suffering. Their tales, however, may redound with redemption; their ballads may record harrowing strategies of survival paired with forensic accounts of death; at times, too, chants of resistance arise.

In the aftermath of atrocity, these stories become memory. The construction of memory, then, becomes an act of the living and a sign of life. For survivors, authorship over memory represents the exercise of agency and autonomy. For perpetrators and their supporters, revising (or denying) memory – also an act of authorship – becomes a tactic to thrive in changing times.

It is no surprise that in the aftermath of mass atrocity the recovery of memory, and its reclamation, matters so much to so many. The hunger for memory, however, intersects with the blandness of law. This encounter frustrates, perhaps most acutely for victims.

It is here that Professor Lopez enters the conversation. She recognizes this frustration. She also gestures towards a path forward. For her, law can respect memory. It can channel stories of survival, subjugation, and suffering. While Professor Lopez is an optimist about law’s potential, she remains more circumspect about how, exactly, we should understand memory. In a particularly thoughtful argument, she contends that conversations ought to move towards “collective memory.” For Professor Lopez, collective memory arises when those most affected by mass atrocity “though discussion and ritual … merge their fragmented recollections into one holistic narrative.” Collective memory is unscripted. It emerges organically through a synthesis of informal conversations, shared glances, tacit rejections, and knowing nods. Drawing from a rich array of sources, Professor Lopez posits that collective memory is more accurate, consistent, and concise than individual memory.

In sum, then, Professor Lopez effectively exposes law’s predilection for individual conduct and illustrates how this penchant inhibits law’s ability to inflect collective action. For her, this is a loss. It is a loss because victims yearn for more. Professor Lopez’s response is reformist. Human rights lawyers should preserve and promote collective memory. Integrating collective memory of victims into legal process, for Professor Lopez, would clarify how atrocity begins and could document the pain it inflicts, while also furthering aspirations of reconciliation, transition, the development of an historical record, nation-building, and legal reform.

How to accommodate collective memory into legal proceedings? Professor Lopez’s recognizes that the criminal law may find such accommodations awkward, if not downright unworkable. The criminal law, after all, is primarily about adjudging the guilt or innocence of the defendant. The need to focus on the defendant requires the foregrounding of all sorts of due process rules. This need stymies the use of collective memory in penal process because collective memory cannot be properly vetted. Professor Lopez therefore directs our gaze elsewhere. She points to tort-based claims, action civile, and the victims’ participation scheme built by the Rome Statute and present at the ECCC.

Professor Lopez’s article makes a tremendously valuable contribution to the literature on transitional justice. Her diagnosis of law’s foibles, and her proclamation of the potential of collective memory, is sterling. She has the courage to offer some remedial responses. Her article is a rich base for a symposium.

For me, her piece opens two shutters. The first is architectural. The second is discursive.

On architecture: if collective memory is a worthwhile goal, a claim on which Professor Lopez convinces, then why bother to hook it into penal process? Why must the criminal law always hang around, diversified cosmetically with hangers-on like partie civile or victim’s participation? If criminal law can’t accommodate collective memory (which it can’t, really) and if collective memory matters (which it does), then why not jettison the criminal law as a point of reference? The criminal law cannot be all things to all people all the time. Massaging goals of restoration, reparation, reconciliation, and now the preservation of collective memory into an architectural framework girded by penal process (the guilt or innocence of the defendant pursuant to prosecutorial charges) may simply be too much or, perhaps, far too little. Rather than subordinating collective memory, why not give it its own institutions entirely, including at the international level? These institutions could eschew the adversarialism, microscopic truths, and rules of evidence that contour legal process. And perhaps lawyers – whether steeped in criminal law, civil litigation, arbitration, or mediation – should stray, or perhaps simply stay, far away from them.

On discourse, or – better put – story-telling: in the aftermath of atrocity, how often does a single shared collective memory of victimhood emerge? Professor Lopez elaborates how, following sustained human rights abuses, an informal distillation of collective memory emerges. But care should be had not to overstate the impulse among survivors to unite and together remember experiences. The collectivization of memory in the aftermath of mass violence may not necessarily be seamless or integrative. Instead, this process may be fraught with dissensus. This dissensus, however, may be healthy. It may democratize. Pushing one correct remembrance, and collectivizing it, risks memorializing the experiences of the strongest among the survivors while neglecting the recollections of the weakest. Survivors may remember differently, or memorialize selectively, or in many cases not wish to remember anything at all and simply overlook (or forget).

It is not always the case, moreover, that one collective memory organically emerges. Hence, it may be more apt to speak of collective memories. And these aggregated memories may compete, complement, or even contradict.

In post-war Poland, as I discuss in a forthcoming article in the Journal of International Criminal Justice, memories of human rights abuses were synthesized, to be sure, but into different collectives. One collective memory was that of Jewish suffering at the hands of the Nazis. Poland, after all, was the site of several of the most horrific German concentration camps. Another memory, deliberately distilled and articulated by the Supreme National Tribunal of Poland, recollects Polish suffering at the hands of Nazi Germanization. This Tribunal was created to circulate this memory precisely because of Polish frustration with the International Military Tribunal at Nuremberg’s perceived anemia in concretizing the Nazi fervor to destroy the Polish nation. A third collective narrative involved efforts to memorialize extensive Soviet atrocities: a politically pointless endeavor at the time and for many decades thereafter.

If collectivized memories are diverse, then, the choice as to which one to authenticate, or which one to solemnize more than others, become deeply contested and political.

The ICC’s inclusion of victim participation and entitlements to reparation, however beneficial, has created new tensions. Who is a victim? What is a memory of victimization? Who can claim to survive atrocity? Law’s categories include only by excluding. This is the legal imperative. Yet, collective memories of suffering in times of atrocity are capacious. Saira Mohamed daringly writes about perpetrator trauma. The Dominic Ongwen case, as I have discussed elsewhere, uncorks the granularity of when a victim becomes a victimizer and the victimizer, too, is a victim. Ongwen – a formerly abducted child soldier – is soon to face prosecution at the ICC. He is accused of crimes that he himself suffered, to wit, enslavement as a crime against humanity and apparently now child soldiering.

By-standers and side-standers, upstanding collaborators, idlers, piddlers, and profiteers also may see themselves as victims.

We are spending the semester in Amsterdam. Last month we and took our children to the Dutch Resistance Museum. The museum has a gripping children’s section. I say gripping because it held the attention of our eight- and six-year old sons. It did so because it narrates life in Amsterdam during the Second World War through the stories of four children: Henk, Ava, Nelly, and Jan. Jan’s family is in the resistance. Henk’s family members are mind-your-own-business types and Henk initially finds the war exciting. Nelly’s parents are avid Nazi collaborators. Eva is Jewish. In the last room, each of these four children – real people – appear in video recordings as they now are, namely, elderly. It is Nelly who most sees herself as a victim: a victim of imprisonment after the war, a victim because her memories of a joyful adolescence in spirited (and healthy, fit, tanned) right-wing youth groups now are socially toxic, and because she is dogged by loneliness and longing. A conjured victimhood? Glib? Pitiful? Sure: but her memories are, for her and anyone who listens, very real.