‘Order Out of Chaos’: The Politics of Transitional Justice

Abstract

This article critically assesses the application of the ‘transitional justice’ model of conflict transformation in Northern Ireland. The model addresses a number of important issues for societies emerging from violent conflict, including victims’ rights and dealing with the past. This article claims that the model is founded upon highly contentious political assumptions that give rise to a problematic framing of the issues involved. The underlying implication is that by eschewing basic political analysis in favour of unexamined ideals concerning conflict transformation, the TJ approach belies its commitment to truth recovery, victims’ rights and democratic accountability.

Introduction

The recent furore surrounding the publication of the Report of the Consultative Group on the Past (CPGNI) – and, in particular, its recommendation that a £12,000 ‘recognition’ payment be awarded to the nearest relative of each person who died in the Northern Ireland conflict – dramatically illustrated the emotional and political impact that the past continues to generate in and about Northern Ireland.¹ Although that impact may be dismissed as an ‘Irish’ predilection to dwell on history, more significantly it is indicative of the fact that the ending of the violence has given rise to a series of complicated and interlinked questions concerning how the North should be administered, how and indeed whether past injustices should be dealt with, how victims’ needs can be met and how the past should be remembered and explained. While these questions involve psychological, physiological and legal issues, invariably they are saturated with political significance. This article highlights that significance and argues that the increasingly influential transitional justice (TJ) approach to conflict transformation eschews basic political analysis while practically and normatively contributing to an intensely political framing of the issues involved.

The transitional justice model

The TJ approach incorporates the ‘full range of processes and mechanisms associated with a society's attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’ (UNSC, 2004, p. 4).² The TJ model is therefore informed by perceptions of past injustices, the persistence of victims' grievances and concerns about entrenched discrimination and enduring inequality. It is also implicitly prescriptive and seeks to instil several practical, theoretical and policy interventions into areas identified as ‘transitional’ – that is, areas judged to be moving from violence to peace. Following that identification, theorists can begin to judge whether the transformation is just, equitable and democratic according to whether victims’ rights are respected and whether perpetrators of past abuses are being held to account. Although TJ theorists maintain that these criteria are site specific, a comparative perspective allows key cases to be distinguished as paradigms for policy learning (Bell, 2003, p. 1147; Teitel, 2006).

Victims' rights rest at the centre of the TJ model (Elster, 2004, pp. 166–187), and theorists emphasise that just and democratic transitions to peace require a process of legal and political accountability. For example, while recognising that revisiting the past may indeed open up old wounds, TJ theorists argue that ‘letting bygones be bygones … looks suspiciously like yielding to thuggery and blackmail’ (Méndez, 1997, p. 4). Instead, victims must be allowed to tell their stories and explanations must be sought from the perpetrators of violence. This also makes sense politically, for unless all voices are heard, conflicts will never be resolved (Simpson, 2008). The TJ model therefore espouses truth recovery mechanisms – such as quasi-governmental commissions and/or juridical inquiries into unsolved killings or ‘disappearances’ – to create accountability and scrutiny. Thus, politics and law are intrinsically intertwined: the ‘new order’ establishes its legitimacy and authority by adhering to the kind of strict legal and moral standards that were given lip service in the past.

The emphasis on victims has also given rise to a series of psycho-sociological and ‘restorative’ policy proposals including ‘storytelling’ initiatives, public commemoration, reparation and reconciliation (Cahn, 2006; Hamber and Wilson, 2002; McEvoy, 2006). Local storytelling is held to be essential for restoring a sense of dignity to victims, whose experiences were effectively silenced in the pursuit of military and political goals. TJ theorists go further, however, and claim that since violence affects not only individuals but whole societies, the legacies of that violence must be tackled at a societal level. The logic runs as follows: dealing with the past is essential to entrenching a post-conflict democracy, but this may only be secured through some form of societal accord, and, since amnesia might either ‘re-victimise’ the victims or else be only partial, that accord must be based around collective reconciliation and a commitment to a ‘shared future’ (Mamdani, 2001, p. 387).

TJ theorists set themselves the task of resolving the crucial dilemma of how to provide for victims' needs in a form that also recognises the often pragmatic compromises of peace deals together with the broad standards of international law and human rights (Bell, 2008, p. 257). ‘Justice’ in this perspective is contextualised by the needs of the particular transition (Teitel, 2000, p. 6), and theorists analyse the ‘texts’ and constitutional aspects of peace agreements to assess how they ‘marry’ local needs to broader principles (Bell, 2008, p. 19; Campbell, Ní Aoláin and Harvey, 2003). The scope of the TJ project is essentially global and inherently policy oriented with the overriding objective being the preservation of ‘a minimalist rule of law identified chiefly with maintaining peace’ (Teitel, 2006, p. 69).

