Shaping Plural Identities After Gross Human Rights Violations: The Role of Transitional Justice and Sites of Memory

I. Introduction: Fear, Pain and the Formation of Identities

Fear constitutes one of the principal traits of both human psychology and evolution, and one of the foundational pillars upon which theories of international relations are built. ¹ Fear – whether that of an individual being annihilated or violated, or that of a state being defeated or invaded – arises from the awareness of the precariousness of existence. ² The territory of a state, that is, its institutional body, and the dimension of the human body both form the boundary between the self and the other, as well as the limits of what may be subject to violence.

This article contributes to the field of legal memory studies by exploring how international law – through transitional justice and the establishment of sites of memory – can help ensure that identity formation in contexts of extreme violence is not confined to paralysing fear and pain. Without deliberate efforts to engage with memory, these emotions often remain tied to resentment and the continuation of cycles of violence in international relations.

Taking an interdisciplinary approach that brings together international law, historiography and international relations, the article investigates whether international law can support memory work aimed at fostering more inclusive and plural identities.

According to Tang, ³ fear and the awareness of one’s own vulnerability present individuals and states with two alternatives: (i) to presume that the other harbours the worst of intentions, thus eliminating uncertainty regarding their behaviour; or (ii) to presume that the other does not always act with hostile intent, and that measures should be taken to reduce uncertainty about their conduct, thereby lessening fear itself.

The correlation between fear and existence, for both states and individuals, is therefore rooted in the other. Existence is affirmed through the identity of the state as a nation and of the human being as an individual, and is defined in relation to a third party. Since the 1990s, there has been a shift in perspective in international relations scholarship, which has come to consider national identities and the identity/alterity nexus as key parameters. ⁴ Amartya Sen warns: ‘With suitable instigation, a fostered sense of identity with one group of people can be made into a powerful weapon to brutalize another’. ⁵ Given that the core of international law lies in the peaceful resolution of disputes, it is essential to understand how to prevent fear from exacerbating conflicts and how to foster a process that transforms difference into alterity, through the formation of plural identities.

The construction of identity through the gaze of the other is analysed by Amartya Sen, ⁶ who draws on Sartre’s studies of the Jewish people, from which he highlights the statement: ‘The Jew is a man whom other men consider a Jew (. . .) it is antisemitism that defines the Jew’. ⁷ In a similar vein, Fanon ⁸ asserts, ‘I am given no chance. I am overdetermined from without. I am the slave not of the “idea” that others have of me but of my own appearance’. The understanding of identity as being shaped by the other is extended from the realm of the individual body to that of states and the international sphere, as argued by Lange-Eyre and Kanyana:

In this hall of mirrors that is the dynamic of identity, as we have previously noted, we are also shaped through the gaze of the other. What image does the Westerner reflect in the eyes of the Black individual? If the history of slavery and colonisation is marked by resistance and uprisings – unfortunately, many still unknown – the identity assigned to Black peoples by former slaveholding powers, that of second-class human beings, is at times internalised by those very communities. An identity they see confirmed and reinforced by painful lived experience. ⁹

The analysis begins by reflecting on how gross human rights violations and global power imbalances give rise to conditions and emotions – such as fear, pain, resentment, humiliation and mourning – that can restrict freedoms and hinder the development of diverse identities.

It then considers the role of international tribunals and transitional justice in post-conflict settings, examining how they help preserve the memory of the circumstances in which crimes occurred and promote the recognition of victims. The discussion also looks at how the institutionalisation of memory sites, as envisioned in international law, complements legal mechanisms by affirming the right to memory and supporting broader memorialisation processes. Finally, the article uses the example of Valongo Wharf’s inscription on the UNESCO World Heritage List to illustrate how sites of memory associated with human rights violations can contribute to the (re)affirmation of identities that such violations sought to erase.

II. The Construction of Identities and the Promotion of Plural Identities

If the definition of both individual and state resides in how they are perceived by the other, then a choice presents itself: the individual or the state may either accept the identity attributed to them by the other or they may reject it, arguing that the other’s perspective is mistaken. In either case, the discourse of the individual or the state regarding who they are lies outside themselves, often beyond their control. The capacity to accept or contest this perception is determined by structures of power and by the circumstances under which individuals and states relate to, or come into conflict with, others.

