Legal Witnessing and Collective Memory: The Discursive Residual at the Archives for the International Criminal Tribunal for Rwanda

International tribunals are often perceived by the transitional justice scholarship as an opportunity for individuals to ensure their memories are entered into an historical record. The ‘legacy debate’ surrounding the contribution that tribunal archives should have to transitional periods are commonly understood as providing a historical legal record of the ‘facts’ of the atrocities committed. However, such historical records of the legal ‘facts’ often orientate around a linear constructed narrative of mass human rights violations which can condense the complexities of past violations into an overly simplified account of the past and present. This paper provides a novel conceptual enquiry into witnessing and collective memory by challenging the perception of transitional justice archives as passive repository of history. Instead, suggesting the ICTR archives as a useful site to explore the discursive conditions of witnessing. In doing so, this paper engages with Michel Foucault’s thought on ‘Discourse’ and ‘Subjectivity’. This entails using the ‘rules of formation’, a methodological tool for identifying the four basic elements of discourse, in particularly the formation of objects and formation enunciating modalities, the place from which meaning is constituted. The paper also considers Paul Ricoeur’s understanding of ‘Memory’, in which Ricoeur insists that memory is not capable of revealing unequivocal or uncontaminated facts about the past. The paper explores the potential for understanding legal archives as discursive spaces in which the subject of the witness is constructed and legitimate meaning and knowledge of past human rights violations are constituted. In doing so, the paper foregrounds the need to understand international legal institutions as important sites of memory construction. The paper concludes by suggesting that a Foucauldian discourse analysis of the legal documents - written and transcribed communications between legal counsels and judges, and testimonial evidence given in court - housed in the ICTR archives can foreground how the discursive conditions of legal witnessing constructs the subjects (witnesses) and knowledge of transitional justice into a rigid and authoritative account of past atrocities.