SLSA Conference 2007

Transitional Justice and Rule of Law Stream

Stream Organisers: Mary O’Rawe and Jérémie Gilbert

Transitional Justice Institute, University of Ulster

This stream invites papers examining any aspect of how law and legal institutions assist (or not) the move from conflict to peace. The stream aims to facilitate discussion around the complexities of the relationship between Transitional Justice and the Rule of Law.

In particular, the stream welcomes papers on or intersecting with the broad themes of:

  Conflict and law

  Transformation of political participation and institutions

Research Theme: Transformation of Political Participation and Institutions

Typically peace agreements involve compromises over access to power, government and/or territory. Northern Ireland with its power-sharing model for government and the cross-border dimension of the Belfast Agreement provides a good example of an attempt to accommodate competing nationalisms through innovative constitutional arrangements. The range of policy options devised by negotiators is increasingly underwritten by international law in attempts to respond to demands for external self-determination (for example, independence) by providing internal self-determination (for example, effective minority participation in decision-making through autonomy or consociationalism). Although it is too early to talk of a legal right to this broad concept of ‘international self-determination’, the notion finds support in proliferating international instruments on minority rights.

There is, however, another perspective from which to evaluate the political arrangements which emerge as a result of peace processes. The conflict settings that peace agreements address tend to be characterized by grassroots mobilization in the form of a vibrant civil society, often with transnational links.  The roles that civil society organizations play during violent conflict mutate and continue into peace processes. Importantly, this is frequently reflected in specific provisions in peace agreements underpinning civil society involvement in peace processes and beyond.  Recognizing the importance of these developments, TJI research seeks to advance the re-conceptualization of core notions of ‘democracy’, ‘citizenship’ and ‘political participation’, and the relationship between formal political institutions and civil society. Among other things, these developments are particularly relevant to understanding women’s participation in transitional contexts – a topic that forms a major strand of our work on Gender, conflict and transition.

  Transformation of legal institutions

Research Theme: Transformation of Legal Institutions

Typically, justice claims lie at the heart of conflict and must be addressed in negotiating an end to conflict. This implicates legal institutions. Different communities within a jurisdiction may have differing degrees of confidence in legal institutions and processes. There may be conflicting views over the extent to which legal institutions have been complicit in the maintenance and management of the conflict, and conflicting views about the necessity and capability of reform (e.g. policing institutions).

Peace agreements frequently include legal and other institutional reforms which aim to address these conflicts. However, peace agreements typically set out broad frameworks that leave institutional change to the implementation phase. This means that institutional reform tends to occur outside of formal negotiating processes and on a piecemeal basis. Experience in Northern Ireland and elsewhere has demonstrated that when this occurs unresolved and outstanding issues from the negotiation process become intertwined in the process of institutional reform.

Institutional reforms often address, to different degrees:

• Overarching justiciable rights (e.g. through bills of rights) including civil, political, social, economic and cultural rights (and/or policy alternatives)
• Constitutional or human rights courts and issues of judicial independence
• National human rights enforcement institutions (e.g. human rights commissions)
• Rights-based reform of the criminal justice system
• Rights-based reform of policing

Aims of TJI research in this area

• Consider ‘best practice’ with regard to institutions using international comparative experience

• Provide specific policy oriented research relevant to institutional development in Northern Ireland

Indicative projects

The legal regulation of public protest (Michael Hamilton)

Research Theme: Dealing with the Past

Successful transitions in recent years have almost invariably been characterized by attempts to engage with the past. Conversely, experience warns that failure to address the past adequately may hinder prospects for a successful transition. Dealing with the past may be viewed as comprising two aspects: (1) Undoing the Past,  typically by attempting to ‘undo’ the displacement of people and dispossession of land which occurred before and during the conflict; and (2) Accounting for the Past, for instance through the use of truth commissions and domestic or international courts and tribunals.
 
Attempts at devising legal mechanisms for dealing with the past challenge accepted notions of the role of prosecution, trial and punishment. International law increasingly articulates a seemingly inflexible demand for trials for those responsible for major violations.  Yet paradoxically, peace-making, reconciliation and truth-telling may be facilitated by a measure of immunity from prosecution, and prisoner-releases have been a feature of most conflict-resolution processes. Truth commissions, with their novel approaches to accountability, may offer a way to square this circle, even if a degree of conflict with legal norms is involved. Yet such mechanisms cannot be said to represent an escape from law, since successful truth commissions almost invariably require a legal mandate. Others champion individual criminal trials as routes to truth and reconciliation. Yet others (however critically) point  to alternative ‘weeding out’ (or lustration) mechanisms, whereby those involved in past violations are prevented by administrative or quasi-judicial means from public participation in new institutions.
 
