Northern Ireland continues to transition away from its violent past.
Between 1969 and 1998, the period known as “the Troubles”, over 3,700 people died and thousands more were injured, displaced, or otherwise traumatised by armed conflict. The 1998 Belfast/Good Friday Agreement, which formally ended the Troubles, is often lauded for its role in minimising communal violence, strengthening human rights protections, facilitating cooperation between the United Kingdom (UK) and Ireland, and equalising the political status of unionists and nationalists — Northern Ireland’s major ethnic communities.
Despite its successes, the peace process in Northern Ireland is not perfect. The Agreement recognises that addressing victims’ suffering is a “necessary element of long-term reconciliation”. However, it offers no specific proposals for how to remedy that suffering or any other ongoing legacies of the Troubles. As a result, many questions about individual cases remain unanswered. Given the fact that about 1,800 Troubles-related deaths remain unsolved in Northern Ireland, with hundreds of active investigations ongoing, many individual victims and their families have not received sufficient truth, justice, or closure to move forward.
Moreover, this shortcoming has impeded general reconciliation between unionists and nationalists. Padraig O’Malley, in Perils and Prospects of a United Ireland (2023), observes that legacy issues “fell into the maelstrom of zero-sum politics”. Because there is no general consensus on the origins and motivations of political violence, each community has “accused the ‘other side’ of being responsible for the worst atrocities, tried to entrench their own narratives… and fought over who should be called a victim and who should be prosecuted” (p. 133).
Other states’ transition experiences affirm that dealing with the past is intimately related to all other development and reconciliation efforts. By reviewing Northern Ireland through the lens of transitional justice, the successes, failures, and dilemmas of its past-focused initiatives can be evaluated in relation to these other peace processes.
What is transitional justice?
“Transitional justice”, according to the International Centre for Transitional Justice, is a body of peace research and practice that concerns “how societies respond to the legacies of massive and serious human rights violations”:
“It asks some of the most difficult questions in law, politics, and the social sciences and grapples with innumerable dilemmas. Above all, transitional justice is about victims.
“Transitional justice is not one thing or one process, nor is it a one-size-fits-all formula to replicate institutions. Instead, transitional justice is more like a map and network of roads that can bring you closer to where you want to go: a more peaceful, just, and inclusive society that has come to terms with its violent past and delivered justice to victims.”
This field emerged during the late 20th century, as radical political transformation swept over South America, Eastern Europe, and Africa. Liberal democracies replaced authoritarian systems of government, often in the wake of revolution or armed violence. As Dr Roddy Brett (University of Bristol) and Dr Lina Malagón (University of Wales) argue in Contemporary Peacemaking (2022), “the recognition of massive and systematic wrongdoing as a common feature of state and non-state repression gave rise to the emergence of justice mechanisms that involved individual and collective processes of acknowledgement of responsibility and accountability” (p. 478). These changes coincided with increasing will among international actors to enforce the human rights enshrined in various United Nations treaties. Thus, over time, transitional justice “has gradually become an integral component of the liberal peace repertoire, embedded within the dominant global peacemaking and peacebuilding architecture, and intrinsic in that regard to peace negotiations and to post-conflict state and nation-building” (p. 476).
Scholars increasingly distinguish between “top-down” schemes, which are initiated and facilitated by governments, and “bottom-up” initiatives, which emerge from “grassroots” actors such as victims’ groups, nonprofit organisations, or local community leaders. Literature suggests that efforts from both dimensions are needed to adequately address the legacies of violence. For instance, while governments are best equipped to maintain a safe and equitable social climate that is conducive to peace, grassroots-based projects often give victims more opportunities to actively participate in reconciliation, and are more responsive to their everyday needs.
The United Nations Human Rights Council (UNHRC) has identified five interconnected “pillars” of transitional justice:
- criminal prosecutions
- truth-seeking
- memorialization
- reparations
- guarantees of non-repetition
The various tools and objectives represented by each pillar complement and often depend upon each other within a multi-faceted transitional justice strategy.
