Truth Recovery and Justice after Conflict: Managing Violent Pasts

Breen Smyth, M. (2007). Truth Recovery and Justice after Conflict: Managing Violent Pasts. Abingdon: Routledge. RAE2008

Truth Recovery and Transitional Justice: Deferring human rights issues

This book investigates why some societies defer the solution of transitional justice issues, such as the disappeared/missing, even after successful democratic consolidation. It also explains why the same societies finally decide to deal with these human rights issues. In short, it considers the interesting and understudied phenomenon of post-transitional justice. The prolonged silences in Spain, Cyprus and Greece contradict the experience of other countries -- such as South Africa, Bosnia, and Guatemala -- where truth recovery for disappeared/missing persons was a central element of the transition to peace and democracy. Despite democratization, the exhumation of mass graves containing the victims from the violence in Cyprus (1963-1974) and the Spanish civil war (1936-1939) was delayed until the early 2000s, when both countries suddenly decided to revisit the past. Cyprus and Spain are not alone: this is an increasing trend among countries trying to come to terms with past violence. Interestingly, despite similar background conditions, Greece is resisting the trend, challenging both theory and regional experience. Truth Recovery and Transitional Justice considers three interrelated issues. First, what factors can explain prolonged silence on the issue of missing persons in some transitional settings? Second, which processes can address the occasional yet puzzling transformation of victims’ groups from opponents of truth recovery to vocal pro-reconciliation pressure groups? Third, under which conditions is it better to tie victims’ rights to an overall political settlement? The book looks at Spain and Cyprus to show how they have attempted to bring closure to deep trauma by exhuming and identifying their missing, albeit under considerably different conditions. It then probes the generalizability of the conclusions on Spain and Cyprus by looking at the Greek experience; oddly, despite similar background conditions, Greece remains resistant to post-transitional justice norms. Interestingly, each case study takes a different approach to transitional justice.

An Inconvenient Truth: Barriers to Truth Recovery in the Aftermath of Institutional Child Abuse in Ireland

Contemporary settled democracies, including the United States, England and Wales and Ireland, have witnessed a string of high profile cases of institutional child abuse in both church and state settings. Set against the broader literature on transitional justice, this analysis argues that there are significant barriers to truth recovery within the particular context of historical institutional abuse by the clergy in the Republic of Ireland. In the main, I argue that the frameworks of the inquiries and commissions into historical institutional child abuse are not conducive to truth recovery or the search for justice in dealing with the legacy of an abusive past. It is the church-state relationship which makes the Irish situation noteworthy and unique. The Catholic Church and child care institutions are especially self-protective, secretive and closed by nature and strongly discourage the drawing of attention to any deficiencies in organisational procedures. The nature of the public inquiry process also means that there is often a rather linear focus on accountability and apportioning blame. Collectively, such difficulties inhibit fuller systemic investigation of the veracity of what actually happened and, in turn, meaningful modification of child care policies. The article concludes by offering some thoughts on implications for transitional justice discourses more broadly as well as the residual issues for Ireland and other settled democracies in terms of moving on from the legacy of institutional child abuse.

Denial, Silence and the Politics of the Past: Unpicking the Opposition to Truth Recovery in Northern Ireland

There has been considerable and protracted debate on whether a formal truth recovery process should be established in Northern Ireland. Some of the strongest opposition to the creation of such a body has been from unionist political elites and the security forces. Based on qualitative fieldwork, this article argues that the dynamics of denial and silence have been instrumental in shaping their concerns. It explores how questions of memory, identity and denial have created a ‘myth of blamelessness’ in unionist discourse that is at odds with the reasons for a truth process being established. It also examines how three interlocking manifestations of silence – ‘silence as passivity,’ ‘silence as loyalty’ and ‘silence as pragmatism’ – have furthered unionists’ opposition to dealing with the past. This article argues that making peace with the past requires an active deconstruction of these practices.

Explaining Prolonged Silences in Transitional Justice: The Disappeared in Cyprus and Spain

The article examines why some postconflict societies defer the recovery of those who forcibly disappeared as a result of political violence, even after a fully fledged democratic regime is consolidated. The prolonged silences in Cyprus and Spain contradict the experience of other countries such as Bosnia, Guatemala, and South Africa, where truth recovery for disappeared or missing persons was a central element of the transition to peace and democracy. Exhumations of mass graves containing the victims from the two periods of violence in Cyprus (1963–1974) and the Spanish Civil War (1936–1939) was delayed up until the early 2000s. Cyprus and Spain are well suited to explain both prolonged silences in transitional justice and the puzzling decision to become belated truth seekers. The article shows that in negotiated transitions, a subtle elite agreement links the non-instrumental use of the past with the imminent needs for political stability and nascent democratization. As time passes, selective silence becomes an entrenched feature of the political discourse and democratic institutions, acquiring a hegemonic status and prolonging the silencing of violence.

