‘Quiet’ Transitional Justice: ‘Publicness’, Trust and Legitimacy in the Search for the ‘Disappeared’
| Published date | 01 April 2020 |
| Date | 01 April 2020 |
| Author | Lauren Dempster |
| DOI | 10.1177/0964663919833027 |
| Subject Matter | Articles |
Article
‘Quiet’ Transitional
Justice: ‘Publicness’,
Trust and Legitimacy
in the Search for
the ‘Disappeared’
Lauren Dempster
Queen’s University Belfast, UK
Abstract
There is a pragmatic value to developing Transitional Justice (TJ) processes quietly. At
first glance, such ‘quietness’ may seem to contradict the principles often associated with
TJ, such as ‘publicness’, openness and the leaving behind of secrecy and silence. However,
I argue that behind-the-scenes efforts and processes are an often-overlooked part of
more public-facing TJ mechanisms, and that their quiet nature raises questions that
should be more fully understood, particularly around the notions of trust and legitimacy.
This article introduces the notion of ‘quiet’ TJ, drawing on the example of the estab-
lishment of the Independent Commission for the Location of Victims’ Remains –
established to locate the remains of Northern Ireland’s ‘disappeared’. I argue that quiet
diplomatic efforts in the development of legislation, and the ‘quiet’ passage of that leg-
islation, facilitated the development of a workable mechanism which has, to a large
extent, been effective, has facilitated (limited) truth recovery and the development of
trust and can be argued to have legitimacy.
Keywords
‘Disappearances’, legitimacy, Northern Ireland, ‘publicness’, Transitional Justice, trust,
truth recovery
Corresponding author:
Lauren Dempster, School of Law, Queen’s University Belfast, Main Site Tower, Belfast, BT7 1NN, UK.
Email: lauren.dempster@qub.ac.uk
Social & Legal Studies
2020, Vol. 29(2) 246–272
ªThe Author(s) 2019
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DOI: 10.1177/0964663919833027
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Introduction
One of the much-discussed features of Transitional Justice (TJ) is its requirement for
‘publicness’. TJ processes such as the trial of Slobodan Milosevic, the South African
Truth Commission (SATRC), piles of Fuerzas Armadas Revolucionarias de Colombia
(FARC) weapons being verified by the United Nations or David Cameron’s apology in
the wake of the Saville Inquiry into the events of Bloody Sunday all have strong
performative dimensions (Bentley, 2015; Bozzoli, 1998; Cole, 2010; Meijers and Gla-
sius, 2013; Theidon, 2007). However, as Cole (2010: 5) has argued with regard to the
SATRC, for such public facing mechanisms, while the hearings became ‘emblematic’,
each represented ‘countless hours spent behind closed doors’. Such ‘behind closed doors
work’ is an example of what I have termed ‘quiet’ Transitional Justice (QTJ). In par-
ticular, this article focuses on the pragmatic utility and necessity of developing some TJ
processes quietly, notwithstanding the much vaunted values of ‘publicness’ and trans-
parency associated with the field.
1
The variant of QTJ which I am advancing is quite practi cal in its orientation. It
involves a number of components. First, given the focus of TJ, it involves an attempt
to come to terms with violence and human rights abuses of the past (see e.g. Lawther
et al., 2017; McEvoy and Mallinder, 2017; Roht-Arriaza and Mariezcurrena, 2006;
Teitel, 2000). Second, it is work that is done behind closed doors. This private style
of TJ involves discussion and negotiations between the different actors and the concur-
rent exclusion of the media and broader public from those conversations. Third, in some
instances, as was the case with the ‘disappeared’ in Ireland, the outworkings of these
deliberations do become public, albeit in a carefully managed and choreographed fash-
ion. In other contexts, the results of such processes might not become known for years or
even decades. For example, during Uruguay’s confidential Naval Club talks of 1984, the
military and democratic politicians are believed to have made a ‘gentleman’s agreement’
that the civilian government would refrain from prosecuting the military for their human
rights violations. In this case, a form of amnesty was introduced, but it was not formally
or publicly acknowledged by the government (Mallinder, 2009; Sriram, 2004). Fourth,
the mechanism is then implemented and at some level delivers what it promised, par-
ticularly to the victims who are, rhetorically at least, at the centre of all TJ processes
(Brown and Nı´ Aola´in, 2014; Karstedt, 2010; McEvoy and McConnachie, 2013). Of
course, TJ mechanisms can fail, and often there are significant disputes about whether
measures such as the SATRC have ‘worked’. However, the version of QTJ which I am
advancing requires that there be some transition from the status quo ante.
I argue that the processes that take place ‘behind thescenes’ are currently insufficiently
scrutinized by scholars. This gap is important because not only do such processes appear
contradictory to the principles of TJ as they are widely understood, but the important
influence of such work on the design and functioning of TJ mechanisms is missed. The
development and work of the Independent Commission for the Location of Victims’
Remains (ICLVR), established in 1999 to locate those ‘disappeared’ during the conflict
in and about Northern Ireland, will be used as a case study to examine the influence and
importance of QTJ in building trust and facilitating a process of (limited) truth-seeking.
This article is divided into two parts. In the first, drawing upon the literature of quiet
Dempster 247
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