Criminal prosecutions
According to Fabián Salvioli, the UNHRC Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, “criminal prosecution” schemes are used by states “to ensure that perpetrators of violations of human rights and international humanitarian law are prosecuted, tried and duly punished… Failure to prosecute and punish leads to impunity, and violates a State’s obligations to provide remedy to victims.” While a given state may wish to prosecute all violent actors, such an effort is often limited by financial resources, institutional weakness, and political constraints. Accordingly, prosecutors will often focus their efforts on the socio-political leaders whose influence most contributed to violence, or on the perpetrators of especially notorious crimes. The issue of impunity for human rights violators, if perceived by the public to be too widespread, may damage the greater legitimacy of a state and its peace process.
Truth-seeking
“Truth-seeking” is the process of revealing facts, answering questions, and establishing a public record of events that occurred during a violence. Some states seek to replace fragmented perceptions with a nationally “shared” understanding of a conflict, its origins, and its consequences. This type of consensus is often difficult to develop in deeply divided societies, where perceptions of the past are heavily influenced by factors like group identity. States may document the past on a case-by-case basis — incidentally to criminal prosecution efforts — or create institutions specifically for truth recovery. The best-known example of such a body is the South African Truth and Reconciliation Commission (TRC), which was created to report on wrongdoing during its apartheid regime.
Memorialisation
“Memorialisation”, which is closely related to truth-seeking, seeks to preserve and share accurate accounts of violence, tragedies, and human rights violations for future generations. Memorials, museums, and other physical dedications create interfaces for state members to regularly debate, acknowledge, and reflect upon past violence. Moreover, the introduction of cultural celebrations, visual and performing arts installations, and education curriculum reforms contribute to the long-term transformation of emotions and attitudes. Successful memorials in deeply divided states, according to Salvioli, should “take into account the potential controversies that may arise out of conflicting memories from different groups” through “effective consultation with all victims and affected actors”.
Reparations
“Reparations” are given to individuals and groups harmed by injuries, human rights violations, or systematic discrimination they suffered during violence. These come in many forms, including restitution (restoring victims to their “original position” before violence), financial compensation, rehabilitation (including medical, social, legal, and civil services), and symbolic actions (such as public apologies, commemoration, and transparency). Successful reparations schemes depend upon meaningful input from victims and greater civil society.
Guarantees of non-repetition
“Guarantees of non-repetition” are embodied by the general institutions, policy programmes, philosophical frameworks, and other structures of a given state. To “break the structural causes of societal violence and systematic human rights violations”, Falviolo argues, “states must promote mechanisms for preventing and monitoring social conflicts and ensuring their resolution.” Power-sharing systems, the constitutional protection of human rights, and economic development schemes are examples of “measures necessary to ensure respect for the rule of law, foster and sustain a culture of respect for human rights, and restore or establish public trust in government institutions.”
In practice, overlap between these pillars often yields difficult dilemmas for policymakers. Amnesty, which is frequently offered to wrongdoers in exchange for their transparency with truth bodies, is one key issue that connects truth-seeking and criminal prosecution efforts. While collecting as many truthful narratives as possible is essential to curate an accurate, shared narrative of violence, criminal prosecution is inevitably limited by truth-related amnesties. Unless these amnesties come with strict limitations and conditions, they fuel a public belief in rampant impunity. Failing to strike a context-specific, victim-informed balance between these pillars challenges the principles of responsibility, accountability, rule of law, and popular legitimacy upon which any transitioning state depends to succeed.
How does transitional justice apply to Northern Ireland?
Northern Ireland has lacked a comprehensive transitional justice strategy since the end of the Troubles. Instead, the state has relied upon a reactive, piecemeal strategy that prioritises specific events and individuals over the conflict’s underlying causes and consequences. In 2013, the Northern Ireland Human Rights Commission (NIHRC) reported that the people of Northern Ireland “benefit or have already benefitted from a great deal of the initiatives that would typically serve as building blocks for transitional justice”, especially in the form of guarantees of non-repetition. However, deficient interventions across the other four pillars have allowed “tribal myths” to “continue to trump actual memory”.
These observations are consistent with a 2016 report from Salvioli, who visited Northern Ireland in 2015 to assess its legacy work. He concluded that the various structural reforms facilitated by the Belfast/Good Friday Agreement “have been a crucial enabling condition of progress and a forward-looking accord”. He applauds the introduction of new policing techniques and oversight mechanisms, such as the Northern Ireland Policing Board and the Office of the Police Ombudsman for Northern Ireland, as uniquely positive innovations that have transformed one key catalyst of the Troubles: police and military forces’ perceived biases and negative behaviours. Changes to policing, power sharing, and the human rights regime are each powerful guarantees of non-recurrence that have sustained a violence-free climate in Northern Ireland.