Amartya Sen addresses the scope available in defining identities – that is, the capacity to accept or contest them ¹⁰ – and disputes the view that, being the product of an external perspective, individuals or groups have no influence over the shaping of their own identity. He thereby refutes the notion that identity is merely a given, immune to critique or reconfiguration. ¹¹ Similarly, Lange-Eyre and Kanyana ¹² argue that identity is not an immediate or immutable fact, but rather a dynamic process that blends the individual and the collective, the past and the present.

In this sense, identities cannot be fully grasped without the lens of memory and should be understood in their plural form. Individuals or groups (including religions, states or ideologies, for example) should not be defined solely by a single characteristic attributed to them from the outside. There must be scope for choice in the formation of a plural identity, even if that choice is not entirely free from constraints. Sen ¹³ highlights the crucial importance of the freedom individuals have to choose their loyalties and priorities among the various groups to which they may belong as a peculiarly important liberty which we have reason to recognise, value and defend.

A sense of identity may, on the one hand, constitute a powerful force arising from self-confidence and a feeling of belonging to a group capable of confronting fear; on the other hand, when that sense of belonging is selective and exclusionary, identity can incite estrangement and violence driven by difference, as seen in the persistent identity-based conflicts recurring across the globe. ¹⁴ The sense of belonging, as a crucial defence against fear, is intrinsic to the notion of identity and forms the bond that links the individual’s body to the social fabric of the group in which they are embedded. ¹⁵ These reflections on the importance of freedom in shaping identity prompt the question of what constraints hinder the formation of plural identities.

Åhäll ¹⁶ situates the constraints on identity formation in what lies beneath the construction of what is perceived and consumed as common sense. Understanding how these unconscious structures or myths around the notion of common sense are forged is key to exposing the hierarchical and power-based systems that uphold and promote these constraints. Such restrictions may manifest to varying degrees, depending on economic, social or political asymmetries, or on the extent to which certain notions of common sense or prejudice have become entrenched within a given society.

If there is a clear restriction on the possibility of choosing one’s identity, it is found in the paralysing fear or pain resulting from violence, which, in turn, is typically exercised in contexts of power asymmetry. ¹⁷ Pain is ambivalent in relation to identity. On the one hand, it compels the body to perceive itself and turn inward; on the other, in fostering self-awareness, it reinforces or materialises the boundary between the body of the individual and that of the aggressor. ¹⁸

At the same time, pain and the violence from which it stems reinforce fear by grounding it, and prevent the transformation of difference into alterity. Without such a transformation, identities often become fixed within the destructive binary of conflict and difference, rather than the constructive relationship of dialogue and alterity. According to Amartya Sen, ¹⁹ ‘Violence is fomented by the imposition of singular and belligerent identities on gullible people, championed by proficient artisans of terror’. As an imposition, violence restricts and curtails the possibility of choosing plural identities.

Like fear, the pain caused by violent imposition is regarded by some scholars of international relations as a possible foundation for politics. In this context, pain may become a constituent element in the identity of marginalised individuals who, invested in their wounds, come to incorporate them as part of their identity. ²⁰ This notion – of pain as a formative component of identity – is, however, critiqued as problematic, given the risk that such pain may be fetishised. In other words, the wound, carried as a symbol of identity by victims of violence, may become detached from the historical context and power dynamics that generated the violence and inflicted the pain. Without a clear understanding of the historical processes through which such identities were imposed, the symbol may be emptied of meaning and the context erased, enabling the commodification of victimhood. ²¹

The use of pain as a foundation for international relations could lead to resentment and humiliation. Bertrand Badie draws on Nietzsche to distinguish between the two. Resentment is the posture of those driven to self-deprecation and who feel, or are, prohibited from responding to such feelings. The discourse of resentment is rooted in the powerlessness of those subjected to violence, who are exposed or ridiculed for their identities. Resentment is paralysing. While resentment expresses itself as passivity and inertia, humiliation, according to Badie, can manifest in a wide range of responses, among which he highlights the decolonisation movements and the Arab Spring. ²² For Badie, in international relations, humiliation is defined as an authoritarian imposition of a status that is inferior to the one desired, in a manner that violates established norms. This means that humiliation is not seen as a psychological trait, but rather as an effect of the international system on certain entities it comprises. It thus appears as a form of dehumanisation within a system that has been constructed as human. ²³

III. Preventing the Construction of Identities Through Violence in International Law: International Crimes and the Role of Courts

If one of the aims of individuals and states is to eliminate uncertainty in the face of fear and to prevent violence upon their bodies and territories, respectively, how might one avoid the risk that, once identities have been forged through pain, the wound of victims of grave human rights violations becomes detached from its historical process, turns into a fetish or resentment, and fuels revenge and renewed conflict?

