Memorialisation processes in the context of serious violations of human rights and international humanitarian law: the fifth pillar of transitional justice
The obligation to adopt memorialization processes in societies that have suffered gross violations of human rights and serious violations of international humanitarian law derives from both primary and secondary sources of international human rights law and therefore cannot be circumvented by Governments on the basis of budgetary, political or structural arguments or claims that efforts should be focused on other areas of transitional justice.
Transitional justice systems require vigorous and active memory policies based on human rights approaches in order to adequately address past crimes committed by dictatorial or authoritarian regimes or crimes perpetrated in the context of an armed conflict. Without memory, the rights to truth, justice and full reparation cannot be fully realized and there can be no guarantees of non-recurrence.
Memory processes related to gross violations of human rights and serious violations of international humanitarian law constitute the 5th pillar of transitional justice.
Memory processes complement but do not replace mechanisms for truth, justice, reparation and guarantees of non-recurrence. Memory mechanisms should never serve as a pretext for granting de jure or de facto impunity to the perpetrators of gross violations of human rights or serious violations of international humanitarian law.
Progressivity is a principle that informs international human rights law from a pro personae perspective. Memorialization processes must also be progressively developed so as to move forward in the search for truth and in effectively establishing memory policies concerning past violations, while considering different groups of victims and duly reflecting a gender perspective. The principle of non-regression in relation to memory processes places a limit on denialist or revisionist theories that seek to deny the extent of past violations and the harm caused to victims.
Memorialization is a long-term process in which the State must play an active and decisive role. The authorities that adopt and implement memory policies should ensure that such policies properly represent the views of the victims and are established in collaboration with civil society, especially human rights organizations. Public policy on memory should be multidimensional and include measures related to public spaces (memorials, parks, squares, etc.), artistic expressions (museums, plays, concerts, pictorial exhibits, etc.), media initiatives, and Statesponsored public events and activities held on significant dates. In the area of education, programmes under such policies should be established at all levels of formal and informal education and steps should be taken to build a culture of peace.
Memory processes cut across all aspects of full reparation – especially the dimensions of satisfaction and guarantees of non-recurrence – as a new obligation for States arising from the violations committed.
The memorialization of past times defined by violations of human rights and international humanitarian law provides an opportunity to reflect on the present and identify contemporary problems related to exclusion, discrimination, marginalization and abuses of power, which are often linked to toxic political cultures. Memorialization promotes the development of a culture of democracy and respect for human rights.
The purpose of the proper use of memory is to establish a “dialogic truth”, that is, to create the conditions for a debate within society on the causes and consequences of past crimes and violence and on the attribution of direct and indirect responsibility. Memory processes cannot, under any circumstances, deny or attempt to detract from violations and crimes that have been verified by truth commissions and/or legal proceedings. Such a deceptive exploitation of memory is unacceptable and contrary to international human rights obligations.
The voices of victims of human rights violations must play a key role in the construction of memory. This will also help to counteract attempts at denialism, revisionism and manipulation by the perpetrators of violations and by political groups or interests that seek to rekindle violence. The public authorities must refrain from making denialist statements that whitewash violations and revictimize victims.
The purpose of memory processes in post-conflict situations is to allow victimized populations to make sense of a brutal past, avoid vengefulness, come to terms with past divisions, repudiate the crimes committed, support justice mechanisms and, through the lessons learned, alleviate existing tensions, allowing society to live peacefully going forward.
Although memorialization and, in particular, the documentation of crimes and human rights violations in times of conflict are essential, they require that victims be treated appropriately. Victims should play a leading role in the process, be kept regularly informed and have their expectations met as far as possible for as long as the violence continues.
In transitional contexts, memorialization processes can be effective only if they pursue the political goal of establishing democracy and a culture of peace. Advocates of transitional justice mechanisms should form alliances with different civil society actors and help to change a toxic culture of political violence, confrontation and marginalization.
In order for memorialization processes to be effective, it is essential to protect the archives of State agencies and civil society organizations, especially those that work in the area of human rights. Archives should be accessible in accordance with established standards, and Governments should remove obstacles to such access.
The United Nations should establish procedures for sharing its own archives, which are important for shedding light on the past for many societies, thereby helping to uphold the right to the truth. Specifically, it should set up an efficient access methodology, with priorities defined in accordance with the purpose of investigations, in order to allow societies to learn more about their own history.
National legislation should be adapted to reflect technological developments. Hate speech that leads to violence cannot be accepted on the pretext that social networks are the entities that spread such statements. While freedom of expression must be guaranteed, criminal acts that constitute incitement to hatred must be banned and persons responsible for acts of discrimination, hostility or violence must be punished in accordance with international standards. Formal education in schools, colleges and universities should incorporate media and information literacy content that enables students to analyse information, sharpen their critical faculties and develop informed opinions, while ensuring full respect for human rights.