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Author: Courtney Martin National University of Ireland, Galway European Master’s Degree in Human Rights and Democratisation A.Y. 2018/2019 What is the most appropriate transitional justice model in addressing historical human rights abuses? —A comparative analysis of the experiences of Australia and the Republic of Ireland Author: Courtney Martin Supervisor: Dr. Anita Ferrara Word count: 22,673 Abstract Transitional justice as a restorative framework may be used to address past, endemic human rights abuses in both transitional and non-transitional contexts. Different forms of transitional justice mechanisms—including truth commissions and national public inquiry models used in conjunction with other truth and justice seeking measures—have been utilised globally in diverse geopolitical settings to expose publicly State wrongdoings, and officially document (new) national narratives. A critical finding of this research is the little scholarly comparative analysis available that assesses transitional justice mechanisms as they operate in culturally distinct contexts, and the related benefits. To arrive at these conclusions, like-inquiry models within the Anglosphere were assessed (namely, child abuse inquiries conducted in Australia and Ireland) in light of Chile’s ongoing efforts in the Latin American context to address its dictatorial history. Focus was given to the (statutorily conferred) powers of each child abuse inquiry, the use of testimony and related evidence, in addition to the retention and archival management of information and documents collected during each inquiry process. This piece postulates that analysing elements of mainstream transitional justice mechanisms in culturally distinctive contexts will more informatively and effectively heal countries torn apart by human rights atrocity. It is suggested this approach will better prevent the recurrence of systemic human rights violations, whether they occur in transitional or non-transitional settings, by fostering cross-cultural learning, appreciation and global dialogue within the realm of transitional justice. 2 Table of Contents CHAPTER 1..............................................................................................................5 Introduction..........................................................................................................................................................5 The emergence and theoretical overview of truth commissions as transitional justice mechanisms ..........................................................................................................................................................7 An historical review........................................................................................................................................... 8 Challenges posed...............................................................................................................................................10 The broadening definitional ambit of the field to encompass some commission of inquiry models ...................................................................................................................................................................12 Legal underpinnings of commissions of inquiry models (and their inherent limitations) ..................................................................................................................................................................................14 Historical and theoretical summary and research outline............................................................ 17 CHAPTER II............................................................................................................19 ‘Transitional justice’ in its expansive sense applied and tailored to child abuse inquiries in non-transitional settings......................................................................................................................... 19 A special focus and introduction to the Commission to Inquire into Child Abuse (the CICA) in Ireland.................................................................................................................................................20 The statutory architecture and related debate surrounding the establishment of the CICA ........................................................................................................................................................................22 Building and maintaining public trust to ensure (perceptions of) legitimacy crucial to ensuring authority and impact ..................................................................................................................24 The Royal Commission— an overview and its operation as a transitional justice mechanism ......................................................................................................................................................... 25 Domestic political, social and cultural factors contributing to the call for the Royal Commission .........................................................................................................................................................28 Decisions made as to the Royal Commission architecture .............................................................31 CHAPTER III...........................................................................................................34 Like-inquiry comparison—a non-linear process .............................................................................. 34 The CICA—‘Unspeakable’ findings............................................................................................................34 Revised approach and its effect..................................................................................................................35 An overview of CICA hearings powers.....................................................................................................37 The gathering, use and storage of witness testimony and related evidence......................... 38 The Irish model..................................................................................................................................................38 The Australian regime....................................................................................................................................41 Synthesis of the CICA and Royal Commission models as they pertain to the treatment of testimony and evidence .................................................................................................................................42 Documentary repositories........................................................................................................................... 43 The CICA records—a contemporary debate.........................................................................................44 The Royal Commission—archival access as a moving feat............................................................45 Summary of documentary repository findings and its impact, then and now ......................47 CHAPTER IV ..........................................................................................................49 The right to truth and its inextricable links to the preservation of archives ........................ 49 The established right to know ....................................................................................................................49 The emerging right to memory..................................................................................................................50 International perspectives .......................................................................................................................... 51 3 Lessons from Chile............................................................................................................................................51 Resilience required to advance discovery – Spain’s contribution ...............................................52 Cross-continental learning.......................................................................................................................... 53 Applicability to the Irish situation............................................................................................................54 Australia’s hold on private session information and the exclusivity of its redress scheme ..................................................................................................................................................................................56 Conclusion............................................................................................................58 Bibliography .........................................................................................................60 4 What is the most appropriate transitional justice model in addressing historical human rights abuses? —A comparative analysis of the experiences of Australia and the Republic of Ireland. CHAPTER 1 Introduction Transitional justice is most commonly understood as a restorative justice framework, used to address past and endemic human rights abuses, as well as to assist States during their transition from authoritarian rule to a more democratic system of government. Truth commissions as transitional justice mechanisms have been developed and conducted in countries all over the world wherein (new) truths are unearthed and publicly unveiled, State endorsed apologies
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