The answer to this question unfolds through one premise and two mechanisms within international law. The premise lies in the fact that among individuals and states there exists the possibility – and, consequently, the fear – of total annihilation, as evidenced by the nuclear threat. As Bobbio ²⁴ notes, the atomic war constitutes legibus soluta. Although there are initiatives aimed at regulating or curbing this power, such as the Treaty on the Prohibition of Nuclear Weapons, no disposition is found among those who possess such power to eliminate it entirely. Thus, the threat of total annihilation continues to loom over both individuals and states in the international realm. Confronted with the impossibility of eliminating the fear of annihilation, other obstacles or limitations to total violence have been developed in the form of normative precepts of international law.

In other words, in view of the fear of annihilation, the viable alternative discerned at the international level was to establish agreements defining the maximum permissible extent of curtailment of liberty in determining identities. One of the barriers to such curtailment lies in the prevention or punishment of violence at its most abhorrent levels. In cases where it is not possible to prevent such violence, there exists a duty to ensure that the circumstances and power relations that enabled it are not erased – in other words, there is an obligation to prevent both fetishisation and forgetting. The first of these mechanisms may be termed international crimes; the second, the right to memory or memorialisation processes. These are the two mechanisms established by international law that may contribute to preventing the formation of identities through violence.

International crimes – conduct typified as war crimes, crimes against humanity, genocide, slavery, apartheid and enforced disappearances – were defined through a shift in the logic of international law. This shift moved from a conception of international law as the law of sovereigns (the Lotus Case approach) to, from WWII onwards, a framework that allows for the promotion and protection of human rights (the Nuremberg principles). ²⁵ As Perrone-Moisés ²⁶ observes, international law does not present a general definition of international crimes. The International Law Commission of the United Nations did not offer a broad definition, but identified specific characteristics that are common to conducts considered international crimes: the gravity of the behaviour, which affects the foundations of human society and may be inferred from the nature of the act (cruelty, monstrosity, barbarity, etc.); the scale of its effects (massive consequences); and, in certain cases, the intent of the perpetrator (genocide). ²⁷ An international crime or gross human rights violation is thus understood as a violation of rights considered an atrocity, due to its physical or spiritual impact and the degree of severity involved with respect to the human person. ²⁸

Such crimes are committed against individual bodies, yet the magnitude of the violence they entail, and the pain resulting therefrom, are so profound as to exceed the tolerable limit. As such, they invoke a common interest on the part of the international order in their prevention and punishment. By proscribing conduct that violates international order, typifying war crimes, crimes against humanity and genocide, the so-called foundational prohibitions are established. ²⁹ These delineate the boundary of unacceptable conduct and define the limits of violence, coercion and curtailment of human rights and the freedom to determine one’s identity. Through the establishment of such foundational prohibitions, violence is confronted not only by institutional and individual bodies but also by the constraints imposed through international crimes, which seek to limit the violence of grave human rights violations.

Among international human rights crimes, what characterises crimes against humanity is the assault on human plurality and diversity. ³⁰ According to the Rome Statute of the International Criminal Court (ICC), the definition of crimes against humanity is as follows:

Article 7 – Crimes against humanity – 1. For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The elimination of the capacity to choose who one is through violence positions the international community as a whole as a victim of such crimes, which are perpetrated upon the bodies of particular groups or individuals whose basic identity as human beings has been denied by others. These crimes involve the manipulation of the body in its infinite possibilities of suffering, thereby annihilating the human condition in its spontaneity and reducing the person to a merely reactive organism. ³¹ While action is the expression of full autonomy, in the face of such violence, one possible response is paralysis, indicating the deprivation of human potential in the face of fear and pain; another is reaction in the context of humiliation. In her analysis of the hunger strikes of Guantánamo prisoners, Wilcox ³² describes how, even in situations of profound indignity, human beings seek means to maintain agency over their suffering – that is, not merely as a reactive organism. In that context, hunger strikes constitute an example of a reaction, a response indicating that, beyond the victimisation to which they were subjected, those individuals possess a material body that may exist not solely as a function of what is inflicted upon it by the other. It is a final effort to prevent resentment and to steer action from humiliation.

