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Part II - Assessing Transitional Justice for Historical Abuses of Church and State

Published online by Cambridge University Press:  23 March 2023

James Gallen
Dublin City University


Publisher: Cambridge University Press
Print publication year: 2023

6 Investigating Historical-Structural Injustices

6.1 Introduction

The starting point for investigating historical abuses has tended to be denial from state and church authorities of wrongdoing or the need to investigate.Footnote 1 The cover-up of offences and high levels of trust in religious institutions and individuals also further delayed meaningful investigations.Footnote 2 As a result, inquiries into historical abuses have often only occurred several decades after the alleged harms took place.Footnote 3 A range of inquiry mechanisms have been used in response to campaigns to examine historical abuses. Scott Prasser defines a public inquiry as ‘a non‐permanent, discrete and independent organisational unit appointed by the executive government with clear publicly stated terms of reference’.Footnote 4 Public inquiries have a long heritage, across a variety of all legal traditions.Footnote 5 The British public inquiry practice remains particularly influential across common law legal systems,Footnote 6 where a royal commission or tribunal of inquiry remains the most significant, as it possesses legal powers of investigation and compulsion of evidence and testimony but prohibits evidence to be used in subsequent legal proceedings.Footnote 7 A tribunal of inquiry has been employed in the United Kingdom, a tribunal or commission of inquiry in the Republic of Ireland, and a royal commission in Australia and Canada. In the United States, grand jury investigations have functioned as inquiries regarding clerical sexual abuse in a number of US states.Footnote 8 In contrast, non-statutory or informal mechanisms of inquiry, whether run by state or church entities, ‘depend on the cooperation of witnesses and the organisations under investigation’, rather than relying on coercive legislative powers.Footnote 9 Beyond traditional public inquiry models, the Canadian Truth and Reconciliation Commission demonstrates the potential for a Truth and Reconciliation Commission (TRC) in the spectrum of potential inquiries for historical abuses. Regrettably, there remains no academic consensus on the definition of a truth (and reconciliation) commission.Footnote 10 The United Nations defines truth commissions as ‘official, temporary, non-judicial fact-finding bodies that investigate a pattern of abuses of human rights or humanitarian law committed over a number of years’.Footnote 11 Kim Stanton suggests truth commissions are specialised public inquiries, with an emphasis on symbolic acknowledgement of wrongdoing and a function to educate the public about past injustices.Footnote 12 The terminology is not determinative. Ring and Gleeson describe the Irish Commission to Inquire into Child Abuse and the Australian Royal Commission into Institutional Responses to Child Abuse as truth commissions.Footnote 13 Non-recent abuse has been addressed across at least ninety inquiries in the jurisdictions considered in this book, outlined in Appendix 1. A selection of these will inform this chapter’s analysis.

Inquiries can gather individual victim-survivor testimony, develop systematic and thematic data about the past, identify individuals and groups responsible, and offer recommendations.Footnote 14 This chapter argues that inquiries are best understood as raising expectations that the testimony of victim-survivors will be validated, acknowledged, and used to address historical abuses through other transitional justice mechanisms. If those expectations are not met, then inquiries represent a mere ritual contestation of power.Footnote 15 Section 6.2 considers the potential impact of inquiries across the four dimensions of power. Sections 6.36.5 consider the application of these dimensions across the inputs, processes, and outputs of an inquiry, reflecting its cycle as a non-permanent and episodic mechanism. Section 6.6 concludes by considering the potential for inquiries to affect unjust power relationships and national and religious myths.

6.2 Assessing Inquiries

This chapter will assess public inquiries into historical abuses across the four dimensions of power and emotion established in Part I of the book. First, survivors could anticipate several episodic exercises of power as agency with inquiries, such as having their statement taken in confidential and/or public hearings, and engagement in the design and practice of the inquiry. The provision of individual testimony and engagement with inquiries may also perform a therapeutic function for survivors.Footnote 16 However, existing studies of inquiries and truth commissions show survivor ambivalence about participation and the provision of testimony,Footnote 17 with some instances of short-lived benefit,Footnote 18 and others of harm to survivors from participation.Footnote 19 Strong claims about an emotional or psychological benefit to testifying remain unsustainable.Footnote 20

Second, the structure of inquiries can impact on the empowerment and emotional experience of victim-survivors. Inquiries are often ‘characterised by formality, legality and a closed system of communication dominated by legal professionals’.Footnote 21 The legal scrutiny of evidence and testimony may cause frustration or distress for survivors seeking to have their lived experience believed and officially acknowledged, if it is challenged, misrepresented, or disbelieved. In addition, Greer and McLoughlin suggest that inquiries may represent an elaborate delaying tactic from governments, involving high costs and complex procedures and a timespan that may outlast the government that has established it, or give a sitting government several years to ‘mitigate its own responsibility and accountability’.Footnote 22 Moreover, Swain, Wright, and Sköld note a common issue for public inquiries across these types is that they cannot implement their own proposals but instead merely make recommendations to government.Footnote 23 As a result, implementing inquiry recommendations is both a structural limitation on an inquiry’s power and another opportunity for episodic and interactive use of power between victim-survivors and government and officials responsible for implementation. Without effective implementation of recommendations, it may be that the ‘desire for truth is not matched by the willingness to live with its consequences in contemporary societies’.Footnote 24

Third, inquiries may also be sites of epistemic justice or injustice. Inquiries may recognise survivors as knowers and experts in their own experience and acknowledge the truth and validity of their claims.Footnote 25 In contrast, inquiries may function to silence and not learn from victim-survivors’ truth claims.Footnote 26 The power to classify individuals,Footnote 27 which was the basis of the othering inherent in historical abuses, remains present in inquiries, and may categorise some individuals as survivors, deny that status to others, or deem survivors and their testimony credible or choose not to believe it or disregard it. For Sonali Chakravarti, inquiries can potentially listen to and act on survivors’ anger and demands for justice, but such anger may also remain ignored, unheard, or marginalised.Footnote 28 Michael Ure concurs that TRCs operate not only to legitimate emotions coming from injustice but also to enable the overcoming of these emotions, with the result that survivors may be encouraged or compelled to banish emotions that disrupt or resist this.Footnote 29

Fourth, inquiries may reach conclusions that shift a social ontology and challenge existing national and religious myths.Footnote 30 Onur Bakiner suggests that the historical context chapters in commissions’ final reports can transform societal debate,Footnote 31 particularly by giving voice to survivors and by reframing previously unacknowledged abuses as human rights violations.Footnote 32 Others remain more sceptical. Adam Ashforth suggests that commissions of inquiry are ‘theatre in which a central received “truth” of modern State power is ritually played out before a public audience’.Footnote 33 Balint et al suggest that while ‘commissions of inquiry may indeed signify official acknowledgement of injustice … they also shut down the kind of conversations and fundamental reforms that would more adequately address the broader ideological, institutional, structural and governmental context in which they take place’.Footnote 34 Rolston and Scraton suggest that inquiries are intended ‘to manage rather than resolve questions of governance’.Footnote 35 In doing so, inquiries may communicate the appropriate public emotion as a response to the inquiry findings, reflecting not only survivor emotional experiences but also the desired national, religious, or social emotional response.

Input, process, and output factors will be used to assess the extent to which historical abuse inquiries offered a meaningful and effective of investigation of the past for victim-survivors and for society. These factors have been chosen to reflect the episodic journey of a non-permanent institution like a public inquiry. Each reflects sites of potential empowerment or limitation of power for victim-survivors, as well as sites of emotional lived experience. Finally, public inquiries in their public processes, final reports, and implementation of recommendations can affirm or significantly challenge national and religious myths.

6.3 Input Measures
6.3.1 Voice and Advocacy

In recent decades, investigations into historical abuse have been established after the efforts of individual victim-survivor narratives, grassroots movements, media investigations, the scrutiny of international human rights organisations, and the work of activists and academics.Footnote 36 In Ireland, the Magdalene Laundries inquiry was established only after successful submission from advocacy organisation Justice for Magdalenes to the UN Committee against Torture.Footnote 37 Public pressure has typically led to the establishment of inquiries only where governments conclude that the issue constitutes a crisis ‘too large, complex, or controversial to be handled through the usual political mechanisms’.Footnote 38 Nonetheless, state or church decisions to accede to such pressure can also be framed in their self-interest, with a desire to re-establish legitimacy.Footnote 39

Upon establishment, inquiries may engage with significant episodic interaction with survivors and advocacy groups. In Ireland, several inquiries reference consultation processes in their establishment and operation.Footnote 40 Advocacy organisation Justice for Magdalenes engaged in an extensive and sophisticated campaign throughout the Magdalene Laundries inquiry to shape its foundation, processes, and outcomes.Footnote 41 Recently regarding the mother and baby home inquiry, the Clann project developed a shadow report and lobbied the inquiry extensively.Footnote 42 In the United States, clerical abuse prosecutions and litigation, including grand jury investigations, resulted in the expansion of victim-survivor representative organisations such as Survivor Network of Those Abused by Priests (SNAP).Footnote 43 State and local level truth commissions sought to engage extensively with survivors.Footnote 44

In Canada, negotiators establishing the TRC on residential schools emphasised the need to focus on victims,Footnote 45 and the Commission was informed in its work by a formal survivors committee.Footnote 46 In establishing the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG inquiry), the government engaged in pre-inquiry consultation with thousands of stakeholders for a year, to define the inquiry terms of reference and engaged in an ongoing process with an Elders and Grandmothers Circle.Footnote 47 As a result, there was increased emphasis on the root causes of violence against women and girls and cultural violence in the final terms of reference.Footnote 48 In Australia, both the Bringing Them Home inquiry and the Royal Commission into Institutional Responses to Child Sexual Abuse were mandated to consult widely.

In the UK, the Independent Inquiry into Child Sexual Abuse (IICSA) established both a Victim-Survivors Consultative Panel and Victim and Survivors’ Forum, with the former intended to guide the inquiry conduct and the latter as a site for survivors to be consulted and updated regularly on inquiry processes. In the Hart inquiry in Northern Ireland, victims achieved an extension to the Historical Institutional Abuse Inquiry (HIAI) timeframe from 1945 to 1922.Footnote 49 Lundy and Hamber suggest such consultation served to legitimate the inquiry ‘rather than fully address victim needs or shape the Inquiry in the way they wanted’’.Footnote 50 Extensive victim-survivor consultation guided the subsequent Truth Recovery Panel process to inform the design of any inquiry into Magdalene Laundries and mother and baby homes in Northern Ireland.Footnote 51 Consultation with survivors is likely to reflect the first dimension of power, as an interactive exercise of agency between state officials and survivors and advocates. A failure to consult survivor voices throughout an inquiry design, process, and outcomes is likely to serve as a site of epistemic injustice as survivors may feel unheard. However, even if repeated over time, without more profound changes it is unlikely to change the structure of state–survivor relationships.

6.3.2 Commissioners

Inquiries derive their legitimacy in part from their leaders’ moral authority and competence.Footnote 52 The majority of historical abuse inquiries appointed experts, usually legal commissioners, and usually solely by executive government decision. This can have the effect of re-enforcing an inquiry as a site of perceived authority.Footnote 53 In Ireland, inquiry chairs and members have largely been judges, with no meaningful effort to include victim-survivor representatives or involve survivors in the selection of commissioners. The original Chair of the Commission to Inquire into Child Abuse (CICA), Justice Mary Laffoy, resigned in 2003, because of an alleged lack of government cooperation.Footnote 54

In Australia, the Royal Commission retained its six commissioners and its lead counsel, including a former child migrant and an Aboriginal child psychiatrist, reflecting significant stability and continuity over its operations.Footnote 55 The Bringing Them Home inquiry was led by human rights experts, with several Indigenous women appointed as co-commissioners and appointed an Indigenous Advisory Council with nationwide representation.Footnote 56 In the UK, IICSA saw three chairs and its lead counsel all resign by the end of 2016 amid much public criticism.Footnote 57 The Scottish Child Abuse inquiry faced similar challenges, including the resignation of its chair and inquiry panel.Footnote 58

The Canadian TRC appointed its three commissioners after a process of nomination from government, victim-survivor representative organisations, churches and Aboriginal organisations, and in consultation with the Assembly of First Nations but had two resignations within its first year.Footnote 59 The MMIWG inquiry appointed five commissioners after a pre-inquiry consultation identified the need for a majority of Indigenous women commissioners, expert in law and research.Footnote 60 Zvobgo and Posthumus note that US truth commissions have largely struggled to recruit members from diverse backgrounds, despite examining racial violence and injustice. Commissions in Maine and California are exceptional, with open application processes for the role of commissioners.Footnote 61 The dominance of expert commissioners does not impugn the good faith of commissioners but rather reflects an unwillingness to cede power or authority from central state and expert structures to those historically marginalised. Efforts to involve victim-survivors in appointment processes could challenge existing power structures and pursue an emphasis on survivors’ lived experience as a form of epistemic and ontological justice.

