Memory of an injustice: the “comfort women” and the legacy of the Tokyo Trial (original) (raw)
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The (Re)collection of Memory after Mass Atrocity and the Dilemma for Transitional Justice
NYU Journal of International Law & Politics
When a government engages in the mass killing of its own citizens, how can the nation ever recover? These atrocities destroy the moral fabric which binds a nation. To recover, this fabric must be remade. Many social scientists and legal scholars believe that developing collective memory – an enduring and shared memory of the events that help to heal the wounds of a tattered national conscience and prevent the recurrence of mass atrocities – is essential to such reconstruction. However, the preservation of collective memory is in tension with another impulse after mass atrocity: the desire for justice. Because notions of individualism and autonomy heavily influence legal institutions worldwide, they risk the destruction of collective memory. This friction constitutes a central dilemma in facilitating transitional justice. In this article, I urge a fundamental reconceptualization of the law’s preference 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 will serve the distinct goals of transitional justice, including reconciliation, the creation of a historical record, nation-building, and legal reform. I further argue that human rights lawyers should act as preservers and promoters of collective memory. In doing so, they may be able to help heal wounds outside traditional justice tribunals – while at the same time providing essential assistance to these tribunals if and when legal proceedings do finally occur.
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My paper critically engages the ad hoc tribunals of Yugoslavia and Rwanda’s adjudication of sexual violence, using Shoshana Felman’s account of “historic trials†as a point of departure. Felman claims that post-atrocity trials can function as new paradigms of justice that go far beyond meting out punishment; they also perform what she characterizes as “symbolic exit[s] from the injuries of traumatic history.â€1 By way of close readings of trial judgments, I consider the ways in which gender and trauma are figured in particular landmark cases. I argue that, rather than providing a stage upon which catharsis can be attained by collective and individual victims, the trails can at times occassion their own forms of symbolic gendered violence. 1. Felman, Shoshana. The Juridical Unconscious, New York: Routledge, 2002. Â
Despite the proliferation of trauma and memory research in recent years, we know very little about the contribution of transitional justice mechanisms to psychological healing and societal reconciliation in the aftermath of genocide, armed conflict and politicized violence. Many scholars in this area have argued that the disclosure of traumatic experiences is beneficial to the psychological recovery process for survivors of gross human rights violations. This article critically examines this therapeutic assumption within a transitional justice paradigm. The article explores the potentials and limitations of international war crimes trials for victims of wartime sexual violence, focusing specifically on the International Criminal Tribunal for the former Yugoslavia (ICTY). The article provides a theoretical framework for analyzing the significance of testimony at international war crimes trials and raises some critical questions related to the psychological impact of trials. It is argued that due to the sheer diversity and heterogeneity of wartime rape victims, the experience of giving testimony is likely to be mixed: while some victims may suffer under the constraints of legal process, under the right circumstances, war crimes trials may help others to make sense of their suffering.