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Research Theme: Dealing with the Past
Successful transitions in recent years have almost invariably been characterized by attempts to engage with the past. Conversely, experience warns that failure to address the past adequately may hinder prospects for a successful transition. Dealing with the past may be viewed as comprising two aspects: (1) Undoing the Past, typically by attempting to ‘undo’ the displacement of people and dispossession of land which occurred before and during the conflict; and (2) Accounting for the Past, for instance through the use of truth commissions and domestic or international courts and tribunals.
Attempts at devising legal mechanisms for dealing with the past challenge accepted notions of the role of prosecution, trial and punishment. International law increasingly articulates a seemingly inflexible demand for trials for those responsible for major violations. Yet paradoxically, peace-making, reconciliation and truth-telling may be facilitated by a measure of immunity from prosecution, and prisoner-releases have been a feature of most conflict-resolution processes. Truth commissions, with their novel approaches to accountability, may offer a way to square this circle, even if a degree of conflict with legal norms is involved. Yet such mechanisms cannot be said to represent an escape from law, since successful truth commissions almost invariably require a legal mandate. Others champion individual criminal trials as routes to truth and reconciliation. Yet others (however critically) point to alternative ‘weeding out’ (or lustration) mechanisms, whereby those involved in past violations are prevented by administrative or quasi-judicial means from public participation in new institutions.
TJI research aims to offer a critique of existing mechanisms (both theoretical and practical) with policy suggestions for domestic and international audiences. The Institute aims to make a direct contribution to ideas of ‘truth-telling’ through specific projects that examine the legal framework governing key events in the conflict and the transition in Northern Ireland. These use socio-legal and archive-based methodologies, and explore the relationship between the conflict and the domestic legal framework that governs it.
Aims of TJI research in this area
• Provide analyses of the relevant legal standards
• Examine the utility of traditional theories of prosecution and punishment, such as deterrence, with regard to transitional justice mechanisms
• Explore dilemmas of how to account for the past in the Northern Ireland context, in light of the demands of reconciliation and the needs of victims, with a focus on examining the appropriateness of legal mechanisms for dealing with the legacy of violations by state and non-state actors (paramilitary groups)
• Draw lessons from the experience of Northern Ireland for other transitional situations
Indicative projects
• Dealing with the past in Northern Ireland (Christine Bell, Kirk Simpson, Bill Rolston)
• Policing and the past in Northern Ireland (Mary O’Rawe)
• The Bloody Sunday Tribunal (Angela Hegarty)
• Victim-hood, memory, political violence and notions of transitional justice (Kirk Simpson)
• The release and resettlement of paramilitary prisoners in Northern Ireland (Grainne McKeever, Bill Rolston)
• Transition in postcolonial societies (Khanyisela Moyo)
• Socio-economic rights in transitional justice (Thomas Bundschuh)