6.3.3 Mandate

Mandates can be assessed along a number of axes: temporal, geographical, and subject matter involved. Each axis can divide an inquiry from broader continuities of historical-structural injustices, but this is necessary to enable a feasible inquiry, especially if attempting a forensic style analysis. First, among the longest temporal scopes are the Canadian TRC (1883–1996) and the ongoing Scottish Child Abuse inquiry (from within living memory until 2015).

Other inquiries have incorporated assessment of both non-recent and contemporary forms of harm. This is especially valuable as it can demonstrate the continuities and reproductions of historical-structural injustices. The UK IICSA inquiry and Canadian MMIWG inquiry could examine both non-recent and contemporary abuse. In Australia, the Victoria Child Abuse inquiry, Bringing Them Home report, and the Royal Commission into Institutional Responses to Child Abuse examined both historical and contemporary abuse.Footnote 62 Gleeson and Ring suggest as the Royal Commission investigations were not constrained to the past, the process demonstrated ‘institutional child sexual abuse is not a historical relic, thereby complicating the idea of transitioning from the past that “truth commissions” tend to uphold’.Footnote 63 Nonetheless, the focus of the Commission on sexual abuse was criticised for its exclusion of considering physical or emotional abuse in ‘care’ settings.Footnote 64

Second, several inquiries were geographically limited at sub-national levels, with regional inquiries in Australia, Canada, and the United States. The significant partisan political division in the US Congress and Senate informs the lack of national-level inquiries in recent years.Footnote 65 Sherrilyn Ifill notes sub-national commissions could be valuable in interrogating local and community level responsibility for lynching as a collective offence.Footnote 66 In Ireland, inquiries into diocesan child sexual abuse did not have a national mandate. The Holy See has not engaged in any public inquiry process regarding the global phenomenon of clerical sexual abuse, but instead national- and state-run inquiries pre-dominate the assessment of church child sex abuse. Only investigations into child migration have considered transnational dimensions of historical abuse in both Australia and Northern Irish inquiries.

Third, the subject mandates tend to be limited to specific forms of abuse, such as child sexual abuse or by institution involved. Some inquiries have limited their investigations to a sample of potentially widespread or systemic harms over several decades. In Ireland, sampling of allegations by CICA was heavily criticised by survivor groups as providing only a partial picture of abuse.Footnote 67 The mandate of the McAleese inquiry was limited to the examination of state involvement in the operation of the laundries, excluding an assessment of individual behaviour or allegations.Footnote 68 Corby et al note that the majority of the contemporaneous investigations of child abuse in the United Kingdom addressed the physical abuse of children only, with a shift in focus since the 1990s to also address sexual abuse.Footnote 69 The Scottish Child Abuse, the Northern Irish HIAI, and IICSA for England and Wales have addressed abuse in both secular and religious institutions.

The Canadian TRC examined physical sexual abuse and neglect in residential schools but did not have a mandate to address other and ongoing forms of harms to Indigenous peoples arising from settler colonialism. Luoma suggests this limitation enabled Canada to position wrongdoing against Indigenous peoples as a limited historical mistake.Footnote 70 In contrast, the mandate of the MMIWG inquiry extended to assessing the causes of all forms of violence against Indigenous women and girls in Canada, including its underlying social, economic, cultural, institutional, and historical causes.Footnote 71 This enabled the inquiry to address ongoing, structural, and cultural harm in its settler colonial structure.Footnote 72 Several abuses have not been officially investigated, such as slavery, Jim Crowera racially motivated violence in the United States, the legacy of the British Empire, a nationwide study of child sexual abuse in the United States, or the role of Magdalene Laundries in jurisdictions outside Ireland.

6.3.4 Powers

Historical abuse inquiries have typically had limited, if any, powers to compel evidence, witnesses, and testimony. The powers that are assigned to investigations may also inhibit or preclude the use of gathered evidence in criminal or civil cases, with use immunity present in the approach of several jurisdictions. Inquiries are often prohibited from naming any individual accused of abuse unless the identity ‘has already been established through legal proceedings, by admission or by public disclosure by that individual’.Footnote 73 In Ireland, religious orders challenged the potential naming of offenders in CICA,Footnote 74 with the result that in its final report, even convicted abusers were given a pseudonym.Footnote 75 This outcome frustrated Irish victims, who viewed it as the continued protection of perpetrators.Footnote 76 The limitations on naming alleged perpetrators in truth commissions are usually in contexts where the threat of reversion to violence is plausible. Matt James notes that the Canadian context lacks any such comparable considerations that would make such a proscription justifiable.Footnote 77 In contrast, the Australian Royal Commission had a wide range of powers, including the power to compel the production of documents, and require witnesses to answer questions, even those that might incriminate them and to refer matters to the police and other authorities, even though its evidence is inadmissible in civil and criminal trials. Limited inquiry powers reflect their political nature, framed by law but limited by design in potential legal consequences.

6.4 Processes

Most inquiries engage in independent research; in statement taking from victim-survivors and representatives of institutions, states, and churches; in public hearings to stimulate public debate and awareness of the topic of the inquiry; and in thematic analysis of cross-cutting and structural issues.

6.4.1 Statement Taking

Victim-survivor testimony is the defining feature of institutional abuse inquiriesFootnote 78 and is a key opportunity for survivor agency in the inquiry. It is also a site where significant emotion may be experienced, with high risks of re-traumatisation.Footnote 79 Katie Wright has argued that the Bringing Them Home and Lost Innocents and Forgotten Australian inquiries treated survivor testimony and emotional experiences well, as survivors welcomed the opportunity to have their voices heard.Footnote 80 She notes: ‘A psychologically infused therapeutic ethos legitimised the experience of trauma and provided a framework and a language for understanding and explaining the ongoing and often intergenerational legacies of childhood abuse and neglect’.Footnote 81 The Royal Commission into Institutional Responses to Child Sexual Abuse (RCIRCSA) approach to survivor testimony was informed by an ‘empathetic trauma-informed approach that drew on contemporary understandings of psychological injury’.Footnote 82 In addition, its private hearings provided rich but confidential qualitative research from survivors enabling a more accurate account of abuse experienced by survivors and offering a basis for better future prevention.Footnote 83 This aligned with the stated wish of many survivors to tell the Commission about their ideas for policy and social change.Footnote 84 The RCIRCSA also curated a ‘Message to Australia’, asking survivors to describe what they wanted Australian society to know about their experience and the need for change. However, Gleeson and Ring note that multiple prior Australian inquiries had the result that limited numbers of Aboriginal people provided testimony in the belief that they had already provided testimony to the state and wanted to avoid the risk of re-traumatisation.Footnote 85

The Canadian TRC dedicated a volume of its report, Survivors Speak, to testimony of former residents, including experiences of abuse.Footnote 86 Koggel affirms the value and potential of the approach taken by the TRC and its report: ‘Sharing, remembering, and legitimizing Indigenous collective interpretative resources are steps in addressing ethical loneliness as moral and political abandonment. Another step is epistemological and political: understanding and addressing both testimonial and hermeneutical injustices that come from not being heard’.Footnote 87 In contrast, Ronald Niezen suggests that the TRC essentialised individual survivor experiences to create a master narrative that emphasised loss and suffering, but also a positive story of healing.Footnote 88 In terms of emotions, Anne-Marie Reynaud concurs that the TRC discouraged survivor anger and emphasised survivor health and healing.Footnote 89

In Ireland, Carol Brennan concludes that the Irish state harmed victim-survivors,Footnote 90 by disabling ownership of the process and compelling compliance with a purportedly therapeutic model.Footnote 91 Sinead Pembroke notes that the majority of survivors she interviewed felt CICA was non-transparent and ‘triggered feelings of shame and stigma in relation to their time in the institution’.Footnote 92 Pembroke concludes that CICA should have integrated greater survivor participation into its investigations, especially recognising survivors’ stated desire for accountability and prosecutions of abusers.Footnote 93 After initially resisting hearing survivor testimony at all, the McAleese committee ultimately did so but exacerbated the gendered forms of harm experienced by victim-survivors of the laundries by challenging the veracity of victim-survivor testimony.Footnote 94 Máiréad Enright and Sinéad Ring emphasise that the state’s mistreatment of the victim-survivor as a source of knowledge amounts to a fresh form of epistemic injustice, reflecting both testimonial injustice in responding to historical abuse in manners that protect the state and hermeneutical injustice in ‘privileging the state’s sovereign ways of knowing and determining historical injustice’.Footnote 95

The recent Mother and Baby Homes Commission operated with an Investigative and Confidential Committee. The Confidential Committee report itself undermines the credibility of victim-survivor testimony, suggesting it was in part contaminated by media coverage and some witnesses were ‘clearly incorrect’.Footnote 96 A survivor who recorded their engagement with the Confidential Committee was able to evidence multiple instances where her statement had been inaccurately included in the report.Footnote 97 The Commission’s final report made several findings contrary to the stated lived experience of survivors. For instance, the Commission ‘found very little evidence that children were forcibly taken from their mothers; it accepts that the mothers did not have much choice but that is not the same as “forced” adoption’.Footnote 98 As a result, the report was rejected with significant criticism in the national media, and by advocacy organisations and victim-survivors.Footnote 99 The Commission contrasted strongly with the civil society Clann report, which provides a constitutional and human rights analysis of the abuses documented by survivors in their written statements,Footnote 100 such as gender and socio-economic discrimination, stigma, racism, forced adoption, illegal adoptions, arbitrary detention, forced labour, physical and psychological abuse, punishments, neglect, and the deaths of infants in mother and baby homes and related institutions.Footnote 101

Similarly, in the UK, Colton et al’s survey of survivors who had given evidence before early inquiries found a high level of dissatisfaction, with participants perceiving the investigations as driven by ‘the requirements of the criminal justice system, with the needs of victims/survivors and their families accorded second priority’.Footnote 102 Corby et al note the adversarial nature of traditional governmental inquiries as quasi-judicial in nature, with the cross-examination of witnesses despite their potential vulnerabilities or traumatisation.Footnote 103 Regarding the Hart inquiry, Patricia Lundy has noted the challenging and damaging experiences of survivors in giving testimony.Footnote 104 Hamber and Lundy note that more than half of the victims interviewed thought the private testimony given to that inquiry’s Acknowledgment Forum was a positive experience where they were believed and acknowledged, though a sizeable number felt exposed or vulnerable after attending the forum.Footnote 105 It remains to be seen whether the ongoing IICSA and Scottish Child Abuse inquiries will provide a better experience in the eyes of survivors. It is expected survivors will be heard from and listened to in a modern inquiry. However, in providing testimony, victim-survivors may legitimate an inquiry that nonetheless does not validate their testimony or provide any meaningful healing or therapeutic function for survivors. Although Australia and Canada demonstrate evidence of good practice, other jurisdictions reflect mixed or damaging results. Engagement with public inquiries thus presents a risky process for victim-survivors.