According to Garapon, ³³ crimes against humanity are not solely political crimes but are fundamentally crimes against politics, for they violate the principle of human coexistence and obliterate the possibility of alterity, which is key for the formation of plural identities. In this regard, such crimes rupture the boundaries of individual bodies and state territories; the social fabric and the bonds created through identity and belonging are torn apart. This makes it evident that the mechanisms devised to contain fear and avert the worst in the other have failed. Consequently, the underlying or unconscious structures that made such violence possible are laid bare, prompting reflection on the social and power configurations that generated the conditions for such crimes.

This raises the question of how to ensure that these structures are not once again obfuscated, and how to judge these crimes, since by their very nature, they are neither punishable nor forgivable, as Arendt explains:

men are unable to forgive what they cannot punish and that they are unable to punish what has turned out to be unforgivable. This is the true hallmark of those offenses which, since Kant, we call ‘radical evil’ and about whose nature so little is known (. . .) All we know is that we can neither punish nor forgive such offenses and that they therefore transcend the realm of human affairs and the potentialities of human power, both of which they radically destroy wherever they make their appearance. ³⁴

Historically, transitional justice has been carried out in distinct ways: through international tribunals, whether ad hoc or permanent; through universal jurisdiction; through truth and reconciliation commissions or by means of civil reparations to victims. ³⁵ According to the first Prosecutor of the ICC, Moreno Ocampo, ³⁶ the trials of international crimes also serve a crucial pedagogical function, by clarifying the violence committed, naming it and assigning responsibility to perpetrators.

Trials – as with other forms of social interaction, such as political discourse or protest – produce not only knowledge about the events and crimes involved but also facilitate the expression of denunciation and the circulation of emotions and affects, which acquire symbolical and political meaning and have the potential to overcome fear and pain. It may thus be inferred that, in the face of the grave atrocities inherent in international human rights crimes that rupture the social fabric and obstruct the formation of plural identities through violence, trials may serve as mechanisms against the forgetting and fetishisation of victims’ pain – that is, they may contribute to a work of memory. ³⁷

By assigning responsibility, trials bring to light the conditions and historical process in which the violence was committed, while also identifying the agents of the deplorable conduct. In this sense, to judge crimes against humanity is to demonstrate that, although the underlying structure provided the conditions for violence, it was within the group of others that certain individuals chose to perpetrate it directly, inflicting pain. The trial thus restricts historical fatalism and reveals the deliberate character of violent acts. According to Arendt, there is no such thing as collective guilt or innocence, for where all are guilty, no one is. ³⁸ Yet, if responsibility can only be individual, what role can transitional justice play in ensuring the historical, social and power processes that shaped a system in which the aggressor felt compelled or authorised to cause harm in the name of their group are not erased? The philosopher explains ³⁹ : ‘while courtroom procedure or the question of personal responsibility under dictatorship cannot permit the shifting of responsibility from man to system, the system cannot be left out of account altogether. It appears in the form of circumstances’. In this sense, by establishing trials where international crimes are examined, international law can help prevent the fetishisation of pain and ensure that the circumstances and context of these violations are not erased.

Akhavan contends that post-conflict trials also contribute to the formation of a culture of justice and lend moral recognition and credibility to the pain of victims, thereby making the impulse for revenge – and, consequently, renewed conflict – less tempting. ⁴⁰

Judge Antônio Augusto Cançado Trindade, in his separate opinion in the case of Belgium v. Senegal regarding international human rights crimes committed by former Chadian President Hissène Habré, affirmed that the pursuit of justice through such trials aids in the social rehabilitation of victims by recognising their human dignity. ⁴¹ By restoring this dignity, transitional justice can contribute to the formation of plural identities after gross human rights violations.

