University of Sussex
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Legal witnessing and mass human rights violations: remembering atrocities

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posted on 2023-06-09, 21:26 authored by Benjamin Thorne
Legal witnesses are perceived to be a crucial part of international criminal tribunals’ and courts’ responses to mass human rights violations, not only in contributing to a legal determination of guilty or not guilty being reached but also to produce a collective memory of the atrocities. However, this common claim in the transitional justice legal scholarship fails to fully understand the nature of memory. Memory construction entails fragments of individual and collective memories combining into contingent and contestable narratives of the past, and it is for this reason that the thesis challenges the claim that international criminal tribunals and courts are able to produce a collective memory of atrocities. Taking the International Criminal Tribunal for Rwanda (ICTR) as its case study, this thesis differs from the majority of legal transitional justice studies researching courts and tribunals, which have worked within traditional legal frameworks. The originality of this thesis is that it offers a conceptually driven and empirically grounded analysis of archived ICTR documents, and interview transcripts of ICTR staff from the University of Washington (UoW) archive, relating to the selection of witnesses. In order to show the limitations of legal memory the thesis constructs an original conceptual framework using Giorgio Agamben’s concept of ‘witness’ and Paul Ricoeur’s philosophical insights on 'memory’. Accordingly, the research argues for the need to understand witnessing as non-instrumental: a contingent and multi-layered discursive process. It is the discursive formations within a discourse of witnessing that constitutes the conditions determining the subject position of witness. Therefore, what the witness subject remembers is a constellation of fragments of the past, which are formed within the contingent conditions of discourse. The arguments advanced by the thesis contribute towards discussions on the role of witnesses and how the past is remembered during transitional periods, by highlighting the need for the study and practice of transitional justice to fully understand how theoretical insights can make visible the complexities and contours of the legal construction of the past. The thesis thus contributes to specific analysis of witnessing and memory, but also the broader transitional justice scholarship.


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