6.4.2 Public Hearings

Several inquiries hold public hearings as part of an investigative process. The Ryan Commission remains the only Irish inquiry to hold public hearings. In the United States, grand jury investigations have typically not provided for public hearings. The Australian Forde inquiry justified the exclusive use of private hearings due to the risk of prejudicing contemporary litigation and criminal proceedings.Footnote 106 The RCIRCSA held several public hearings, assessed on ‘whether or not the hearing would advance an understanding of systemic issues and provide an opportunity to learn from previous mistakes’.Footnote 107 Individuals who could be adversely affected by evidence were entitled to respond. The Canadian TRC, MMIWG inquiry, and UK IICSA inquiry have held extensive public hearings. The TRC engaged in 7 national events and held 238 days of local hearings in 72 communities across Canada.Footnote 108 At the MMIWG inquiry, 468 family members and survivors of violence shared their experiences and recommendations at 15 community hearings.Footnote 109 To date, IICSA has held 325 days of public hearings. The Hart inquiry’s public hearings were criticised by survivors as intimidating, victimising and creating the feeling they were on trial.Footnote 110 Public hearings represented a site of epistemic injustice, with survivors unable to exercise control over procedures and believing that they ‘struggled to be heard’.Footnote 111 Public access to testimonies through these hearings was disempowering for the survivors involved.Footnote 112

6.4.3 Role of Alleged Perpetrators

Although victim-centred, inquiries may also offer a space to hear from alleged perpetrators and responsible institutions, though this has been limited in practice. Hamber and Lundy note that some survivors were concerned and intimidated by the presence of alleged perpetrators, members of institutions, and religious orders at the HIA inquiry in Northern Ireland.Footnote 113 In the Greensboro Truth Commission in the United States, many felt that the failure of more perpetrators to participate or disclose details about law enforcement complicity in the attack hindered a broader reconciliation in the community.Footnote 114 In Canada, TRC Commissioner Marie Wilson noted that the absence of those who represented the institutions responsible for the crimes in the activities of the Commission was a source of a sense of injustice and incompletion for survivors.Footnote 115 Ronald Niezen contends perpetrators are abstracted and reified in inquiries: ‘they are abstract (perceived as inhuman), represent the overall harm and, once labelled, are excluded from “truth telling” because their identification as perpetrators denies their legitimate speech’. In his view, this makes the origins of mass crimes more difficult to identify, excluding ‘the institutional and policy driven sources of that suffering and the people who acted on them, sometimes in the belief that they were doing good’.Footnote 116

6.5 Outcomes
6.5.1 Findings

An inquiry’s final report will serve as its most enduring legacy. Sköld notes that despite diverse national contexts, informants have told similar stories regarding physical violence, emotional violation, sexual abuse, exploitation, and neglect in the twentieth century.Footnote 117 Wright concurs that ‘inquiry after inquiry has found that care did not meet either the legal or professional standards of the day, that physical and sexual abuse was common, and that neglect and psychological and emotional abuse were pervasive’.Footnote 118 Several inquiries recognise a widespread scale of abuse, particularly child sex abuse, but were unable to offer a comprehensive quantum of its scale.Footnote 119

Multiple inquiries affirmed that complaints of wrongdoing were often ignored, accusers condemned, and perpetrators protected or moved between institutions or churches.Footnote 120 Numerous inquiries demonstrate that state and church authorities often knew or should have known about abuses but failed to create or implement any meaningful oversight of staff or protection of detained women and children.Footnote 121

In Ireland, CICA found that physical, sexual, and emotional abuse was endemic and pervasive in industrial and reformatory schools, and found poverty as a driver for children’s entry into the school system.Footnote 122 It recognised the significant and ongoing impact of abuse and institutionalisation on the lives of survivors.Footnote 123 However, Gleeson and Ring note the report did not investigate the state’s responsibility for its lack of effective regulation of industrial schools or its failure to protect children despite evidence of abuse.Footnote 124 Ring and Enright conclude: ‘By subjecting victim-survivors to damaging processes, by substituting partial official histories for their testimony, and by censoring access to the archives of the bodies created to learn from the past, the state has co-opted victim-survivors’ primary source of power: their unique knowledge of Ireland’s recent history of institutional abuse of children and women’.Footnote 125 In Northern Ireland, the Hart inquiry found ‘evidence of systemic failings’ in homes and other residential institutions run by the state, local authorities, churches, and charities, with ‘evidence of sexual, physical and emotional abuse, neglect and unacceptable practices’.Footnote 126 In general, victims welcomed the report and its findings.Footnote 127

In settler democracies, the finding of whether abuses against Indigenous peoples constituted genocide remains highly controversial. The Maine Wabanaki TRC report concluded that cultural genocide was ongoing due to the disproportionate and unequal treatment of Native children in the welfare system in Maine since the 1960s, in a context of institutional racism in state systems, historical trauma among Native peoples, and ongoing contestation over Native sovereignty and jurisdiction.Footnote 128

The Australian Bringing Them Home report concluded that ‘[t]he policy of forcible removal of children from Indigenous Australians to other groups for the purpose of raising them separately from and ignorant of their culture and people could properly be labelled “genocidal” in breach of binding international law’.Footnote 129 However, the report is criticised for not including a broader finding of genocide.Footnote 130 It considered violations of native title rights as collective or individual property rights, or the right to inhabit traditional lands.Footnote 131 The Australian government criticised the validity and methodology of the report, claiming that it overestimated the number of Aboriginal children removed from their homes.Footnote 132 Conservative historians rejected its finding of genocide.Footnote 133

The Canadian TRC found that the establishment and operation of residential schools were a central element of a policy of assimilation of Aboriginal peoples and was best described as ‘cultural genocide’, meaning the destruction of those structures and practices that allow the group to continue as a group.Footnote 134 This approach may have been designed to avoid a legal debate about the application of the UN Convention on Genocide, distracting from an emphasis on survivor experience.Footnote 135 Although scholars had been drawing links between residential schools and the broader project of settler colonialism as a form of genocide before this finding,Footnote 136 Woolford and Benvenuto suggest that in prior scholarly or popular understandings, genocide may have been reduced to group destruction as a form of mass murder.Footnote 137 They express concern that examining genocide on pre-existing and national terms will lose much of the nuance in the different regional and international forms of harm.Footnote 138

In contrast, the MMIWG inquiry concluded that the systemic violence it documented amounts to an ongoing, race-based genocide against Indigenous peoples, especially against women, girls, and 2SLGBTQQIA individuals.Footnote 139 In addition, it documented a range of violations of Indigenous cultural rights, such as the seizure of traditional lands; expropriation of cultural property; forcible removal of Indigenous children from their families; and suppression of Indigenous histories, myths, and cultures.Footnote 140 Luoma values this approach rather than relegating cultural rights violations to an inquiry’s historical context alone.Footnote 141 The supplemental legal report to the MMIWG report understands genocide in Canada as both a direct act and a failure to prevent harms.Footnote 142 Özsu notes that this approach extends beyond the Genocide Convention and enables a framing of genocide as spanning decades through processes of cultural and colonial destruction, rather than a paradigm of a brief intense period of mass murder alone.Footnote 143 Such an approach is more contentious than a conservative interpretation of genocide but is one that recognises the multiple forms of systematic violence in human history and present that have been designed to destroy peoples deemed ‘other’.

Several inquiries identify common causes of historical abuses. First, non-white races, Indigenous peoples, women, and children were deemed inferior and othered through discriminatory, racist, patriarchal attitudes.Footnote 144 The US Kerner Commission noted the trend in mid-twentieth-century United States towards reproducing white supremacy and structural inequality: Our nation is moving toward two societies, one black, one white – separate and unequal’ and later ‘What white Americans have never fully understood – but what the Negro can never forget – is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.’Footnote 145 These were significant findings in 1968 from a mainstream and establishment inquiry.Footnote 146

Second, religious justifications amplified and framed historical abuses as salvation processes, for those deemed ‘other’.Footnote 147 Third, members of religious organisations enjoyed significant authority, trust, and respect during the period of historical abuse, leading to significant deference and limited oversight and inspections.Footnote 148 Fourth, several inquiries consider a significant cause of abuse to be a lack of effective governance and oversight to prevent abuse, in both secular and religious contexts.Footnote 149 Paul Michael Garrett notes that the implication of this finding may be that ‘problems could be rectified if a business model were adopted to promote better self-governance’.Footnote 150 Reoccurring findings that religious leadership relocated offenders and coerced victims into silence mean that it is impossible to maintain that abuse was exceptional but instead reflects the priority given to protecting the church’s reputation, above the best interests of the child.Footnote 151 Several authors and inquiries suggest that these findings require interrogating the perception of clergy and religious as God’s representatives on earth,Footnote 152 and the contribution of Christian theology to abuse,Footnote 153 particularly regarding sex, sexuality, and marriage.Footnote 154

In contrast, the US Causes and Context report noted that the increase in clerical abuse until the late 1970s and the sharp decline by 1985 could be attributed to ‘the rise in other types of “deviant” behavior, such as drug use and crime, as well as changes in social behavior, such as an increase in premarital sexual behavior and divorce’, and noted, remarkably, that, as features of religious life such as a male and celibate priesthood were constant during this period, they could not be causes of abuse.Footnote 155

Finally, some inquiries directly address the impact of national myths as causes of historical-structural abuses. Despite its mandate on residential schools alone, the Canadian TRC expressly repudiates the myths of terra nullius, the Doctrine of Discovery, and civilising mission of imperial nations and Christian churches.Footnote 156 The Royal Commission on Aboriginal Peoples (RCAP) challenged the contradiction between benevolent Canadian peacemaker myths and the treatment of First Nations peoples: ‘while we assume the role of defender of human rights in the international community, we retain, in our conception of Canada’s origins and make-up, the remnants of colonial attitudes of cultural superiority that do violence to the Aboriginal peoples to whom they are directed’.Footnote 157

In Australia, the Royal Commission into Aboriginal Deaths in Custody noted historical mistreatment of Aboriginal people was predicated on a racist sense of white superiority,Footnote 158 while the Bringing Them Home report noted that Australia’s assimilation policies were based on the idea that there was nothing of value in Indigenous culture.Footnote 159 In the Lost Innocents reports on child migration, the desire to maintain links with Britain, to ensure a white Australia, and competition between Christian denominations to convert children inform the child migration and ‘rescue’ processes.Footnote 160 The Forced Adoption report notes the hostility of society to ‘individuals and families who did not fit the idealised family unit and the ‘right’ of all legitimate couples to have children’.Footnote 161 The RCIRCSA noted the continuity and perennial nature of child sex abuse: ‘it is a mistake to assume that sexual abuse in institutions will not continue to occur in the future’.Footnote 162

In addressing these issues, an inquiry may hope to contribute to altering national identity and myths,Footnote 163 through changing public attitudes and awareness.Footnote 164 However, Regan doubts the ability of a truth commission ‘to act as a catalyst for social change and reconciliation’ and may instead appropriate survivors’ pain in voyeuristic and colonising ways.Footnote 165 Similarly, Chakravarti notes that although survivors may express intense emotions in engaging with inquiries, and may feel brief satisfaction when these emotions are validated, this remains ‘a poor substitute for the change in material conditions necessary for justice’.Footnote 166 Instead the repudiation of ideas, no matter how damaging, is likely to need combining with material changes to the lives of victim-survivors and social structures to be an effective and legitimate form of social change.

6.5.2 Recommendations

If given a mandate to issue recommendations, inquiries have tended to recommend measures to address victim-survivor needs and to reform the relevant institutions or the state’s regulation of an affected population. In Ireland, CICA issued ninety-nine recommendations, including a memorial for victim-survivors of residential school abuseFootnote 167 and the continuation of family tracing services for survivors of residential schools.Footnote 168 It recommended that religious orders consider how they debased their Christian ideals through tolerance of abuse and its cover-up.Footnote 169 Unique in Ireland in having explicit and independent recommendation, implementation, and monitoring powers, CICA confirmed in 2014 at its conclusion that ninety-four of ninety-nine recommendations had been implemented.Footnote 170 Other Irish inquiries into clerical sexual abuse (Ferns, Murphy, and Cloyne) did not issue recommendations due to mandate limitations. The McAleese inquiry into Magdalene Laundries led to a state apology and a redress scheme for victim-survivors, discussed in later chapters.

In England and Wales, both contemporary and historical abuse inquiries have made similar recommendations regarding safeguarding and pre-employment vetting which have not always been implemented.Footnote 171 Corby et al note that often the delay in issuing recommendations caused by a long inquiry process after the initial outbreak of a scandal can inhibit pressure for their implementation and reform.Footnote 172 David Howe notes that public inquiries can often reflect a bureaucratic procedural response to a social crisis,Footnote 173 which can have a deadening effect on changing public attitudes and behaviour. In contrast, the Macpherson report examined the Metropolitan Police Service’s (MPS) investigation of the 1993 racist murder of 18-year-old Stephen Lawrence by a group of five white men. The report concluded institutional racism was endemic in the MPS, and its seventy recommendations led to not only significant policy changes in British policing but also a major public debate about racism in Britain.Footnote 174 However, Lotem notes that the report confined its consideration of racism to the police, with the result that ‘racism became a matter of communities and policing rather than historical continuities’,Footnote 175 and missed the opportunity to frame these contemporary challenges as the reproduction of broader historical-structural issues. Given the single incident focus of the inquiry, this is perhaps not surprising.