It may be concluded, therefore, that the trials of crimes against humanity play a critical role in preventing the erasure of the historical process and the circumstances that enabled violence, fear and pain. In doing so, they act as mechanisms to forestall fetishisation and resentment, prevent forgetting and foster the formation of identities through alterity. Through these trials, international law contributes to memorialisation processes.

IV. The Institution of Sites of Memory

Although they play a significant role, transitional justice mechanisms such as trials of serious human rights violations have limitations that are inherent to the law. While these trials render definitive sentences, they are not designed to fully address the broader social and emotional dimensions of the harm caused. Therefore, the judicial function must be complemented by other mechanisms in order to facilitate the reconciliation of the individual and the society affected by the circumstances in which the violations occurred.

Furthermore, it is important to bear in mind that, in various power dynamics, the law is often sidelined through induced forgetting or amnesty pacts. In such cases, traumatic memory stubbornly persists, which may give rise to resentment, desires for vengeance or latent violence, hindering the (re)construction of the social fabric that was torn apart by serious human rights violations. Thus, other mechanisms of memorialisation are necessary, leading to a reflection on the institution of sites of memory.

In addition to the legal-normative mechanisms expressed in the criminalisation of conduct and judicial proceedings, there are other ways to promote alterity and to prevent the erasure of the underlying structures that shaped the circumstances under which the violence – causing pain and hindering the choice of identity or the formation of plural identities – was committed.

In a complementary manner to trials, the right to memory and memorialisation processes can also contribute to the formation of plural identities through alterity in the aftermath of gross human rights violations. As Reading and Sadowski affirm, the right to memory is still being developed in international law, articulated through a dispersed but interconnected set of legal provisions that arise from the UN and UNESCO. ⁴² As an evolving concept without an established definition or explicit provision in international conventions, the term memorialisation ⁴³ is now more frequently used at the multilateral level, in comparison to the right to memory. ⁴⁴

Significant means of avoiding both forgetting and the fetishisation of pain are the right to memory, memorialisation processes and the institution of sites of memory that expose the contexts in which international human rights crimes were perpetrated.

According to Taubira, we are heirs to tragedies and carry their memory within us, even if at times unconsciously. We also carry the assumptions those memories entail; that is, the potential for barbarity also lies within us – the capacity to go far, very far, in the destruction of the other. Given that the other is an expression of the self, we bear the ability to destroy ourselves and humanity, hence the fear of total annihilation. Since all of this resides in us, it becomes our duty to interrogate these tragedies and to understand the singularity of each one. ⁴⁵

The duty and the right to memory represent an opportunity to foster such understanding in resistance to oblivion. Forgetting constitutes a new form of repeating violence insofar as it permits the erasure of how barriers – whether bodily or territorial – were transgressed by others. ⁴⁶

However, both forgetting and memory are not fixed, nor do they lie solely in objective facts and their interpretation, as history does. According to Ricœur, memory is constructed rather than something that simply exists; in this sense, forgetting and memory alike are expressions of power, both subject to use and abuse. ⁴⁷ As Huyssen argues, the right to memory can be interpreted as the right to preserve a culture or tradition that maintains the group’s historical narrative as relevant to its contemporary way of life and thus to its identity. ⁴⁸

Memory and forgetting, as social constructs, arise through struggle. How are decisions made as to which events are remembered and honoured, and which pains are deemed forgettable? The construction of such answers reflects the configuration of social forces and power asymmetries. In this respect, the exercise of the right to memory and memorialisation processes must be safeguarded to counteract the power of erasure and to afford dignity to victims whose humanity was once denied when abhorrent violence was inflicted upon their bodies.

In this social struggle, just as the state is the centre of recognition, enforcement and suppression of rights, it also serves as the privileged space of memory. It is within its structures that the power resides to determine whether the memory of some can become the memory of all, by its public recognition, thus forming a crucial element in constructing group identity. ⁴⁹ This raises the question of which groups will have their memory acknowledged – in other words, which bodies, once desecrated, are deemed worthy of remembrance and of an identity formed through works of memory. Since memory is a construct, as Ricœur has argued, it is also a choice – one dependent on whether the underlying structure of common sense interprets violence against those bodies as a rupture with foundational prohibitions.

