NYU JILP Symposium: Globalizing Transitional Justice

[Ruti Teitel is the Ernst C. Stiefel Professor of Comparative Law at New York Law School and the author of Globalizing Transitional Justice (2015).]

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.

I am pleased to join this symposium about Rachel Lopez’ provocative article, The (Re)collection of Memory after Mass Atrocity. The article makes a contribution to contemporary transitional justice scholarship that challenges the normative relationship of transitional justice and human rights.

Professor Lopez, argues for “collective memory” over individual justice, characterizing the the two aims as divergent. She writes, “the preservation of collective memory is in tension with another impulse that follows mass atrocity: the desire for justice.” Here one might say she is leveling a critique at the “human rights-ization” of transitional justice—a critique which I share, as is evident in a recent essay where I argue against an absolutist view of accountability.

Nevertheless, to my mind the dichotomy drawn here between the demands of memory and justice seems too sharp. To some extent, the article hearkens back to an earlier period of transitional justice; the post-Cold War 1990’s when states seemed to be in control of their transitional justice processes and could elevate the needs of the people over abstract universal demands of justice.

But is this view relevant given contemporary developments; such as the globalization of transitional justice. Given the many other actors and institutions which are now involved in these processes I wonder about notion of a goal of arriving at a unified or unifying collective memory of an atrocity or conflict?

Indeed, one can see the emergence of a globalized transitional justice—and this means more actors beyond the state with varying demands, practices and values. Who then owns the process of arriving at “collective memory?” Collective memory raises issues of the politics of transitional justice   can see national agreements regarding transition and reconciliation but also the role of courts and diasporic populations. Consider what collective memory may mean to a state undergoing transition, and what to diaspora communities, such as Armenia today or Cuba? Who or what counts for collective memory? For example, one can see national agreements regarding transition and reconciliation but also what the role of courts and diasporic populations has been to challenge these national determinations. Consider Chile’s extradition of Augusto Pinochet: while on the one hand Chile had convened a truth and reconciliation commission, nevertheless these issues were reopened by members of the diaspora who are surely also part of some collective memory?

Moreover on this view, not only is justice not in tension with collective memory but often memory processes are often overseen or even instigated by international institutions such as courts. All of which raises the inevitable question of what is collective memory—whether there is a prefiguring of this or whether there is not an inevitable social political and yes even legal construction? And, if so, then one might raise normative question of to what extent is the cultivation of such memory necessarily a good thing? That is, in a truly liberal society what is the contribution of protecting an official story? Consider that in Argentina as in Germany today there continues to be a socially accepted militancy regarding memorialization, for example, militant democracy approach to protection of the official story.

One can even say this is true throughout the Americas where the Inter-American Court of Human Rights has aimed at a harmonized rights approach to these issues. Not only is justice not in tension with collective memory, but todays collective memory processes are often supervised and even inspired or instigated by international institutions here, including courts. One can see this in the Inter-American setting where the regional human rights court has taken an aggressive view of memory as a right of victims in a fully developed jurisprudence. For example, in Goiburú v. Paraguay, a case involving torture and disappearances, the court ordered collective memory via the convening of a monument and public acts of acknowledgment of past repression and the victimization. But what is the social significance of a coerced collective memory ordered by a regional rights actor? While the pursuit of the official story may well be seen as acceptable in Latin America given continent-wide disappearance policies, to what extent is this collective memory being guarded by the regional court?

Another example is Germany, whose collective memorialization process began in earnest through the nationwide portrayal of the Auschwitz trials. To this day, there is a view that lawyers and legislation, such as hate-speech-denial laws (even criminal), ought to be deployed to protect the country’s official account via Nuremberg and other trails on the collective memory of the Holocaust from which there can be no divergence.

Hence we can see that the relationship of justice and collective memory is complex. In a truly liberal society, militant-democracy approach to memorialization would ultimately give way as the society matures and democracy becomes consolidated. Indeed, with the passage of time, that there will be multiple paths of access to memory, a process of social and political construction.