Leveraging the Report of the UN Special Rapporteur on Transitional Justice towards a Gender-inclusive Process to Deal with the Past

We are delighted to welcome this guest post. Dr Catherine O’Rourke is Senior Lecturer in Human Rights and International Law and the Transitional Justice Institute, Ulster University. Dr O’Rourke is independent academic expert for the Oversight Group of the Irish Government’s National Action Plan on Women, Peace and Security and is also a member of the Belfast-based Legacy Gender Integration Group, which has developed Gender Principles for Dealing with the Legacy of the Past. She is author of Gender Politics in Transitional Justice (Routledge, 2013).

In my new working paper for the DFID-funded Political Settlements Research Programme, International Gender Equality Norms and the Local Peacemaking Political Settlement, I consider the recent Report on Northern Ireland of the United Nations Special Rapporteur on Truth, Justice, Reparations and Guarantees of Non-recurrence. I contend that the Report of the Special Rapporteur has impacted the local peacemaking political settlement by establishing an intrinsic connection between the two ostensibly separate objectives of, firstly, devising a process to deal with the past that meets the needs of victims (an objective which does have some elite buy-in) and, secondly, addresses gender (an objective currently without significant elite buy-in). I conclude with some proposals for leveraging the Special Rapporteur’s Report to advance the integration of gender in dealing with the past in Northern Ireland.

The potential of the Special Rapporteur’s Report is significant for two key reasons. Firstly, the Report has named the failure to address gender as both an overarching deficiency of current efforts, as well as specifically identifying the failure to address gender in respect of justice, truth and reparations initiatives. By naming it in this manner, the Special Rapporteur has made deficiencies on gender increasingly difficult for state and civil society actors to overlook. Secondly, and I submit more importantly, the report carefully identifies how the grounds for the exclusion of gender are also the grounds for the fundamental deficiencies of the overall approach to dealing with the past in Northern Ireland. The Report has established in clear and certain terms that, without concerted and deliberate attention to gender, official efforts to deal with the past will continue to fail victims and society more broadly.

There are five shared grounds identified in the Special Rapporteur’s Report for both the specific failings on gender and the broader failings of efforts to date to deal with the past, namely: (1) the focus on deaths to the neglect of other harms; (2) the ‘events-based’ approach, which overlooks structural dynamics and patterns of violations; (3) the absence of baseline data on the violations that occurred and efforts at redress; (4) the fragmented nature of official efforts to deal with the past, that continually disaggregate criminal justice initiatives from truth, reparations and guarantees of non-recurrences; and (5) the striking failure to deliver on reparations to victims. The Report of the Special Rapporteur therefore evidences the role that can be played by such external interventions, shaped by international gender equality norms, by offering a new diagnostic (defining the problem) and prognostic (identifying the solutions) framing to existing local public policy challenges.

This external perspective is useful because its assessment and recommendations are set against universal human rights standards and obligations, and not against the perceived political expediencies of the local context.  In this specific instance, universal human rights standards and obligations have made attention to gender an essential element of the Special Rapporteur’s Report. Set against international standards, such as United Nations Security Council Resolution 1325 (2000) on Women, Peace and Security, the CEDAW Committee’s General Recommendation Number 30 on the rights of women in conflict prevention, conflict and post-conflict situations, and the civil society-led Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation, the deficiencies of the Northern Ireland process are both apparent and troubling. The attention in the Report to the issue of gender is a reminder of the learning-curve that has taken place internationally on gender and transitional justice, from which the Northern Ireland process can usefully draw.

Regrettably, the report has had a lower profile and less impact than might have been hoped. Coming after the Brexit referendum and after changes in both local and central UK government leadership (most notably, the changes to the Secretary of State for Northern Ireland and the UK Prime Minister), the Report may have been superceded by domestic developments. The key challenge, therefore, is to ensure that the Report’s emphasis on gender is amplified and utilised to inform both official practice and civil society advocacy going forward. The Report might usefully be leveraged towards an agreed and gender-inclusive process to deal with the past by measures such as the following:

  1. International and peer scrutiny: The Special Rapporteur’s Report can usefully leverage international and peer scrutiny of the specifically gendered components of peacemaking in Northern Ireland, for example by the Committee of Ministers of the Council of Europe and the upcoming periodic examination of the UK by the CEDAW Committee.
  2. Official domestic scrutiny: Independent and political bodies involved in scrutinising the government’s human rights performance should be encouraged to draw on the Report to inform their work and to becomes advocates for attention to gender. The Northern Ireland Human Rights Commission, for example, could be an important actor in this regard. Likewise, Westminster Committees such as the Joint Committee on Human Rights and the Northern Ireland Affairs Committee constitute potential allies.
  3. Civil society human rights-based advocacy: The Report constitutes an important measure towards the education of the human rights community and advocacy, which are typically quite variable in their attention to – and understanding of – gender and dealing with the past. Just as the Report treats gender as integral to dealing with the past, civil society human-rights based advocacy must do likewise. The potential should also be considered for relevant strategic litigation.
  4. Broader civil society alliance-building: The Report’s emphasis on gender creates unique and unprecedented potential to build alliances between those focused on past-focused accountability and those focused on forward-looking gender equality issues, in Northern Ireland and elsewhere. Such opportunities should be actively pursued. The Report of the Special Rapporteur can form a useful basis for discussion.