Natasha Stamenkovikj
In her blog about the Right to the Truth for the families of victims of the Katyń Massacre, Grażyna Baranowska underlined the importance for the victims and the victimized communities of war-related violations to know the truth about the fate of the missing persons, and about the harms of the past respectively. In this context, she assessed the efforts of the ECtHR to satisfy the need for truth for the families of the Katyń Massacre. With this contribution, I aim to provide an alternative angle of assessing the efforts and efficiency of the Council of Europe to encourage states to establish and preserve the truth about the harms suffered by the victims and the communities which have been stroke by war. This angle entails assessment of the Council’s political efforts to urge the former Yugoslav societies to preserve collective memory.
- Introduction: Do states have a duty to preserve memory?
International normativity has not explicitly codified a duty to preserve memory into an international convention. Both Geneva Conventions and Additional Protocol I, as well as the Disappearance Convention seem to have failed to recognize a duty for the parties to preserve the violent memory of (post-)conflict societies. However, the broader scope of international normativity has acknowledged and regulated such a duty for states, including through explicitly recognizing it as a standard for giving effect to the right to truth. Preserving collective memory has been further understood as a standard for limiting tendencies of previous regimes to prevent the establishment of truth and peace in the society, through ensuring fair and equitable post-conflict justice and through pursuing effective transitional justice processes. Such a duty has required from states to undertake appropriate and effective measures to ensure that the victims, the influenced communities, and the society as a whole learn the (contextual) truth about violations of human rights and international humanitarian law, and thus to preserve collective memory. For this purpose, the duty to preserve memory has required from states to prevent revisionist and negationist attitudes and instead to create and preserve archives and records, to ensure efficiency and independence of the judicial system for pursuing objective judicial truth-finding, and if applicable to establish or cooperate with inquiry or truth commissions to pursue non-judicial fact-finding. The UN has, in addition, implied that ensuring objective and free media and education are relevant channels for preserving and promoting the objectively established truth about the violent past of post-conflict societies, while failing to impose them as clear standards for fulfilling the duty to preserve memory.
- Is there a place for the Council of Europe to (politically) promote a duty to preserve memory?
When assessing the role and influence of the Council of Europe in promoting human rights, and to giving effect to state duties deriving from the guarantees of fundamental rights, the literature has overwhelmingly been reflecting on the scope of guarantees provided with the ECHR and on the work and the case-law of the ECtHR thereof. The Council of Europe, however, has a rather more complicated structure and mandates which it uses to promote the values of peace, democracy, respect for the rule of law, and for fundamental rights, respectively. The Council of Europe represents, in fact, a rather political exporter of these values. The Council’s political mandates are particularly important for promoting and pursuing reforms in post-conflict societies which shall be intended to empower enforcement of the Council’s establishing values. Such mandates have been extensively used by the Council in the context of encouraging and urging the post-conflict transition to peace and democracy within the former Yugoslav societies. The Council’s enlargement policy seems to have played a major role in exporting democratic values to the former Yugoslav societies. In this context, the Council has extensively been applying its mandates to assist and monitor the efforts of these societies to join in membership of the Council. Since the ECtHR has interpreted the scope and application of an implied duty to preserve memory in a rather selective and limiting manner, it may be that the Council’s political efforts to export democratic values provide the ultimate channel for promoting a right and a duty to preserve the memory about the violent past of societies.
- Has the Council of Europe recognized or promoted a duty to preserve memory within the post-conflict developments in the former Yugoslavia?
Unlike the international normative framework, the CoE seems to have failed to explicitly recognize – in its political documents - a duty for states to preserve the memory about the violent past of a society and the victims of such a past. The Council has, however, acknowledged a need – yet not clearly a duty - for creating and promoting a mutually recognized history and an objective public discourse on the violent past of the former Yugoslav societies, as a crucial step for these societies in their path to sustainable peace, democracy and European integration.