Dealing with the past in Northern Ireland

The basic impetus behind the TJ approach is the idea that the past must be dealt with in order to secure a peaceful future; as pointed out above, this encompasses legal, historical, political and moral issues. The key problem, which I deconstruct in this section, is that as part of their all-encompassing vocation, TJ theorists have assumed responsibility for tackling questions that they (in an un-sourced reference) claim were once for the ‘realm of politics’ (Bell, Campbell and Ní Aoláin, 2007, p. 81). However, despite the attempt to write politics out of the equation, the TJ approach is thoroughly political in its assumptions, methodology and conclusions. Given the emotive and politically charged nature of the debate over the meaning of the past and the rights of victims in Northern Ireland, I use it as a case study to illuminate three dimensions of the TJ model that reveal its acute political nature.

Failure to explain the politics of the past

In Northern Ireland the past is used in many ways to mobilise political support in the present and power bases are constructed and maintained through the careful guardianship of historical narratives. Marie Breen-Smyth, for example, has identified a ‘culture of victimhood’ among republican and loyalist communities which developed in response to the violence, but which is continually tapped to maintain support for terrorist representatives in peacetime (Breen-Smyth, 2007). Loyalists, for instance, have argued that their present comfort should not be put at risk by principles such as accountability:

‘Revisiting what was done in the past … runs the risk of not being understood by the current/younger generation. Children today will probably find it difficult to imagine the threats and fears that inspired their fathers to take up arms’ (EPIC, 2004, p. 9).

TJ proposals regarding truth recovery – whether through local storytelling or government commissions – fail to tackle the underlying problem with such appeals to history in which apologies (if they are given) often come cloaked in self-serving, self-pitying verbiage: ‘if you had been there, you would have done the same’. As Richard Evans has pointed out, these types of justification can only be understood through rigorous historical and political analysis and, where possible, judicial proceedings: ‘A murderer is a murderer, however persuasive the mitigating circumstances of the fact’ (Evans, 1989, p. 40).

Sinn Féin's position on truth recovery and historical accountability is also informed by contemporary political imperatives. In this instance, opinion is mobilised around the idea that the ‘Brits’ have a hidden agenda for undermining republicanism. In this mobilising frame, history is rewritten to an astonishing extent. For example, despite the fact that republicans were responsible for around 60 per cent and state forces less than 10 per cent of the 3,703 deaths (McKittrick et al., 2004, pp. 1526–1527), one Sinn Féin spokesman has claimed that ‘The British government was the major protagonist in the conflict in Ireland. They therefore cannot be the objective facilitator of any truth recovery process’ (Kelly, 2009). The Irish Times journalist Fintan O'Toole has highlighted the double standards at play in republicans demanding ‘full accountability’ for state killings while the IRA has remained silent for over three decades about its involvement in killings such as that of 14-year-old Kathleen Feeney in Derry during Martin McGuinness's time as IRA Officer Commanding there in 1973 (O'Toole, 2005).

The TJ approach is ill-equipped to deal with the politics of the past. Colin Campbell and Ita Connolly, for instance eschew the basic historical practice of source criticism in their empirically oriented work (Campbell and Connolly, 2003 and 2006). Rather than examining in whose interest witness statements are being made, Campbell and Connolly simply reproduce terrorists' stories and blandly recycle simplistic narratives of state repression/mobilisation with little regard to chronology or alternative sources.³ The anti-state bias is amplified by the TJ lobby in Northern Ireland: ‘The state was not the only actor responsible for the events of the past. However, [it] is the actor with the heaviest responsibility to protect human life’ (Bonner, 2008, p. 1). While it is true that states have wider responsibilities than non-state groups, killing innocent civilians is not subject to decreasing democratic returns – a point illustrated in that the TJ narrative neglects the actual chronology of far right loyalists opposing, and republicans abandoning, civil rights reforms in favour of a sectarian ‘war’ (Hennessey, 2005). In practical terms, the promotion of these narratives has had a serious deleterious effect on how unionists perceive the ‘reconciliation industry’ and has heightened suspicions about what truth recovery might actually mean (Patterson, 2009; Simpson, 2008).

