Paolo Caroli. International Journal of Transitional Justice. Volume 12, Issue 3. November 2018.
Introduction
In 2017, the British parliament adopted the so-called Alan Turing Law, effectively an amnesty law for those convicted under the offence of ‘buggery,’ which punished homosexual intercourse until 1967. In the same year, the German parliament adopted a law that provides for the rehabilitation of homosexuals convicted in the Federal Republic of Germany (Bundesrepublik Deutschland, or BRD) after 8 May 1945 in paragraph 175 of the German Criminal Code (StGB), which was abolished in 1994.
This article compares the two laws and the respective social and legal contexts in which each was adopted, highlighting their peculiarities and anomalies with respect to other clemency measures. After a brief description, the article categorizes the two legal interventions by discussing two working hypotheses.
The first hypothesis considers these 2017 laws as mechanisms of—as it is defined—’transitional justice,’ which would qualify them as reparatory measures within a wider range of instruments geared towards the transition to a more democratic and tolerant society.
The second hypothesis departs from a different perspective. It associates both laws with various private ventures or social phenomena, very different in content, motivations and impact from reparatory measures. The working hypothesis is that behind all these different initiatives, a common implicit attitude towards the past may be perceived, that is, a desire to amend the past and its traces in the light of contemporary values. Such an attitude seems connected with so-called ‘memory activism,’ a growing phenomenon aimed at amending the collective memory and using it to affirm certain values of the present, in view of the future. In order to better understand such an evolution of historical memory, the article proposes a parallel with the uses and abuses of historical memory in the legislative measures of the 2000s, particularly in the context of the Holocaust.
Finally, some sceptical thoughts about the future are presented. They do not directly refer to the two 2017 laws, but to the possibility (not yet confirmed in practice) that these may constitute the beginning of a new legislative trend aimed at removing the effects of criminal trials that took place decades or centuries ago. These thoughts highlight the risks of fragmenting memory and of using the past as one would a sacralized moral book.
Before venturing into the analysis, a caveat is in order. This article in no way intends to discuss the content or merit of such legislative interventions and the motivations that inspired them. Rather, it merely aims to analyze them systematically. When criticism or perplexity is expressed, it refers only to the means chosen, that is, the law or the trial.
‘Alan Turing Law’
The so-called Turing Law is effectively an amnesty law (very rare in common law) for the benefit of those convicted under the offence of ‘buggery.’ This punished anal penetration and bestiality after the passage of the Buggery Act, issued in 1533 under the reign of Henry VIII. In 1885, however, the so-called Labouchere Amendment extended the punishable acts to all forms of ‘gross indecency’ in order to include all sorts of homosexual intercourse, even if nonpenetrative. Homosexuality became legal in England and Wales in 1967, while the remaining parts of the UK and the Commonwealth followed between the 1980s and early 1990s.
The adoption of the 2017 law was preceded by a social and media mobilization, centred on the figure of Alan Turing, a brilliant scientist who decoded the Nazi ciphers during the Second World War and invented a prototype of the modern computer. After his conviction for ‘gross indecency’ in 1952, he lost his job and had to undergo compulsory oestrogen-based treatment designed to reduce libido, which rendered him impotent. Finding this intolerable, Turing took his life in 1954 by poisoning an apple which he then ate. He was granted a posthumous individual pardon by the queen in 2013. However, for reasons of fairness, many asked for a collective clemency measure. An initial proposal by the David Cameron government in 2012 provided only for the possibility, for those still alive, to file an application to have these offences disregarded during criminal record checks. The Labour Party’s proposal of an amnesty law, presented by Ed Miliband, was supported by both Cameron and Theresa May.
Collective clemency is a rare measure in common law, especially in the UK. This particular measure seems to be comparable to that which civil lawyers call ‘clemency for the purpose of justice’ (in the face of a changed social assessment on the criminal conduct, ex post). However, it is normally based on the fact that the variation of such a social assessment should not be permanent, but linked to a context that is exceptional and closed in time, determined by exceptional and unpredictable factors, unless the amnesty accompanies legislative reform in order to anticipate its effects retroactively. Clemency, as provided for in the Turing Law, does not apply to persons who are still serving a sentence that now appears unjust, solely on the basis of the increased social acceptability of the conduct for which the sentence was imposed.
