The problem with ‘Transitional Justice’

By David Mullins

Toward the end of last year, the Minister for Children, Katherine Zappone, gave the keynote address at an academic conference in Boston College entitled Towards ‘Transitional Justice: Recognition, Truth-telling, and Institutional Abuse in Ireland’. This followed her decision to commence a Commission of Investigation related to the discovery of child and infant remains on the site of the former Bon Secours Mother and Baby Home in Tuam and her subsequent decision to proceed with an expansive forensic excavation of the site.

The use of this concept, ‘Transitional Justice’ (TJ) has been welcomed by various groups and at first glance appears essentially unproblematic. The problem is however that once you dig a little deeper, real difficulties start to emerge.

Let us be clear about what is to be usually understood when we speak about Transitional Justice. For the EU and the UN, it is 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. Now while all of that may seem straight-forward, in actual fact the challenges related to delivering Transitional Justice are of such magnitude that the influential European Consortium for Political Research (ECPR)conducted an entire conference on the subject in 2017.

The papers delivered at that event reflected the “barrage of criticisms, from within, as well as from those outside” the field of Transitional Justice studies. The primary criticisms were identified as being of two major types; “first that theoretically it is problematic, and secondly, that it is misapplied.”

Speaking more generally we can say that within the scholarship of Transitional Justice, several recurring reasons are often cited as to why exactly it is a problematic framework. The most common refer to its ‘blind spots’—for instance, its State-focused approach, and its narrow understandings of both ‘justice’ and ‘transition’. This ‘top-down, State-centric focus’ can actually limit the capacity of Transitional Justice forums to generate accountability because of the way they exclude “examination of a much wider range of actors and practices involved in addressing legacies of human rights abuse.”

While this aspect must not be over-emphasised we can see clear signs that it is already happening here with the legitimate, but completely disproportionate focus on the role of the religious orders while little or no space is being created to hold other centres of power accountable, such as local authorities, government departments or even the Garda Siochana? If this does not happen then the mechanisms the Minister establishes will amount to little more than what The International Center for Transitional Justice has described as “sophisticated impunity.”

Other reasons why TJ is problematic were identified in 2010 with the publication of the ‘The myth of closure, the illusion of reconciliation: Final thoughts on five years as co-editor-in-chief’ in The International Journal of Transitional Justice.

In that article H.W Weinstein concluded that: “We  have  focused  entirely  too  much  on  the  notions  of  closure  and reconciliation. Member States of the UN and European Union have expended considerable amounts of money and human resources on chasing a will-o’-the-wisp,  adopting  buzzwords  that  have  no  consistent  definition  or conceptual  clarity  and  promoting  mechanisms  to  achieve  these  obscure outcomes with little evidence that they will make a difference.”

The Minister may thus find that while her intentions are noble, the reality of trying to bring about ‘healing’ through the use of such a flawed concept as transitional justice may be far more challenging than she has anticipated.