Law, ‘presentist’ agendas, and the making of ‘official’ memory after collective violence

This article interrogates how law is used to make ‘official’ memory in transitional justice (TJ) contexts. It posits that law performs three key roles in the ‘making’ of memory after conflict and authoritarianism: visibility, definition, and judgement. Using insights from existing academic literature that has addressed TJ processes and mechanisms across geographical sites and time frames, it argues that law is central to memory making by rendering certain harms, victims, and victimizers either ‘seen’ or ‘unseen’, by categorizing certain actors and timeframes into binary groupings, and by judging particular actors and actions to be either morally good or morally bad. The decisions that law makes on each of these fronts, it is argued, are ultimately determined by how the prevailing post-conflict state wishes to have the divisive past understood in the present.


INTRODUCTION
The relationship between law and memory has been explored in an increasing body of sociolegal scholarship on 'memory laws'. 1 Existing since the 1980s, but gaining purchase with the rise of French Holocaust denial laws in the 2000s,2 these laws explicitly seek to regulate the public remembrance of a divisive past. 3As an area of study concerned with legal and non-legal attempts to address the legacy of human rights abuse,4 transitional justice (TJ) shares this interest in the representation of contested pasts within post-conflict and/or post-authoritarian societies.The expansion of TJ scholarship 'beyond legalism' 5 has birthed a rich literature on diverse mechanisms and processes, including lustration, criminal trials, amnesties, truth commissions, and public inquiries. 6Though invariably 'creatures of law', 7 these mechanisms and processes are intrinsically involved in 'memory making' through documenting the abuses of the past in various ways and to various degrees.Memory making, Martha Minow argues, demands a balance between 'too much memory and too much forgetting'. 8Instead of seeking this balance, the interplay between law and memory can be used to support what Barry Schwartz calls the 'presentist' agenda of pursuing contemporary socio-political interests following collective violence. 9Depending on the particular context, 'presentist' agendas might necessitate that law is used to censor, rather than simply record, the past. 10This is not to say that TJ mechanisms and processes 'invent' the past, 11 but rather that they 'embellish' it so that it is 'consistent with present or future objectives'. 12A deliberately selective account of the past that serves present interests is thus created and then subsequently packaged as an apolitical 'official' memory.
While this raises pertinent questions about the selectivity of, motivation for, and degree of reception attained by 'official' memory in TJ contexts, the matter nonetheless remains neglected in existing scholarship.Granted, a growing literature on memory laws does exist, and a burgeoning literature on memory and TJ has also taken root. 13Yet this scholarship only provides a limited insight into the interplay between law and memory in specific TJ processes and mechanisms.A more expansive critique of the interplay between law and memory across TJ mechanisms, processes, and geographical sites remains conspicuous by its absence.Even if existing scholarship tells us how memory laws in one site make 'official' memory, it has not broadened its lens of inquiry to draw parallels with how law is similarly used to make 'official' memory through prosecutions, truth commissions, and institutional reform elsewhere.
This article draws together the literature on law, memory, and TJ to conduct a theoretical overview of law-memory interplay in multifarious TJ contexts.Its original contribution lies in synthesizing these existing studies in a way that transcends a narrow mechanism or site-specific empiricism and in theoretically framing this within the matrix of the 'fourth generation' of TJ scholarship that interrogates how TJ interventions conceal power dynamics, ideological agendas, and continued structural exclusion. 14As a piece of critical 'fourth-generation' TJ scholarship, the article sees its remit as asking 'nagging questions' about where TJ mechanisms, processes, and discourses have come from and are heading to. 15A compelling case exists for asking such questions about law-memory interplay; while TJ has traditionally exhibited 'a faith in the power of law', 16 it has been slower to 'understand that memory can be and is shaped by law'. 17Grappling with the 'nagging questions' of how law has been and continues to be used to shape 'official' memory in TJ contexts, the article responds to recent calls within the literature to 'problematise and politicise the law of TJ'. 18wo caveats are expressly spelt out at this introductory juncture.First, the article accepts that socio-legal scholarship should not fixate on whether or not law should be used to make memory, 19 but should instead critically analyse what the law does in practice to make memory. 20As Austin Sarat and Thomas Kearns argue, we should not necessarily ask whether it is right that law is intentionally used to create collective memory, but rather how and why it is so used. 21Attention, then, focuses on how law, via legal processes, legal archiving, and legal institutions, works to make 'official' memory. 22While law can be understood as concepts, rules, and practices in normative theory terms, 23 this article adopts a 'law in society' approach that acknowledges the significance of human intervention in reasserting or challenging these norms to configure or challenge the social order. 24The term 'law' refers in this article to a broad set of phenomena that includes the criminal sanction of 'memory laws' as much as it does to the administrative aspects of lustration or to the archiving of testimony given in court.'Seeing' law both in terms of how it is constructed and how it is used in pursuit of 'presentist' interests echoes Alice Panepinto's recent argument that in TJ contexts 'it would be absurd to consider law as detached from its social, political and economic contexts, as much as it would be misleading to reduce law to official, positive, written law'. 25econd, critical analysis across different temporal 'waves' of TJ and across different geographical sites experiencing different forms of TJ is not to fallaciously compare proverbial 'apples and oranges'.The substance of any account of the past is, of course, naturally shaped by the context within which it is being constructed and mediated. 26That context, in turn, determines the 'presentist' agenda. 27For instance, at different points across the different temporal waves of TJ, the 'presentist' agenda has been embedding the principles of international law and improving inter-state relations, post-Cold War nation building, and fostering victim-centredness and antiimpunity. 28Likewise, the 'presentist' agenda is shaped by the form of transition in, and specific history of, the particular site.A cursory glance at some of the examples cited in this article shows as much: 'victors' justice' in Rwanda used 'victimological memory' to absolve those coming to power of wrongdoing, 29 paradigmatic transition from minority to majority rule in South Africa demanded a nation-building programme of reconciliation to legitimize the new 'Rainbow Nation', 30 non-paradigmatic transition in Northern Ireland (NI) forced the United Kingdom (UK) government to disguise the nature and extent of its role in past violence, 31 'failed transition' in Palestine/Israel resulted in a return to old patterns and structures of violence, 32 'belated' TJ saw France address a history of collaboration and colonialism from a safe temporal distance, 33 and 'post-transitional justice' has seen Spain (re)address legacies of historic human rights abuse through new normative lenses. 34However, while context (in other words, the timing and type of transition) is undoubtedly important in determining what the 'presentist' agenda is in each site and why 'official' memory must support this, it does not detract from commonality in how this is done across these contexts.The contention is, then, that how law constructs 'official' memory to support 'presentist' agendas in the aftermath of collective violence 'travels' across time and space. 35Though limiting the discussion to any one of the TJ sites discussed herein would offer helpful insights into how the law-memory nexus maps onto 'presentist' agendas, this would impose an unnecessary parochialism on our understanding of a macro-level phenomenon.By balancing awareness of the localized context with sufficient acknowledgement of how ideas 'travel', the article transcends the 'micro politics' and minutiae of the TJ process in the relevant sites to develop a general theoretical critique. 36hrough synthesizing existing literature on law, memory, and TJ, and critiquing this through a 'fourth-generation' lens, this article posits that law makes 'official' memory following collective violence via three distinct functions: visibility, definition, and judgement.That is, law can be leveraged to render particular harms, perpetrators, and victims either visible or invisible (visibility); then to organize these harms, perpetrators, and victims into neat categories (definition); and finally to make normative conclusions about these same categories (judgement).The article further argues that these roles are evident at both a practical and a discursive level; they can influence how 'official' memory making is both done and presented and interpreted as being done during TJ processes.At the same time, however, the article acknowledges that memory is driven by contestation, 37 meaning that 'official' memory can paradoxically spark subaltern counter-memory.Any 'official' memory can be challenged through 'vernacular' memories opposed to the 'presentist' agenda, 38 as is evidenced by the growth in memory activism 'from below'. 39The article concludes with some tentative thoughts on the 'nagging question' of how emerging post-colonial critiques and the evolution beyond the paradigmatic transition will further challenge 'official' memory making in TJ contexts.

