Transitional Justice and the Consultative Group: Facing the Past or Forcing the Future?

Abstract

In January 2009 the Consultative Group on the Past released its report of recommendations for Northern Ireland to address its legacy of conflict. The two main recommendations were the Legacy Commission, designed to investigate and uncover information on some of the most high-profile incidents of the Troubles, and the recommendation that families of those who lost their lives to sectarian violence be awarded a recognition payment of £12,000. The proposals, especially the payment, created a firestorm of controversy and much acrimony. This paper examines whether the role of procedural justice can help to determine why the efforts of the Consultative Group have generated such controversy and whether this latest attempt to address transitional justice in Northern Ireland has any chance of success.

Notes

For example, see Hamber (2002), Smyth (2003, 2007), Gawn (2007), Lundy & McGovern (2007, 2008a), McEvoy (2007), Biggar (2008) and McGrattan (2009).

Most notable has been the work of Marie Breen Smyth in directing the Cost of the Troubles Study and Brandon Hamber in a number of organizations, most recently as the Chair of the Healing through Remembering project.

Both reports are available online at the Healing through Remembering website, healingthrough remembering.info.

The third Stevens report is available from a number of websites, including http://www.madden-finucane.com/patfinucane/archive/pat_finucane/2003-04-17_stevens_report.pdf. For allegations of incompleteness of the reports, see http://www.amnesty.org/en/appeals-for-action/twenty-years-inquiry-patrick-finucanes-death.

Theoretical approaches encompass philosophical approaches like those of Govier (2002), Jacoby (1983), Minow (1998), Rotberg & Thompson (2000) and Teitel (2000), to name a few. Studies of mechanisms and outcomes include works by Amstutz (2005), Barria & Roper (2003), Fletcher et al. (2009) and Hayner (2002), among others. One of a very few examples of the use of procedural justice is Apuuli's (2009) critique of Rwanda's Gacaca courts as not meeting judicial standards of legal procedural justice—as opposed to the psychological notion of procedural justice that I examine in this paper.

I had 1,062 cross-coded instances out of 19,228 document-code combinations with a median level of agreement at 90.7%, mode 87.3%.

Many unionists and loyalists describe Sinn Féin and the IRA as a single entity, abbreviating the term as Sinn Féin-IRA. While recognizing the high probability that senior members of the one organization belong to the other as well, I shall continue to analyze their statements separately in recognition of the roles each is purported to play.

As with many other things in Northern Ireland, the terminology used to describe those who fought paramilitary groups is contested along the lines of the oft repeated phrase ‘one man's terrorist is another's freedom fighter’. I acknowledge that the use of ‘ex-paramilitary’ will displease some, but feel that it is the most neutral in terms of description.

Although both interviewees indicated that their testimony before the Group was the same as testimony that they had given on several other occasions and, at times, in public view, I have decided to preserve their anonymity because the CG processes, with the exception of the public forums, were intended to be confidential.

The CG's view is disputed by several parties, including Jim Allister, the Northern Ireland Retired Police Officer's Association and the RUC's George Cross Foundation, who all contend that the provisions of the Legacy Commission, especially the directive to draw a line in the sand amount to a de facto, if not de jure, amnesty, which would contravene the European Convention (NIAC, 2009). One of the more convincing arguments against the proposed Review and Investigation Unit was made by the PSNI's Sir Hugh Orde before the report was published. In testimony before the NIAC on 6 February 2008, Orde noted that although he was not opposed to any entity that had a ‘broader remit’ than the HET, he felt that no other venue ‘would be seen as Article 2 compliant if a family did not want to go down that route’ (House of Commons, 2008). However, when questioned about the usefulness of the proposed Legacy Commission by the NIAC on 9 July 2009, Orde was less pessimistic, noting that such a body could provide some advantages by giving options to families who did not want to use the HET, but that the end point for him was whether any such body would provide value for victims (House of Commons, 2009).