Moreover, both the reference to Turing and the passage from Cameron’s to Miliband’s proposals clarify that the intent of the provision does not seem to refer (only) to the few convicted persons still alive. On the contrary, the aim seems rather to posthumously ‘absolve’ (in a broad sense) those—many more—who were convicted in the past. These interventions to remove criminal convictions for deceased people seem anomalous, since clemency, like criminal trials, usually concern the living. In terms of criminal trials, an exception is the Inquisition trials of the dead.
German Annulment of the Convictions
Section 175 of the StGB was introduced in 1871 in order to punish ‘fornication that goes against nature,’ which was interpreted as fornication between men or between humans and animals. However, in 1935, the Nazi regime turned it from a Vergehen (a minor criminal offence, punished less severely) into a Verbrechen (an offence of high seriousness), also extending the punishment to nonpenetrative acts. According to the jurisprudence, the crime could be perpetrated by conduct objectively considered offensive to the general sense of decency or conduct that made evident the corrupt intention to excite sexual desire in other men. This led to about 8,000 annual convictions, with the possibility of preventive detention by the Gestapo as well as of an additional ‘reeducation’ in the concentration camps. The numbers of the so-called ‘Homocaust’ are not unequivocally established; the estimated number of victims ranges from 10,000 to 600,000.
The German Democratic Republic amended the Nazi provision in 1950 by limiting it to cases of homosexual intercourse with minors, and then fully abolished it in 1968. Nonetheless, after World War Two the jurisprudence had already established the nonadmissibility of the proceeding when the conduct did not constitute a threat to socialist society. Thus, the provision became dormant. The BRD, too, amended the provision in 1969 by limiting it to cases of homosexual intercourse with minors, and then, in 1973, reverting to the original limitation only to penetrative sex. The offence was finally repealed in 1994.
Germany has undertaken a process, unparalleled in other countries, of elaborating its national–socialist past. While that process was certainly long, starting from the complex legacy of the Nuremberg trials, a turning point can be noticed when the first postwar generation started questioning their parents’ burden of responsibilities. This process is marked by moments of social, political and cultural confrontation, such as the Frankfurt Auschwitz trials (1963–1965); the so-called Warschauer Kniefall (Warsaw genuflection) by Willy Brandt in 1970; the airing of the television series Holocaust, directed by Marvin J. Chomsky, in 1979; the debate, in 1986, between Jürgen Habermas and Ernst Nolte; Chancellor Gerhard Schröder’s participation in the celebrations for the 60th anniversary of D-Day in 2004; and, finally, the inauguration of several memorials in Berlin, in particular the Denkmal für die ermordeten Juden Europas in memory of Jewish victims, designed by Peter Eisenman and inaugurated in 2005, after a 10-year debate.
Although such a lengthy and profound collective confrontation with past responsibilities remains unique, this process, with the exception of the most recent years, was also marked by ‘denial and disregard, most notably with respect to the so-called forgotten victims…deliberately excluded from reparation.’ In particular, Article 1( 1) of the Federal Compensation Law of 1953 (Bundesentschädigungsgesetz),
Clearly and conclusively defined who was to be considered a victim of Nazi persecution, namely someone who had been persecuted for ‘racial, religious, and political reasons or because of the victim’s world view.’
The German legislator reiterated the so-called formula of the 1943 Bermuda Conference (which referred to the persecution of national, ethnic and religious minorities) and included persecution for political reasons. It has been stated that this
Has remained the dominant frame in West German post-war reparations until now…Other lines of power and domination such as gender, sexual orientation, class, or notions of normality and fitness rarely formed the focus of transitional justice.
It is worth noting, for example, that denial of the Nazis’ forced sterilization or ‘euthanasia’ policies, which targeted disabled people, is not punishable under the provision of the German criminal code that criminalizes denialism.
The issue of the ‘forgotten victims’ began to emerge only in the 1990s, especially in relation to homosexual victims. An explanation for that may be found not only in the changed perception regarding homosexuality in society, but also in the fact that,
In the cases of ‘euthanasia’, coercive sterilization, and the persecution of people deemed as ‘asocial’, there was no such thing as a shared collective identity among the victims, at least not one that predated the persecution.