THE INTERPLAY OF LAW, MEMORY, AND TJ
Law creates a space that is both 'legal' and 'permanent' in which collective memory can be constructed. 40Sarat and Kearns note that law's memorializing function is essentially two-fold: an archival function that preserves documents, testimony, and judgements for future reference (in other words, the 'permanent' space) and a declarative function that injects a particular meaning into the archived past (in other words, the 'legal' space). 41Law sets about producing and preserving a certain body of knowledge and then using that to influence how the events of the past under examination are to be subsequently understood. 42Legal institutions and legal processes therefore shape collective memory by influencing what justice is taken to mean, 43 by amplifying the human stories performed to a multitude of audiences, 44 and by having a resonance beyond law itself. 45his makes law a natural candidate for (mis)shaping the collective memory of pasts that remain contested today. 46he fact that law can be leveraged to validate one particular interpretation of the past exposes the fundamental tensions that characterize its relationship with collective memory.Law's institutional logic -which is built on individual behaviour, evidentiary constraints, and a binary approach of either absolving or convicting -limits its ability to write a more nuanced historical record; it reduces multi-causal and complex events to individual culpability as provable beyond reasonable doubt. 47The memory of an event constructed in the courtroom, then, differs from the memory of that event constructed in other spheres that are not hamstrung by these logics and procedures. 48Law, as Catherine Turner argues, needs 'the certainty of one agreed narrative rather than the uncertainty of a number of competing accounts of the conflict'. 49Memory, on the other hand, is multiple and contested, not consensual or singular, and is not a 'mirror' of the past but an imperfect representation of it. 50Law strives for finality and judgement, 51 whereas memory is -consciously or otherwise -constantly open to revision and reinterpretation across time and space. 52For Lucy Bond, memory and law are based on 'antithetical foundations': [W]hilst the law aims to pass judgement on the past, memory opens it up to contrasting interpretations; whilst the law simplifies historical events to their barest fundamentals (innocence and guilt), memory acknowledges their complexity; whilst the law seeks objective truth, memory admits the coexistence of numerous perspectives. 53e 'official' memory produced through legalistic processes 'from above' therefore differs from the 'vernacular' memory produced through memory projects, arts, and performance 'from below' and the 'embodied' memory of those with lived experience. 54aw's willingness and ability to deem one particular interpretation the 'official' memory speaks more fundamentally to its role in the creation of official discourse.Disguising the power dynamics that allow official discourse to decree what is or is not the 'truth' or to determine how particular phenomena are 'seen' or 'unseen', 55 law accords to 'official' memory a benign taken-forgrantedness.In reality, however, law seeks to pronounce how certain things should be understood and remembered through reinforcing particular worldviews and definitions and by suppressing any alternatives. 56Gendered, class-based, and decolonial critiques all highlight law's ability to impose outlooks on, rather than reflect those of, marginalized communities. 57The latter critiques have directly attributed law's centrality in TJ to the 'moral imagination' of Western liberalism that pervades the field. 58The pursuit of a codified 'global TJ project' by the United Nations (UN) has seen TJ discourse and practice dominated by the West at the expense of expertise and experience within the non-West that may sit uneasily with formal legalism. 59Unsurprisingly, then, non-Western scholars have cautioned that TJ interventions that are premised on Western legalism rather than local customs and norms mask ongoing power imbalances reflective of colonialism. 60he rootedness of legal reasoning, legal language, and legal procedure in these power dynamics ultimately means that law 'sees' through a particular institutional prism. 61More often than not, this is one that overlooks the experiences of particular constituencies. 62Whether law places the accent on 'remembering' or 'forgetting', which mirrors its decision to either 'see' or 'unsee', influences the nature of 'official' memory and determines how it can and will be used. 63This 'official' memory is not confined to the legal sphere but is reasserted at a societal level through school curricula, textbooks, and state-sponsored museum exhibitions. 64he problem with using law to determine what is remembered and seen, and what is conversely forgotten and unseen, is more acute in societies that are transitioning out of prolonged collective violence.First, certain aspects of the past will always remain contested in transitioning societies.No collective memory, whether 'official' or 'vernacular', will be able to capture the multitude of different perspectives.Even today, some in South Africa regard the Apartheid state as a bulwark against the 'evils' of communism, 65 while others still hold a similar view of military juntas in Latin America. 66These perspectives are not captured in 'official' memory, or indeed for that matter in the 'vernacular' memory of victims.Second, in contexts of collective violence, blame, responsibility, and victimhood become complicated. 67Law, however, fails to recognize this complexity by pursuing a reductively simplistic 'official' account of the past in accordance with the selective 'remembering' and deliberate forgetting required by the 'presentist' agenda.As discussed earlier, this has particular relevance where that agenda involves entrenching 'victors' justice' (such as in Rwanda), obfuscating state violence (such as in NI), concealing the continuation of deprivation and exclusion (such as in South Africa), or disguising continued opposition to the state's existence (such as in Palestine/Israel).
Either way, differences about interpretations of the past that lie outside the ambit of law become contested through the medium of law. 68Law is used in a 'top-down' manner to enforce the 'official' account of a contested past, yet at the same time it is also used to challenge this 'from below'. 69 struggle thus ensues between 'deformed legalism', whereby 'bad law' facilitates 'too much forgetting', and 'transcendent legalism', according to which law should rise above the demands of 'presentist' agendas. 70As this struggle plays out, the question remains as to whether law's biggest contribution to memory making is to reinforce or to challenge the dominance of 'official' accounts. 71

