Document Type

Article

Publication Title

Harvard Negotiation Law Review

Volume

29

Publication Date

2024

Abstract

The Good Friday/Belfast Agreement (Agreement) brought hope to Northern Ireland after thirty years of violent conflict during a period known as the Troubles (1968 - 1998). The Agreement offered a framework for ending the conflict and for addressing the needs of victims. However, unlike peace agreements from many other post-conflict societies, it did not provide a transitional justice process for dealing with contentious issues of the past. As a result, more than 25 years after the signing of the Agreement, the problematic legacy of the conflict continues. Paramilitaries are still a cause for concern. Peace walls still exist. Competing sectarian flags still cause tension in divided communities, schools are still segregated, and shootings continue.

The United Kingdom (UK) government has made several attempts to deal with the legacy of the past and most of them have been ineffective. Two relatively recent amnesty proposals have generated intense opposition. In 2021, the UK government proposed blanket amnesty for criminal offenses associated with the Troubles. The proposal was offered under the banner of restorative justice for the purpose of facilitating the reconciliation process. But the government did not consult with victims and their families—the stakeholders who would have been involved in any reconciliation process. Unsurprisingly, stakeholders strongly pushed back against the bill. 

In May 2022, the UK government announced an amended legacy bill, this time with conditional amnesty features. Immunity would be available only to those who cooperated with truth recovery investigations. Again, the bill was developed without meaningful input from victims and their families. It has faced strong opposition by human rights advocates, international law scholars, and politicians from across the political spectrum in Northern Ireland.

This article focuses on the UK government’s unilateral approach to decision making in connection with the legacy of the Troubles, particularly as related to the conditional amnesty proposal in the 2022 Legacy and Reconciliation Bill. It does not consider the legality of this bill but rather the process in which it has been delivered to stakeholders. It finds the government’s unilateral approach to decision-making to be deficient in procedural justice with little attention paid to the values of consent, inclusion, accountability and relationship-building. Given these justice deficiencies, this article recommends a legacy reconciliation model based on a consensus building approach, grounded in the principles of procedural justice (e.g., transparency, accountability, voice), and structured within a dispute system design (DSD) framework. Parties’ experiences of procedural justice influence how they experience fairness and satisfaction not only with themselves but with the institutions that deliver justice. I argue that the UK government should weigh the advantages of a consensus building approach against its failed practice of unilateral decision-making. Creating deliberate instances of procedural justice that empower victims and their families to have a say in decision-making can significantly enhance public trust in the justice system and further promote the reconciliation process.

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