Transitional Justice and the 'Disappeared' of Northern Ireland

Silence, Memory, and the Construction of the Past

Lauren Dempster

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351239363
• Edition: 1
• Topic: Histoire
• Subtopic: Histoire de l'Irlande

This book employs a transitional justice lens to address the 'disappearances' that occurred during the Northern Ireland conflict – or 'Troubles' – and the post-conflict response to these 'disappearances.' Despite an extensive literature around 'dealing with the past' in Northern Ireland, as well as a substantial body of scholarship on 'disappearances' in other national contexts, there has been little scholarly scrutiny of 'disappearances' in post-conflict Northern Ireland. Although the Good Friday Agreement brought relative peace to Northern Ireland, no provision was made for the establishment of some form of overarching truth and reconciliation commission aimed at comprehensively addressing the legacy of violence. Nevertheless, a mechanism to recover the remains of the 'disappeared' – the Independent Commission for the Location of Victims' Remains (ICLVR) – was established, and has in fact proven to be quite effective. As a result, the reactions of key constituencies to the 'disappearances' can be used as a prism through which to comprehensively explore issues of relevance to transitional justice scholars and practitioners.

Pursuing an interdisciplinary approach, and based on extensive empirical research, this book provides a multifaceted exploration of the responses of these constituencies to the practice of 'disappearing.' It engages with transitional justice themes including silence, memory, truth, acknowledgement, and apology. Key issues examined include the mobilisation efforts of families of the 'disappeared, ' efforts by a (former) non-state armed group to address its legacy of violence, the utility of a limited immunity mechanism to incentivise information provision, and the interplay between silence and memory in the shaping of a collective, societal understanding of the 'disappeared.'

1 ‘Disappearing’ in international context

Memory, silence, and the law

1 Introduction

This chapter will introduce the concept of ‘disappearing’ by giving a brief historical overview of the use of the practice, examining how the act is defined in legal terms and analysing the impact on those left behind. The ‘rationales’ presented for ‘disappearing’ in various international contexts will then be examined. Subsequently, some of the literature on silence and memory will be introduced, as these are two themes that underlie all stages of a ‘disappearance,’ from the perpetration of the abduction through to campaigns by victims’ families to uncover the truth. Finally, international efforts to recover the ‘disappeared’ will be briefly outlined, and the case of Northern Ireland situated against this backdrop.

2 ‘Disappearing’: origins and international context

To analyse the ‘disappearances’ that occurred during the conflict in Northern Ireland, it is useful to begin by situating ‘disappearing’ in its historical and international context. One of the earliest twentieth century manifestations of the practice discussed in the literature is the Nazi Nacht und Nebel Erlass (Night and Fog Decree) of December 1941. This policy ordered the secret removal of those people in occupied territories who were believed to be a security threat and their return to Germany. No information was to be provided to the individual’s family or loved ones.¹ These people were effectively, “made to disappear.”² The term desaparecido or ‘disappeared’ subsequently came into regular parlance in the 1960s to refer to the abduction and assassination of anti-government forces in Guatemala by so-called ‘death squads.’³ Such practices became widespread across Latin America in the 1970s and 1980s,⁴ though it is perhaps with the thousands of alleged ‘subversives’ who were ‘disappeared’ during Argentina’s ‘dirty war’ that the term became most commonly associated.⁵

1 Reed Brody and Felipe González, ‘Nunca Más: An Analysis of International Instruments on “Disappearances,”’ Human Rights Quarterly, 19:2, (1997), 365–405; United Nations Commission on Human Rights (UNCHR), Civil and Political Rights, Including Questions of: Disappearances and Summary Executions, Report Submitted by Mr Manfred Nowak, Independent Expert Charged with Examining the Existing International Criminal and Human Rights Framework for the Protection of Persons from Enforced or Involuntary Disappearances, E/CN.4/2002/71 (8 January 2002), www.icaed.org/fileadmin/user_upload/G0210026.pdf [accessed 2 August 2018].

2 Testimony of Wilhelm Keitel, Nuremberg Trial Proceedings Volume 10, 4 April 1946 (Morning Session), http://avalon.law.yale.edu/imt/04-04-46.asp#keitel2 [accessed 20 June 2018].

3 Maureen R. Berman and Roger S. Clark, ‘State Terrorism: Disappearances,’ Rutgers Law Journal, 13, (1981), 531–558 (p. 531).