LAW AND (IN)VISIBILITY
Law's initial role in the making of 'official' memory is to determine what is to be included in or excluded from the memory-making process.That is, law makes particular aspects of the past visible (seen) or it renders them invisible (unseen) in accordance with how neatly they map onto the 'official' past.To attain hegemony for this 'official' memory, law either invites society to remember or punishes remembrance that challenges the 'official' past.The first approach is prescriptive in that it says to society 'We need to remember', while the second is proscriptive in that it says 'We need to remember in this way'. 72In this way, law lays down 'memory tracks' to 'steer' our understanding of the past towards certain interpretations and away from others. 73At the same time, however, law can also be used by marginalized groups to expose past abuses omitted from 'official' memory. 74Law's constitutive function, then, can have practical implications for memory making,75 whether through highlighting or hiding a particular event, through amplifying or muting certain voices, or through granting or restricting access to information in the 'permanent space'.

Prescriptive and proscriptive remembering
Law can 'steer' memory towards particular interpretations of the past by literally making certain events, persons, or interpretations more visible than others.Memory laws pertaining to memorialization and commemoration are an obvious example.For instance, Law 95 of 1997 in Romania established the Sighet Memorial -including a museum collection of testimonies and documents relating to communist repression -as an official site of memory. 76In this example, a memorial offering one interpretation of the past was erected and then afforded official status under legislation.This shows law functioning through prescription; it makes certain events, victims, and interpretations visible and then asks society to duly remember them.Other events, victims, and interpretations are, by contrast, hidden and forgotten.Prescription can also take more implicit and subtle, yet nonetheless effective, forms.It might involve, for example, state funding for certain tourism initiatives that propagate a particular version of the past, 77 thus 'steering' memory more discreetly than through openly prescriptive memory laws.Marginalized groups can, of course, still offer their own interpretations 'from below' through 'dark tourism' that is not officially endorsed or funded by the state. 78imultaneously, law can be proscriptive, 'steering' memory away from particular understandings of the past.It can do this either by restricting access to information about a particular event or by restricting what can be said about that event. 79Obvious examples are laws on denial and negationism that use the sanction of criminal law to promote one interpretation over all others. 80For instance, Israel has adopted proscriptive remembering, with more critical scholars arguing that its protective approach to the 'official' memory of the Israeli state represents 'memoricide' designed to destroy any discordant memories harboured by Palestinians. 81This proscriptive remembering counters the long-standing Palestinian 'right of return' discourse which, by its very nature, challenges the territorial integrity of the contemporary Israeli state. 82The 'Nakba Law' reduces state funding or support to any institution that rejects the existence of Israel as a 'Jewish and democratic state' or that involves itself in commemorating the founding of that state as 'a day of mourning'.This provision suggests that there is only one interpretation of the 1948 war when there are, of course, at least two; for those behind the provision, that war might represent independence, yet for Palestinians it marked the beginning of seemingly interminable dispossession and displacement. 83While the Nakba Law is undoubtedly proscriptive in operation, it does not, however, criminalize commemoration of the Nakba per se.Rather, it 'steers' memory by having far-reaching financial consequences for any group that remembers outside the permitted parameters.In effect, it can dictate what is and is not publicly remembered by using retrospective financial penalty to close down the space for Nakba commemorations. 84Without expressly prohibiting commemoration of the Nakba, the Israeli state nonetheless uses legislation to achieve this same result by less overt means. 85owever, legislating for proscriptive remembering does not guarantee it.The Nakba Law has not eradicated collective or public commemoration of the Nakba; on the contrary, it has been the catalyst for renewed Palestinian 'memory activism'. 86The further irony is that the controversy surrounding the provision has had the unintended effect of actually bringing the counter-narrative to the attention of a Jewish Israeli audience. 87A provision designed to hide a problematic interpretation of the past had thus inadvertently brought that interpretation into the public consciousness.

