Law and the Politics of Memory

Confronting the Past

Stiina Loytomaki

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781136007446
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Law and the Politics of Memory: Confronting the Past examines law's role as a tool of memory politics in the efforts of contemporary societies to work through the traumas of their past. Using the examples of French colonialism and Vichy, as well as addressing the politics of memory surrounding the Holocaust, communism and colonialism, this book provides a critical exploration of law's role in 'belated' transitional justice contexts.

The book examines how and why law has become so central in processes in which the past is constituted as a series of injustices that need to be rectified and can allegedly be repaired. As such, it explores different legal modalities in processes of working through the past; addressing the implications of regulating history and memory through legal categories and legislative acts, whilst exploring how trials, restitution cases, and memory laws manage to fulfil such varied expectations as clarifying truth, rendering homage to memory and reconciling societies.

Legal scholars, historians and political scientists, especially those working with transitional justice, history and memory politics in particular, will find this book a stimulating exploration of the specificity of law as an instrument and forum of the politics of memory.

Chapter 1

Introduction

The recent legalization of colonialism in France

On 25 January 2002, a Paris court convicted former French general Paul Aussaresses for having justified the use of torture during the Algerian war in his book Services Spéciaux, Algérie 1955–1957. Nearly four decades after the ending of the Algerian conflict, this French veteran, along with his two publishers from the Plon publishing house, were fined for being apologists of war crimes. The war crimes committed by the general had long since fallen under the statute of limitations. Moreover, crimes committed during the Algerian war of independence are covered by post-war amnesty laws. Consequently, Aussaresses was not convicted for what he did during the Algerian war, but for what he said about it.

In his book Services Spéciaux, Algérie 1955–1957, published by Plon in 2001, retired general Paul Aussaresses admits to having tortured and executed Algerian independence combatants during the French–Algerian conflict 1954–1962.¹ Aussaresses accounts for the execution of two important figures of the Algerian independence movement whose deaths were officially masked as suicides and had remained unresolved until Aussaresses’ revelations. The ex-general also justifies torture as a legitimate wartime method for extracting information.

The use of torture during the Algerian war first emerged into public debate following an article published by Le Monde in June 2000 in which the Algerian militant nationalist Louisette Ighilahriz described the torture she had been subjected to in Algiers in 1957.² What was extraordinary about this account was that she named some of the highest French military officials in Algeria, generals Jacques Massu and Marcel Bigeard, as having supervised her plight (Cohen 2003: 231). The two generals that she accused replied in Le Monde by denying everything as a ‘web of lies’ intended to ‘destroy all that is decent in France’, or by admitting that those ‘regrettable’ acts were ‘part of a certain ambiance in Algiers’ and acknowledging that the war could have been waged otherwise.³ General Aussaresses initially reacted to this debate by giving an account to Le Monde in which he justified the actions of the French military, to be followed later by his memoires, which eventually brought him to trial as an apologist of war crimes.⁴

The use of torture on the part of the French army during the Algerian crisis did not come as a surprise to the French, even though torture was often presented as a revelation in public debates surrounding Aussaresses’ comments (Branche 2005: 71).⁵ Even during the war French intellectuals denounced torture practised by the French military, and since the end of the war, witnesses’ and historians’ accounts of the widespread practice of torture have come to light. However, according to the official story, torture had never been systematic but was, rather, an exception carried out by some individuals in what was a brutal war without clear rules (Rieff 2002: 105–110). Aussaresses’ account was the first to be disclosed by a senior French officer who admitted responsibility for political assassinations in Algeria, and who acknowledged that the use of torture was commonplace and systematic. In his memoires, Aussaresses also gives us reason to believe that the French governments of the time were aware of the practice of torture. In 1971, a similar confession by General Jacques Massu, in effect superior in military rank to Aussaresses, caused a public sensation.⁶ In his book La Vraie Bataille d’Alger, Massu affirmed that he had committed acts of torture during the Algerian war, and like Aussaresses, described torture as a legitimate and effective means to end Algerian nationalist terrorism.⁷ However, requests at the time to prosecute the general for complicity in war crimes were rejected and the book resulted only in defamation proceedings.

