Editorial note: This article will be a part of a new ILJ Online series on the international law of protest.
By: Samantha Clare Goh
Britain considers itself to be at the center of a “culture war”. BBC’s move to omit the lyrics of anthems glorifying Britain’s colonial past sought to remember the victims of British colonial atrocity. In turn, Culture Secretary Oliver Dowden’s response has been to accuse the BBC of attempting to “erase” British history. Such talk of remembering, forgetting, and how to deal with historical narratives was also echoed in the furor surrounding the removal of Oxford University’s Rhodes statue, and indeed many other statues around the world that embody colonial history. This war of memory was precipitated by the Black Liver Matter protests, and the original front it was fought on was with regard to police brutality—in remembering African American victims of police brutality, and remembering misconduct of police, both of which had largely been forgotten insofar as the official narrative dictated by the state through legal institutions was concerned.
Yet where the state dictates historical narratives through law, those who stand up to such state oppression through law remain even more deeply engraved in history. To put in Foucauldian terms, this perspectival discourse decentralizes the “truth” of those in power, and is used as a weapon for systemic change. I seek to explore the reciprocal relationship between the state and the individual in using law as a tool for reckoning with the past. Although the state can use law to shape collective memory, this can likewise magnify the significance of moments of resistance to such oppression.
Forgetting to Remember: Collective Memory and Official “Truth”
The relative merits of historicism through law is fiercely debated. It is a common worry amongst academics that legal trials reduce history to specific events committed by particular individuals, as dictated by states. The issues of decontextualization and selectivity solidify the state’s political influence over the creation of official narratives, which become history. We have seen this with colonialism, post-war regimes, and totalitarian countries alike.
Trials decontextualize and are limited by judicial and rational argument. During the Algerian War, in which the former French colony fought for its independence, war crimes committed by French soldiers besmirched the values of universalism, equality, and liberty which the French state often espoused. As such, when French courts later had to rule on Nazi crimes against humanity, its definition was narrowly-construed to exclude French soldiers’ crimes during the Algerian war. This erasure of French colonial atrocity limited the ability of victims of the Algerian war to reckon with this past. Loytomaki recounts how the code of pensions was the only avenue for a young man in France to avenge his mother’s abuse at the hands of French soldiers. In a similar vein, international human rights law has never directly ruled on the injustices of communist regimes. What little engagement there has been with communism is limited to rulings on the fairness of restitution measures—yet to do even this requires the measures to be put in place domestically before it can be judged in the international fora.1Somers v. Hungary, CCPR/C/57/D/566/1993, Views of the Human Rights Committee, ¶ 9.4 (Jul. 29, 1996) (“The only issue is whether the award of less than full compensation for the loss of the author’s property, under Act XXV of 1991, is contrary to article 26.”). Therefore, the issue considered by the Human Rights Committee is whether existing restitution measures were fair and non-discriminatory under art. 26 ICCPR. The prior establishment of restitution measures by the state is therefore a precondition for such an assessment. We therefore see the limits of the trial, which is ultimately situated within a legal system crafted by the state or an international system that defers to state sovereignty, with the state holding unwieldy influence over the scope of legal inquiry.
If decontextualization limits the trial’s scope, selectivity instrumentalizes the trial and attempts to justify wrongs by producing a subject which constitutes the “bad.” Loytomaki raises another example, of French general Aussaresses whose memoirs described France’s systematic culture of torture during the Algerian war. This conflicted with official accounts and he was prosecuted for “praise of war crimes.” Although this was the first instance war crimes had been acknowledged in French courts, the judgement ultimately reaffirmed the state’s narrative of torture as only committed by rogue actors like Aussaresses. Much like in the famous trial of Adolf Eichmann, the weight of all the historical atrocities of war were placed on one individual, who at the end of the day sat in the court room with the nakedness of a mere human. What has often been mistaken in international criminal tribunals as a metamorphosis from evil war criminal to relatable and pitied man is in fact a mere misrepresentation of the weight of his crimes and individual guilt.
Cohen notes the prevalence of “pleas for historical relativity” in such trials. Such defenses often depict the defendant’s actions as commonplace. “Why me? Everybody killed the Jews,” Eichmann had asked. Meanwhile, Aussaresses claimed that French soldiers “didn’t ask too many questions” when given orders, and were all aware of the systematic torture taking place. Often, these individuals were simply acting under state authority. Attributing guilt to a select individual therefore ignores the larger institutional structure which compelled such acts. As a consequence, the search for the guilty that normally proceeds from devastating historical events is satisfied and reckoning is coerced through the finding of guilt in the individual, conveniently scapegoating the state. Hunt refers to this as the “creation of martyrs”—these “bad” individuals are created to excuse institutionalized wrongdoing.