Therefore, afterwards, there was no identified group that could execute the claims for reparation. For homosexuals, the situation is different. The latter not only represented a community even before the persecutions, but they consolidated and organized their collective identity in the following decades, in particular in the phase of the LGBT (lesbian, gay, bisexual, transgender) post-Stonewall movements. In 2002, the German legislator amended the 1998 law of annulment of the unjust judgements of national socialism by extending it to encompass the convictions under Section 175 of the StGB in the Nazi era (from 1935 to 1945), and accompanying this reform with an official apology made by parliament for maintaining in force the Nazi norm even under the Republican regime. In 2008, an official monument for homosexual victims was inaugurated in Berlin. The monument refers to homosexuals in general, although the inclusion of lesbians was hotly debated. The monument was followed in 2012 by one dedicated to the Sinti and Roma communities, and then in 2014 by one commemorating the victims of Nazi euthanasia. Germany has recently begun a new judicial phase against those who worked in the extermination camps and are still alive, but who were never indicted because their respective roles were previously considered collateral and not directly linked to the extermination. The 2017 law’s rehabilitation for homosexuals, which also provides for compensation for those still alive, may be seen as completing the remedial measures for homosexuals.
Apologies and Amendations as a New Political Horizon of Transitional Justice
The laws passed in the UK and Germany in 2017 cannot be considered ordinary clemency measures. As noted, they are anomalous because they intervene on judgments rendered in trials that took place decades ago, and because the vast majority of the recipients of clemency are already dead. Therefore, it should be considered whether these measures can be included among those mechanisms that we label ‘transitional justice.’
Of course, the definition of ‘transitional justice’ is highly relevant. It is no longer considered an alternative to criminal prosecution for societies undergoing a postconflict or postdictatorial political transition. On the contrary, such a conception would be considered outdated. It would be more accurate to affirm that, in the 21st century, transitional justice is no longer an exceptional instrument, given that it provides a series of mechanisms addressing structural problems related to economics or the environment, becoming ‘an enduring feature of political liberalization.’ This greatly expands the notion of transitional justice, which has become much more nuanced, given that it includes
Anything that a society devises to deal with a legacy of conflict and/or widespread human rights violations, from changes in criminal codes to those in high school textbooks, from creation of memorials, museums and days of mourning, to police and court reform, to tackling the distributional inequities that underlie conflict.
This becomes clear above all in the new holistic approaches to transitional justice. They go beyond mechanisms of criminal prosecution, truth disclosure or reparation and include commemorative practices, educational reforms, reconciliation initiatives and more. Holistic models such as the ‘ecological model of social reconstruction’ broaden their spectrum of intervention, including education in democracy and economic development policies, as part of a general social and political process that includes both official top-down mechanisms and local and spontaneous initiatives aimed at interrelation.
Suddenly, transitional justice is not an ‘exotic’ phenomenon; it is not considered an entity in relation to, for example, distant African or South American countries. Transitional justice and its arsenal of mechanisms have turned into a field of practical and political intervention in everyday society. As has been noted, transitional justice has become a ‘political project.’ Could this project also include the two laws adopted in 2017 in Germany and the UK, respectively? If we look at the recent proliferation of public apologies for crimes very distant in time and other reparatory and commemorative measures, the answer must surely be in the positive. The two laws could be a part of what scholars have called the ‘politics of regret’ or the ‘age of apology,’ presented as a new horizon in transitional justice. Surely the two 2017 laws may be read through the lens of transitional justice, despite the fact that they do not directly refer to a transition from a dictatorial regime to a democracy (although the German provision is a legacy of national socialism). They have been adopted by two European democracies that have come to terms with their respective pasts. The laws provide victims with symbolic recognition. Heiko Maas, the German justice minister who proposed and supported the law, spoke of a ‘belated act of justice’ and added that ‘a Rechtsstaat [legal state] should also have the strength to correct its own mistakes.’
Nevertheless, the following pages demonstrate that another perspective is possible, by associating the two laws with the phenomenon of memory activism. The connection with memory activism does not automatically exclude the link with transitional justice. As the notion of transitional justice has become more nuanced, it is not uncommon for the political programme of transitional justice to meet the agenda of that social activism which aims at intervening in collective memory. The two phenomena are so closely interrelated that it may be difficult to distinguish them, as ‘transitional justice…is deeply involved with the ethics of memory.’ One may also disagree with the assumption that transitional justice and memory activism represent two different phenomena. In contrast, memory activism may be considered an evolution of transitional justice, after the ages of criminal prosecution/civil litigation and reconciliation.
