Transitional Justice and Ireland's Legacy of Historical Abuse

This essay evaluates the application of transitional justice to the context of historical abuse in peaceful, consolidated democracies, in particular the Republic of Ireland.¹ Examining Ireland's efforts at repairing its past from such a perspective reveals an unwillingness by state authorities and Christian churches and religious orders to embrace the necessity of fundamental social, legal, and political transformation when addressing widespread and systemic historical abuse.² In Irish efforts to address historical abuse across a range of contexts, power remains out of the hands of victim-survivors and of those traditionally marginalized in society. Instead, in agreement with Georges Balandier, I argue that "the supreme ruse of power is to allow itself to be contested ritually in order to consolidate itself more effectively."³ Recent state responses to historical abuse contribute to such a consolidation of power. Although public inquiries, legal accountability, and redress schemes claim to serve the interests of victim-survivors of historical abuse, these mechanisms fail meaningfully to empower or support their voices, participation, and ownership in shaping how Ireland addresses its historical abuses. The Irish state designs mechanisms and engages in practices that marginalize victim-survivors in the present and thereby risk creating new forms of harm and distress. As a result, Irish "transitional justice" risks claiming the legitimacy of serving survivors' needs without any meaningful transition in how they are treated by the state, churches, or society.

Section one of this article introduces the framework of transitional justice and considers its application to the Irish republic. Section two assesses the Irish experience of investigating and truth-seeking regarding historical abuses and draws comparisons with the "truth commission" model in transitional justice. Section three evaluates the Irish approach to accountability for historical abuses and demonstrates its limitations despite the different expectations for accountability for historical criminal and civil offenses. Finally, section four assesses Ireland's redress schemes for victim-survivors of historical abuse, drawing on approaches to reparations in transitional justice, and briefly examines Ireland's apologies regarding historical abuse and their potential impact on reform and reconciliation.

Transitional Justice and Consolidated Democracies

Ireland is not unique in dealing with a national legacy of past systemic violence. Although it has deployed several mechanisms since the early 2000s to address historical abuses, it has typically not employed the language or framework of transitional justice. It was only in March 2017 that TD Katherine Zappone, the minister for children and youth affairs, announced that she would initiate a transitional-justice approach to meet the needs of survivors of mother-and-baby homes (maternity homes).⁴ As a result, transitional justice forms only a small part of the explicit approach used by the Irish state to address its past. But transitional justice—as a body of scholarship and comparative international best practice—can also be employed as a conceptual and legal tool to evaluate the entirety of how countries such as Ireland have addressed their legacy of past violence.

Transitional justice typically addresses how societies reckon with a legacy of gross violations of human rights in the specific contexts of a transition from armed conflict or authoritarian rule to stable, peaceful liberal democracy.⁵ It includes several discrete but linked "pillars": investigation and truth-seeking (typically through truth and reconciliation commissions), accountability, reparation, guarantees of nonrecurrence, and reconciliation.⁶ Though a field dominated by law and lawyers, transitional-justice discourse claims to institute an interdisciplinary practice, with several ethical commitments to how justice is to be achieved; the process matters as much as the outcome.⁷ To this end a number of key tenets have informed scholarship and practice in this area that must be highlighted in any application of transitional justice to Ireland. First, an approach recognizing victim-survivors as legal subjects, bearers of human rights, and key participants in any decision affecting transitional justice is central to international transitional-justice policy.⁸ Second, each transitional-justice mechanism is designed to complement rather than compete with the others and is designed to form part of a single holistic process.⁹ Transitional justice is...