De-linkage Processes and Grassroots Movements in Transitional Justice

Transitional justice literature has highlighted a negative relationship between enforced disappearances and reconciliation in post-conflict settings. Little attention has been paid to how human rights issues can become stepping-stones to reconciliation. The article explains the transformation of the Cypriot Committee on Missing Persons (CMP) from an inoperative body into a successful humanitarian forum, paving the way for the pro-rapprochement bi-communal grassroots mobilization of the relatives of the missing. By juxtaposing the experience of Cyprus with other societies confronting similar problems, the article shows how the issue of the missing can become a driving force for reconciliation. The findings indicate that a policy delinking humanitarian exhumations from the prospect of a wider political settlement facilitates positive transformation in protracted human rights problems and opens up a window of opportunity to grassroots actors.

Delaying Truth Recovery for Missing Persons

The fate of missing persons is a central issue in post-conflict societies facing truth recovery and human rights dilemmas. Despite widespread public sympathy towards relatives, societies emerging from conflict often defer the recovery of missing for decades. More paradoxically, in post-1974 Cyprus, the official authorities delayed unilateral exhumations of victims buried within cemeteries in their own jurisdiction. Analysis of official post-1974 discourse reveals a Greek-Cypriot consensus to emphasise the issue as one of Turkish aggression, thus downplaying in-group responsibilities and the legacy of intra-communal violence. We compare the experience of Cyprus with other post-conflict societies such as Spain, Northern Ireland, and Mozambique and explore the linkages between institutions and beliefs about transitional justice. We argue that elite consensus initiates and facilitates the transition to democracy but often leads to the institutionalization of groups opposing truth recovery even for in-group members.

Transitional justice in Nepal: the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act 2014

The Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act 2014 is Nepal’s latest attempt to establish a transitional programme to respond to conflict era abuses. In part, the Act remedies the inadequacies of the 2013 Ordinance. It creates two commissions, on truth and reconciliation and enforced disappearances, makes provision for the establishment of a Special Court to try past abuses and incorporates systems to enable vulnerable witnesses to participate in truth seeking. Yet in a number of respects it continues to fall short of international legal standards, not least in the possibility of amnesty for international crimes and gross violations of human rights. In addition, the relationship between the three mechanisms – truth seeking, amnesty and prosecution – remains unclear and safeguards for individual rights are lacking. This paper explores these recent developments, highlighting issues that must be remedied if transitional justice objectives are to be achieved in Nepal.

From Absence to Presence, from Silence to Voice: Victims in Transitional Justice Since the Nuremberg Trials

As much as victims have been absent in traditional and national criminal justice for a long time, they were invisible in transitional and international criminal justice after World War II. The Nuremberg Trials were dominated by the perpetrators, and documents were mainly used instead of victim testimony. Contemporaries shared the perspective that transitional justice, both international and national procedures should channel revenge by the victims and their families into the more peaceful venues of courts and legal procedures. Since then, victims have gained an ever more important role in transitional, post-conflict and international criminal justice. Non-judicial tribunals, Truth and Reconciliation Commissions, and international criminal courts and tribunals are relying on the testimony of victims and thus provide a prominent role for victims who often take centre stage in such procedures and trials. International criminal law and the human rights regime have provided victims with several routes to make themselves heard and fight against impunity. This paper tracks the road from absence to presence, and from invisibility to the visibility of victims during the second half of the last and the beginning of the present century. It shows in which ways their presence has shaped and changed transitional and international justice, and in particular how their absence or presence is linked to amnesties.

'Calling the Judiciary to Account for the Past: Transitional Justice and Judicial Accountability in Nigeria'

Institutional and individual accountability is an important feature of societies in transition from conflict or authoritarian rule. The imperative of accountability has both normative and transformational underpinnings in the context of restoration of the rule of law and democracy. This article argues a case for extending the purview of truth-telling processes to the judiciary in postauthoritarian contexts. The driving force behind the inquiry is the proposition that the judiciary as the third arm of government at all times participates in governance. To contextualize the argument, I focus on judicial governance and accountability within the paradigm of Nigeria’s transition to democracy after decades of authoritarian military rule.