In Australia, a review of the implementation of recommendations found that recommendations ‘most likely to be implemented related to administrative systems, with those most likely to be fully or partially implemented pertaining to legislation’.Footnote 176 Four main factors emerged as barriers to implementation: ‘practical constraints, organisational culture, structural constraints, and recommendations being too narrow or prescriptive’.Footnote 177 The recommendations of the Lost Innocents and Forgotten Australian reports were themselves subject to a separate report in 2009 assessing the progress of implementation,Footnote 178 noting at best a limited and variable implementation across the Australian states and territories. The Royal Commission into Aboriginal Deaths in Custody made over 400 recommendations, implementation of which was monitored for five years, but despite this, Aboriginal deaths in custody have subsequently almost tripled in likelihood.Footnote 179 The RCIRCSA made 409 recommendations to government and institutions, regarding child protection, information sharing and record keeping, and support and therapeutic services for survivors, including eighty-four recommendations on redress. These recommendations led to the National Redress Scheme discussed in Chapter 8. The national government response accepts, or accepts in principle, 104 of these 122 recommendations with the remaining 18 recommendations listed as being ‘for further consideration’ or ‘noted’.Footnote 180

In Canada, the government tried to ignore the RCAP report and did not endorse any of its 440 recommendations on increased spending on housing, education, and training for First Nations peoples and enhanced sovereign status.Footnote 181 The RCAP made several recommendations regarding investigation of treatment of Indigenous children in residential schools that have effectively if not directly been implemented through the Indian Residential Schools Settlement Agreement (IRSSA) and TRC processes. The TRC’s final report calls to action under two high-level headings: ‘legacy’ and ‘reconciliation’. Legacy addresses the consequences of colonialism, under the headings of child welfare, education, language and culture, health, and justice.Footnote 182 ‘Reconciliation’, by contrast, includes fifty-two calls to action, ranging from the obligations arising under specific legal instruments to considering reconciliation as applied to museums, media, sport, and business, among others.Footnote 183 These are discussed further in Chapter 10. In Canada, Matt James suggests the TRC may have functioned to emphasise the personal benefit to survivors in participating, while minimising the potential for the TRC to address ongoing systemic injustices affecting Indigenous peoples.Footnote 184 James asks whether a truth commission might amount to a ‘politics of distraction’, yet another exercise of ‘affirmative repair’ or ‘settler magic’ aimed at staving off demands for the restitution of stolen lands.Footnote 185 In contrast, Christine Koggel notes the potential of the Canadian TRC report to point beyond legal- and policy-specific recommendations: ‘What is significant about the TRC final report is that it reveals layers of relationships and the conditions for societal transformation that are missed when the account is presented from the perspective of the state and its laws and institutions’.Footnote 186

The MMIWG final report concludes with 231 ‘Calls for Justice’, human-rights-based recommendations to end and resolve the genocidal violence against Indigenous women, girls, and 2SLGBTQQIA individuals. However, to date, little progress has been made. The commissioners recently marked the one-year anniversary of the final report by decrying ‘deafening silence and unacceptable inaction from most governments’.Footnote 187

In the United States, the Kerner Commission issued recommendations which remain relevant for black Americans today: (1) an end to de facto segregation in housing, (2) affordable housing, (3) jobs creation, including in police departments, and (4) the expansion of social assistance programmes.Footnote 188 However, President Johnson ignored the Commission’s ambitious and costly recommendations,Footnote 189 in a context where he was seeking re-election and continuing to fight an expensive war in Vietnam.Footnote 190

6.6 Conclusion

Inquiries into historical abuse share a range of ambitious and challenging goals, ranging from the discovery of forensic individual accounts of truth, to the gathering of systematic data on abuse and its nature and patterns, to providing a therapeutic experience for victim-survivors, potentially challenging national and religious myths that justified abuses, and offering recommendations to materially change the lives of survivors and society. All of these goals are unevenly met in diverse national experiences, a product of not only the structure and implementation of their mandates but also the political will to pursue the fundamental changes recommended.

Most inquiries were capable of engaging with victim-survivors through testimony, consultation and through affirming and acknowledging, if only in part, survivor experiences of harm. However, the structure of inquiries limits their impacts in a number of respects. First, several inquiries have the effect of separating past harms from present forms of injustice affecting historically marginalised communities or descendants of victim-survivors. In contrast, the Australian Bringing Them Home and RCIRCSA inquiries, the Canadian TRC and MMIWG inquiries, and the UK IICSA inquiry all demonstrate the links between non-recent and contemporary harms. Second, most inquiries suffer from limited engagement from alleged perpetrators, both in person in the provision of testimony and in some instances through the refusal to cooperate in the provision of documentation. All inquiries are limited by design in being unable to implement their own recommendations. Ultimately the capacity for inquiries to impact public policy remains a question of political will and a key episodic contestation of power.

As sites for the construction of knowledge and potentially epistemic justice, some inquiries reflect the acknowledgement of survivors as experts in their own experiences and harm, most notably the Canadian TRC and MMIWG inquiries. In contrast, both the Magdalene Laundries and mother and baby home inquiries in Ireland challenge the veracity and weight to be given to survivor testimony and represent fresh epistemic injustices. Therapeutic claims remain unevenly tested empirically and are dependent on understanding the needs of victim-survivors across the range of mechanisms designed to address historical abuse.

Inquiries and their recommendations raise the expectations of victim-survivors for other elements of justice dealing with the past: including accountability, reparations, reform and apology, and acknowledgement. Any potential legitimation of the state and church that authorises an inquiry may dissipate if its recommendations are not implemented and power is re-consolidated by existing actors and structures.

Finally, some inquiries in turn challenge existing national myths and forms of identity directly, especially the Canadian TRC and MMIWG inquiries. Others, such as the Irish CICA and US grand jury investigations into clerical abuse, have represented significant symbols of national challenge to prior denials of abuse. However, the Irish inquiries especially make any gains in national transition at the expense of harming and re-traumatising survivors. Inquiries thus inevitably raise expectations across a range of dimensions of power and emotions and risk causing distress to survivors where those expectations are not met. In setting an agenda for addressing the past, inquiries remain a key but risky vehicle for bringing together survivor experience, documentation, and the potential for state acknowledgement and action to transform the meaning and contemporary consequences of historical-structural injustices.

7 Litigation and Historical-Structural Injustices

7.1 Introduction

Litigation has proved a significant but limited tool in addressing historical-structural injustices. Litigation is a central site where the four dimensions of power are contested by parties to a case. Criminal law, civil litigation, canon law, and international human rights law have all played a role in addressing these abuses to date, but each has proven limited in its ability to provide a victim-survivor-centred process. Section 7.2 provides an overview of the intended functions of different forms of litigation; Section 7.3 assesses these forms across the four dimensions of power and emotion; Section 7.4 considers the different national experiences of employing litigation to address historical-structural injustices and in particular examines how high-profile victories for survivors are nonetheless circumscribed in their subsequent implementation by governments. Section 7.5 concludes by framing the appropriate expectations for the role of litigation in addressing historical-structural injustices.

7.2 Litigating Historical-Structural Injustices

Litigation can take a variety of forms relevant to historical-structural injustices, including individual criminal responsibility, institutional and state responsibility in civil litigation or international human rights law, and responsibility of individual Roman Catholic priests in canon law. In transitional justice, such litigation typically operates in a context of widespread or systemic harms, with the result that the vast majority of perpetrators will not be prosecuted,Footnote 1 due to the limitations of time, capacity, and resources. In a context of limited potential accountability through litigation, transitional justice scholarship has emphasised the symbolic power of pursuing a select number of perpetrators.Footnote 2 However, the evidence in support of the therapeutic role played by ordinary criminal or civil justice processes for victim-survivors remains extremely limitedFootnote 3 and may be undermined by further trauma for victims who testify.Footnote 4

In addition, civil liability is designed to hold individuals, institutions, and states accountable for the breach of appropriate standards of care. Several grounds of civil liability have been employed in addressing historical abuses.Footnote 5 Some of these, such as negligence, involve an assessment of fault of the individuals or institutions involved. Others, such as vicarious liability or non-delegable duties are non-fault-based forms of liability. Civil liability typically seeks to provide compensation to enable a plaintiff to be in the position akin to that before the harm took place. However, this goal is particularly challenging in the context of historical abuses,Footnote 6 which may concern irreparable harm or harm that took place in the non-recent past, rendering return to a prior state unfeasible.

Third, canon law forms the Roman Catholic Church’s own internal accountability structure and has prohibited child sexual abuse by clergy from the earliest records of church governance.Footnote 7 In canon law, the most severe sanction for offending priests is their removal from office, known as defrocking or laicisation. However, other non-sexual forms of historical abuse are not prohibited. Before the United Nations Committee against Torture, the Holy See asserted that it had confirmed 3,420 credible allegations of sexual abuse by priests between 2004 and 2013, resulting in the removal of 848 priests and disciplining of 2,572 others.Footnote 8 More recent global figures are unavailable.

Finally, human rights law can be employed through national litigation or international individual complaints mechanisms and treaty-based monitoring mechanisms to address violations within a given state. The relevance and impact of human rights will naturally vary depending on whether a state has a bill of rights, the number of international human rights treaties they have ratified, and their degree of cooperation with international courts and tribunals.Footnote 9 International human rights treaties may be limited temporally to their date of ratification, which may preclude their addressing historical-structural injustices.Footnote 10 In addition, Antony Anghie notes that ‘the vocabulary of international law, far from being neutral, or abstract, is mired in this history of subordinating and extinguishing alien cultures’.Footnote 11 The design and extent of existing human rights may therefore inhibit their effective use by Indigenous peoples.Footnote 12 The capacity of victim-survivors to engage in legal litigation thus arises in a variety of contexts, each with its own inherent goals and limitations. Each area of litigation can be assessed along the four dimensions of power and emotion employed in this book.

7.3 Assessing Litigation
7.3.1 Litigation and Agency

Litigation represents a site for significant agency by survivors seeking to assert their rights or allege their experiences of harms. However, several features of litigating regarding non-recent harms will affect this agency. First, criminal trials of non-recent abuses take place in a context ‘disconnected from the normal matrix of physical and circumstantial detail’,Footnote 13 associated with an isolated criminal offence close to the period of investigation or trial. Fair trial concerns are thus especially prominent for historical abuses, which will be impacted by the availability of documentary evidenceFootnote 14 and limited by the deaths and old age of alleged perpetrators.Footnote 15

Second, the distinctive legal personality of church dioceses and religious orders, which will often be unincorporated associations, or in the case of a bishop a corporate sole, or where the assets are held in a trust, may make it difficult for survivors to sue the correct defendant.Footnote 16 Canon law concentrates executive, legislative, and judicial power in diocesan bishops, until recently giving individual bishops discretion and authority to respond to allegations of sexual abuse.Footnote 17 However, recent developments in Canada, the United Kingdom, and Ireland have allowed for dioceses and religious orders to be sued,Footnote 18 with the most recent changes in Western Australia enabling survivors to sue current holders of religious institutions for historical abuse cases and access the assets of related trusts and corporations for the purposes of satisfying judgments.Footnote 19

Third, attempts to litigate may be met with aggressive tactics employed by state or church institutions in resisting allegations of historical abuses, including delayed compliance with discovery and interrogations of plaintiffs’ personal histories.Footnote 20 Jo Renee Formicola notes that across multiple dioceses, church leaders would offer significant financial settlements to survivors in exchange for confidentiality and secrecy, allegedly to protect not only the identity of victims but also the reputation of the church and alleged perpetrators.Footnote 21 This had the effect of precluding one survivor from knowing about other allegations in the diocese or against their perpetrator. Finally, across several jurisdictions, as discussed below, historically canon law was not an effective form of justice for survivors, in large part because its own standards were not even implemented regarding child abuse cases, with few if any canon trials taking place for contemporary allegations of non-recent child sex abuse.Footnote 22 This combination of factors suggests it has been challenging for survivors to assert their rights and allege wrongdoing against state and church actors, even where the harm was criminal or illegal when it took place. In addition, structural factors compound these limitations to litigation.