Failure to analyse the politics of the present

Despite a victim-centred agenda, the TJ approach fails to question the implicit logic of the Good Friday Agreement institutions in Northern Ireland, which have not only been shaped by, but actively reproduce, sectarian division (Little, 2004, p. 29). The reason for this is the dependence of TJ scholars on consociational theory. Campbell, Fionnuala Ní Aoláin and Colin Harvey (2003), for example, uncritically import Brendan O'Leary's ideas about the assumed ‘transformative’ qualities of the devolved institutions. Once again, politics is knowingly written out of the analysis, for while Campbell and colleagues admit that those institutions run counter to ‘post-nationalist EU discourse … this is not necessarily problematic … [since the] politics of nationalism is complex’ (p. 320).

By building on consociational theory, the TJ approach effectively ignores the insights of three decades' worth of constructivist theory regarding the fluidity of identification; rather, national identities are assumed to be fixed and hence need to be separated out into distinct blocs. What this means is that the TJ approach overlooks the fundamental implications of the Northern Ireland consociational experiment, which has seen the re-marginalisation of those experiences and narratives of the Troubles that are not based on ethno-nationalist rhetoric (McGrattan, forthcoming). Furthermore, the TJ acceptance of these narratives betrays its rhetorical commitment to future generations by bestowing the legacy of received communal explanations of why the violence occurred.

That any ‘transitional’ approach should be based on consociational theory is deeply paradoxical. Even regardless of the devastating normative criticisms of consociationalism (Little, 2004), empirically the theory is predicated on freezing received wisdom about the past. Indeed, in many ways the Northern Ireland Assembly has institutionalised the attitude that ‘it is time to draw a line under the past’ and the idea that ‘it is time to move on’. By failing to take cognisance of the prevailing institutional structures and their historical rationale, the TJ approach in fact serves to reproduce the dominant ethno-nationalist explanations that inspired and maintained the Troubles in the first place. Eschewing historical context, in Northern Ireland these proposals have created a profound moral and historical vacuity: elite politicians’ and academic narratives are preferred to alternative and marginal experiences of conflict based on gender, class and locale (Ashe, 2009; McGrattan, forthcoming); terrorist ‘stories’ are placed alongside those of individuals tasked with securing law and order; and the burden of reconciliation is imposed on the vast majority of individuals who rejected violence (Grandin, 2005; Patterson, 2009).

Failure to explain ‘transition’

The insipid recycling of consociational myths means that TJ theorists fail to explain the empirical reality of growing sectarianism and persistent inter-communal division (Jarman, 2005; Shirlow and Murtagh, 2006). While TJ theorists rightly argue that the past cannot be ignored, the fact that they refuse to examine the political framework of the ‘transition’ means that their work simply builds on political and social problems, leaving the constitutional and political fundamentals untouched. This occurs because the TJ model employs a necessarily narrow view of context – the focus on ‘transitions’ rules out all untidy political nuances or historical residues. As long as that fundamental methodological approach remains, any ‘(re)conceptualising of the field’ (Bell, Campbell and Ní Aoláin, 2007) will only add to the disingenuousness of the entire project.

Christine Bell's (2003) analysis of the various attempts to ‘deal with the past in Northern Ireland’ demonstrates the problems inherent in such unquestioned assumptions.⁴ For example, she claims that a ‘piecemeal’ approach has been taken to dealing with the past, meaning that ‘aspects of the past were disaggregated and addressed separately and discretely’ (p. 1110). These conclusions reveal a teleological and instrumental view about the past and obscure the political dynamics at play. Quite how the ‘piecemeal’ approach was chosen given the fact that no one group holds a monopoly over policymaking or policy implementation is not explained; indeed, it suggests the easily answered counterfactual of whether the Good Friday Agreement would have been signed had it included more concrete provisions regarding dealing with the past. Even on its own largely descriptive terms, Bell's argument ignores the possibility that the pragmatic approach emerged not because there was a transition, but precisely because historical legacies continue to saturate contemporary politics in the region. This is a crucial point since the identification of a ‘transition’ enables Bell to conclude that the Northern Ireland case illustrates how peace processes should be handled (ibid., p. 1147).

The underlying teleology means that, methodologically, the TJ model equates to a self-fulfilling prophecy: a ‘transitional society’ is identified (on the basis of legal texts) and all analysis is made on the basis of that identification. ‘Maintenance of peace’ in this regard means demarcating and embedding the (good) present from the (bad) past and authoritarian regimes, ethnic conflicts and state repression are seen merely as stages in the process of democratisation.⁵

While this approach utilises the idea that the past may be shaped by dominant voices in the present, it ignores the insight that the past is not totally malleable: prior policies may constrain contemporary politics, but historical explanations and embedded cultural narratives may also evade manipulation (Schudson, 1989). In other words, identification of historical processes – such as societal transitions – requires careful deconstruction. Different ideas about the past may persist in different locales or among different generational cohorts; again, the experiences of conflict and the narratives they produce may be intimately coloured by gender or social class. It is simply unacceptable to pick the term ‘transition’ and blithely apply it (and a range of ideas based on it) to any society with complete disregard for these historical, social and political dynamics. This is not simply differences in disciplinary methods – by any account the TJ model amounts to an intellectual sleight of hand.