For Ahmed, individuals or groups with greater privilege will enjoy greater access to public resources and more opportunities to mobilise the recognition of their painful memories in public space. In the context of memory’s use and abuse, the state deploys memory as a tool to construct the official narrative ⁵⁰ and forge the identity of the nation. ⁵¹ Consequently, it instrumentalises aspects of its past to shape its foreign policy – that is, its self-definition through interaction or conflict with the other on the international stage.

Individual and collective memories nourish one another, such that neither strictly individual nor strictly collective memory exists; nor is there spontaneity, for collective memory only takes form and endures through organisation ⁵² – in other words, through power and the will to remember. ⁵³ As the centre of organised and legitimised power, the state can be seen both as one of the main perpetrators of human rights violations and as the primary institution to which individuals or groups appeal when seeking recognition of their plural identities or the exercise of their right to memory and authorisation for public memorialisation processes.

This raises the question of how groups whose identity has been forged in pain – that is, those denied any role in shaping their identities – might see their right to memory recognised and realised. For these individuals, whose dignity was extinguished through violence and international crimes, the potential for recognition by the other of their active existence (and not merely a reactive one) arises not through identity, but as an expression of pain itself.

The highest expression of pain is the act of mourning. Although mourning may seem passive in the face of the irreversible, it is a political act by virtue of its power, according to Butler: ‘Open grieving is bound up with outrage, and outrage in the face of injustice or indeed of unbearable loss has enormous political potential’. ⁵⁴

Mourning is powerful because it expresses a transcendence of fear, as Antigone declares: ‘For who lives, as I, in many woes, how can it be but death shall bring him gain? (. . .) But, if I had left my mother’s son unburied on his death, I should have given them pain. But as things are, pain I feel none’. ⁵⁵ Mourning occurs when the principal fear – the annihilation of the body, the loss of identity – has already been confirmed by violence. Mourning, therefore, constitutes the final expression, enacted by other bodies, of the body whose every other right has already been violated. When grief is expressed publicly, its symbolism can give rise to discourse, to denunciations of human rights violations or a resurgence of collective memory, ⁵⁶ with the potential to generate creative energy and action capable of unsettling the political order. ⁵⁷

Yet mourning, despite its potency, is also ephemeral and momentary. If mourning – as the ultimate expression of pain realised after the fear of annihilation has been confirmed – can catalyse discourse against human rights abuses and potentially serve as a vector for change, how might its fleeting symbolism be transformed into the recognition of the identity of those who have suffered? That is, how might mourning prevent the erasure and fetishisation of pain by anchoring identity in the continuity of historical memory? In addition to judicial mechanisms, another means is the recognition or establishment of sites of memory, as defined by Nora – a concept referring to the embodiment of memory, expressed through institutions and archival, cultural and museological practices. ⁵⁸

In the context of gross human rights violations that instilled extreme fear and pain in humanity, the establishment of sites of memory holds the potential to render the political message of mourning transmissible, as they provide a concrete and enduring cultural expression of grief.

V. Sites of Memory and International Law: Recent Developments

The notion of sites of memory formulated by Nora intersects with the concepts of cultural heritage and monuments, enshrined in international law especially under the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage and the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage.

The Latin origin of the word ‘monument’ means ‘that which recalls the memory of the dead’, which implies that through the creation of monuments, the living fulfil a debt to their ancestors by situating their tombs in the public territory of the state, thereby endowing it with political weight, granting it permanence and institutional recognition. ⁵⁹ A clear correlation exists between the concepts of sites of memory, mourning and monuments.

Memorials, museums and events dedicated to victims of international human rights crimes also serve as forms of reparation, for they acknowledge and preserve the symbol of pain and the historical process through which the violations occurred. In this sense, public memorialisation not only educates individuals about historical injustices, but also helps victims and their families cope with trauma, honours those who suffered and seeks to prevent the recurrence of such crimes, ⁶⁰ as well as offers recognition of the victims’ identities.

In 2005, with Resolution 60/147, the United Nations General Assembly adopted the ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’, recognising that reparations may include commemorative events and tributes to victims’ memory.