An Alternative Perspective: Denial of History as Evolution of the Commemorative Obsession
Given the possibility of considering the two 2017 laws under examination as instruments of transitional justice, this section explores another perspective. It questions whether there is a possible connection between these laws and other social phenomena, mostly private initiatives and nonstate actions. The latter are very different from the two laws in content, motives, success and impact. Nonetheless, all seem to share a vision, probably implicit and apparently not expressly theorized, and appear to reveal a current social trend: the attempt to eliminate signs of the past when the past brings with it traces of behaviours deemed wrong on the basis of modern values. Examples are found in colonialism, sexism and homophobia. To cite only a few cases that have made headlines, consider the debate in the US over the Confederate monuments, some of which have been vandalized or removed. There are others, such as the petition to remove a 1938 painting by Balthus from the Metropolitan Museum in New York: it portrays a young girl that the painter’s gaze depicts as provocative, indicating the artist’s supposed inclination towards paedophilia. Another example is the debate around the 1951 poem by Eugen Gomringer painted on the wall of the Alice Salomon Hochschule in Berlin. It is considered an example of patriarchal art because it compares women to flowers and therefore presents the former as mere objects of male admiration. Furthermore, the decision to ‘erase’ Kevin Spacey from Ridley Scott’s new film is based on the newly emerging sensibility about sexual harassment in show business, and aims at amending a past (since the film was already finished when the issue became public) that is no longer deemed acceptable. A similar course of action took place in Italy, with reference to director Fausto Brizzi. Think also of the decision of the Teatro Maggio in Florence to amend the ending of the opera Carmen, because the death of the heroine does not seem acceptable in light of the emerging sensibility about so-called femicide.
These are of course very different phenomena, definitely not to be confused with the two laws under examination. The cases differ widely, appearing contradictory among themselves, and may be influenced by other factors. Nonetheless, they reveal, more or less implicitly, a common attitude—one that seems to extend even beyond presentism—as they not only judge the past in the context of the present, but also amend, delete and generally censor the past in light of the values of the present, in order to reaffirm them according to current public opinion. Practices of damnatio memoriae are not new. Traditionally, they were decided and directed by the state or at least by a higher authority such as the church. The new phenomenon seems to be more spontaneous, growing within society from the bottom and spreading in a way similar to that of fuzzy logic.
As explained, most of these initiatives are private. It could be asked whether the two 2017 laws are an example of the contamination of state action by the private and social levels. At this stage, this remains a mere hypothesis. The social evolution described is still in fieri; the future will tell whether other similar laws will be adopted. If such adoption were to happen, it would represent a new evolution of the ‘memory legislation’ that characterized in particular the European scenario at the turn of the millennium. Thus, if the hypothesis were confirmed in practice, the question would arise as to what we may read behind the very different phenomena described. It should be asked what the annulment of past convictions for homosexuals and the above-mentioned cases of damnatio memoriae have in common. Although each measure may have different means and be pursued with different motivations, all seem to ignore the necessary perspectives of history. In other words, they tend to minimize the historicization of historical events—their comprehension (let alone their justification) within the complexity of their historical context.
This criticism is not new. It brings us back to the early 2000s when there were, on the one hand, European policies related to the Holocaust and, on the other, an explosion of a phenomenon which scholars have called ‘malaise de la mémoire,’ ‘commemorative obsession,’ ‘memory boom,’ ‘industry of memory,’ ‘obsession with the cult of memory’ and ‘hyperthymesia.’ The phenomenon extended beyond Europe and has also involved a widespread diffusion of the use of the law in order to intervene in historical memory. This happened at the legislative level (from the laws establishing remembrance days to those criminalizing denialism), and also through criminal trials (i.e. the Argentinean juicios por la verdad and the Inter-American Court of Human Rights’ [IACtHR] affirmation of the ‘right to the truth’) and civil trials (such as through ‘Holocaust litigation’). These issues are far too complex to be comprehensively described here. Of course, it should not be forgotten that those claims for memory also involved civil society; they were moved by worthy motivation and not by mere political calculation. Nonetheless, the aim here is merely to highlight that this phase was characterized by a tendency towards a commemorative and victim-centric use of memory, which implies a detachment of memory from the complexity of history. A memory of this nature does not imply comprehension, discussion or a search for analogies with the present, but asks for empathy and commemoration. This led historians to point to bad memorial practices, using the expression ‘abuses of memory.’ Although the practices of memory and of history frequently overlap, in the early 2000s many historians strongly desired to distinguish the concept of memory from that of history. A notorious statement affirms:
Memory perpetuates the past in the present, while history fixes it in a closed temporal order, ordered and organized on the basis of rational procedures that are at the antipodes of the sensibility of the lived experience…memory is always conjugated in present tense; the present determines its modalities: the selection of the events that must be preserved, their interpretation, their ‘lessons’, and so on. It turns into a political challenge and takes the form of an ‘ethical imperative’;…in short, memory, both individual and collective, is always a vision of the past filtered through the present.