The visibility/invisibility binary of prosecution and amnesty
Prosecutions for past wrongdoing further reveal law's ability to determine (in)visibility in the memory-making process.The fact that a trial has taken place can give a particular atrocity sufficient exposure to embed itself in collective memory, 88 and can even enable victims to contribute to the historical record. 89However, one can question how comprehensive any memory 'made' here is likely to be.At a practical level, M. Cherif Bassiouni and Peter Manikas point out that memory can only be 'made' through witness testimony if there are surviving witnesses, if such witnesses can adequately recollect what happened, and if they actually testify despite fears over their safety. 90Moreover, just because victims are telling their stories within the formal legal setting of a trial does not change the fact that this storytelling practice is itself a 'moral chameleon' that can hide certain problematic pasts as much as it can expose others. 91At best, then, any account of the past forged through victim testimony during criminal prosecutions constitutes a 'selective memory' premised on choosing certain victims to testify, and, as a natural consequence, certain harms to magnify. 92his selectivity manifests itself in two ways: the decision over who should be prosecuted and for what harms.The decision reached is determined by factors that are both political and practical.On the one hand, 'victors' justice' determines which side is or is not prosecuted.On the other hand, it is not feasible to prosecute every single person from the losing side. 93Whether at Nuremburg or in Rwanda, prosecutions can be criticized for delivering a politicized 'victors' justice' and for holding only a small number of perpetrators legally accountable. 94More recent criticism has centred on the failure to bring Western powers and their allies before the International Criminal Court while it continues to focus disproportionately on Africa. 95et the problem is not simply one of getting enough perpetrators into the dock.More fundamentally, any memory 'made' during a criminal trial invariably reflects the institutional logic of the legal sphere.This individualizes guilt and relies on evidential rules and procedures that exclude consideration of larger social forces of the time. 96Criminal trials thus limit the parameters of memory by unnaturally decoupling human rights violations from the structural causes of violence. 97Post-World War II tribunals, after all, created many more 'false innocents' than officially guilty culprits. 98In doing so, they spared collective memory from having to visit what Mark Drumbl calls 'a more embarrassing place' that recognizes the culpability of beneficiaries, bystanders, and so on. 99While the dominant memory of World War II acknowledges the culpability of the officially guilty perpetrators, it has not similarly recognized the varying degrees of culpability borne by these 'false innocents'.
Amnesty, the binary opposite of prosecution, is similarly problematic for memory making after collective violence.Amnesty represents a general pardon from criminal or civil liability for a politically motivated offence committed in the past. 100Though the decision to either punish or pardon is ultimately influenced by a number of socio-political factors, 101 making the choice either way significantly influences memory making.Some amnesty provisions are clearly predicated on deliberate forgetting.Examples of this are early amnesty laws emanating from Latin America, such as the Full Stop Law in Argentina and the Expiry Law in Uruguay. 102Framed as necessary to facilitate peaceful transition from military dictatorship, these blanket amnesties effectively shut down debate over human rights violations by drawing a line under the past.Amnesties of this nature are, however, largely considered illegal under international law today, as they preclude the delivery of any 'effective remedy' to victims, prioritize impunity rather than accountability, and operate to the detriment of the emerging 'right to truth'. 103owever, amnesty laws can also encourage a fuller remembering, 104 particularly when used to incentivize disclosure of information about past harms. 105This approach is built into the logic of the South African Truth and Reconciliation Commission (TRC). 106An amnesty provision in the 1993 Interim Constitution evolved into a conditional amnesty for those prepared to make 'full disclosure' about 'proportionate', 'politically motivated' offences. 107By contrast, the ongoing threat of prosecution can limit buy-in to the memory-making process.This applies not only to 'official' memory produced by truth commissions, but also to 'vernacular' memory created through other storytelling initiatives.Referring to the seizure by the authorities of interview tapes with former combatants participating in an oral history project in NI, Anna Bryson argues that potential prosecutions can create a 'chill factor' that prevents the telling of experiences 'from below'. 108Within the particular context of NI, stifling accounts 'from below' in this way helps to further minimize the state's role in past conflict.
The practical usefulness of amnesties is not, however, limited to truth commissions.Lauren Dempster shows how amnesty provisions can further 'quiet' TJ that goes on through other mechanisms and processes that operate outside the public limelight. 109In illustrating this point, she cites the Northern Ireland (Location of Victims' Remains) Act 1999, which grants 'use immunity' to anyone providing information to the Independent Commission for the Location of Victims' Remains (ICLVR) about the whereabouts of those disappeared by non-state armed groups.It was the work of this body, aided considerably by information brought forward under the immunity provision, that helped the issue of enforced disappearance to be seen in NI. 110