7.3.2 The Structure of Litigation

The use of litigation for historical-structural injustices remains particularly challenging due to a number of structural features. First, to bring civil litigation regarding non-recent harms, victim-survivors must overcome the law of limitation, which allows a plaintiff a specific amount of time from a specified date within which to bring an action against a defendant. Ireland has the most restrictive limitation regime in the common law world.Footnote 23 The lack of a general discretionary judicial power in the Irish limitation regime contrasts with the approach in the United KingdomFootnote 24 and extended approaches in Canada, and with the United States.Footnote 25 However, in Canada, limitation regimes have denied Indigenous peoples the capacity to litigate in several cases outside of the context of sexual abuse.Footnote 26 In Australia, the Royal Commission to Investigate Institutional Responses to Child Sexual Abuse concluded that ‘current limitation periods are inappropriate given the length of time that many survivors of child sexual abuse take to disclose their abuse’.Footnote 27 The Australian States of Queensland and Western Australia recently retrospectively removed the limitation period for child sex abuse cases, enabling a case to be brought at any time in a person’s life.Footnote 28

Second, given the scale of historical abuses, there are a large number of potential litigants, which suggests a benefit to using class actions in civil litigation. In a class-action lawsuit, one party sues as a representative of a larger ‘class’ of people, reducing the cost to individual plaintiffs and the need for repetitive hearings. In jurisdictions with class-action mechanisms, this structure may operate as a form of survivor empowerment, enabling survivors to share the risks and costs of litigation. Third, unlike other forms of litigation, canon law largely operates in secret. It is only in early 2020 that Pope Francis ordered the removal of the ‘pontifical secret’, hiding the existence of canon law trials from national law enforcement.Footnote 29 Until then, no mandatory reporting or cooperation with civil laws was required under canon law, despite repeated national inquiries and United Nations Human Rights Committees recommending the abolition of such secrecy.Footnote 30 Formicola suggests that this structure emerged as successive popes were reluctant to accept the separation of church and state and instead emphasised the theological superiority of church teaching and law.Footnote 31 In their relationship to non-recent violence and to the widespread scale of abuse, the structure of civil litigation may both empower and constrain survivors’ ability to address their experiences of harm.

7.3.3 Accountability and Epistemic Injustice

Litigation may also represent a site of fresh epistemic injustice for victim-survivors or their families, where their knowledge may not be believed or acknowledged as true,Footnote 32 especially in contexts of limited corroborating evidence.Footnote 33 Historically women and girls were often disproportionately disbelieved or blamed if they alleged sexual violence.Footnote 34 Any delay in bringing a criminal complaint regarding non-recent abuse may be heavily scrutinised by a court, which has tended to address such delay by establishing whether post-traumatic stress disorder (PTSD) or repressed memory inhibited an individual from bringing a complaint.Footnote 35 Such approaches frame survivor emotions as relevant only in medical terms and may neglect consideration of the broader political, cultural, and legal circumstances, where the alleged harm may have been authorised or condoned by the state. This approach creates an artificially receptive historical context that may deny victim-survivors access to courts for non-recent events and compound their experience of harm.

In contrast, civil liability could contribute to redistributing epistemic and ontological power, by reframing abuse that was once denied and not believed as injury and an abuse of power,Footnote 36 and telling victim-survivors’ stories individually, publicly, and graphically.Footnote 37 Timothy Lytton concludes that tort litigation reframed clerical child abuse: ‘Legal nesting fuelled public outrage, increasing impatience for real reform and making efforts to symbolically placate pro-reform constituencies harder. It also undermined the unquestioning trust and obedience of many Catholics that had been exploited by some to deflect allegations’.Footnote 38 Similarly, reframing an issue of historical abuse as a present-day violation of human rights could offer a significant form of epistemic justice where it results in belief of survivors and responsibility for wrongdoing.Footnote 39 However civil litigation can also remain a potential re-traumatising or marginalising process for victim-survivors.Footnote 40 Research disagrees on whether there are sufficient therapeutic benefits to victim-survivors to overcome the potentially harmful or re-traumatising effects of engaging in litigation and the legal process.Footnote 41 Finally, cases involving Indigenous peoples can provide several instances of epistemic injustice where Indigenous forms of knowledge and identity are denied equal value or recognition in settler colonial legal systems.Footnote 42

7.3.4 Accountability and Ontology

Finally, whether law condemns, condones, or is silent regarding historical-structural injustices will make a significant contribution to either reproducing harms in the present or meaningfully addressing the past. Chapter 2 demonstrated how colonisation, the transatlantic slave trade, or more recently, the process of the institutionalisation of the poor or of women and children were framed as either morally, legally, and religiously justified, or formed part of constituting the nation states that today are challenged to address their legacies of historical abuses. Child sexual abuse by priests, in contrast, was long historically prohibited, albeit with a highly defective system of penalisation and enforcement.

While prior investigations may hold historical legislation or governmental policy as morally or politically unacceptable in present day, separate legislative action would be required to criminalise such harms. Recognition of historical-structural injustice needs more than identifying individual perpetrators who violated pre-existing rules, it necessitates problematising historically accepted but now impugned standards. Several historical abuses were not aberrant violations of laws but instead were historically permitted or encouraged by law, reflecting an unjust baseline by contemporary standards.Footnote 43 Mamdani distinguishes between violence that preserves the law and legal system, such as criminal law offences, and violence that makes the law, such as settler colonial violence or violence otherwise constitutive of the state: ‘A single-minded focus on identifying perpetrators leaves undisturbed the logic of institutions that make nation-building violence thinkable and possible’.Footnote 44 As a result, such violence represents an ontological dimension of power.

Canon law also communicates a distinct set of values and world view. Kieran Tapsell describes clericalism as arising out of a theology that priests are ‘ontologically changed’, that is marked out by God through ordination as special people whose very nature has been changed and who are divinely destined to change the world.Footnote 45 Byrnes suggests that the result is ‘preserving that indispensable church from scandal was perceived as the central obligation of their positions’.Footnote 46 Nicholas Cafardi suggests that the Vatican remains pervasive in its use of a ‘bella figura’ (beautiful figure), that a good external appearance must be presented to the world.Footnote 47

Specific forms of litigation also shape the presentation of historical abuses and contemporary responses to them. In civil liability, when the justifications for non-fault-based liability are interrogated, they create problematic narratives for legal responsibility and accountability regarding historical abuses: ‘If liability attaches irrespective of fault, it is no longer necessary for lawyers to probe into how the Church handled abuse cases, and whether it was guilty of negligence or worse’.Footnote 48 For instance, Winter notes while vicarious liability cases ‘helped publicize the abuse endemic in Canada’s residential schools system, it was not a trial of that system itself’.Footnote 49

As already noted, rights discourses and practices may serve as important sites for reimaging historical abuses in terms of victims’ rights and the duties of states to prevent and repair harms. However, early critical legal studies (CLS) scholarship suggested that rights litigation was part of a legal ideology that was compatible and the cause of the original oppression and injustice.Footnote 50 In turn, such concerns were rejected by critical race scholars such as Patricia Williams and Kimberley Crenshaw. Williams asserted that while a CLS critique of rights as empty may be true for white communities, for black Americans, rights represented a site of black empowerment.Footnote 51 Similarly, Crenshaw argued that rights rhetoric had been a significant force in inspiring black communities to pursue radical reform.Footnote 52 For Seán Eudaily, ‘legal activism conceived as tactical resistance may lead to fundamental change in the epistemic, political, and subjective structures in which such practices are articulated’.Footnote 53 While in some instances, rights may be viewed as compatible with existing forms of oppression, there may also remain potential for litigation to disrupt existing ontological orders and provide the basis for resistance and alternative conceptions of the past. As a result, rights litigation may be a site where national and religious myths are challenged, affirmed, or ignored.

7.3.5 Conclusion

This range of factors impact how law will address the initial number of allegations and instances of harm significantly. The criminal law truncates the continuities of harm across different forms and generations of historical abuse discussed in earlier chapters, focuses on allegations of breaching existing law within lived memory, and selects from them, subject to the evidential requirements of a fair trial. Civil law litigation may provide a basis for action against state or church institutions but may do so in a manner limited by the form of liability, the limitation regime, and the availability of suitable defendants, class actions, or affordable costs to victims. Canon law remains nebulous in its capacity to offer a victim-survivor-centred approach to addressing child sex abuse cases. Human rights law may offer the basis for empowerment for survivors and affected communities but, as explored below, will also be likely resisted in its implementation by governments. No single basis for litigation is therefore a panacea to addressing historical-structural injustices. Instead, in employing a range of litigation mechanisms, victim-survivors have demonstrated considerable resilience across the jurisdictions examined in the book in demanding accountability through litigation. Where such demands are not met, the entire enterprise of transitional justice may be undermined in its ability to address the past.

7.4 National Experiences
7.4.1 Ireland

Accountability for Irish historical abuses has focused almost exclusively on child sexual abuse. A 2002 documentary regarding clerical child sexual abuse in Dublin prompted a criminal investigation.Footnote 54 The 2011 Murphy report considered that this investigation was ‘an effective, co-ordinated and comprehensive inquiry’.Footnote 55 Between 1975 and 2014, there were 4,406 allegations of child sexual abuse by priests reported to church authorities and Gardai from across Ireland in non-residential settings. It resulted in ninety-five criminal convictions, based on a church compilation of figures.Footnote 56 Only eleven criminal cases were forwarded to the Director of Public Prosecutions based on the Commission to Inquire into Child Abuse (CICA) report regarding abuse in child residential institutions.Footnote 57

Several cases that proceeded to trial were ultimately unsuccessful on the grounds of a fair trial being impossible due to the delayed complaint.Footnote 58 Sinéad Ring notes the approach of the Irish courts fostered ‘a simple narrative of the passive and traumatised victim paralysed by the domination of the abuser’ and precludes examination of how society kept victims silent for decades after the abuse.Footnote 59 Support organisations for victim-survivors of child sexual abuse report that clients who engaged with criminal trials found the processes humiliating and re-traumatising.Footnote 60 In addition to individual acts of child sex abuse, the Gardai considered charges for the offence ‘misprision of felony’, where a person who knew that a felony had been committed and concealed it from the authorities,Footnote 61 but no prosecutions arose for this offence.Footnote 62 Finally, there have been no recent criminal prosecutions related to Magdalene Laundries, mother and baby homes, or illegal adoptions.Footnote 63

Colin Smith and April Duff identify several difficulties for victim-survivors of historical abuse in Irish civil litigation.Footnote 64 As a smaller jurisdiction without the benefit of class actions, protective costs orders limiting potential financial cost to plaintiffs, or reform of Ireland’s restrictive statute of limitations, litigating historical abuse cases has proven highly problematic. Smith and Duff note a practice from state and religious defendants of ‘procedural delay in historic institutional-abuse cases [which] operates in favour of the defendants’.Footnote 65 Despite a strong constitutional bill of rights, Ireland’s courts have not recognised violation of constitutional rights in the context of historical-structural abuses, likely owing to the procedural barriers restricting potential litigants. Enright and Ring conclude that the Irish state ‘has failed to reimagine or supplement frameworks of civil and criminal liability, leaving victim-survivors without adequate conceptual means to give public legal expression to their experiences or to establish new legal discourses of unashamed authority and credibility that might enable them to speak to the state without fear of sanction’.Footnote 66

However, Ireland is unique in making use of multiple forms of international law and human rights law to address historical abuse. In 2011, the United Nations Committee against Torture criticised Ireland’s failure to address the Magdalene Laundries,Footnote 67 leading to the establishment of an inquiry, discussed in Chapter 6. Similar efforts have been pursued regarding the issue of mother and baby homes in several United Nations human rights treaty body mechanisms.Footnote 68

In addition, in O’Keeffe v Ireland, the European Court of Human Rights concluded that Ireland failed to protect Louise O’Keeffe from sexual abuse suffered as a child in an Irish National School and violated her rights under Article 3 (prohibition of inhuman and degrading treatment) and Article 13 (right to an effective remedy) of the European Convention on Human Rights.Footnote 69 The court considered that when relinquishing control of the education of children to non-state church actors, Ireland should have been aware, given its inherent obligation to protect children, of potential risks to their safety if there was no appropriate framework of protection.Footnote 70 The decision represents a site of epistemic justice, where the Strasbourg court accepts the reformulation of the case that was originally argued in tort law in Irish courts, as a violation of human rights. However, its impact in Ireland has been circumscribed significantly by the state’s implementation of the judgment through an ex gratia redress scheme that interprets the judgment narrowly.Footnote 71