As such, this limiting (decontextualization) and instrumentalizing (selectivity) of the law by the state to craft an official narrative proves to be dangerous. Said’s creating and blocking of narratives, Orford’s self-justifying narratives, Cohen’s memory eradication, Simpson’s “unprecedenting,” Foucault’s centralized discourse of the powerful—many theorists have warned of the power that is vested in the state that controls historical narrative. At the center of these warnings is the role of law in cementing such narratives, through legal language, trials, and institutionalized relations of power. Such historical narratives follow a familiar template: the limitations of law exclude wrongs committed by “good” state actors, but alongside this, the trial is instrumentalized to selectively punish certain individuals which epitomize the “bad.” In this official narrative, we forget the wrongdoings of “good” actors, and along with it, the rights of the “bad.”
Within the US, this has played out domestically on two fronts: dismissal of police brutality cases, and black incarceration. Justice Sotomayor, in a 2018 dissent, pointed out how the doctrine of qualified immunity amounts to “an absolute shield for law enforcement officers.” Any potential finding of guilt is thus greatly limited by the doctrine, which decontextualizes the outcome of the trial from systemic and institutionalized police misconduct. Meanwhile, the high African American incarceration rates and sentencing disparities between different races for comparable crimes demonstrates a level of selectivity which raises questions surrounding the instrumentalization of law. Much like in international criminal tribunals, the state uses law to limit sentencing in police misconduct cases, whilst instrumentalizingit in sentencing African Americans. The resulting narrative embedded in the collective memory of the state, as produced through the trials, goes as such: force applied by police is justified because they are apprehending criminals, which are mostly African Americans that commit “wrongdoings” warranting tough responses. This is the very attitude underlying U.S. President Donald Trump’s recent defense of the Kenosha gunman, claiming that the gunman “probably would have been killed” by African American protestors and was shooting in self-defense. Therefore, in choosing to forget the wrongdoings of favored parties, at the expense of African Americans’ rights, a version of history which subjugates African Americans is remembered.
Remembering the Forgotten: Individual Memory and Counter-Narratives
Above I critique a top-down perspective to memorializing, where the state employs law to craft an official narrative, and this collective memory of the state in turn becomes that of the individual. However, perhaps this does not accord requisite autonomy to the individual and his ability to use the legal avenues at his disposal to also engage in memorializing through law.
A society’s reckoning with truth is supposed to depoliticize, allowing society to come to terms with and move beyond past atrocities. Yet, Ignatieff has pointed out that nations don’t have a “unitary psyche.” Therefore, where such depoliticization is co-opted by the state without acknowledgement of its own wrongdoings, particularly in the case of widespread knowledge, a dissonance is produced between the narratives of the state and individual.
The result is the opposite of the state’s intention to move forward—individuals are unable to move on, left behind with a historical burden which grows heavier without reckoning. Macklem gives us two examples which help us distinguish between instances of dissonance between the state and its community, and the state and an individual. Both examples take place in a post-war Czechoslovakia that was recently freed from Nazi occupation, and demonstrate where narratives of the community or individual travel bottoms-up to be institutionalized in law. At community level, desire for reckoning led Czech civilians to attack, imprison and kill Germans with such widespread lawlessness that it led to the government’s official institutionalization of this “de-Germanization.” Since such sentiments were ubiquitous across those in the community, and was not incompatible with the official narrative of the ruling regime, its institutionalization was easily realized.
However, for an individual alone in his cause or marginalized by the state, law as a tool for memorializing becomes all the more important. The temporal fragility of individual memory seeks sustained existence through means of law. Brok was a Czech man who developed an unhealthy lifelong obsession with reckoning with the past. Over the course of his life, he continuously sought to reclaim legal ownership of his family’s building which had been confiscated by Nazi authorities and subsequently excluded from post-war restitution initiatives. Brok persevered with his cause until death, despite a lifetime of setbacks which saw him repeatedly bring the case to state court, only to fail—success was found only when his son elevated the case to the international sphere, before the Human Rights Committee. It was perhaps this persistence as a counter-narrative to the state that now gives his narrative the significance it has. If he had won on the first instance, his story would have ended there. Yet it was the resolute insistence to not be forgotten, juxtaposed against the excruciating indifference of the state’s legal institutions to his plight, that made his narrative significant enough for international attention, and also significant enough to memorialize in Macklem’s work. His final memorializing was more powerful only because his narrative had been so forgotten.
