International Tribunals and Collective Memories

Collective memory is not really about an objective historical event – it is a sociological selective process

To truly understand international law, its core concepts and associated institutions, one cannot ignore its sociological dimension. This is the premise that has been central to Professor Moshe Hirsch’s research over the last ten years. Professor Moshe Hirsch, Von Hofmannsthal Professor of Law at the Hebrew University of Jerusalem, was recently in residence at the Allard School of Law as part of the Mitchell Gropper QC Faculty Exchange program in place between the two law schools, joining a vibrant community of law and society scholars and presenting a paper on “International Courts and Collective Memories: A Sociological Perspective.”

Professor Hirsch stresses that even when interpreting existing treaties “every decision maker is influenced by social and cultural factors such as the process of socialization. Judges are not only influenced by their own socialization; they are also occasionally involved in the process of international socialization themselves by way of their judgments, spreading norms along the way”.

One particularly interesting social process, and the topic of his lecture at the Allard School of Law, has to do with the collective memory of past events. Collective memory is distinct from objective historical events. We do not remember all historical events: to take the example of wars, some are forgotten, while others are memorialized again and again through the mass media, memorial days, and the school system. Our social group constantly reminds us about selected historical events. As Professor Hirsch summarizes, “collective memory is not really about an objective historical event – it is a sociological selective process.”

It is, however, a critically important process. The influence of collective memories “can impact our feelings and our normative behavior, helping to shape political opinions, moral views and perceptions of other groups.”

The key question Professor Hirsch has been investigating is whether international courts should be involved in the construction of collective memories or historical narratives. The most famous case of historical narrative being constructed in this context is the Nuremberg Tribunal. The narrative elaborated in the Nuremberg judgments became central for many nations. Not only did the Tribunal’s judgments help establish what were then taken to be not only historical, but unassailable facts; once there is a decision of an international court such as this, historical narratives embedded in judgments in many ways become institutionalized. Other decisions by international tribunals include those rendered in the context of wars in former Yugoslavia during the 1990s.

In some cases, the founders of international tribunals explicitly aim to construct an historical narrative. The most famous case is once again that of the Nuremberg Tribunal. A more contemporary example is the Inter-American Court of Human Rights and its special remedies. In a series of cases, the Inter-American Court ordered the respondent state to preserve the victims’ memory, for example by establishing a national day of remembrance, naming a street or erecting monuments.

One of the central questions addressed in Hirsch’s research project is a normative one: should international tribunals be employed in constructing collective memories? This question applies not only to international criminal tribunals, but to other tribunals as well (such as the International Court of Justice). The answer provided to this question is not a dichotomist one. In certain cases, international tribunals are bound to establish some historical facts in order to resolve a particular legal dispute. But even in such cases, such tribunals may adopt either an expansive approach (elaborating on the particular historical narrative) or a restrictive one (succinctly presenting the most essential facts needed to resolve the legal question). The three principal perspectives in sociological literature (the structural-functional, symbolic-interactionist, and social conflict) each articulate different views regarding the social role of international tribunals in the international community, different conceptions of collective memory, and different answers regarding the employment of tribunals to influence historical narratives.

Presenting at the Allard School of Law at an early stage in his research, Professor Hirsch offered some tentative observations. He emphasized that the point of departure for the discussion on this issue (and other sociological studies of international law) is the fact that international tribunals are embedded in social relations. This has important implications. For instance, if a particular tribunal decides not to describe the historical background of the specific dispute, the adjudicators are still often influenced by historical narratives regarding the same dispute prevailing in their respective social groups (constructed by other agents of memory).

For further reading on Professor Hirsch’s work on collective memory and international law see here, or contact the author directly.

Professor Moshe Hirsch

Professor Moshe Hirsch is the Von Hofmannsthal Professor of Law at the Hebrew University of Jerusalem. Professor Hirsch specializes in international economic law and international legal theory. In addition to lecturing at the Hebrew University, he has also taught courses on international economic law and international legal theory in other academic institutions (including London, Toronto, Dundee, New York, Zurich and Macau). His most recent publication is Invitation to The Sociology of International Law (Oxford University Press, forthcoming).

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