Law as access and law as obstruction
As well as eliciting undisclosed information, law can also regulate access to existing information within the 'permanent space'.State files, as a link between the secret and the public, and the open and the hidden, 111 are the most relevant example.Destroying and/or withholding files can allow the wrongs committed by certain parties to be 'forgotten' in 'official' memory, as Kirsten Campbell argues in relation to the International Criminal Tribunal for the former Yugoslavia (ICTY). 112The issue therefore becomes one of both preserving and accessing the 'permanent space'.Law has involved itself with both these tasks.In Rwanda, for instance, Article 4 of the Law of September 2003 imposes a prison sentence on 'anyone who has concealed or destroyed the evidence' of the genocide. 113A number of laws in various states also legislate for access to state files, the most widely discussed being the Stasi Records Act of December 1991.This allows individuals in Germany to request access to files held on them by the Stasi.These transpired to be of varying length, depth, and quality, ranging from a few pages with limited evidence of surveillance through to substantial files that amounted to a complete biographical account of individual lives. 114This shows a potential tension between what should in theory emerge from access to files and what is in fact practically possible; while law may in theory facilitate a fuller memory by permitting access to files, it cannot legislate for the quality or depth of what is actually contained within those files.
In other cases, such as NI, 'national security' may operate to the detriment of collective memory by allowing the state to legally withhold significant bodies of information relevant to a fuller understanding of its role in the conflict. 115Victims of state violence in NI have, however, used law to successfully pursue the release of state files through the courts. 116In this context, the lawmemory nexus descends into a struggle between deformed legalism firewalling the 'permanent space' from scrutiny and transcendent legalism intent on opening it up to a fuller exploration.

LAW AND DEFINITION
After selecting the sum parts for 'official' memory, law is then used to categorize these through applying labels that are grounded in drawing simplistic distinctions that suit the 'presentist' agenda.Law's definitional remit thus becomes one of reducing real-world complexity to readily consumable binaries, which perhaps only reflects the 'antinomies' and 'binary oppositions' on which TJ discourse is premised. 117Through the medium of 'legal messaging', 118 these binaries become the dominant frames through which society is encouraged to interpret the past.The most instructive examples are where law is used to make a distinction between different actors and between different timeframes.
In the aftermath of conflict, who is a hero and who is a villain, who was right and who was wrong, and who is blameworthy and who is blameless are all open to interpretation, contestation, and change. 119As a normative language meant to distinguish between right and wrong, innocence and guilt, and victim and perpetrator, law postures as being able to give meaning to the past, 120 yet in doing so it fallaciously tries to retrospectively make 'black and white' much of what was 'grey' during violent upheaval. 121Likewise, law can also engage in memory making when it attempts to declare when a conflict started and when it ended.In designating a particular timeframe as problematic, law simultaneously contrasts this with what came before and after.Setting the boundaries for when a conflict started and ended can define the nature of that conflict itself, as well as disguising any ongoing discrimination, exclusion, and marginalization.Through its definitional remit, law can 'fix' how society should distinguish between temporal binaries of 'then' and 'now', and between actor binaries of 'victim' and 'perpetrator'.

'Then' and 'now'
Law distinguishes between periods of conflict and transition through establishing a moment of rupture between a problematic 'then' and a seemingly better 'now'.In some instances, the intention to do so is explicit; in other cases, it is more disguised.Vetting and lustration provisions are an instructive example.Their core premise is to provide the necessary break from the problematic past on which societal rebuilding is apparently dependent.This is done through either removing those implicated in past wrongdoing from certain influential positions or denying them future access to such positions. 122These provisions are said to 'break' with a problematic 'then' by cleansing the polity and civil society of the malign influence of the ancien regime. 123he trials of former dictators, it has been argued, are a symbolic attempt to draw a line under a problematic past, while constitutional documents can provide myths of (re)founding by declaring the birth of the new post-conflict nation. 124Symbolic though these acts are, they are nonetheless infused with legalistic discourse. 125In Hungary, for instance, the Fundamental Law recognizes the first free elections of 1990 as the moment that the modern state was born.In doing so, it distinguishes between everything that followed this moment in time and the eras of Nazi occupation and Soviet control that preceded it. 126Along similar lines, the National Unity and Reconciliation Act of 1995 was used in South Africa to promote the emerging political order in the post-Apartheid state.This provision, which set up the TRC, was premised on contrasting the violent and divisive past with the aspiration for a better and peaceful future in the new 'Rainbow Nation'. 127aw conspires with memory in the state-building project through enshrining these founding moments and/or moments of rupture in legislation. 128The continuation of exclusion and inequality during transition subsequently becomes obscured.The promotion of the new 'Rainbow Nation' in South Africa served to elide how structural exclusion, gendered violence, and ingrained inequality all persisted after the point of rupture. 129Though unacknowledged by a 'presentist' agenda promoting reconciliation, this led to victims using law to (however unsuccessfully) subvert the status quo in the new 'Rainbow Nation'; the amnesty provision of the TRC was challenged by a number of victims, 130 including Steve Biko's family, 131 while others sought reparations from corporate beneficiaries who had retained Apartheid-era gains. 132