Some of those forgotten are being dredged up, once again seeking memorializing through law, such as in the reopening of Elijah McClain’s case. Whilst this probe is an important step forward, one should also be wary of allowing such cases to collapse into merely attributing blame to individual officers. In view of caution against missing wider institutional factors, ongoing awareness of and objections to systemic racism are encouraging. The extent to which marginalized African American communities’ narratives have remained systemically forgotten by the state has also led to the internationalization of the issue. Malcolm X had hoped that such internationalization would help bring governments to account, thereby achieving reckoning for the marginalized. It is to be seen whether international law would succeed in memorializing this counter-narrative, which seeks to remember those whom America had forgotten. One hopes that they find similar successes that Brok did on the international plane.
Yet regardless, in the production of counter-narratives, memorializing is not limited to legal outcomes. There is something martyr-like about the individual whom the state so blatantly targets through law that he becomes the counter-narrative. The adversarial nature of the trial gives a platform to defendants, and some take this up as a final act of memorializing. According to recounts, ex-Argentinian commander Massera denounced the junta court that he stood before, which had been established by the country’s new democratic government seeking to punish previous regimes, stubbornly proclaiming that “[h]istory belongs to me.” Likewise, when Nazi leader Klaus Barbie was tried for crimes against humanity committed during the World War, his defense lawyer analogized his actions to French crimes in Algeria, judicializing both the atrocities of the Algerian war and the court’s historical selectivity. The scandal and rebelliousness of such acts of memorializing, in the face of the authority of the state apparatus and its narrative, serves to reinforce the place of these counter-narratives in history. There is a dual quality to martyrdom—where Hunt’s martyred individual epitomizes the prevailing of state power, this other aspect of martyrdom turns the oppressed individual into a martyr for his cause, and epitomizes the resilience of the individual against state power.
Ultimately, the martyr can either justify or highlight state wrongdoing, but which direction it goes is dictated by the people. Perhaps this reiterates that reckoning is only achieved when society is genuinely satisfied. This notion of martyrdom is why the unrest within American society over racial injustice could be tipped over the edge by one individual—society deemed that George Floyd was not an African American potential-criminal against whom police force was justified, but another African American victim whose plight highlights systemic and institutionalized police oppression. We are told to “say their names” to remember those forgotten by the narrative the state pushes. The state tries hard to forget the oppression which helps to produce this official narrative, yet the resulting counter-narrative eventually ends up coming back with a vengeance. While they were subjugated by the law, this subjugation was in a way a memorializing of its own.
States limit and instrumentalize the law to craft a certain historical narrative, but the individual’s power to correspondingly use the legal avenues at his disposal as an act of counter-memorializing that rebels against the official narrative is not to be underestimated. This radical form of memorializing inverts the trends, breaking down the official narrative and simultaneously amplifying the counter-memory. Such counter-memorializing through law is important in upholding the narratives of the marginalized. It is perhaps for this reason that Arendt despaired that the rightless man with no legal recourse also has no history, living and dying without trace.
While remembering a certain version of the state’s official narrative inevitably forgets other marginalized narratives, the reclaiming of these counter-narratives is an act of remembering that entails forgetting the state’s narrative. This flux of remembering and forgetting also characterizes modern-day culture wars and debates surrounding colonial-era statues. Dark colonial pasts were forgotten to remember a certain version of imperialist narratives, but these narratives are now in turn being forgotten, to remember the forgotten colonial atrocities and its victims. This is ultimately a picture of one narrative fighting to replace another.
Memorializing through law is not a one-way street. The state and individual take turns using it as a tool for reckoning. When the state excludes the individual through law, the individual in turn fights back with law, alternating between the construction and deconstruction of narratives. States exclude individuals from memory, and individuals forcibly reinsert themselves into the narrative. Oftentimes, it is only through their initial forgetting that their later reinsertion is vested with the memorial significance that it returns with, in the same way the defiance of the act of tearing down a statue behaves as a counter-narrative, forming a powerful statement of memorializing. Through forgetting, later acts of memorializing are therefore reinforced. Thus, this is a reciprocal relationship consisting of centralizing and decentralizing truths, a struggle for power which forms an historical narrative in itself.