In 1996, 2005, and 2009, the Irish Bishops’ conference adopted a new set of canon law guidelines, which provided for all allegations of child abuse to be taken to the civil authorities.Footnote 72 However, these documents did not receive official recognition from the Vatican and remained without standing in canon law.Footnote 73 The Murphy report stated that historically the Archdiocese of Dublin ‘did not implement its own canon law rules and did its best to avoid any application of the law of the State’.Footnote 74 Similarly, the 2011 Cloyne report concluded that the church had failed to carry out proper canonical investigations or to report all complaints to the Gardai or health authorities.Footnote 75 In response to the report, Taoiseach Enda Kenny emphasised in the Irish parliament that the Cloyne report demonstrated the attempts by the Catholic Church and the Holy See to frustrate a government inquiry in the recent past.Footnote 76

7.4.2 Australia

Australian jurisdictions have long legislated against the sexual abuse of children.Footnote 77 The Royal Commission into Institutional Responses to Child Sexual Abuse (RCIRCSA) criminal justice report concluded that between 1950 and 2010, a total of 1,880 alleged perpetrators (diocesan and religious priests, religious brothers, religious sisters, lay employees, or volunteers) were identified in claims of child sexual abuse.Footnote 78 The RCIRCSA final report concluded that children were allegedly abused in over 4,000 institutions and made 2,562 referrals to the police,Footnote 79 leading to at least 127 prosecutions to date.Footnote 80 The RCIRCSA also criticised the criminal trial process as unfair and traumatic for victims of child sexual abuse.Footnote 81 The common law offence of misprision of felony has been abolished in all Australian jurisdictions, but it has been replaced with a series of offences regarding the concealment of or failure to prevent serious offences in several jurisdictions,Footnote 82 with one recent prosecution of an archbishop for failure to report abuse overturned on appeal.Footnote 83

The RCIRCSA noted that up to the 1990s, Catholic authorities did not engage with canon law processes or trials for allegations of child sexual abuse.Footnote 84 Although national responses (Towards Healing and the Melbourne Response) were established in the 1990s, the RCIRCSA concluded that processes ‘to dismiss priests and religious appear to have been rarely used during the 1990s and early 2000s’.Footnote 85 The RCIRCSA concluded that the canon law system ‘contributed to the failure of the Catholic Church to provide an effective and timely response to alleged perpetrators and perpetrators’.Footnote 86

Several other areas of historical abuse have not resulted in any criminal accountability, such as the Stolen Generations, genocide against Indigenous peoples, the child migration process, or Aboriginal stolen wages, many of which operated under legislative authorisation or state complicity.

In Australia, civil liability has offered some limited success in addressing historical-structural injustices, particularly around the land rights of Aboriginal peoples. Early attempts to establish a right to traditional customary lands were unsuccessful.Footnote 87 However, in Mabo & Ors v Queensland (No 2), the Australian High Court concluded that the Meriam people possessed native title over their traditional lands, defined as the rights and interests over land or waters that exist according to the traditional laws and customs of Indigenous inhabitants of land.Footnote 88 In rejecting the doctrine of terra nullius, the court concluded that native title exists when an Indigenous community could show there is a continuing association with the land in circumstances where no explicit act of the Crown has extinguished title.Footnote 89 Ann Curthoys et al note: ‘The notion of terra nullius had always been deeply offensive to Indigenous people. The symbolic overturning of the doctrine was an important legal, political and psychological achievement. However, the Mabo case replaced the legal fiction of terra nullius with another legal fiction that Australia was ‘settled’, a legal narrative that also conflicts with the dominant Indigenous perspectives of Australian colonial history’.Footnote 90

As in the US Supreme Court decision of Brown, the radical nature of the decision led to a political and popular backlash.Footnote 91 Short notes that the mining industry was particularly threatened by the case, and lobbied the government, concerned that some existing title could be invalid in the absence of compensation or that future purchases would involve greater control by Aboriginal peoples.Footnote 92 The campaign eventually led the government to legislate to provide ‘certainty’ for the commercial lobby by passing the Native Title Act 1993, which established a Native Title Tribunal for assessing native title claims.

Several subsequent decisions used historical documentation from British settlers to deny the claims of Indigenous peoples, which were based instead on oral testimony from Indigenous peoples corroborated with archaeological, anthropological, genealogical, and linguistic evidence,Footnote 93 creating a very high evidential threshold for First Nations peoples to assert land rights.Footnote 94 A people group had to show they formed a society, substantially the same as that which existed at sovereignty and had continued to observe a system of laws and customs which were, again, substantially unaltered from those observed by their ancestors at sovereignty.Footnote 95 As a result, native title litigation forms a further site of epistemic injustice for Indigenous peoples, with expansions of rights often counteracted. In Wik, the High Court held that native title could coexist with pastoral leases, which represented about 40 per cent of the total area of Australia.Footnote 96 In response, the Australian government passed the Native Title Amendment Act in 1998, which complicated the native title claims process for litigants. Native title remains deeply contested in Australia. Jon Altman concludes: ‘If hypothetically all native title claims were successful, as much as 70 per cent of Australia could be under some form of Indigenous title and as much as 40 per cent of the Indigenous population could be resident on these lands’.Footnote 97

In addition to cases involving native title, attempts to argue that Australia was responsible for genocide against First Nations peoples have also proven unsuccessful,Footnote 98 particularly as Australia had not ratified the Genocide Convention retrospectively. These cases contrast with the findings of the Bringing Them Home report, which noted the potential for child removal to constitute genocide.Footnote 99 Curthoys et al note these cases demonstrate ‘the challenges that Indigenous peoples face when using the law strategically to gain recognition of past wrongs’.Footnote 100 In subsequent cases,Footnote 101 Indigenous applicants were denied in their attempts to litigate regarding the Stolen Generations by an approach to the historical record that relied on ‘the standards of the time’ to judge the policy of child removal for the Stolen Generation. By adopting this approach, the court denied the applicants the ability to use oral evidence to reinterpret or reframe historical documentation in light of their lived experience,Footnote 102 confirming a narrow approach to epistemic justice. The result is law remains unable to ‘escape its complicity in the colonial project, and its ability to write out, again and again, the experiences of Indigenous peoples’.Footnote 103 Buti writes that these decisions ‘brought into relief the multiple legal and evidential obstacles involved in pursuing litigation to redress the alleged wrongs of past Aboriginal child separations or removals’.Footnote 104

In Trevorrow v South Australia [No 5], the applicant was fostered out without the consent of his parents by the Aborigines Protection Board despite their requests for the child’s return.Footnote 105 Critically, the applicant’s experiences were all documented in departmental medical records and could be interrogated by testimony from relevant doctors. Gray J concluded that the state was in breach of the limits of relevant legislation at the time, which did not give it the power to foster an Aboriginal child without parental consent,Footnote 106 a decision affirmed on appeal.Footnote 107 This finding has value for other members of the Stolen Generations interested in litigating their removals but would likely depend on the existence of similar documentary evidence. With these limited successes, Curthoys et al note: ‘there has been considerable disillusionment among many litigants with the law as a form of redress’.Footnote 108

Finally, no national bill of rights or regional human rights mechanisms are available in Australia, which impacts on victim-survivors’ capacity to use human rights to examine historical abuse.Footnote 109 The absence of a strong human rights framework within Australian law has meant there is little to temper or fetter the exercise of power by the federal government in relation to policy on Indigenous people,Footnote 110 despite instances in which the state’s treatment of Aboriginal peoples has been criticised.Footnote 111

7.4.3 Canada

Despite the prosecution of child sex abuse being a historical legal possibility since 1892, the TRC report notes that contemporary reporting of abuse to government or church authorities arising from residential schools did not often lead to prosecution or conviction.Footnote 112 As in other jurisdictions, several other inquiries and issues of historical abuse have not led to significant or sustained prosecutions, such as illegal adoptions, or enforced disappearances of Aboriginal women.

Changes in Canadian law between 1991 and 2003 for class actions led to a situation where 18,000 outstanding civil lawsuits related to abuse in residential schools would take fifty-three years to conclude at a cost of $2.3 billion, not including the value of any compensation awarded to survivors.Footnote 113 The pressure of such litigation led to negotiations between Aboriginal organisations, religious organisations, and the federal government that would lead to the IRSSA. Regarding the Sixties Scoop process of transfer of Indigenous children into foster homes and adoption by white families, class-action litigation began in 2011, and in 2017 a $800 million settlement was announced based on a ruling that the Canadian government was liable for the harms caused by this process.Footnote 114 However, Bruce Feldthusen noted that the adversarial nature of civil litigation necessitated aggressive cross-examination of victim-survivors with the potential for re-traumatisation.Footnote 115 In addition, the length of proceedings, limited testimony from victim-survivors, and the complexity of potential liability of both church and/or state institutions created further difficulties for pursuing accountability.Footnote 116 In particular, ‘a recognition of “power disparities and the special vulnerability of children” were mostly “absent from the judgments of most members of the High Court”’.Footnote 117

In Canada, efforts to address clerical sex abuse began in 1987 in response to the Mount Cashel orphanage crisis.Footnote 118 Several subsequent reports were commissioned to address the issueFootnote 119 but have not produced national figures on the number of allegations or canon trials. A Committee for Responsible Ministry and the Protection of Minors and Vulnerable Adults was established in 2018 as a consultative body established within the Canadian Conference of Catholic Bishops (CCCB). Their 2018 report notes that each Canadian province now has mandatory reporting laws for child abuse.Footnote 120 However, the document suggests a preference for out-of-court settlements and mediation as a form of accountability.Footnote 121 As in other jurisdictions, such an approach may spare victim-survivors interrogating through the process of a court trial but also hides the scale and extent of the problem from public scrutiny and disables accountability for the systemic nature of the abuse.

There remains a significant practice of land disputes between Indigenous nations and Canada that reflects some of the epistemic and ontological injustices in Australia. In Calder v British Columbia in 1973, while the Nisga’a people were unsuccessful in seeking a declaration of their Aboriginal title to ancestral lands in British Columbia,Footnote 122 the court recognised the existence of Aboriginal rights in Canadian law before the Royal Proclamation in 1763. The decision led to a change in government policy on native land claims and ultimately an amendment to the Canadian Constitution in 1982 to recognise and affirm ‘the existing aboriginal and treaty rights of the aboriginal peoples of Canada’ under section 35(1). Borrows suggests: ‘In the moment, the constitution appeared to present a path to genuine reform. Then the idea of originalist history re-emerged and became the touchstone for proving Aboriginal rights’.Footnote 123 In 1996, the Supreme Court ruled in R. v Van der Peet that Section 35(1) offered protection of Aboriginal rights but only for those practices, customs, and traditions that were ‘integral to the distinctive culture’ of particular groups prior to European contact.Footnote 124 Borrows notes the Supreme Court placed a search for ‘original’ understandings of Aboriginal rights as central, narrowing the scope of evolving knowledge, power, and epistemic justice.Footnote 125 In Delgamuukw v British Columbia, the Supreme Court stated the test to determine what constitutes a justified infringement on Aboriginal rights and title, and in doing so, placed the onus on Indigenous nations to prove occupation prior to sovereignty and subsequent continuous occupation,Footnote 126 as ‘aboriginal title crystallized at the time sovereignty was asserted’.Footnote 127

In Tsilhqot’in Nation v British Columbia, the Canadian Supreme Court found that the Tsilhqot’in Nation was entitled to a declaration of Aboriginal title in their traditional territories,Footnote 128 due to evidence of sufficient and exclusive historical occupation at the time of Canadian sovereignty. The Court in Tsilhqot’ in stated that the doctrine of terra nullius never applied in Canada.Footnote 129 Borrows suggests that while a significant decision and victory for the Tsilhqot’in Nation, the case represents the continuation of a problematic treatment of Indigenous history in Canadian law: ‘This test requires proof of what was integral to distinctive Aboriginal societies upon contact. If a practice developed after contact it cannot be protected as an Aboriginal right within Canada’s Constitution.’Footnote 130 Thus, courts’ use of history is providing a significant structural constraint on Indigenous rights in Canada.Footnote 131