'Victim' and 'perpetrator'
The second distinction that law makes is through applying, or conversely not applying, the labels of 'victim' and 'perpetrator' to particular actors and/or groups.While in reality such a neat distinction is usually impossible, and while victimhood is socially, politically, and culturally situated and contested, law nevertheless involves itself in formalizing blame by designating some as blameless ('victims') while simultaneously scapegoating others as blameworthy ('perpetrators'). 133This labelling is found in many legal and non-legal TJ processes, but the most glaring example is victims' legislation.The constraints of the legalistic approach mean that only those who satisfy the strict technical criteria demanded by victims' legislation are designated as victims.Others who do not meet these requirements can, of course, stake an officially unrecognized claim to victimhood. 134Defining the 'victim' becomes a process of defining the violence through which they were victimized -ascribing a motivation for that violence, assigning responsibility for it, and writing this into the historical record. 135If some of those victimized through conflict are placed outside the 'official' definition of victim, then the need to establish the motivation and responsibility for their victimization in the 'official' memory is removed.Hence, in non-paradigmatic cases where the state continues to downplay or deny its own role in past violence, such as in NI and the Basque Country, 136 leveraging the victim/perpetrator binary via various pieces of victims' legislation has invisibilized those victimized through state violence.
The wilful blindness to the messiness of conflict and to the deliberate politicization of victimhood in its aftermath is particularly pronounced in cases where entire collectives seek to acquire, and subsequently monopolize, the 'victim' label.The primary motivation, however, is not so much the label itself but rather the implied blamelessness that accompanies it.'Victimological memory' can be used to 'fix' the victim identity of a particular group in a bid to avoid having to examine their possible involvement in the complexity of conflict. 137Accordingly, when law subsequently casts certain groups as 'victims' and certain groups as 'perpetrators', it is really constructing, and then legitimizing, certain political interpretations of the past. 138ost-genocide Rwanda represents a notable example of legalistic 'victimological memory'; 'divisionism' laws (re)classify different groups not in terms of ethnicity -Hutu or Tutsi -but in politicized notions of a victim group and a perpetrator group that correspond to post-conflict 'winner/loser' positions. 139The Rwandan government have typecast the Hutu as perpetrators and the Tutsi as victims, and completely invisibilized the Twa, whose experiences do not fit this official framing of the genocide. 140Access to post-conflict power can enable certain collectives to hegemonize their own version of the past in this way, 141 and then mediate it through TJ mechanisms that are purportedly pursuing a reconciliation agenda. 142When law makes itself a willing accomplice of 'victimological memory', ideological and legal positions are thus intertwined with, rather than being divorced from, one another. 143

LAW AND JUDGEMENT
Having selected and neatly categorized the component parts for 'official' memory, law is then used to impose a particular meaning on them.In this regard, it purports to offer 'moral clarity' for society to rationalize the violent past. 144The increasing turn towards 'tribunality' in transitioning societies 145 has amplified what Joel Feinberg terms law's 'expressivist function'. 146hrough this expressivism, law imparts particular moral judgements that influence how the past is understood; it communicates that a certain act was wrong, it disavows that act by suggesting that those expressing its wrongness were not involved, it asserts the righteousness of law, and it restricts responsibility to those being prosecuted.This expressivism enables law to influence collective memory by encouraging society to interpret a legal judgement of legal or illegal as a moral judgement of right or wrong, 147 and by restricting blame and responsibility to those on trial.

Site of moral judgement
Drumbl argues that criminal prosecutions in the aftermath of collective violence represent a focal point where retributivist, deterrent, and expressivist interests converge and overlap; 148 those prosecuted are on trial because they deserve to be punished for their past misdeeds, because punishing them will deter others from engaging in these harmful acts, and because punishing them expresses the immorality of their actions.The interplay between these interests means that at the same time that a criminal trial makes a moral judgement of past wrongdoing, it also creates a public record of that wrongdoing for future reference that should deter others from committing these same harms. 149Though one may well question the very notion of ever being able to sufficiently punish mass-scale harms, 150 from an expressivist perspective the importance of prosecution is not to punish perpetrators per se but to define their actions as morally wrong for the sake of the future. 151wo consequences arise; first, victims may find some solace in the fact that by bearing witness the morally wrongful nature of what happened to them has been subsequently acknowledged for future reference, 152 and second, those presiding over the trial can engineer a moral chasm between themselves and those on trial. 153t Nuremburg, this moral chasm helped to reassert the legitimacy of international law, 154 while at the same time also invisibilizing the harms caused by the victorious Allies now sitting in judgement of the vanquished Germans.Legal expressivism thus becomes central to 'victors' justice'; it defines the acts of the vanquished as morally wrong, it asserts the moral righteousness of the laws being used to punish them, and it exonerates the victors from moral wrongness by limiting blame and responsibility to those on trial.This allows 'official' accounts of the past to 'ungrey' the complex reality of conflict by entrenching 'black and white' understandings that impose moral wrongness on the vanquished and bless all others with moral righteousness.Perhaps the most instructive example of a criminal trial being used to 'ungrey' the complexities of war crimes is that of Adolf Eichmann.Lawrence Douglas argues that it was premised on eradicating what Primo Levi called the 'grey zones' of varying levels and forms of victim complicity in Nazi crimes committed within the concentration camps.This was achieved by cultivating a 'heroic memory' that framed Jewish victims as resisters rather than as lambs led passively to the slaughter, and by attributing blame to Eichmann and the Nazis rather than to any of their victims. 155his 'heroic memory' not only reinforced the moral wrongness of Eichmann and the moral righteousness of those who sat in judgement of him, but it also fed into the 'presentist' agenda of the then burgeoning state of Israel.At the same time, however, Jewish survivors of Nazism resident outside of Israel, such as Levi and Hannah Arendt, continued to paint a more complex picture through their widely acclaimed writings. 156

