Whose Justice? Rethinking Transitional Justice from the Bottom Up
| Author | Patricia Lundy,Mark McGovern |
| Published date | 01 June 2008 |
| DOI | http://doi.org/10.1111/j.1467-6478.2008.00438.x |
| Date | 01 June 2008 |
JOURNAL OF LAW AND SOCIETY
VOLUME 35, NUMBER 2, JUNE 2008
ISSN: 0263-323X, pp. 265±92
Whose Justice? Rethinking Transitional Justice from the
Bottom Up
Patricia Lundy* and Mark McGovern**
This paper argues that transitional justice needs to adopt a partici-
patory approach to achieve longer-term sustainability, shifting away
from the top-down `one-size-fits-all' approach to allow `voices from
below' to be heard and heeded. It critiques dominant interpretations of
key transitional justice concepts, and links them to the difficulties of
post-conflict transitional justice in a range of violently divided
societies. Popular participation and local agency, it is argued, is
necessary to achieve ends identified in much transitional justice dis-
course, and to embed mechanisms for the creation of sustainable
peace. A Northern Ireland initiative (the Ardoyne Commemoration
Project) will be explored in-depth, illustrating how a bottom-up `truth-
telling' process can make a significant contribution to transitional
justice and casting doubt on the validity of the deference to legal
dominance in current policy and practice. The paper recommends that
knowledge available in development studies and participatory theory
be applied more clearly in debates and approaches in transitional
justice.
INTRODUCTION
What has been coined the `post-conflict agenda' has its roots in the peace
framework developed in the United Nation's Secretary General Boutros
Boutros-Ghali's `Agenda for Peace' 1992.
1
In this paper we advance the
265
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Department of Sociology, University of Ulster, Jordanstown, Newtonabbey
BT37 0QB, Northern Ireland
p.lundy@ulster.ac.uk
** Department of Social and Psychological Sciences, Edge Hill University,
St Helens Road, Ormskirk L39 4QP, England
mcgoverm@edgehill.ac.uk
1An Agenda for Peace: Prevention Diplomacy, Peacemaking and Peacekeeping (1992)
17 UN Doc. A/47/277-S/24111.
view that a grassroots approach to transitional justice should be regarded as
an intrinsic part of this agenda. The international community has recently
prioritized justice issues and is financing and supporting the implementation
of a plethora of legal initiatives. As one commentator noted, development
co-operation has been reformulated in legal terms and more and more
international effort has gone into building courts, writing laws, punishing
perpetrators of human rights abuses, supporting human rights NGOs, and
generally promoting the rule of law abroad.
2
(Re-)establishing the rule of
law is now regarded as a prerequisite for the emergence of stable and
peaceful societies and justice packages are frequently part of negotiated
peace agreements. However, there is a growing debate about the appropriate
model and level (for example, the global, national, local/community) at
which transitional justice measures should be adopted, and whether these are
complementary or viable alternative processes.
3
Critics have argued that law
is increasingly seen by the international community as one of the safest ways
in which to engage with, or intervene, in other countries. Such attempts to
`influence the rules of the game' evidence the fact that international justice
and rule of law initiatives are not politically neutral.
4
In particular, the
tendency to exclude local communities as active participants in transitional
justice measures is a primary flaw, raising fundamental questions of legiti-
macy, local ownership, and participation. Simply involving local people at
the implementation stage of these initiatives is not enough. For a fully
participatory process (we will argue) they should also take part at every stage
in the process including; conception, design, decision making, and
management.
The aim of this paper is to examine critically some of these issues, and
while mindful of the dangers of over-eulogizing a participatory approach,
explore the value of participation and local agency for transitional justice
theory, policy, and practice. It is structured in six parts. First, it briefly
examines the origins of transitional justice and its application in post-conflict
societies. This is followed by a brief assessment of some of the key
266
2C.Mokhiber, Local Perspectives: Foreign Aid to the Justice Sector (2000) 1±16.
3A.Bett s, `Should Approaches to Post-conflic t Justice and Reconciliation be
Determined Globally, Nationally or Locally?' (2005) 17 European J. of Development
Research 735±52; L. Bickford, `Unofficial Truth Projects', unpublished paper on file
with authors (2006); P. Gready, `Reconceptualizing transitional justice: embedded
and distanced justice' (2005) 5 Conflict, Security & Development 3±21; P. Lundy and
M. McGovern, `The Dialogues Within: Memory, Community and Post-Conflict
Transition in a Nationalist Community in the North of Ireland', paper presented to
`Cultures of Political Transition: Memory, Identity and Voice', 13±17 September
2000; P. Lundy and M. McGovern, `Participation, Truth and Partiality: Participatory
Action Research, Community-based Truth-telling and Post-conflict Transition in
Northern Ireland' (2006) 40 Sociology 71±88.
4J.Hearn, `Aiding democracy? Donors and civil society in South Africa' (2000) 21
Third World Q. 815±30; B. Oomen, `Donor Driven Justice and it Discontents: The
Case of Rwanda' (2005) 36 Development and Change 887±910.
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
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