Mass Atrocity Collective Memory and the Law

To this end, Osiel writes, we should pay more attention to how an experience of administrative massacres is shaped into the conventions of competing theatrical genres. The defense attorney will tell the story as a tragedy, while prosecutors will present it as a moral game. The judicial task at such times is to use the law to transform the courtroom drama into a «theater of ideas» that raises great questions of collective memory and even national identity. Osiel argues that the principles of liberal morality can be instilled more effectively in a society traumatized by fratricide if procedures are conducted in this way. If a government commits mass murder of its own citizens, how can the nation ever recover? These atrocities destroy the moral fabric that binds a nation together. In order to recover, this substance must be remade. Many social and legal scholars believe that the development of a collective memory – a lasting and shared memory of events that help heal the wounds of a torn national consciousness and prevent the repetition of mass atrocities – is essential for such reconstruction. The preservation of collective memory, however, is in tension with another impulse after mass atrocities: the desire for justice. Since notions of individualism and autonomy strongly influence legal institutions around the world, they risk destroying collective memory.

These frictions pose a major dilemma to facilitate transitional justice. In this article, I argue for a fundamental reconception of the preference of law for individual memory in the context of transitional justice. I argue that the inclusion of collective memory will facilitate a better understanding of the collective harms that characterize mass atrocities and serve the clear goals of transitional justice, including reconciliation, historical record-building, nation-building and legal reform. I also argue that human rights lawyers should act as guardians and promoters of collective memory. In this way, they may be able to help heal wounds outside of traditional judicial courts – and at the same time provide essential assistance to these courts if and when it ultimately comes to court proceedings. Osiel`s approach requires courts to deal with issues of historical interpretation and moral pedagogy that are generally considered to be outside their professional jurisdiction. It also raises objections that the rights of the accused are sacrificed, historical understanding is distorted, and that the law cannot willingly influence collective memory, at least not when lawyers recognize this objective. Osiel answers all these objections and others.

For jurists, judges, sociologists, historians and political theorists, it is a compelling contribution to debates about the meaning and consequences of genocide. Trials of those responsible for large-scale state brutality have captured the public imagination in several countries. Prosecutors and judges in such cases, according to Osiel, rightly want to shape the collective memory. You can do it successfully as a public show and in accordance with liberal legality. To defend this interpretation, he examines the Nuremberg and Tokyo trials, the Eicnmann indictment, and more recent trials in Argentina and France. Such processes can never evoke a «collective conscience» of moral principles shared by all, he argues. Nevertheless, they can contribute to a social solidarity that is little noticed. Book Reviews 149 On the general theme of collaboration, Cocks briefly discusses the work of German psychologist Regine Lockot, whose own book on the Goring Institute was published at the same time as her original book (Lockot was a psychoanalytic candidate at the time).

If anyone deserves credit for clearly arguing that psychoanalysts and psychotherapists in the Third Reich compromised their intellectual and moral ideas, it is Lockot in his seminal and exploratory book Remembering and Working Through (Fischer, 1985). Cocks` revised work is more thoughtful and much heavier than his original book. He speaks openly about the moral culpability of the members of the Goering Institute. But he does it in a way that sometimes leaves uncertain what he really thinks. He struggles to be fair in a complex situation and is often obsessed with confusing conclusions. But perhaps Cocks` dilemmas are those of all of us when trying to understand human behavior under malignant conditions. Let me conclude by placing Cocks` book in a historiographical framework. When psychotherapy was originally published in the Third Reich, books about collusion and collaboration of the population with the regime of Nazi Germany were in their first flood. Until the 1980s, with few exceptions, historical literature had focused on Hitler and the Nazi Party`s violent grip on the German people, who, it seems, obeyed mainly because they had no choice. Today, publications do something different. In all areas studied, it is argued that the Germans were in bed with the Nazis. Daniel Goldhagen`s controversial Hitler`s Willing Executioners (Knopf, 1996) is set in this 90s context.

Hannah S. Decker Department of History University of Houston Mass Atrocity, Collective Memory and Law, by Mark Osiel. New Brunswick: Transaction Publishers, 1997. 317 pages. $34.95. Can criminal trials not only establish the guilt of individuals involved in genocidal situations – what Mark Osiel calls an «administrative massacre» – but also affect the collective memory of a wounded culture? Can such trials function as a legal event, a moral game and a public spectacle – a «monumental didactic» – or will placing such hopes in high-profile trials inevitably lead to perversions of justice and memory? Using case studies from Argentina, Japan, Germany and Israel, Osiel strongly believes that such processes can and do contribute to meaningful revisions of cultures grappling with the meaning of such horrors. However, he does not arrive at his convictions easily, as he recognizes a number of dilemmas that make him 150 SHOFAR Winter 1999 Vol. 17, No. 2 for exams make it difficult to operate this way, and most of the book is an analysis of these dilemmas. Osiel argues that if such trials function as a public spectacle, they can «stimulate public debate in a way that promotes the liberal virtues of tolerance, moderation, and civil respect» (p.

2). In societies deeply divided over the significance of such events, he said, it is inconceivable that such processes could build on Durkheim`s dream kind of social solidarity or shape it convincingly. On the contrary, these processes can serve as models of civil «disagreement»; As a result, a courtroom becomes a place where the law «can promote social solidarity by disseminating and resolving disagreements rather than hiding them—by recognizing and confronting, not suppressing, controversies over interpretation» (p. 283). The formation of a nation`s memory through such trials is complicated by the fact that (1) the rights of an accused can be sacrificed for a greater social lesson; (2) Processes can distort a nation`s past; (3) The tests may be too narrow or too wide; (4) Trials may require more repentance from nations than is possible; (5) Even the most carefully planned process can affect a nation`s memory in unexpected ways; And (6) if collective memory can be consciously shaped, can it be done with the public consciousness of the narrative choices made? After all, such trials are inevitably unpredictable spectacles, conceived by prosecutors as moral games and defenders as tragedies. It is an occasion for public mourning, an occasion when the «terrible consequences of illiberal vices» 67) and, conversely, an occasion when liberal virtues can be affirmed. Osiel believes that there are no such processes. Law & Comparative Law eJournal Subscribe to this paid journal for more curated articles on the topic 55 pages Published: 9 Mar 2014 Last updated: 18 August 2018 3320 Market StreetPhiladelphia, PA 19104United States of America Conflict Studies: Prevention, Management & Resolution eJournal. VitalSource is an academic technology provider that allows Routledge.com customers to access its free bookshelf e-book reader. Most of our eBooks are sold as ePubs and can be read in the Bookshelf app. The app gives readers the freedom to access their documents anytime, anywhere, by adjusting settings like text size, font, page color, and more.

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