An example of a site of memory is the Valongo Wharf, in Rio de Janeiro, which was inscribed in 2017 on UNESCO’s World Heritage List, having been recognised for its outstanding universal value in the following terms:

Valongo Wharf is the most important physical evidence associated with the historic arrival of enslaved Africans on the American continent. It is a site of conscience, which illustrates strong and tangible associations to one of the most terrible crimes of humanity, the enslavement of hundreds of thousands of people creating the largest forced migration movement in history. As the very location the African stepped onto American soil and with it into their new lives as enslaved labour, the site evokes painful memories, which many African Brazilians can strongly relate to. Preserving these memories, the vicinity of Valongo Wharf has become an arena for various manifestations celebrating African heritage on an ongoing basis. ⁶¹

This characterisation of the Valongo Wharf as a site of memory recognised by UNESCO, in accordance with provisions of international law, highlights elements of the historical process that constituted the context in which violence against enslaved Africans was carried out over centuries. Though there remains a conspicuous absence of any identification of those responsible for the crimes, there is acknowledgement of the suffering and of how that historical memory continues to resonate in the mourning of the descendants of the victims in Brazilian society today. Through the symbolism evoked by that institutionalised site of memory, they can use an additional mechanism to construct and express their memory and cultural manifestations, remembering not only their pain but also celebrating their plurality and otherness through alterity. The institution of sites of memory, such as the Valongo Wharf, as provided for in international law, serves to prevent oblivion and symbolise mourning. In doing so, it transcends fear, facilitates the overcoming of its inherent paralysis and promotes identity through otherness.

The discussion surrounding the institution of sites of memory has recently attracted renewed international attention. Following five years of debate and negotiation, in 2023 the World Heritage Committee within UNESCO adopted Decision 18 EXT.COM 4, establishing specific procedures for the inscription of sites of memory – referred to officially as memory sites associated with recent conflicts – on the World Heritage List. The prestige and symbolism of this list bring visibility to the sites inscribed and to the values they express, not only for the state in which they are located but for humanity as a whole.

As of today, the World Heritage List includes more than 1,200 inscribed sites. Fewer than 1 percent of these represent cultural heritage that symbolically relates to gross human rights violations. Though the number is comparatively small, their relevance for international law is increasing, as recent negotiations and UNESCO’s decisions demonstrate.

The sites of memory inscribed on UNESCO’s World Heritage List bear witness to the memory of gross human rights violations such as the Holocaust (Auschwitz-Birkenau), apartheid (Robben Island), the use of nuclear weapons (Hiroshima Peace Memorial) and the enslavement of African people (Valongo Wharf and the Island of Gorée). These sites are distinct from traditional cultural sites on the list in that they do not aim to celebrate humanity’s artistic or cultural magnificence. On the contrary, they symbolise humanity’s capacity for destruction and serve as a call for vigilance against hatred, fear and pain.

VI. Conclusion

There must be some degree of freedom to make choices that enable the construction of plural identities based on alterity and that avoid the formation of identities grounded solely in violence and fear. A means of achieving this is by preserving and recognising the memory of the suffering endured by individuals and groups whose dignity was denied in the face of grave crimes.

It is evident that international law provides mechanisms – namely, transitional justice and the establishment of sites of memory – that may contribute to sustaining the creative potential of mourning and to preventing the formation of identities shaped by violence and fear. Through these mechanisms, recognised in international treaties and institutional decisions, it becomes possible to undertake a work of memory and to forestall the intensification of resentment that leads to conflict or the paralysis that fear inherently provokes.

It is important to note that, like forgetting and the right to memory, sites of memory are social constructs subject to recognition, and consequently to uses and abuses shaped by power relations and asymmetries. That is to say, while trials and the establishment of sites of memory are mechanisms provided for in international law, their implementation depends on the willingness of the international community to engage in the work of memory.

The integration of memory work into international legal frameworks signals a shift that emphasises a more human-centred approach to foreign affairs. This ongoing, though non-linear, process acknowledges not only the legal mechanisms that can address the aftermath of atrocities, but also how the symbolic recognition of inflicted violence can help transform difference into alterity, paving the way for the formation of plural identities. As individuals, states and the international system as a whole grapple with the legacies of past and present gross human rights violations, the institutionalisation of memory through transitional justice and cultural mechanisms such as sites of memory complement each other as tools to foster plural identities.