Mara R. Revkin & Olivia Wang
Working paper (2026)
Abstract
International law increasingly treats memorialization of past wrongs as obligatory. The UN Special Rapporteur has declared it the “fifth pillar” of transitional justice, and states are expected to organize collective memory of past atrocities and other severe injustices such as slavery and apartheid. This Article argues that the emerging “duty to remember” rests on weaker legal and empirical foundations than its proponents acknowledge. Legally, the Article distinguishes well-grounded state obligations to preserve and make accessible the historical record from far weaker claims that individuals must perform remembrance. We argue that Articles 18 and 19 of the ICCPR already contain the foundations of a qualified right to forget: a negative right against compelled participation in state-orchestrated memory practices. Empirically, the Article synthesizes cross-national evidence documenting authoritarian weaponization of memory laws, retraumatization, backlash, and the substitution of symbolic commemoration for accountability. Among the survey evidence it reviews is a two-round household study in South Sudan finding the public almost evenly divided on the merits of public remembrance versus silence. The Article then proposes a framework for balancing the duty to remember against the right to forget: conditioning the form, timing, intensity, and voluntariness of state-sponsored memory practices on contextual risk factors, and applying it to South Sudan, Poland, and Rwanda. We conclude with the normative implications of our findings, arguing that memory policy should not compel either forgetting the past or individual remembrance. The state has an obligation to preserve records of the past, but individuals must remain free to decide how (and whether) to engage with it.
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