In this context, that Council has underlined political responsibility for the domestic political and governing structures in the former Yugoslav societies to eliminate and prevent nationalistic rhetoric intended to distort the judicially established truth and history about the conflict-related events in the former Yugoslavia. The Council has implied that objective and legitimate truth about the past should be established and acknowledged through the work of free media, through political and practical efforts to publicly acknowledge the harms of the past and their legacy of victimhood, and through history teaching. The Council has, thereof, acknowledged and urged measures which seem to reciprocate – to a certain degree - the scope of a duty to preserve memory as defined in international instruments. The Council has failed to explicitly recognize these as measures intended to impose a duty to preserve memory. However, the context in which the Council has required domestic actors to implement such reforms seems to have suggested, rather obviously, such an intent.
The Council has further recognized a need and a duty for domestic actors in the former Yugoslavia to create and preserve records and archives on missing persons, and even to include victims of all war-related crimes, and to open their archives to domestic and international investigating and judicial authorities. It seems obvious from the context that the Council has imposed such a duty as a standard for guaranteeing the right to truth as a fundamental right for the families of the missing persons. The context seems to also suggest, however, that the Council’s acknowledgment and imposition of this duty has not been intended to create and preserve collective memory about the violent past of a society and its communities.
The Council seems to have been more welcoming towards the notion that truth-commissions (TRCs) should serve to establish, preserve, and publish the truth about the violent past of (post-)conflict societies. In this context, the Council has recognized that the main goal and a mandate of TRCs should be precisely to construct and publish an objective and legitimate historic record on the violent occurrences in the former Yugoslav societies, so that the peoples in these societies could review, reflect on, and honour the memories of the victims and of the suffering that the communities have endured. The Council has failed, however, to reciprocate this acknowledgment of a need to promote objective history into a duty to preserve collective memory. By imposing a mandate for truth-creation upon TRCs as a non-state truth-finding mechanism, the Council may have instead intended to avoid implying a duty for the authorities in the former Yugoslav societies to preserve memory.
Finally, the Council has explicitly acknowledged the relevance of the judicial mandates – domestic and international - for establishing the truth and the memory about the conduct of war-related crimes in the former Yugoslavia. The Council has required from the domestic political and governing actors in the former Yugoslav societies to acknowledge, or at least to stop negating, the relevance and the objectivity of the judicial mandates to establishing objective historic record about the Yugoslav violent past. Such a requirement has been imposed as a standard for fulfilling the duty to deliver objective justice, rather than as a standard for preserving memory. The latter correlation has been, however, contextually implied.
- Conclusion
It is obvious, overall, that the Council has acknowledged and promoted the need to establish objective historic truth and to preserve the memory about the violent past of the peoples in the former Yugoslavia. The Council seems to have encouraged or urged prompt efforts to pursue such a need. The scope of the required models through which the Council has urged the former Yugoslav societies to establish and promote objective history about their past seems to have been occasionally broader than the standards which the international instruments have required for pursuing a duty to preserve memory. However, the Council’s political regulation of the duty to preserve memory seems to be problematic for a reason deriving from its failure to clearly recognize the duty to preserve memory as a state duty, and thus to recognize the given requirements as standards for fulfilling such a duty. It is particularly problematic that the Council has failed to require establishing of archives or TRCs as mechanisms aimed to preserve collective memory, where such a requirement has been set in international law as a minimum state-duty for preserving memory. Does this mean that the Council has failed in its role to influence post-conflict transitions to peace and democracy in the former Yugoslavia? It would be premature to suggest so. However, it may be assumed that the Council’s urges to create, acknowledge and preserve memory about the Yugoslav victims and victimized communities may be more effectively implemented if the Council has required the elaborated efforts as clear standards - and thus as a guidance for the domestic authorities - to preserve memory.
Natasha Stamenkovikj is a PhD researcher in European and International public law at Tilburg Law School, Tilburg University. She holds a LL.M in International Law (University of Edinburgh) and a M.Sc. in Criminology and Criminal Justice (University of Oxford).