Canada has also addressed historical-structural injustices through a human rights lens. In 2007, the First Nations child agency, the Assembly of First Nations, alleged that state-run child welfare services provided to First Nations children and families on reserve were flawed, inequitable, and discriminatory on an ongoing basis.Footnote 132 In 2016, the Canadian Human Rights Tribunal found that Canada was racially discriminating against First Nations children. The Canadian government is currently seeking judicial review of this decision, which may cost between $2 and 15 billion to implement. Rauna Kuokkanen argued that even if successful, the discriminatory treatment of First Nations peoples must be addressed through examining other relations of domination, including heteropatriarchal gender relations, ‘which often displace Indigenous women, and consequently, their children from their communities’.Footnote 133

In terms of employing international human rights, Kuokkanen notes: ‘Traditionally, there has been no strong Indigenous engagement with international human rights instruments at the national level, although this has somewhat changed with the adoption of United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).’Footnote 134 A notable exception is Lovelace v Canada, where the United Nations Human Rights Committee concluded that Canada had violated the International Covenant on Civil and Political Rights as the Indian Act violated the cultural and language rights of Indigenous woman Sandra Lovelace.Footnote 135 This led to an amendment of the Indian Act aimed at removing gender-based discrimination but denied Indigenous women the means to transfer their Indigenous status to their children. Subsequent cases have attempted to overcome this but have only removed ‘the specific discrimination identified by each case, rather than addressing the foundational sex-based hierarchy in the status provisions’.Footnote 136

In 2021, on National Indigenous People’s Day, Canada formally adopted An Act respecting the UNDRIP. The Act provides that the Canadian government must ‘in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration’. In particular, the Act provides that relevant government ministers must prepare and implement action plans to achieve the objectives of the Declaration. While this may offer the basis for advancing the potential of UNDRIP provisions, Section 2 of the Act nonetheless provides that ‘[t]his Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them’. It remains to be seen whether this Act will make a material difference to the Canadian government’s treatment of First Nations peoples. Although the Canadian government rhetoric recognises the need for ‘transformative change’ with Indigenous peoples, Rosemary Nagy notes its practices continue to cause concern.Footnote 137 Rights have proven problematic and limited as a mechanism to achieve the empowerment of First Nations peoples, rights discourse and practice remains one element of addressing historical-structural injustices but one that risks framing First Nations interests, such as self-determination, as something to be granted by the state, affirming existing settler colonial structures.Footnote 138

7.4.4 United Kingdom

English criminal law has long prohibited offences relevant to historical abuse, such as rape, child cruelty, or assault or neglect of a child in the care of another.Footnote 139 The UK demonstrates the potential and risks of criminal prosecution for historical sexual violence. Following a television documentary alleging abuse by English celebrity Jimmy Savile, Operation Yewtree was established as a police investigation into child sexual abuse led by the Metropolitan Police Services (MPS). A 2013 MPS report concluded that Saville, deceased, had committed at least 450 acts of child sexual abuse.Footnote 140 The operation led to nineteen arrests of other high-profile public figures and to seven convictions. More broadly, a ‘Yewtree effect’ was reflected in part in a 124 per cent increase in the reporting of rape since 2012.Footnote 141 In response, MPS Operation Hydrant was established in 2014 to oversee and coordinate all ‘non-recent’ investigations concerning persons of public prominence and those historical institutional sexual offences. Figures in early 2020 indicate that ‘4,024 allegations led to guilty verdicts at court after police investigations since 2014 into decades-old child sex offences’.Footnote 142 Since Hydrant’s launch, 7,000 suspects have been identified, with 11,346 allegations of attacks received from 9,343 victims, all concerning sexual abuse of children. Such figures relate to both institutional and non-institutional contexts of historical child sexual abuse. These figures have encouraged some victim-survivor representatives.Footnote 143 Other forms of historical abuse, such as institutionalisation per se, child migration, and illegal adoption, have not formed the object of criminal prosecutions but have been pursued through civil litigation.

The experience of victim-survivors in UK civil litigation continues to risk distress or re-traumatisation. The Independent Inquiry into Child Sexual Abuse (IICSA) report on accountability and reparations noted that for many victim-survivors ‘the litigation process was emotionally challenging and that it compounded the trauma they had already suffered as children. They also felt dissatisfied with the outcome, either because their claims had failed or because they had succeeded, usually by accepting a settlement offer, but they had never received any explanation or apology for what had happened to them and did not feel that justice had been done’.Footnote 144

The IICSA report on the safeguarding within the Roman Catholic Church confirms that in the church’s historical responses to child sex abuse allegations, ‘resistance to external intervention was widespread’.Footnote 145 The Nolan report in 2001 recommended the need for a single set of rules to address such allegations across the Catholic Church in England and Wales, leading to the eventual establishment of independent child commissions and child protection offices. The 2007 Cumberlege review of this process found the church had made some progress regarding child protection, though noted the limited change for religious orders compared to dioceses.Footnote 146 The IICSA report concluded: ‘The absence of published data about the number of priests laicised for child sexual abuse offences (whether in crimes in civil or canonical law) diminishes confidence in the Church’s handling of such cases.’Footnote 147

Beyond individual criminal and civil cases, the 2012 case of Mutua & Ors v Foreign and Commonwealth Office represented the first time that victims of colonialism were given the right to claim compensation from the British government. The claims arose from the systematic abuse and torture inflicted on the Kenyan people by British colonial officials and Kenyan ‘home guards’ under British command, including castration, systematic beatings, rape, and sexual assault with bottles; all of which were known about and sanctioned at the top levels of the British government.Footnote 148 Justice McCombe noted that a fair trial was possible due to the existence of extensive and meticulous colonial records that had been found in discovery.Footnote 149 The case extended principles of vicarious liability in tort law to the joint activities of British government and colonial administrations.Footnote 150 In 2013, the British government apologised and agreed to pay £19.9 million in compensation to over 5,000 claimants who had suffered abuse.Footnote 151 Balint notes that the settlement ‘was couched in terms of being important for future economic and political relations, rather than as an important acknowledgement of British responsibility for these harms as integral to Empire’.Footnote 152 Balint suggested the case offered the potential for a new constitutive moment ‘ushering in a new legal order in which colonial harms can be heard and redressed as well as changing the public and political landscape of how the British Empire is collectively remembered and discussed’.Footnote 153 However, she concludes that ‘the absence of a broader public appreciation of the structural nature of these harms – as constitutive of Empire, not exceptional to it – means that the claims brought and heard in their particularity will fail to have a more extensive constitutive impact’.Footnote 154 The potential impact of the case has been circumscribed by subsequent decisions and legislation.

In Kimathi & Ors v The Foreign and Commonwealth Office, in 2018, Stewart J dismissed similar group litigation, where over 40,000 Kenyans brought claims for damages against the UK Foreign & Commonwealth Office (FCO), alleging abuse in Kenya during the 1950s and early 1960s.Footnote 155 Stewart J held the claim was barred by the statute of limitations and that it would not be equitable to extend time in the claimant’s favour due to the severe effects of the passage of time on the defendant’s ability to defend the claim.Footnote 156 The judgment emphasised that civil litigation is distinct from a public inquiry and that ‘the claims must stand or fall on established principles of civil litigation’.Footnote 157

In Keyu v Secretary of State for Foreign and Commonwealth Affairs, the UK Supreme Court was asked whether the FCO should be required to hold a public inquiry into allegations of British soldiers shooting and killing twenty-four unarmed civilians in 1948 in Malaysia.Footnote 158 The UK government had rejected the claim for a public inquiry. The Court rejected the claim to compel the government to establish an inquiry, concluding that a historical claim that predates the European Convention on Human Rights needed a supervening event to create an obligation under the Convention to create an obligation to investigate.

Although these cases represent attempts to address the legacy of the British Empire through litigation, the future capacity of litigants to build on these approaches has been undermined by government legislation. Schedule 2 of the Overseas Operations (Service Personnel and Veterans) Act 2021 restricts a court’s discretion, under the Limitation Act 1980, to disapply time limits for civil actions in respect of personal injuries or death which relate to overseas operations of the armed forces. The minister John Mercer in introducing the bill spoke of the need ‘to lance the boil of lawfare and to protect our people from the relentless cycle of reinvestigations against our armed forces’.Footnote 159

7.4.5 United States

In the United States, there has been a significant focus on the criminal prosecution of clerical child sexual abuse but little systemic efforts to prosecute other forms of sexual abuse or non-sexual historical abuses. Attempts to hold priests accountable for child sex abuse began in 1984, in Louisiana,Footnote 160 but it would not be until 2002 and revelations of clerical abuse and its cover-up in Boston that the issue garnered national attention and forced the church to attempt to change its approach to dealing with abuse allegations. Formicola suggests that the successive investigations and litigation challenged the primacy of canon law and created expectations of legal cooperation from church institutions,Footnote 161 with secular governments less deferential to churches and as a result more powerful in how the past is addressed.Footnote 162 Most recent figures published by the United States Conference of Catholic Bishops (USCCB) indicate that 7,002 priests ‘not implausibly’ and ‘credibly’ were accused of sexually abusing minors in the period 1950 through 30 June 2018.Footnote 163 However, criminal convictions are not recorded in USCCB annual reports. Figures in the United States may continue to underestimate the extent of abuse as they rely on survey responses filled out by church officials without independent verification and are based on church personnel files, which may be incomplete or have removed incriminating material from personnel files to secret archives.Footnote 164 In addition, the US-based Survivors Network of those Abused by Priests (SNAP) unsuccessfully petitioned the International Criminal Court (ICC) alleging that Vatican officials had superior responsibility for consciously disregarding information that showed subordinates were committing or about to commit sexual violence. The request was rejected on the basis of lack of jurisdiction and because some of the allegations concerned events prior to the court’s founding in 2002.Footnote 165 Similarly attempts to sue the Holy See in US court directly in tort law were also unsuccessful.Footnote 166

Criminal prosecutions in the United States largely fail to address other areas of historical abuse involving state apparatus, involving racially motivated violence against African Americans, systemic assessment of police brutality, or violence against Native Americans. According to Manfred Berg, of all lynchings committed after 1900, only 1 per cent resulted in a perpetrator being convicted of a criminal offence of any kind.Footnote 167 In contrast, litigation has formed a key part of seeking to address the legacy of slavery, Jim Crow laws, and racial discrimination. Early decisions of the US Supreme Court affirmed both the Doctrine of Discovery and white supremacy.Footnote 168 However, the litigation strategies addressing injustice against Native peoples and black Americans are significant in their differences. In Brown v Board of Education in 1954, the applicant successfully argued that the principle of ‘separate but equal’ was unconstitutional, thus prohibiting the racial segregation of public schools.Footnote 169 Brown remains the canonical example of how the US legal system addresses the nation’s legacy of past racial violenceFootnote 170 but perhaps remains of limited ontological value. Joshi notes that while significant for demonstrating that racially separate public schools are ‘inherently unequal’, the decision is also notable for its failure to mention white supremacy and the degrading treatment of black children.Footnote 171 Angela Onwuachi-Willig suggests that such an approach left intact and unchallenged pre-existing notions of white superiority and black inferiority pervasive in American society.Footnote 172

The potentially radical nature of the decision was limited by the Court’s own approach to its implementation. In Brown II the Supreme Court turned over the implementation of school desegregation to local judges, who were to act not immediately but with ‘all deliberate speed’.Footnote 173 After Brown, segregation persisted significantly for ten further years and the Civil Rights mass movement was required to realise its potential.Footnote 174 This mass movement and legal changes in turn led to retrenchment and resistance to racial integration,Footnote 175 ultimately finding expression in the Supreme Court with the successive appointment of conservative judges throughout the end of the twentieth century, who largely deny continuities of historical injustices to present inequalities.Footnote 176

Other significant victories have been achieved through litigation, such as prohibiting voter discrimination,Footnote 177 but have equally been undermined by subsequent retrenchment in the Supreme Court.Footnote 178 Joshi suggests: ‘In trying to disassociate the United States of today from its antebellum and Jim Crow histories, the Court denounced blatant forms of racism from the past while discounting the racism present today and denying continuities between past and present racism’, and emphasises the Court’s preoccupation with an end point to racial transition at which any exceptional measures would no longer be justified.Footnote 179 As a result, the most high-profile forms of litigation to address historical-structural injustices, such as Brown, are limited both by the structure of litigation requiring subsequent government action and by the relatively narrow framing adopted by the Courts in relation to the nature of the injustices addressed.

