Harry Reicher

Director of International Affairs and Representative to the United Nations of Agudath Israel World Organization
Adjunct Professor, University of Pennsylvania Law School

Harry Reicher believes that when we speak of memory, we speak of a phenomenon that pertains neither to the concrete nor to the tangible. Yet memory is a core element of our beings, no less than the heart, head, or body. Memory is a fundamental part of who and what we are. It represents a historical aggregate of our senses, feelings, and thoughts, coalescing at the very center of what defines us.

Memories surrounding the Holocaust have long been repressed. Intensely personal, they have often not even been shared with loved ones, but have remained silenced by trauma, shame, and a desire to leave the past behind.

A slow unbottling of these memories has occurred over the years, as is witnessed by the publication of such autobio-
graphical works as Elie Wiesel's Night (1956), Nechama Tec's Dry Tears: The Story of a Lost Childhood (1975), and Hans Ludwig Reiss's My Middle Name is Israel: A Wartime Memoir of Berlin, London and Shanghai (2001).

We are enriched by these memories: they help us to empathize with the form and intensity that human suffering took and awaken in us an ambition to avoid a repetition of this dark chapter in the history of humankind.

The greatest strength of memory is also its greatest weakness: it is the product of the human psyche and, therefore, subject to human imperfection and frailties. The passing of time may erode memory or render it all the more vivid; beliefs about what we see, read, or hear may elide into memory or render memory all the more distinct. These inconsistencies demonstrate the degree to which memory may be said to be a strange, rather elusive, yet powerful, phenomenon.

Reicher argues that memory has played a critical role in the aftermath of the Holocaust, and outlines five central contexts in which it has most come to bear:

1. Criminal prosecutions in which the oral testimony of witnesses has been accepted as important evidence in identifying the defendant and establishing facts and events in which the defendant was allegedly involved.

2. Quasi-criminal cases in which like testimony played a significant part in deportation proceedings.

3. Administrative processes in which memory impeded consistency and precision in reporting the details of personal experience necessary to the successful filing of a claim for reparations and compensation;

4. The writing of history, produced through the analysis of recollections and testimony.

5. The denying of history, which often seizes on the discrepancies, contradictions, and gaps in memory which are a hallmark of its imperfect nature.

A survey of scientific work on memory provides a set of principles that may be applied to each of these contexts. Most generally, there is no such thing as a perfect memory. Given this, it is difficult and even dangerous to generalize about memory; every manifestation of memory must be assessed on its own merits.

Likewise, no single factor affects memory in a consistent way; age, intensity of trauma, disease, malnutrition, weight loss, and belief attained from other sources may or may not affect memory.

Studies show that, in particular, the passing of time does not categorically debilitate a survivor's capacity to remember events with remarkable detail and consistency, although retention of core facts is superior to recollection of the peripheral. All of these principles underscore the malleable nature of memory, yet do not present any inherent reason why memory cannot be objectively true.

Reicher revisits his five contexts to examine how these principles may be seen to be at work in each. For the first two, in both criminal and quasi-criminal cases, the law's "beyond a reasonable doubt" burden of proof allows for the smallest tolerable level of doubt produced by the inherently imperfect memory of a necessarily imperfect witness. For the third, in administrative proceedings, the civil standard of doubt is relaxed to a balance of probabilities, allowing for greater departures from absolute certainties. For the fourth, in the writing of history, historians are authorized to rely on survivor testimony in whatever form it may take, having been trained to resolve inevitable discrepancies. And, for the fifth, the denying of history, at the opposite extreme, sets an impossibly and inhumanly high standard for establishing historical accuracy, and condemns even the slightest departure from that standard as evidence of false collective memory.

In short, these contexts represent a continuum with respect to the treatment of memory in relation to the Holocaust, with rigid justice at one extreme and the unmitigated compassion, or lack thereof, for victims at the other.

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