Collective memories are significant for individuals and societies, and they play an important role in the formation of collective identities. This post focuses on the role of non-criminal international tribunals in the development of collective memories: is it desirable for such tribunals to be involved in the construction of collective memories? International tribunals have not adopted a consistent approach concerning the presentation of the historical narrative in the background of the judgment. In some cases, for example, international tribunals presented a detailed account of the historical background, while in others they provided only a very brief account of the historical event, and sometimes made no mention of it at all.
International tribunals’ involvement in the development of collective memories may take several forms (such as keeping historical evidence in tribunals’ archives or ordering a party to commemorate a particular event) but this post focuses on the question concerning these tribunals’ role in presenting historical narratives in their judgments. Such judicial-historical pronouncements are often of profound importance for the litigating parties, frequently more important than the final legal ruling or pecuniary compensations. Often the answer provided to the question regarding the desirable role of non-criminal tribunals in this sphere is not dichotomous. In certain cases, tribunals are bound to establish some historical facts in order to resolve a particular legal dispute. But even in such cases, tribunals have significant discretion and they may, for example, adopt either an expansive approach (and elaborate on the particular historical narrative), or a restrictive approach (and succinctly present the most essential facts needed to resolve the legal question).
The desirable role of non-criminal tribunals in this field has been analysed from three major sociological perspectives: the structural-functional approach, the symbolic-interactionist perspective, and the social conflict approach. Each sociological approach offers a different conception of collective memories, emphasizes different audiences, and differently conceives the role of tribunals in the international society. The following conclusions integrate certain elements from each sociological approach but primarily draw on recommendations associated with the symbolic-interactionist perspective and, to a lesser extent, on some recommendations associated with the social-conflict approach. These conclusions emphasize that international adjudicators are embedded in socio-historical environments and are influenced (whether or not they present an historical narrative) by historical narratives prevailing within their respective groups. The interactionist character of the field suggests that researchers should broaden their investigatory lenses, and take into account that if tribunals do not assume an active role in this sphere, other agents of memory (such as governmental bodies, the mass media or historians) are likely to construct historical narratives without the involvement of international tribunals.
International tribunals interact with additional agents of memory, and though they are more constrained than are other agents of memory (for example, regarding evident-iary rules or the elements of legal concepts), they have some significant advantages in this sphere (for example, they are often less biased and more transparent than other agents of memory). Each agent of memory possesses some advantages and limits and they often cross-fertilize—and constrain—each other. In certain circumstances, the role of non-criminal tribunals in this field is particularly vital, such as when domestic bodies deliberately conceal or ignore a significant historical event which has generated extensive harm to a disadvantaged group. In such cases, it is desirable that international tribunals (while acknowledging possible bias of each actor) undertake an inclusive approach and make reasonable efforts to take into account historical findings produced by other agents of memory (such as historians and experts). Following the symbolic-interactionist approach, judicial-historical narratives are significant primarily as a meaningful remedy for individuals and smaller communities whose rights have been violated. In light of the valuable socio-cultural qualities of local institutions in this sphere, it is generally legitimate for regional tribunals like the Inter-American Court of Human Rights (rather than global ones) to assume an active role in developing the regional historical heritage.
Few truly global historical narratives are likely to emerge from the extremely diversified global society, and such wide-scale memories should emerge from bottom-up interactions between national and regional bodies (rather than externally imposed by global tribunals). The benefits of constructing collective memories in a bottom-up process indicate that where national tribunals (or local quasi-judicial bodies) function effectively and reliably, international tribunals (either global or regional) should refrain from interfering in the development of local historical narratives. Where international tribunals encounter considerably asymmetric settings (e.g., powerful government v. indigenous group), it is desirable that they apply adequate rules of evidence to somewhat mitigate the parties’ unbalanced capacities in proving historical events.
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