By the year 2001, and publication of Aussaresses’ book, the tide had obviously turned. Shortly after publication of Services Spéciaux, Aussaresses was stripped of his rank in the army and suspended from the National Legion of Honour. Human rights groups and relatives of Aussaresses’ alleged victims wasted no time in bringing charges against him. Already following revelations by Aussaresses in Le Monde, the Ligue des droits de l’homme (LDH) and the Fédération internationale des droits de l’homme (FIDH) quickly contacted the prosecutor in order to have Aussaresses indicted for crimes against humanity. Following publication of Aussaresses’ book the author was charged with complicity in ‘justification of war crimes’ by the LDH, with both the Mouvement contre le racisme et pour l’amitié entre les peuples (MRAP) and Action des chrétiens pour l’abolition de la torture (ACAT) joining as civil parties in the case. Moreover, two other lawsuits for crimes against humanity were filed, one by a victim of torture in Algeria, and the other by two sisters of an Algerian FLN leader allegedly murdered in the presence of General Aussaresses. However, the legal category of ‘crimes against humanity’ is unlikely to provide a means by which one can be prosecuted for crimes committed in Algeria due to its restricted definition and application in the French courts.⁸

Legal proceedings against Paul Aussaresses and his editors eventually took place before the correctional tribunal of Paris from 26 to 29 November 2001. On 25 January 2002 the court condemned General Aussaresses to a fine of 7,500 euros for having committed apology of war crimes in his book. His two publishers, Olivier Orban from Éditions Plon and Xavier de Bartillat, director of Éditions Perrin, were both condemned to a fine of 15,000 euros each.

The trial of Aussaresses was welcomed by many as punishment, albeit belated, of a criminal who had enjoyed impunity due to the amnesty laws passed after the Algerian war and the French legal restrictions related to prosecuting him for crimes against humanity. However, the court took pains to state that the trial was not about condemning Aussaresses and his acts, which at the time of the Algerian war seem to have been tolerated by the highest French authorities. The court’s focus was rather on whether the book ‘incited readers to reach a favourable moral judgment’ about the matters Aussaresses recounted (Grosswald Curran 2003b: 702).

Nevertheless criminal law, and trials in particular, has a powerful expressive function, and on a ‘metatextual’ level what was at stake at the trial of Aussaresses was France’s role in Algeria. Symbolically, the Aussaresses court condemned not only Aussaresses’ discourse on torture but also his acts of torture and executions in Algeria. In the background of the trial may have been a new generation’s wish to bring to light the dark side of colonialism, the brutal practices committed under its name by representatives of the French state, and the silence that French governments maintained surrounding the use of torture by the army, well known and tolerated, if not encouraged by the metropole. To a certain extent, the Aussaresses trial testifies to changed attitudes of the French state and society in relation to the Algerian war and should be understood within the context of the discussion currently taking place in France about the meaning and consequences of the war, of French colonialism and the role of France as a multicultural country in a decolonized world (Savarese 2007: 142). At the same time, the beginning of the USA’s war in Afghanistan and topical questions of political violence, terrorism and its repression gave the debate a context and meaning beyond French borders (Branche 2005: 51–52).

Law and politics of memory

Politics of memory versus history

In France, the politics of memory concerning colonialism has occupied public debate for more than a decade, having complemented, if not to a certain extent replaced, Vichy as the pre-eminent object of passion in French public memory. In ongoing public debates, colonialism is often characterized as a ‘gap’ or ‘sore point’ in the republican memory, suggesting that the colonial past has in some ways been suppressed or distorted in public memory practices. Regarding the work of history and of historians, however, for several decades French historians have increasingly focused their attention on the topic of colonial history.⁹ It is public interest in the topic that was for so long lacking. Only in the past decade have the media and the public become interested in the theme of colonialism, and the Algerian war in particular, largely as a result of new debates about the role of torture during the Algerian war, including those surrounding Aussaresses’ revelations. The debates on torture led to an influx of social memories concerning the Algerian war and colonialism. These memories continue to claim publicity and acknowledgment in the public sphere, including in the realm of law.

