In a comment piece for the Irish Times, the former Minister for Children, Katherine Zappone has suggested that the publication of the Report of the Mother and Baby Homes Commission of Investigation should be used “as an opportunity to listen, confront and accept the uncomfortable realities from the not-so-distant past.” 

Ms Zappone also reminded readers that when she was a government Minister dealing with the Mother and Baby Home issue, her department, along with Irish, UK and Spanish experts formulated proposals for a “A Forum on Truth, Gender and Transformation”, underpinned by the guiding principle known as ‘transitional justice.’

Indeed, the notion of transitional justice is something that Katherine Zappone has been advocating since at least the early stages of 2018, when, as the keynote speaker at an academic conference in Boston College she gave a talk entitled Towards ‘Transitional Justice: Recognition, Truth-telling, and Institutional Abuse in Ireland.’

But what exactly is transitional justice and is it capable of creating the process of “national reconciliation and reflection” that the former Minister is advocating?

The evidence suggests that it is not. Indeed, the evidence clearly points to a recognition that transitional justice, in both theory and practice is profoundly flawed and may indeed be actively harmful in terms of bringing about genuine reconciliation.

Despite this, the notion of ‘Transitional Justice’ (TJ) has been welcomed by various advocacy groups. Perhaps because at first glance it appears essentially unproblematic. But the deeper you look the more real difficulties start to emerge.

Let us be clear about what is usually understood when we speak about Transitional Justice.

For the EU and the UN, it is the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.

Now while all of that may seem straight-forward, in actual fact the challenges related to delivering Transitional Justice are of such magnitude that the influential European Consortium for Political Research (ECPR) conducted an entire conference on the subject in 2017.

The papers delivered at that event reflected the “barrage of criticisms, from within, as well as from those outside” the field of Transitional Justice studies.

The primary criticisms were identified as being of two major types; “first that theoretically it is problematic, and secondly, that it is misapplied.”

Speaking more generally we can say that within the scholarship of Transitional Justice, several recurring reasons are often cited as to why exactly it is a problematic framework.

The most common refer to its ‘blind spots’—for instance, its State-focused approach, and its narrow understandings of both ‘justice’ and ‘transition’.

This ‘top-down, State-centric focus’ can actually limit the capacity of Transitional Justice forums to generate accountability because of the way they exclude “examination of a much wider range of actors and practices involved in addressing legacies of human rights abuse.”

While this aspect must not be over-emphasised we can see clear signs that it is already happening here with the legitimate, but completely disproportionate focus on the role of the religious orders while little or no space is being created to hold other centres of power accountable, such as local authorities, government departments or even the Garda Siochana?

If this continues to happen then the transitional justice that Ms Zappone champions will amount to little more than what The International Center for Transitional Justice has described as “sophisticated impunity.”

In her Irish Times comment piece Ms Zappone also expresses a belief that the Mother and Baby Home Report did not represent or bring about ‘closure’ for the many people involved.

Yet it should be known that establishing forums based on the idea of transitional justice is not at all likely to bring about this closure either.

Precisely why this is so was identified as far back as 2010 in a publication called the ‘The myth of closure, the illusion of reconciliation: Final thoughts on five years as co-editor-in-chief’ in The International Journal of Transitional Justice.

In that article H.W Weinstein concluded that:

“We have focused entirely too much on the notions of closure and reconciliation. Member States of the UN and European Union have expended considerable amounts of money and human resources on chasing a will-o’-the-wisp,  adopting  buzzwords that have no consistent definition or conceptual clarity and promoting mechanisms  to achieve these obscure outcomes with little evidence that they will make a difference.”

The former Minister may thus find that while her intentions are noble, the reality of trying to bring about healing through the use of such a flawed concept as transitional justice may be far more challenging than she has anticipated.