But the absence of violence should not be confused with reconciliation. Falvioli further reports that prosecution, truth-seeking, and reparations efforts have traditionally “relied on judicial procedures, leading to inevitable ‘fragmentation’” because such procedures “are case-based and primarily about individual responsibility”. Ad hoc truth-telling investigations, such as the Bloody Sunday Inquiry, have deepened public knowledge and facilitated acknowledgement by the UK Government of its wrongdoing during specific episodes of the Troubles. Criminal prosecutions have also punished individuals and awarded reparations in limited circumstances. However such investigations by the government only took place after years of advocacy and pressure by victims’ groups. In addition, the knowledge they yield is selective, as cases involving death have been overwhelmingly prioritised in the courts. This means that many actors who engaged in non-fatal “torture, sexual abuse and illegal detention”, among other human rights abuses, are unlikely to face accountability or recognition under current practices.
Falvioli identifies reparations as “the area of least achievement” in Northern Ireland. Various schemes have been executed to provide financial compensation and health rehabilitation to select classes of Troubles victims. However, a reliance on judicial procedures to process reparations has impeded access and targeted individuals instead of groups, communities, and public goods. Moreover, this mechanism cannot effect change for entire classes of people whose lives were transformed by the Troubles without a clear individual perpetrator, such as those who were forcibly displaced because of violence and continue to suffer from economic instability.
Stormont House Agreement
In 2014, the major political parties of Northern Ireland agreed in principle to the Stormont House Agreement (SHA). This deal outlines a package of four new legacy institutions which, according to O’Malley, “represented a major step towards dealing comprehensively with the past” (p. 132). If implemented, the SHA would have centralised and strengthened the top-down practices of criminal prosecution, truth-telling, and memorialisation in Northern Ireland. When paired with the state’s already strong guarantees of non-recurrence, these new institutions would contribute to a more comprehensive transitional justice approach.
To improve criminal prosecutions, the SHA promotes an independent “Historical Investigations Unit” (HIU) to complete all investigations into criminal activity and non-criminal misconduct connected to Troubles-related deaths. Beyond consolidating other agencies’ investigative efforts, this body would also provide specialised reporting, support, and representation to victims’ families, protecting their right to meaningfully participate in the pursuit of justice.
To facilitate truth-telling, the SHA proposes two distinct, but complementary, bodies. First, the international “Independent Commission on Information Retrieval” (ICIR) would allow families to request, and confidentially receive, information regarding the Troubles-related deaths of their relatives. This institution would enjoy “certain privileges” of confidentiality because of its joint management by the UK and Ireland, including freedom from “judicial review, Freedom of Information, Data Protection or National Archives legislation” in either state, according to the Northern Ireland Office. Individuals’ testimony before the ICIR would be voluntary and, while the body would not offer amnesty, their ICIR testimony could not be used as evidence in a later criminal proceeding. Second, the “Oral History Archive” (OHA) would be a venue for people “from all backgrounds in Northern Ireland and elsewhere” to voluntarily share and curate their personal experiences related to the Troubles. Beyond their fact-finding potential, these testimonies would represent a unique opportunity for individuals to preserve their violence accounts for future generations, allowing the state to facilitate memorialisation in a way that directly empowers victims of all classes.
Operations by the HIE, the ICIR, and the OHA would be systematically monitored by an “Implementation and Reconciliation Group”. This institution would ultimately commission an academic report to summarise the identifiable “themes and patterns” that emerge from SHA-enabled legacy initiatives. This role is especially important for recognising the structural and historical causes of the Troubles, which, as Salvioli notes, “cannot be properly understood or addressed as the sum of isolated cases”.
In response to Salvioli’s 2016 report, the UK Government acknowledged that its “recommendations can be best achieved through the full implementation of the [SHA]” (O’Malley, 2023, p. 133). However, its legacy proposals were not implemented. Instead, in May 2018, the UK Government launched a public consultation to evaluate the legacy institutions’ fiscal and practical feasibility. This inquiry solicited testimony from a range of non-government organisations, researchers, and other public stakeholders related to the proposals, but it did not clarify precisely how, or when, they should enter into law.