In Europe, such memorial development was also political in its foundations, as it was functional to the process of European integration. The Holocaust allowed us ‘to link the present to the past, tried to act as a warning for the future, aimed at legitimising the European institutions more than the national bodies.’ It reached its apogee in the ‘Holocaust Remembrance Day as a legitimizing symbol of the construction of a unified Europe.’ Thus, the Holocaust has become a form of storytelling of the European Union (at the time) in formation, a narrative of Europe ex negativo, a ‘negative founding myth.’ It was a social, political and cultural process, also determined by the end of the Cold War, and carried out through many stages. Among them it is sufficient to mention the Stockholm International Forum on the Holocaust in 2000 and its declaration; the celebrations for the 60th anniversary of the opening of the Auschwitz gates in 2005; the European Parliament’s proclamation in 2008 of 23 August as the European Day of Remembrance for Victims of Stalinism and Nazism; and, most importantly, Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. Further confirmations of this path are found in the declarations of the European bodies in the following years.
The Council Framework Decision, which encourages the criminalization of denialism, is particularly clear in terms of this tendency. I refer here to scholarship that justifies the criminalization of denialism on the basis of the necessary defence of those historical experiences that determine the shared values that constitute our societies from a historical and constitutional point of view, and which thus should not be attacked. More than a criminalization of dissent, a criminalization of denialism would be intended to strengthen the consensus on a truth concerning historical facts of great significance. It would criminalize
An attack on the ethical pact…—meant as—the Nazi genocide which significantly contributed to changing the essential values and foundations of numerous national constitutions and the international legal system as a whole. All these legal instruments manifest a social compact that arises from a shared experience resulting in a collective memory and a desire not to go down that road again.
This was the phase of the early 2000s. The new trend expressed by the German and English laws of 2017 seems to operate in the opposite direction: they do not select some elements of the past to place at the basis of the present ethical pact. Rather, they are intended to modify, or rather to ‘purify,’ the past on the basis of contemporary values, while at the same time reaffirming those values officially and symbolically for modern communities.
The Risks of Untouchable and Fragmented Memories
As noted, the practice has not yet confirmed the birth of a new legislative trend. Nonetheless, imagining the consequences of such a hypothesis may be useful, regardless of the driving motivations. Surely memory, like history, has its social functions and is able to generate good or bad practices. The new horizon of memory activism seems, however, to lie closer to the negative aspects. If ‘”wounded memory” become(s) political awareness’ and memory activism is a political challenge, then memory activism has very little to do with the past: it is more closely related to the political needs of the present. This is not worthless per se. What I question is the potential risk of using the law for these purposes. The risk is not only the fragmentation of memory, but also its estrangement from history. The risk is a fight for the legal recognition of one’s suffering, something similar to a final judgement on who is guilty and who innocent. History aims at discussing the past and analyzing it in a detached manner, in a wider context. The risk of the above-described approaches to the past is using it for the aims of the present, just as a sacralized moral book does, in order to learn who is good and who is evil.
Such degeneration would constitute an abuse of memory. Scepticism of this nature might be considered exaggerated, but some examples of recent practices provide evidence of the estrangement of memory from history and should therefore be regarded as red flags for possible abuses of memory. Reference could be made to the fact that different courts—in particular the IACtHR—have stressed the right to historical memory and to the truth, as well as an obligation to punish and a prohibition on pardoning the most severe wrongdoings. In these cases, the privatization of memory is deeply connected to the privatization of criminal law.
Another possible consequence is the production of a hierarchy of memories, based on the strength of a group of victims to impose the memories of their past suffering in present time. This leads us back to the issue of the ‘forgotten victims’ in Germany, such as ‘asocials’ or disabled victims of euthanasia. Unlike the memory of the suffering of Jews, the memory of their suffering is not considered strong or crucial enough to legitimize a criminal sanction for those who deny it.
