Legalizing Collective Remembrance after Mass Atrocities

Abstract

This book chapter explores the tension between the preservation of collective memory and another impulse that follows mass atrocity: the desire for justice. Because many judicial systems are heavily influenced by notions of individualism, they are by design ill equipped to accommodate collective memory. Traditional rules of evidence and professional conduct often exhibit a single-minded focus on the individual, replicating models that assume one client who autonomously makes legal decisions without consulting his or her community. Bound by these rules, attorneys must disrupt or even dismantle collective memory, thereby retraumatizing their clients.

Here, I offer an alternative. I believe that human rights attorneys should instead endeavor to preserve and promote collective memory. For that reason, I urge a fundamental rethinking of the law’s preference for individual memory in the context of transitional justice. Indeed, I believe that incorporation of collective memory into certain judicial proceedings would better serve the goals of transitional justice by facilitating a more complete understanding of the collective harms of mass atrocity and advancing reconciliation.

Keywords: Mass Atrocity, Human Rights, Collective Memory, Memorialization, Transitional Justice, Maurice Halbwachs, Emile Durkheim