4 Tullio Scovazzi and Gabriella Citroni, The Struggle Against Enforced Disappearance and the 2007 United Nations Convention (Leiden; Boston: Martinus Nijhoff Publishers, 2007).

5 Rita Arditti, Searching for Life: The Grandmothers of the Plaza de Mayo (California: University of California Press, 1999), p. 7.

Between 10,000 and 30,000 individuals were ‘disappeared’ in Argentina between 1976 and 1983.⁶ Abducted by state forces and held in secret detention centres, these people were often tortured before being executed and their bodies cremated or buried in mass graves. In some cases, they were taken on what was known as a ‘death flight,’ where individuals were sedated and thrown from planes into the sea. During this time and for years afterwards, state agents not only denied victims’ families information on their whereabouts, but in most cases denied having had these individuals in their custody.⁷ Following the 1983 election of Raúl Alfonsín, the National Commission on the Disappearance of Persons (Comisión Nacional sobre la Desaparición de Personas – CONADEP) was set up to investigate these ‘disappearances.’ Although the term ‘truth commission’ was not adopted until a decade later, this Commission was one of the first of many such institutions established to catalogue and investigate human rights abuses in post-conflict contexts.⁸

Political ‘disappearances’ have become a much-discussed human rights issue and a significant literature now exists on ‘disappearances’ across the globe.⁹ The campaign of the Madres of the Plaza de Mayo – the mothers of those ‘disappeared’ by the Argentinian junta – is perhaps one of the best known of such mobilisation efforts.¹⁰ ‘Disappearances’ have occurred elsewhere in Latin America,¹¹ as well as in Africa,¹² Asia,¹³ and Europe.¹⁴ In 2017, 45,120 cases across 91 states were reported to be under ‘active consideration’ by the United Nations Working Group on Enforced or Involuntary Disappearances (UNWGEID).¹⁵ As the next section will examine, despite the prevalence and diversity of the practice, the definition of a ‘disappearance’ retains a state-centric focus that does not fit comfortably with the notion of ‘disappearing’ as experienced in Northern Ireland.

6 Priscilla B. Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions (2nd ed.) (New York; Oxon: Routledge, 2011).

7 Uki Goñi, ‘Argentina “Death Flight” Pilots Sentenced for Deaths Including Pope’s Friend,’ The Guardian, 29 November 2017; Antonius C. G. M. Robben, Political Violence and Trauma in Argentina (Philadelphia: University of Pennsylvania Press, 2005); Horacio Verbitsky, Confessions of an Argentine Dirty Warrior (New York; London: The New Press, 2005).

8 Hayner, n 6.

9 For accounts of ‘disappearances’ in a range of contexts see e.g. Amnesty International, ‘Disappearances’ and Political Killings: Human Rights Crisis of the 1990s – A Manual for Action (Amsterdam: Amnesty International, 1994); Francisco Ferrándiz and Antonius C. G. M. Robben (eds) Necropolitics: Mass Graves and Exhumations in the Age of Human Rights (Philadelphia: University of Pennsylvania Press, 2015); Iosif Kovras, Grassroots Activism and the Evolution of Transitional Justice: The Families of the Disappeared (Cambridge: Cambridge University Press, 2017); Adam Rosenblatt, Digging for the Disappeared: Forensic Science after Atrocity (Stanford: Stanford University Press, 2015).

10 Arditti, n 5; Emilio Crenzel, Memory of the Argentina Disappearances: The Political History of Nunca Más (New York: Routledge, 2011); Emilio Crenzel, ‘Argentina’s National Commission on the Disappearance of Persons: Contributions to Transitional Justice,’ International Journal of Transitional Justice, 2:2, (2008), 173–191; Antonius C.G.M. Robben, ‘Disappearance and Reburial in Argentina,’ in Jeffrey A. Sluka (ed.) Death Squad: The Anthropology of State Terror, (Philadelphia: University of Pennsylvania Press, 2000), pp. 93–113; Robben, n 7; Jennifer G. Schirmer, ‘“Those Who Die for Life Cannot be Called Dead”: Women and Human Rights Protest in Latin America,’ Feminist Review, 32, (1989), 3–29 (p. 5).

11 See e.g. Jo-Marie Burt, ‘Guilty as Charged: The Trial of Former Peruvian President Alberto Fujimori for Human Rights Violati...