In discussing selective and fragmented memories, one could also think of Italy, a country where the Holocaust is annually commemorated and its denial is now punished by criminal sanction. Nonetheless, Italy has never really dealt with its fascist past and national responsibilities for crimes committed by fascists in the country and abroad. This forgotten past includes the introduction of racial laws, the anti-Semitic public propaganda and a significant contribution to the ‘hunting’ of Jews in occupied Italy. A clear example can be found in the Italian law (No. 4557 of 2000) which introduces the Shoah (Holocaust) Remembrance Day but does not mention the word ‘fascism.’ Contrary to an original proposition, Shoah Remembrance Day was set on the day of the liberation of Auschwitz and not on the day of the deportation of the Jews from the Roman ghetto, the latter an event that would have implied a major recognition of Italian responsibilities.
Memory activism, no matter how good the intentions, can lead to fragmentations and memory abuses. In 2011, an Argentinian judge was asked officially to declare, on the basis of the victims’ right to the truth, the existence of the Armenian genocide and its qualification as such. The judge, on the sole basis of the evidence produced by the appellant, confirmed the genocide and condemned not only the Turkish state, but also the international powers that at the time remained silent, equating their silence with assent. The judge defined himself as a mere procedural vector, one who respectfully endorses the affirmations contained in the lawsuit. He also affirmed that the factual reconstruction of the Armenian genocide was already so commonly known that no evidence was needed in the trial. He claimed that the sole function of a judge is to validate the victims’ truth and to recognize it as official and irrevocable.
Conclusion
The fact that homosexuality is no longer a crime, and that governments distance themselves from the policies of the past by paying tribute to the victims, is certainly a commendable initiative. However, one wonders how to interpret the choice to achieve this simply by intervening retrospectively in criminal trials carried out on the basis of a criminal law legitimately in force at that time, in that place. If today these criminal provisions appear objectively to be unjust, to the society of those times such conduct must have appeared as deserving of both society’s contempt and of legal repercussions, rendering those convictions even more tragic by our contemporary standards.
The issue of the use of such pardons arises not with reference to the few convicted still alive, but to the many already deceased. Of course, if lawyers tend to be sceptical when criminal law and punishment are moved by historical memory, as in the case of the crime of denialism, in this case punishment is not only not extended, but reduced ex post. Nevertheless, the following question arises: Even if moved today by the best of intentions, which pathway does this operation open that may be followed tomorrow by negative intentions? What is the purpose of intervening today in the criminal law that existed yesterday and that was in fact applied, through chemical castrations, deportations, imprisonments and deaths, none of which can ever be erased?
The danger is to open the way for a new fragmentation of memory and for struggles between memory lobbies asking for amendments of the past. This would mark a new phase in the already existing struggles for the recognition of one’s personal wounds by judges or legislators. It may constitute the next step in a growing tendency to use the past as
A moral memory palace: a pedagogically serviceable Chamber of Historical Horrors…we encourage citizens and students to see the past—and its lessons—through the particular vector of their own suffering (or that of their ancestors). Today, the ‘common’ interpretation of the recent past is thus composed of the manifold fragments of separate pasts, each of them (Jewish, Polish, Serb, Armenian, German, Asian-American, Palestinian, Irish, homosexual…) marked by its own distinctive and assertive condition of victimhood. The resulting mosaic does not bind us to a shared past, it separates us from it.
Again, the reasons for the adoption of the analyzed laws are not questioned here. Perhaps, rather than denying ex post the crimes committed in the past, it would be appropriate to understand their causes and their effects, in order to find possible similarities in our societies, although with different modalities and different groups. Measures such as the German and English laws can certainly offer a pedagogical contribution, provided that it is not directed only towards a representation and commemoration of one’s suffering, but towards a secular and rational analysis, towards the development of critical thinking.
From this perspective, scholars and practitioners of transitional justice should maybe try to establish borders between transitional justice and memory activism, although the latter might be very appealing in terms of public opinion. We should all perhaps remember that the original aims of transitional justice were anything but divisive and that transitional justice has not developed in order to perpetuate fights, to support lobbies, to pursue recognition of an authoritative truth or to affirm a permanent public status of victim. On the contrary, transitional justice was meant to overcome divisions and sufferings, to allow reconciliation, democratic confrontation and, most importantly, critical thinking.