Conclusion

The Report of the Consultative Group on the Past in Northern Ireland reveals the extent to which this conceit has permeated government policymaking and graphically illustrates the fundamental political nature of the TJ project. While the attempt by the Group's Chair, Lord Eames, to sell the Report was less than convincing, it also revealed something about the underlying analysis and methodology:

‘Now, it is a complicated thing to explain, but those who have advised us, those who have commented – from some of the experts in the departments, and in the parts of society that are involved in this – have said to us, “This will bring order out of chaos”’.⁶

This article has claimed that the TJ approach seeks to manufacture an image of post-conflict order by writing chaotic and messy politics and history out of the equation. Arguably, taken on its own terms it succeeds: by prioritising an idealised present and targeting an ossified future, the TJ model does create a certain order out of the chaos of violence; yet it does so by recycling received wisdom and by acquiescing in the narratives favoured by elites. However, by eschewing power dynamics and power relations – in the Northern Ireland case the (ethno-nationalist) voices that are currently heard and the (gender, class and generational) experiences that are silenced – the TJ approach contributes to a deeply political framing of the problems it seeks to tackle. Again, it should be noted that severe practical problems also exist: while unionists are increasingly suspicious of governmental policymaking in this area (Patterson, 2009; Simpson, 2008), quite why Northern Irish nationalists – who aspire to reunification of Ireland – would want to participate in a ‘shared future’ based on the continuation of the constitutional status quo is never asked, let alone answered.

That framing is an essential part of the TJ model's valorising of a ‘shared future’ and its manipulation of historical and political analysis. The TJ model, in effect, serves as an agent of nation building, converting troublesome pasts into harmonious futures (Grandin, 2005). However, because the TJ approach builds on embedded division and polarisation, its historical narratives and political prognoses ensure that dominant understandings of conflict are reproduced: as such, the model amounts to little more than a tautological addition to consociationalism.

Theodor Adorno commented on the logic behind the institutionalisation of historical narratives four decades ago. Failing to confront dominant narratives was, he argued, a dangerous form of obsequiousness: ‘in the house of the hangman one should not speak of the noose, otherwise one might seem to harbour resentment’ (Adorno, 2003, p. 3). The TJ model's eschewing of politics, its valorisation of the future and its neutralisation of the past does exactly that: it forces individuals who abhorred violence to reconcile with terrorists; it leaves future generations with the same self-serving narratives that inspired and fed violence; and it ends by robbing victims of any respect for or explanation of their suffering.

Footnotes

I am grateful to Sahla Aroussi and Fidelma Ashe for their comments on earlier versions of this paper, as well as the anonymous referees. Conversations with Aaron Edwards and Henry Patterson also helped to consolidate the ideas expressed.

1

Report of the Consultative Group on the Past, available at , accessed 28 January 2009. The Consultative Group was established in 2007 to examine ways of dealing with the past and meeting victims' needs in Northern Ireland. Its main recommendation is for a five-year Legacy Commission to assume responsibility for these issues.

2

I am indebted to for this reference.

3

Alonso (2007) and provide politically and historically informed accounts of IRA mobilisation in the early 1970s.

4

Bell's teleology is symptomatic of the wider approach; see Lundy and McGovern (2008, pp. 34–35) for a similar narrative.

5

Processes of de-democratisation are ignored: post-war Germany is identified as a key site of ‘transition’ (Teitel, 2006, p. 70); but the work of historians in uncovering, for example, the central role of the Ministry of Justice in manipulating euthanasia laws during the Nazi period goes unremarked (see, for example, Burleigh, 1994, pp. 162–180).

6

BBC One Northern Ireland, Newsline, 29 January 2009; available at http://news.bbc.co.uk/1/hi/northern_ireland/7856915.stm, accessed 21 February 2009. The Report's bibliography contains not a single reference to the work of any academic historian; TJ aficionados, however, feature heavily (Patterson, 2009). Despite the very public furore over the Report, the University of Ulster's Transitional Justice Institute was ‘delighted to note’ that the Report cited its scholars and echoed their recommendations (TJI, 2009).

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