Site of moral contest
Criminal trials may indeed be focal points for shaping collective memory, 157 but they can also become sites of contest that seek to subvert, rather than sustain, certain versions of the past.They possess a paradoxical ability to repress subaltern narratives but to also resist dominant discourses. 158Rather than being a vehicle for setting the historical record straight, they can become a forum in which competing interpretations of the past can be articulated. 159As law involves stories and performances, in addition to facts, rules, and procedures, 160 criminal trials possess a dramaturgical dimension. 161This sees 'sponsored storytellers' performing during the trial by relaying their narratives to the court. 162For law to successfully make 'official' memory, however, the narratives of these 'sponsored storytellers' have to chime with the preferred version of the past.This is not guaranteed because these actors can, deliberately or otherwise, depart from the established script.Some storytellers might use the trial to make particular political points contrary to the preferred account of the past.For example, defence attorney and former Algerian activist Jacques Vergés used the trial of Klaus Barbie to turn the lens of scrutiny away from crimes committed in France during World War II and towards those committed by France in its colonies. 163In doing so, he disrupted the logic of legal expressivism through blurring the lines between the actions of those being judged and of those sitting in judgement.
A more obvious challenge to legal expressivism occurs where defendants use their trials to denounce the court as 'victors' justice'.As the performance of Slobodan Milosevic at the ICTY showed, attempts to 'fix' a particular interpretation of the past can actually be subverted when those on trial challenge their accusers' right to judge. 164Milosevic portrayed himself as a victim of the international community and its legal processes, rather than as a perpetrator of war crimes, which cut against the apparent expressivist function of condemning the highest-ranking war crimes perpetrators. 165Other defendants at the ICTY disrupted proceedings to decry the legitimacy of the court when being sentenced. 166Trials thus provide a platform for sounding 'discordant notes' that challenge the victors' discourse. 167While this assault on legal expressivism takes place in the courtroom, its ramifications extend beyond those confines to influence how certain constituencies remember the events at the heart of the trial.Rather than being collectively remembered as a triumph of 'justice' and the rule of law, the ICTY is instead remembered within certain constituencies as an injustice premised on victors' justice'. 168The 'official' memory created through law therefore faces a challenge from a resistant 'vernacular' memory on the ground in impacted societies. 169Thus, even if law can create an 'official' memory of past violence, it might not be able to make this correlate with what individuals with lived experience remember. 170In non-Western sites, there might even be indifference among victims, who would prefer to have their everyday material needs addressed instead of rule of law interventions driven from afar. 171

5.3
From legal expressivism to legal 'protectionism' Faced with resistant 'vernacular' memories, law can seek to protect 'official' memory from challenge.Law's core function thus moves from being one of expressivism to become one of 'protectionism'.As such, memory laws will either criminalize denials of the past and/or outlaw certain statements said to justify the past. 172Even if these provisions are given a victim-centric veneer, 173 they can nonetheless close down the discursive space for a more nuanced discussion about blame, responsibility, and wrongdoing.This is despite the fact that ongoing debate about certain aspects of the past is natural in transitioning societies, as has been reflected in the European Court of Human Rights (ECtHR) jurisprudence that has framed freedom of expression and political opinion in a way that allows taken-for-granted official versions of the past to be questioned. 174The one notable exception to this is Holocaust denial, 175 which remains prohibited to prevent the spread of pernicious ideology stemming from distorted representations of the past.An unfortunate consequence of Holocaust denial laws is that while they prevent (or at least try to) racially and/or ideologically motivated denial of crimes against humanity perpetrated against Jewish victims, at the same time they further elide the war crimes committed by the Allies through magnifying Nazi atrocities. 176he legal protection afforded to this 'victors' justice' can be seen in the Russian Criminal subsequently of reinforcing this through criminalizing any attempt to retrospectively deviate from that decision.Article 354.1 on the Rehabilitation of Nazism amended the Russian Penal Code to criminalize 'dissemination of knowingly false information on the activities of the USSR during the Second World War'. 177This, again, reinforces the moral chasm between the Soviets and the Nazis established at Nuremburg -something that has become of increasing importance given that memory laws in formerly Soviet occupied states are now equating Soviet occupation under Stalin with previous Nazi occupations. 178At the time, this moral chasm helpfully overlooked both the harms caused by the Allies and also the internal divisions among the victors, 179 yet today it serves a different 'presentist' agenda.Memory laws that purport to prohibit the justification of past harms can also be (mis)used to reduce the scope for discussion about a difficult past that is not actually being denied but is being reinterpreted in a more nuanced way. 180Though introduced under the guise of bringing society together after conflict, these laws can become a means of legitimizing a particular socio-political reality on which the new post-conflict state is reliant. 181Rwanda is an instructive example.There, the gacaca courts were framed as a distinctly local TJ mechanism that would deliver post-genocide truth and reconciliation, yet even they became another forum for reinforcing 'victors' justice'.The Rwandan government controlled the process so that victims, perpetrators, and society could only narrate the past in officially approved typecast roles, while official gacaca policy prevented the prosecution of former Rwandan Patriotic Army personnel for revenge killings. 182This was later reinforced through offences such as 'divisionism' and 'trivialization' that have made it impossible to have a more nuanced discussion about responsibility for genocide-related violence that would acknowledge Hutu victimhood and Tutsi responsibility for revenge violence; raising the issue and referring to these ethnic labels are now illegal. 183Moreover, the 2013 amendments to the 2008 law on genocide ideology created offences of 'supporting a double genocide theory', 'deliberately misconstruing the facts about genocide for the purpose of misleading the public', and 'stating or explaining that genocide against the Tutsi was not planned'.The problem here, as Pietro Sullo argues, is not simply one of how memory laws are used but of the poorly defined offences that they create. 184aw may protect 'official' memory, it can also 'correct' it if current socio-political needs necessitate that.Instead of reinforcing the moral judgement that it originally made, then, law revises that moral judgement.Spain is a notable example of corrective memory laws, with the country having to belatedly address the problematic legacy of Francoism through 'post-transitional justice'.The Francoist state used military tribunals, compensation schemes, and laws on memorialization to create an 'official' memory that celebrated and rewarded the Nationalist 'victors' of the Civil War and denounced the vanquished Republicans.While some of these difficulties were addressed following the death of Franco, and further upon Spain's transition out of Francoism, it was not until the passing of the Ley de la Memoria Historica (LMH) that a concerted attempt to legally correct the 'official' memory of Francoism took root.This took place within a climate where the legacy of Francoism and the meaning of Nationalistic symbols became contested against a backdrop of growing global concern for human rights and TJ, 185 eventually seeing places such as the Valley of the Fallen undergoing resignification from sites of Nationalistic triumph to sites of national conscience following the exhumation of Franco's remains in 2019.
Article 2 of the LMH, for instance, condemns all violence committed for political or ideological reasons during the Civil War and Franco's regime. 186This stands in clear contrast to the public celebration of Nationalist violence during Francoism.Legal correctionalism does not stop here.While the provision might not expressly forbid any particular interpretation of the past as other memory laws do, it does engage in legal correctionalism in a number of ways, such as by annulling the judicial decisions of the Francoist Courts (Articles 2 and 3), regulating financial support to certain groups and victims, and removing Francoist symbols from, and forbidding political acts in, the Valley of the Fallen (Articles 15-17). 187In doing so, the LMH has 'recoded' the 'official' past of Francoist Spain in line with human rights and TJ norms that stand in contrast to the norms that previously underpinned 'official' memory. 188The 'recoding' of Francoism has not been absolute, however, as evidenced by far-right protests against the exhumation of Franco's remains 189 and the increasing electoral success of the Vox party, who have promised to build a 'patriotic alternative' in Spain. 190