TJI research aims to offer a critique of existing mechanisms (both theoretical and practical) with policy suggestions for domestic and international audiences. The Institute aims to make a direct contribution to ideas of ‘truth-telling’ through specific projects that examine the legal framework governing key events in the conflict and the transition in Northern Ireland. These use socio-legal and archive-based methodologies, and explore the relationship between the conflict and the domestic legal framework that governs it.
 
Aims of TJI research in this area

• Provide analyses of the relevant legal standards

• Examine the utility of traditional theories of prosecution and punishment, such as deterrence, with regard to transitional justice mechanisms

• Explore dilemmas of how to account for the past in the Northern Ireland context, in light of the demands of reconciliation and the needs of victims, with a focus on examining the appropriateness of legal mechanisms for dealing with the legacy of violations by state and non-state actors (paramilitary groups)

• Draw lessons from the experience of Northern Ireland for other transitional situations

Indicative projects

• Dealing with the past in Northern Ireland (Christine Bell, Kirk Simpson, Bill Rolston)

• Policing and the past in Northern Ireland (Mary O’Rawe)

• The Bloody Sunday Tribunal (Angela Hegarty)

• Victim-hood, memory, political violence and notions of transitional justice (Kirk Simpson)

• The release and resettlement of paramilitary prisoners in Northern Ireland (Clare Dwyer, Grainne McKeever, Bill Rolston)

• Imputed criminal liability and the goals of international justice (Shane Darcy)

• Truth and reconciliation in transitions in Africa (Edwin Abuya, Eugene McNamee)

• Transition in postcolonial societies (Khanyisela Moyo)

• Socio-economic rights in transitional justice (Thomas Bundschuh)

• Indigenous Peoples and Land Restitution (Jérémie Gilbert)

National human rights institutions in transitions (Anne Smith)Mary O’Rawe)Jérémie Gilbert)Jérémie Gilbert)Anne Smith, Thomas Bundschuh)Women and the implementation of the Good Friday / Belfast Agreement

Policing and transition (

The relationship between customary and national legal systems (

Legal remedies in the African human rights system (Gina Bekker)

Land rights in agreements between states and indigenous peoples (

Equality and socio-econcomic rights: theoretical and comparative analyses (

ast

  Gender, conflict and transition

This would include papers dealing with, inter alia, minority rights, policing and criminal justice, Bills of Rights etc

(Inter-Disciplinary papers very welcome)

Abstracts of no more than 300 words should be submitted as a word attachment via email no later than 31^st January 2007. Earlier submission would be much appreciated to assist us to establish Panels around common themes so as to optimize discussion among interested parties. It is currently envisaged that a Panel will consist of 3 speakers, each having 20 minutes to present their paper.

Abstracts should give a provisional title, key words and a brief synopsis of arguments, as well as your name, position, email details and the address of your university department or centre.

Abstracts should be sent to m.orawe@ulster.ac.uk and j.gilbert@ulster.ac.uk.

Contact Details

Mary O’Rawe                              Jérémie Gilbert

Senior Lecturer Lecturer

Transitional Justice Institute    Transitional Justice Institute

University of Ulster                     University of Ulster

Jordanstown      Magee Campus

BT37 OQB          Derry BT 48 7JL

Research Theme: Conflict and Law

Transitional Justice is primarily concerned with facilitating movement from conflict to peace.  Increasingly, however, both conflict and processes of resolution are being understood as fluid with dynamics that change over time.  Consequently processes of conflict prevention, peace-making and peace-building are now recognized as closely related (See Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies).  TJI aims to make a focused contribution to these broader debates by exploring two converse assertions.  First, that greater understanding and acknowledgement of the relationship between law and the causes of conflict are necessary not just to transition, but also to preventing earlier conflict escalation.  In particular, TJI seeks to undertake a critical appraisal of the role of law in the management, maintenance and end of conflict.  The second assertion is that ‘transitional mechanisms’ exhibited in societies emerging from protracted conflicts can have a constructive role if promoted when conflict is at a nascent stage. 

Accordingly, TJI research in this area provides detailed analyses of how legal responses aimed at a military containment of conflict can operate to escalate conflict.  Such responses can undercut (often concurrent) legal measures aimed at eliminating the political causes of conflict.  This strand of TJI work has both a doctrinal (or technical-legal) and a socio-legal focus.  In particular, it addresses the lack of consensus on applicable legal norms – a lack of consensus that had particular significance in Northern Ireland.  This lack of consensus, on when the legal criteria establishing the existence of an internal armed conflict have been satisfied, is compounded by the lack of sanction for human rights and humanitarian violations which typically take place during such conflicts.  Moreover, post-September 11th, TJI research around this theme increasingly addresses global-level tensions between military and political responses to conflict.