The term memory has been at the centre of historiographical and social science debates for decades. In different processes of remembrance as well as in academic discussions that analyse those processes, the terms ‘memory’ and ‘history’ are often depicted in a somewhat conflicting relationship. In present-day debates, ‘memory’ is positioned in opposition to ‘history’, to a large extent due to its linkage with identity related pursuits. Both ‘memory’ and ‘identity’ have become inseparable for contemporary social science, history and philosophy, as well as in the fields of cultural and post-colonial studies. Consequently, in order to understand the upsurge of politics of memory it is necessary to see memory’s connection to identity and identity politics. Different groups use memory so as to oblige others to acknowledge and recognize past injustices which, in part, define who they are (Winter 2006: 286). Collectives that invoke memory- and identity-related claims on the basis of past oppression increasingly find themselves in an adversarial position with historians who do not necessarily feel at ease with the ways in which ‘memory activists’ use the past to serve their identity-related objectives. Neither are historians necessarily willing to yield their expertise to the service of memory groups. The confrontation between memory activists and historians has been particularly accentuated in France, where debates about memory have involved discussion on the ‘threat’ posed by memory claims to the unity of the nation and the proper place of history and of historians in French society.

In a wider context, the upsurge of the term memory relates to increasing discontent with historical discourse (Klein 2000: 145), and to the dismissal of traditional historical authorities, among them historians, in forming an understanding of the past. While historical discourse remains associated with a certain level of objectivity that has the effect of ‘effacing’ the narrator, to privilege memory or remembrance over history is to insist on agency, ‘on answering the question who remembers, when, where, and how?’ (Winter 2006: 3). In the new situation in which various agents claim legitimacy for their accounts concerning the past, the question of which agents are entitled to talk about the past, and which narratives constitute legitimate historical accounts, becomes both significant and contested.

The focus on memory in the sense that it is used in this book is concerned with collective or social, public forms of memory, although the term ‘collective memory’ has also been subject to vehement criticism.¹⁰ Common to most interpretations given to collective memory is that it is understood as an experience of a shared meaning given to the past (Corbin 2006: 256). In other words, it is a question of collective formation of individual recollections and identities. As collective phenomena, memories are, in fact, discourses, social and cultural notions based on processes of social and political bargaining (Pakier and Stråth 2010b: 6–7). For many scholars, group memory implies a ‘social agency’ approach to memory, meaning that memory is anchored in common experiences and is expressed through acts of public remembrance created by social interaction (Bell 2003: 65). Social memories are hence performative, that is, coming into existence at a given time and place through a specific kind of memory activity (Wood 1999b: 2). This means that remembrance itself is generated by action (Winter 2006: 277), and that as a political practice memory in fact does not exist apart from its representation and performance (Zehfuss 2010: 229).

Collective memories contest each other and ‘compete’ among each other for acknowledgment and publicity. Different social memories and their constellations are not static but rather ongoing processes, outcomes of a series of political and intellectual negotiations and as such are susceptible to the influences of different groups in civil society, historians, politicians, journalists, and lawyers (Winter 2006). The proliferation of politics of memory in present-day societies is a result of profound conflicts between political, social, and cultural understandings not only about the past but also about the present (Golsan 2001: 23). Memory politics can thus be understood as consisting of conflicts between different actors about how we should understand and interpret the past. Memories are political precisely in the sense that they demand collective recognition for present-day constituencies and aim to create legitimacy in the present.