CONCLUSION
the (non-)prosecution of certain actors, or the official public (non-)commemoration of certain victims, the invariable outcome is an approved interpretation of the past that has its roots in TJ mechanisms and processes.It is through these processes and mechanisms that law either grants harms, victims, and perpetrators the requisite visibility to be seen or provides a cloak of invisibility for them to remain unseen; that law defines certain actors as either blameworthy or blameless and certain timeframes as either problematic or settled; and that law dispenses its expressivist duties of ordaining certain actors as morally righteous and condemning others as morally corrupt.'Official' memory, however, is not impervious to resistant 'vernacular' (counter-)memories.Whether it is through the discordant voices of obstreperous defendants in the court room, through granting access to the 'permanent space', through legal challenges to amnesty provisions, or through reinvigorating resistant memory activism, law can be turned against 'presentist' agendas.This has forced 'official' memory onto a protectionist footing of legally closing down the discursive space for public discussion of contested pasts.Far from achieving this aim, however, attempts to impose an 'official' memory have often sparked counter-memory activism 'from below'.On the one hand, this has seen marginalized constituencies excluded from 'official' memory mobilizing through memory activism to have their own experiences acknowledged; 191 on the other hand, it has provided a platform for those who yearn for a return to what Pablo de Greiff called 'the glories of yesteryear' to oppose new interpretations of the past. 192ooking forward, then, the key sites of contest within law-memory interplay identified in this article will remain relevant as the contours of TJ change.Further development of the 'right to truth' in international law is conducive to an enduring tussle between deformed legalism, which seeks to limit, if not completely prevent, legalistic fact finding, and transcendent legalism, which seeks to optimize it.NI could yet define this battle should the UK government proceed with their intention to legislate against future prosecutions for, and long-awaited inquests into, conflictrelated deaths. 193Likewise, the growing digitization and use of social media in grassroots memory activism pose an unprecedented challenge to proscriptive remembering.This has particular relevance where resistant grassroots memory activism, such as the Tamil campaign demanding accountability for Sri Lankan human rights violations, 194 is primarily driven by diasporic communities beyond the reach of the state.This is an actuality that those who devised, and subsequently relied on, old memory-law-style offences of denialism and divisionism could never have envisioned.Even if states pivot towards legislation on online hate speech as a corrective to this, it remains to be seen whether or not such a move would counter external challenges to 'official' memory from outside their jurisdiction.
Growing demands to decolonize the past mean that an increasing number of polities will have to choose between legal correctionalism or legal protectionism.A cursory glance at the post-Brexit UK suggests that there remains little appetite for a more critically reflective approach to the colonial past there.Despite a growing number of post-colonial critiques, 195 political discourse in the post-Brexit UK has been suffused with an imperial nostalgia of the kind seen in Trumpian America. 196Rather than follow the Spanish example of correcting problematic 'official' memories, the pendulum appears to have swung towards legal protectionism.Far from engaging constructively with calls to remove statues of imperial figures, the UK government instead responded with plans to increase the punishment for defacing or damaging such statues. 197In making recourse to the 'big stick' of criminal sanction, 198 the UK government have demonstrated how attempts to insulate the 'official' memory of a contested past are not necessarily confined to societies recently emerged from collective violence.If anything, as TJ discourse and practice is extended in scope to address colonialism and its consequences, other settled polities will experience the contest between corrective and protective approaches to their colonial past.While this may somewhat blur the distinction between what is or is not a post-collective violence and/or TJ society, it nonetheless brings into sharp focus the invariable attraction of (mis)using law to (mis)shape the memory of a divisive past to further present interests.

A C K N O W L E D G E M E N T S
The author wishes to thank Alice Panepinto (QUB) for her feedback on an earlier draft of this article.