Legacy Act
The outcome of the UK Government’s consultation was a reframing of the nature of Northern Irish truth-seeking and criminal prosecution, and a departure from the SHA strategy. In July 2021, then-Prime Minister Boris Johnson announced that the Conservative government intended to “draw a line under the Troubles”. That vision was realised in September 2023, when the UK Parliament passed the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023. The Act introduced a new truth-seeking institution, the Independent Commission for Reconciliation and Information Recovery (ICRIR), which is responsible for reviewing and documenting “legacy” cases: individual cases of unresolved wrongdoing during the Troubles. The commission will ultimately publish final reports on each legacy case it hears, which will then be cited within a “historical record” of all Troubles-related harmful conduct that is publicly documented. The UK Government has drawn a parallel between this process and the TRC, which connected non-punitive acknowledgement of wrongdoing to reconciliation.
The ICRIR is not as comprehensive as the SHA institutions because, by design, it marginalises criminal prosecution. The Act explicitly prohibits future inquests, prosecutions, or other criminal investigations of Troubles-related offences, which are to be solely processed by the ICRIR. Additionally, this commission is empowered to grant conditional amnesty to any wrongdoer who truthfully testifies to their actions, which would shield them from any future prosecution related to those actions. New requests for legacy case review by the ICRIR will not be allowed after 2028, establishing a clear deadline by which the UK Government intends to investigate the Troubles any further.
The ICRIR abruptly pivots away from judicial procedures of the past, but it enjoys little legitimacy across Northern Irish society. The state’s two largest political parties — Sinn Féin and the Democratic Unionist Party — several victims groups, and prominent non-government organisations like the Committee on the Administration of Justice (CAJ) have all argued that the Act impedes victims’ participation in and access to justice. Moreover, soon after it entered into law, several victims’ families, the NIHRC, and the Irish Government all initiated legal action against the Act. They each allege that the Act breaches the European Convention on Human Rights (ECHR), of which the UK is a signatory.
Arguments against the Act largely derive from interpretations of Articles 2 (right to life) and 3 (freedom from torture) of the ECHR. Article 2 requires states to meaningfully investigate the uses of lethal force by government actors. Article 3 of the convention similarly obliges states to investigate allegations made against government actors, of torture and inhuman or degrading treatment or punishment.
The political fallout of the Act illustrates the importance of inclusivity in planning top-down transitional justice schemes. Even if the ICRIR carries out its mandate, it comes against the explicit wishes of many victims and leaders across Northern Ireland. The commission’s final reports and historical record may not be accepted as an accurate or comprehensive account of the Troubles, especially when they abridge accountability and victims’ expressed need for justice. Continued conflict over how to deal with the past may also bleed into other products of the Northern Ireland peace process, including its praised guarantees of non-recurrence. In particular, the suggestion by Lord Jonathan Caine that Ireland’s litigation challenging the Act may yield “consequences” for British-Irish relations is a threat to the spirit of the Good Friday Agreement, which calls for the countries to jointly manage several policy portfolios in Northern Ireland.
Embracing the lessons of transitional justice highlights the successes of the Northern Ireland peace process, clarifies its flaws, and illuminates opportunities for meaningful innovation. Dealing with the past is no easy task, as was demonstrated in the previous negotiations that led to the SHA’s framework for this issue — unaddressed in the Good Friday (1998) and St Andrews (2006) agreements and addressed unsuccessfully in the Haass-O’Sullivan talks in 2013. However, a systematic review of the Northern Ireland case suggests that the UK Government’s subsequent “drawing-a-line” approach that prioritises truth-seeking, while not an inherently bad goal, is itself insufficient for the longer-term remedy of reconciliation that a more inclusive and comprehensive form of transitional justice can deliver.
Further reading:
Roddy Brett and Lina Malagón: Contemporary Peacemaking: Peace Processes, Peacebuilding and Conflict
Northern Ireland Human Rights Commission (NIHRC): Dealing with Northern Ireland’s Past: Towards a Transitional Justice Approach
Padraig O’Malley: Perils and Prospects of a United Ireland
United Nations Human Rights Council (UNHRC): Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Fabián Salvioli
