Diego R. Nunez
On the 23rd of May 2024 the United Nations General Assembly voted resolution A/78/L.67/Rev. 1 designating the 11th of July as the International Day of Reflection and Commemoration of the 1995 Genocide in Srebrenica. The measure, which condemns any denial of the Srebrenica genocide and actions that glorify those convicted of war crimes, was finally approved with an unusually large number of abstentions. Ahead of the vote, Serbia’s president Aleksandar Vučić called the members of the assembly to vote against, arguing that the resolution would not bring reconciliation to Bosnia and Herzegovina or the region, but would instead “just open an old wound and will create a complete political havoc”. Others justified their abstention calling for a more comprehensive and honest discussion over genocide, arguing that selective amnesia “is fast becoming the norm”, and that both allies and foes should be judged equally.
Salvioli’s report states that “without memory of the past, there can be no right to truth, justice, reparation or guarantees of non-recurrence”. Memory is generally understood as the cornerstone of peacebuilding, but the discussion over the approval of resolution A/78/L.67/Rev. 1 seems to tell a more complex story. To what extent do public policies on memory contribute to strengthening democracy and peacebuilding? Decades of investigation suggest that transitional justice mechanisms have their own distinctive effects which may vary depending on the circumstances and their synergy, but our understanding of the impact of memorialization mechanisms remains limited.
One of the notable gaps in the study of transitional justice is the exclusion of collective or symbolic reparations, which seem to resist a systematic analysis. This is curious because, in practice, transitional justice systems require vigorous and active memory policies to adequately address past crimes. Beyond its commemorative or symbolic aspect though, memorialization can be understood as an accountability-securing strategy which facilitates the deployment of other transitional justice mechanisms. That being the case, it is possible to argue that mechanisms that engage with public memory – such as archives and sites of memory – generate distinctive effects and, in the transitional justice model, they cannot simply be subsumed as mere components of redress.
Let’s take archives as our main example. In 2005 an explosion at a military base in Guatemala led to the discovery of millions of historical records in connection with human rights violations committed by the national police force. The Historical Archive of the National Police (AHPN) provided the evidence necessary to bring several perpetrators to account, but its contribution was not welcomed by all sectors. Since 2016, the conservative governments in Guatemala have practiced a form of extreme neglect by slashing the archive’s budget and obstructing access for external actors, hindering the pursuit of truth and accountability. Similarly to President Milei’s attempt to dismantle institutions that preserve public memory in recent years, it is the evidentiary power of the AHNP and its contribution to human rights trials that made it a target.
What’s interesting about this Guatemalan case, but has parallel’s also with Argentina, is that the government did not repeal or abolish memory institutions. Their progressive decay is consequence of administrative levers -such as the budget ‘restructuring’- which might not necessarily be perceived as attacks on memory policies and are therefore much harder to challenge legally. This suggests that there is a gap between the normative recognition of mechanisms of memorialization and the institutional design that determines whether such institutions can survive administrative changes and hostile governments.
The problem I am trying to address can be resumed as follows. The evidence shows that the mechanisms of transitional justice have different effects, and they are meant to work in synergy to achieve their objectives. Memorialization has been generally absent in the empirical study of transitional justice. Therefore, our understanding of its mechanisms and impact is limited. The fact that memory institutions have regularly been the target of administrative attacks over the last decades urgently calls for more resilient models for the preservation of collective memory. Then, what conditions explain why some memory institutions survive bureaucratic attrition and others do not? To answer this question, I propose going beyond the mere commemorative perspective and unveil the legal infrastructure that maintains the mechanisms of memorialization in meaningful motion.
An example of a resilient model of memorialization is the management of the Stasi Records Archive in Germany. Rather than being subject to other ministries, the institution had its own dedicated statute. During its period of independence, its leader was elected by the federal parliament to ensure impartial and rule-based access to the records. Every two years the archive’s statutory performance was subject to review and the statute managed to balance the need for protection of victims’ records with the demand for transparency. Even when the Stasi Records Archive was integrated into the Federal Archives in 2021, different measures were adopted to guarantee the continuity of the statute, victims advocacy and the preservation of records.
It is important to highlight that the Stasi’s model success cannot be explained solely on institutional or legal basis. As Hovestädt reports, the decisive factor here is the complete disappearance of the elites that benefitted from Stasi’s activity. Unlike in most transitional justice cases, the institutional apparatus of the previous regime did not survive, opening the path for a robust and active engagement with memory. The problems that we identified in Guatemala as well as in other parts of the Americas arise precisely because the elites of the fallen regimes retained their power and influence over the state apparatus. Nonetheless, what lessons can we learn from the Stasi’s model to mitigate and resist the attacks on public memory?
From an international legal perspective memorialization emerges at the intersection of multiple established legal obligations. The Inter-American Commission on Human Rights (IACHR) has made this explicit with the publication of the Principles of Public Policies on Memory in the Americas (2019). Yet, little attention has been given to the legal infrastructure that sustains public memory. As memorialization is occupying an increasingly relevant spot in the public debate and the study of transitional justice, the analysis of these legal structures becomes an ever more urgent task. If memorialization is to be taken seriously as a transitional justice mechanism, the question of what legal architecture allows it to endure can no longer be postponed.
