Justice is too important to be left solely to the lawyers


OPINION:The Transitional Justice Institute approaches the issues of justice and peace-building in an interdisciplinary way

THE ORIGINS of the transitional justice mindset can be traced back to the Nuremberg trials after the second World War. But the concept really began to come into its own towards the end of the 20th century as a number of states in Latin America and Africa in particular began to emerge from protracted periods of authoritarian rule which involved mass killings, disappearances, torture and disdain for human rights.

The key issue was impunity: should the perpetrators be called to account for the abuses of the past? There were obvious mechanisms for doing precisely that, not least criminal trials. But, apart from the practical and political difficulties involved in bringing people to trial – not least the continuing or residual power of the military – human rights advocates faced a very real dilemma: would prosecutions and trials dislodge a fragile peace that is being constructed out of the wreckage of the past?

Transitional justice comes in with an answer, in effect calling for an imaginative approach that includes but also moves beyond criminal justice mechanisms. Truth recovery, amnesties, testimony and story-telling, memorialisation, institutional reform – all of these have been tried as a way of building a human rights-compliant future without at the same time encouraging amnesia about the past. In fact, at the core of the transitional justice approach is the belief that amnesia is never a solution, and that moving forward can only genuinely occur through coming to terms with the past.

The approach also rests on another belief, not necessarily articulated in these exact words, that justice is too important to be left solely to the criminal justice system. Whether it is restorative justice schemes on the Shankill Road, gacaca courts in Rwanda or trading amnesty for truth in the South African Truth and Reconciliation Commission, the goal has been a mechanism of justice which transcends the narrow formula of court, prosecution, judgment and sentence. This imaginativeness is deemed necessary because of the peculiar circumstances of the transition from conflict to peace, but there is also a suspicion that if the alternative mechanisms work, then they should not be confined solely to societies that are in transition.

It should be obvious that there are many resonances in the above concerns and questions with the situation in Northern Ireland. The Good Friday Agreement was a classic example of a peace agreement, and it led to the early release – although not full amnesty – of politically motivated prisoners.

Old institutions were refashioned, most notably when the Royal Ulster Constabulary was transformed into the Police Service of Northern Ireland. New institutions – such as the Police Ombudsman and the Historical Enquiries Team of the PSNI – were formed, both of which had a role in investigating historic cases, a process that can lead to prosecutions. And, even though the British government did not follow through, a group it set up, the Consultative Group on the Past, recommended a Legacy Commission, a local version of a truth recovery process.

Because of these resonances, a number of law professors at the University of Ulster, with major financial backing from Atlantic Philanthropies, established the Transitional Justice Institute in 2003. Since then, the institute has gone from strength to strength, producing world-class research on issues such as peace agreements, gender violence and conflict, amnesties, dealing with the past and memorialisation.

It has a number of goals: building an understanding of the relationship between justice and peace, examining the role of the international and domestic legal systems and institutions in facilitating transition from conflict; informing policymakers involved in peacemaking in local and international institutions; and paying particular attention to the gendered experiences of transition.

Above all, one of the goals of the institute is to make links between the experience of Northern Ireland and international experience, so as to benefit both Northern Ireland and other contexts. The last of these has turned out to be particularly fruitful, so that TJI researchers have ongoing contacts with researchers and activists in Colombia, Chile, Timor Leste, South Africa, Zimbabwe and elsewhere.

The institute is also involved in teaching at the postgraduate level, delivering an LLM in Human Rights Law and Transitional Justice, with a further LLM on Gender, Conflict and Human Rights in preparation.

At the same time researchers in the TJI are not uncritical missionaries for transitional justice. As a paradigm, transitional justice is not without its problems and contradictions. Truth commissions may not always deliver the full truth, even less reconciliation. Prosecutions may end up partial and symbolic, pursuing a few perpetrators but leaving most untouched. Release of prisoners may be a bitter pill to swallow for victims and survivors. Memorialisation and the writing of history may end up privileging some narratives and silencing others.

Be that as it may, there is enough evidence by now to lead to the conclusion that it is an approach which deserves to remain in the tool box of those involved in conflict transformation. The past may be, as the saying goes, another country, but it is still the country in which we have to live out our lives in the present.

Prof Bill Rolston is director of the Transitional Justice Institute in the University of Ulster and professor of sociology in its school of sociology and applied social sciences.