The concept of memory became increasingly politicized during the 1970s and 1980s when claims based on identities of social groups shaped by memories of common historical experiences started to increase. Identity politics as a mode of organizing is usually connected to the idea that some social groups are oppressed and through the politics of identity these groups purport to challenge dominant oppressive characterizations (Heyes 2012). The new movements for ‘politics of recognition’ developed a strong interest in memory precisely because redress for long-standing legacies of oppression and discrimination was a significant objective of their present-day political engagement (Rosenfeld 2009: 131). In present-day societies, memories of traumatic events such as war and genocide play an important role in shaping political affiliations and action (Bell 2010: 5). In this way, social remembrance has the potential both to empower political, cultural and social action, and to legitimize collective claims for recognition (Blouin and Rosenberg 2011).

Due to its links with different identitarian purposes, collective memory is fragmented in contemporary societies. Memory was also linked to the framing of identities in the past, in the imperial age in particular, but then collective memories were invoked in order to foster national memories, rather than group memories (Winter 2006: 19). History as a narrative was understood as a national narrative. In the nineteenth century history gave meaning to societies, and the role of historians was crucial in creating political legitimacy for nation-states. Compared to the role of historians at that time, we are witnessing a decline in the authority of historians in contemporary societies. The role of professional historians as interpreters of the past has been relativized in a situation in which other agents participate more actively in the remaking of the past (Pakier and Stråth 2010b: 5). The current frenzy of creating collective memories and commemoration practices ‘has left the historians behind; commemoration has become memory politics without their participation’ (Pakier and Stråth 2010b: 9).

Moreover, the popularity of memory in the present relates both to the rise of postmodern thought and to the association of memory with morality and normativity. Postmodernism made increasing numbers of historians more sceptical about the truth claims of history and about positivism, and increased their interest in memory and other forms of historical consciousness (Rosenfeld 2009: 134). According to postmodernist historiography, not only memory but also history and historians are trapped within the rules of language and historical narratives are created through a subjective process of representation similar to that which informed history’s alleged ‘other’, memory. Most historians nowadays would agree that the categories of history and memory are not adversarial, but neither can they be completely conflated. ‘Not all memories can stand the test of history’, notes Jay Winter (Winter 2006: 284). However, as pointed out by Maja Zehfuss, if memory is compared to history in terms of its relationship to ‘truth’ about the past only, memory can only ever be a lesser form of ‘knowledge’ (Zehfuss 2010: 228). In practice, memory and history, as well as memory activists and historians, are in interaction with each other, and often the categories also intermingle. The narratives that collectives express or develop as memory are constantly challenged, and historians, along with lawyers, are among the arbiters of such challenges (Winter 2006: 278). At the same time, historians engage in memory work and commemorative practices that reflect, sometimes well, sometimes imperfectly, the narratives that historians have constructed (Winter 2006: 288).

As part of a development in the opposite direction from much of postmodern historiography, memory in the present is becoming increasingly linked to normative questions about justice, reconciliation, the quality of democracy, political legitimacy and the question of the identity or sameness of a political unit over time and the duty to take responsibility for past actions that this implies for members of the polity (Müller 2002b: 31). Memory is often bound up with questions of morality precisely due to the linkages between memory and identity, including the identity of the nationstate, due to which understandings of the past are linked with both values and uses of the past (Bell 2010: 19). The politics of memory has proved central in transitions to democracy throughout the world. Perceptions of the past are important in both delegitimizing previous regimes and in grounding new claims to political legitimacy (Bell 2010: 20). Such normative aspects of memory are, according to Levy and Sznaider, central in what they call ‘cosmopolitan memory’ that transcends national boundaries in the form of a transitional justice paradigm and a human rights imperative which demands that the past be repudiated on the basis of human rights ideals (Levy and Sznaider 2010).

Through the increase of pluralization and fragmentation of memory into memories of particular collectivities on the one hand, and the rise of the notions ‘transnational memory’ and ‘cosmopolitan memories’, on the other, the conception of nation-state memory has been to a certain extent delegitimized. However, the normativity of cosmopolitan memory, as expressed for instance in the form of the human rights paradigm, is also used by different political constituencies so as to impose a certain kind of collective memory for the nation-state. Instead of creating a meta-narrative that celebrates the accomplishments of the nation-state in the past, the...