There have been several cases litigating the issue of reparations for slavery, but these have proven largely unsuccessful due to structural barriers in litigation, in particular the doctrine of sovereign immunity, that a political subject cannot sue the government without its consent, has barred two attempts.Footnote 180 In addition, descendants of slaves’ claims for reparations have been rejected as courts concluded that the descendants had not been directly harmed themselves.Footnote 181 Emma Coleman Jordan notes the limited potential to achieve reparations for slavery: ‘The litigation-for-reparations strategy suffers from the old problem of using the master’s tools to tear down the master’s house.’Footnote 182

The use of civil and constitutional rights has also been limited and risky for Native peoples. In the 1950s, Native claims were limited to those under the Indian Claims Commission, which allowed for the recovery of money but not return of Native lands,Footnote 183 and is discussed further as a limited form of reparation in Chapter 8. By the 1960s, Native tribes began to pursue the advancement of their interests through litigation through the development of the Native bar of attorneys.Footnote 184 This strategy led to a trend of the recognition of native rights to title in the 1970s and 1980s, recognising that federal Indian law was based on a government-to-government relationship between tribes and the United States.Footnote 185 Wilkinson notes that these successes became more limited in the 1980s and 1990s, similar to retrenchment against addressing racial injustice, with Justices Rehnquist, Scalia, and Thomas refusing to take seriously existing Native treaties.Footnote 186 Kirsten Matoy Carlson notes that at the US Supreme Court, Indian nations lose over 75 per cent of the cases litigated.Footnote 187 This rate suggests that efforts of Native tribes to assert their rights and power and address past injustices may be better pursued through Congressional legislation, through both general and tribal-specific legislation.Footnote 188

The Court’s approach to addressing Native sovereignty and jurisdiction has fluctuated in its effects as a form of epistemic injustice. In Oliphant, the Supreme Court declined to acknowledge criminal jurisdiction for Indian tribal courts over non-Indians.Footnote 189 In doing so, the Court concluded that the relevant treaty text was silent on this issue and as a result the Court could examine ‘the common notions of the day’ and ‘the assumptions of those who drafted [the texts]’ to resolve the issue.Footnote 190 Blackhawk is critical of this approach that remained rooted in a dominant ideology that sought to restrict the textual recognition and impact of Native sovereignty.Footnote 191 In contrast, in Solem v Bartlett, the Supreme Court concluded that three principles would evaluate the existence of any Congressional intent to diminish the borders of a Native reservation.Footnote 192 First, the Court affirmed that an explicit provision from Congress is required to diminish the boundary of a reservation. Second, the language must specifically state the intent to diminish a reservation or make a blatant statement from which the intent to diminish is presumed. Third, the Court made clear that historical evidence of intent to disestablish the reservation must be ‘unequivocal’ in order to be dispositive.Footnote 193 Such an approach raised the burden to displace existing reservations and Native borders. Maggie Blackhawk suggests that rights-based frameworks, such as that in Brown, have been used as a tool of settler colonialism against Native peoples. Instead, recognition of tribal sovereignty has benefited Native peoples as a recognition of power, not rights.Footnote 194 The potential of Native litigation in the United States thus remains predicated on recognition of Native sovereignty, not individual or collective rights granted by the state. Such litigation has the potential to redistribute ontological power, affirming the shared sovereignty and power on the territory of the United States/Turtle Island.

A recent Supreme Court decision illustrates the potential of an approach focused on power, rather than rights for Native peoples. In 2020 in McGirt v Oklahoma, the Supreme Court held that ‘three million acres and most of the city of Tulsa, Oklahoma’ was recognised by the United States as within reservation lands of the Muscogee (Creek) Nation, potentially leading to one-third to one-half of Oklahoma being part of a reservation.Footnote 195 In McGirt, the United States and the Muscogee (Creek) Nation had agreed on the borders of the reservation in a treaty that recognised Native sovereignty. The Supreme Court held that the text of the treaty would determine the outcome and that subsequent practices aiming to usurp sovereignty had not changed or made law. It notably stated: ‘Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right’.Footnote 196 Such an approach affirms the potential for litigation to serve as a mechanism to address historical-structural injustice directly, providing measures of truth and reparation through the recognition of native title.

In contrast, Blackhawk suggests that the dissents by Justices Roberts, Alito, Kavanaugh, and Thomas are notable for their attempts to perpetuate national myths regarding American western frontier expansion, such as manifest destiny. The dissent’s approach would shift the epistemic power away from a textual analysis that emphasised Native sovereignty and allow a contextual approach that would empower the court to find sufficient Congressional intent to diminish the borders of the reservation in the treaty.Footnote 197 In doing so, the dissent would have made legal an infringement of Native sovereignty that was non-consensual and violent.Footnote 198 The broader impact of the decision remains to be seen, with the Court noting that delay, laches, and other doctrines of civil litigation may bar Native nations from exercising power and jurisdiction.Footnote 199 Blackhawk argues that generations of Native advocacy have sought to emphasise the language of sovereignty, power, and conquest into law, ‘thereby making the experience of Native people legible to formal lawmaking institutions’.Footnote 200 Such an approach can enable advocates ‘to fracture the law in order to lower the barriers to reform’ as a means of recognising and remedying historical-structural injustices.Footnote 201

7.5 Conclusion

Each element of litigation has brought some element of justice for survivors but is also limited in significant ways. Criminal law responses to child sex abuse remain significant in undoing the self-created exceptionalism of Catholic priests and clericalism, and subject them to ordinary rules of criminal law.Footnote 202 However, the focus on clerical sexual abuse does not explain the limited number of prosecutions on sexual assaults against First Nations women and girls nor against African American women. The continuities of violence against women, especially women and girls of colour, should counter the idea that there was a historically exceptional period of sexual abuse. While prosecuting historical child sex abuse remains significant, this focus also obfuscates the absence of prosecution of non-sexual, state-sanctioned violence.

Civil litigation may bring ‘some satisfaction and other therapeutic gains to victim-survivors and the community more generally, but law can never fully erase the injury or long-term impacts of violence’.Footnote 203 While civil litigation has been used to gather institutional responsibility, the settlement of cases and the uneven nature of civil forms of responsibility across jurisdictions create arbitrary and invidious discriminations across victim-survivors.

There have been some significant achievements through litigation – the decisions in Brown in the United States or Trevorrow in Australia demonstrate that while historical legacies of state-authorised injustice can exceptionally be recognised by states, implementing remedies remains highly contested, challenging, and political. As a result, there are two competing tensions in the pursuit of accountability for historical abuse through litigation. Pablo de Greiff notes: ‘Refraining from prosecuting mass violations is not an option since this omission in itself constitutes a new violation of international human rights obligations. The question is how to muster and organize available resources – institutional, political, human and material – to maximize the impact of criminal justice measures.’Footnote 204 On the other hand, in addressing the challenges facing the Stolen Generation, Pam O’Connor concludes ‘[l]itigation is a poor forum for judging the big picture of history’.Footnote 205 This insight appears true across the range of efforts for accountability for historical abuse across the countries examined.

Regarding canon law, to date it has been largely ineffective at providing justice for victims or punishment to perpetrator priests. In 2014, the Committee on the Rights of the Child expressed grave concern that the Holy See had neither acknowledged the extent of nor sufficiently addressed the crimes committed but had adopted policies and practices which have led to its continuation and to impunity for perpetrators.Footnote 206 Under Pope Francis, the Holy See has centralised the church’s policies related to child abuse with mandatory reporting procedures from national bishops to the Holy See and the removal of the secrecy of canon trials. However, it remains to be seen whether this centralisation will result in more support for victims or be an instrument of impunity.Footnote 207

The majority of international human rights mechanisms have been used, at best, to create domestic political pressure for states to engage in addressing historical abuse. The limits to this approach include a diminishing return to repeated engagement with international oversight bodies and a lack of effective emphasis on individual accountability. Each mechanism of litigation makes a partial contribution to addressing historical-structural injustices. The possibilities for doing so are limited by both the non-recent nature of the harms, the structure of litigation in the legal systems considered, and the willingness and capacity of courts to hear and acknowledge survivors as bearers of knowledge and truth, and to embrace the need for radical change prompted by the widespread or systemic harms they speak to.

8 Reparations

8.1 Introduction

Reparations represent an opportunity for those responsible for harm to redress victim-survivors in material and symbolic terms. Responsible actors providing reparations can acknowledge their responsibility for wrongdoing, and directly recognise victim-survivors as rights bearers. If successful, reparations can provide financial support, contribute to survivor healing, and rebuild trust between survivors and responsible actors. However, despite a significant amount of money in several national redress schemes for historical abuses, the approach taken fails to achieve these goals. Instead, redress often functions as a form of settlement and closure of claims regarding past wrongs and is limited in addressing inter-generational dimensions of historical-structural injustices. Section 8.2 considers the role of reparations as an element of transitional justice and previews the analysis of reparations across the four dimensions of power and emotions. Section 8.3 assesses the conceptual contribution of reparations to addressing historical-structural injustices, while Section 8.4 evaluates the contribution of existing redress schemes. Section 8.5 concludes by examining the potential and limits of reparations to address the mythical dimension of historical-structural injustices in material and symbolic terms.

8.2 Reparations as an Element of Transitional Justice

‘Reparation’ has been recognised as an umbrella term for different forms of redress, such as restitution, rehabilitation, compensation, apologies, or memorials.Footnote 1 Restitution, re-establishing the situation prior to the illegal act, constitutes a key objective of reparation in international law.Footnote 2 Where restitution is impossible or inappropriate given the gravity of the violation, compensation can be provided for the harm suffered, akin to tort law.Footnote 3 Originally, reparations were conceived of as a post-war remedy for inter-state conflict but have shifted to a more individual- and victim-focused approach in the post-World War II era,Footnote 4 with some significant and complex processes in contemporary post-conflict settings, such as in Colombia providing a range of measures to over 9 million victims.Footnote 5

Reparations can be conceived of as mechanisms across the four dimensions of power and emotion examined in this book. First, reparations can operate as a material form of empowerment for individual victim-survivors, aiming to meet health needs, provide some financial acknowledgement of the harm suffered, and enable access to specialised services that may address a lack of empowerment or experiences of neglect or marginalisation during the time a victim was unredressed. By accessing reparations, victims may exercise individual agency and have their harm recognised and acknowledged by state authorities.Footnote 6 Reparations intend to serve a healing function for individual victim-survivors and communities,Footnote 7 addressing emotional distress or trauma. However, there is growing awareness of potential psychological damage or re-traumatisation caused by ill-designed processes, which may scrutinise the life choices and experiences of abuse by victim-survivors,Footnote 8 in a non-therapeutic way.

Second, reparations can affirm or challenge the distribution of power in existing structures. To date, reparations regarding historical-structural injustices have largely remained predicated on a corrective or interactional conception of justice, based on responding to harm of a victim-survivor by a responsible individual, organisation, or state.Footnote 9 However, in recent years, a discourse of transformative reparations has emerged to respond to the perceived limitations of a purely corrective approach, by emphasising the need to address distributive justice, which takes into account the current needs of the population affected.Footnote 10 For Anna Reading, such a transformative justice approach to reparations ‘is more usefully conceived as an assemblage of acts and processes across space and time that includes seeking transformations of material and nonmaterial reality that might be understood as emotional, spiritual, and affective capital along with transformations of material inequalities and economic capital’.Footnote 11 Such an approach suggests the potential for reparations to address structural injustices, within current distributions of wealth and resources and symbolic, non-material resources but remains to date without significant practice.

Third, reparations can serve or hinder epistemic justice. The process of acknowledging harm and the victim’s status as rights holder may make a significant contribution to reparative epistemic justice.Footnote 12 Providing reparations may enable survivors to express their experiences of harm, how it affected their lives, and have that lived experience officially believed and acknowledged, vindicating their truth about what happened. However, a failure of acknowledgement and recognition, a lack of engagement with the voices and preferences of victim-survivors, or a lack of clearly communicated and agreed meaning regarding reparations may compound existing epistemic injustices.

Fourth, and relatedly, reparations can also be understood as an ontological form of power. Claire Moon suggests that reparations can ‘regulate the range of political and historical meanings with which the crimes of the past are endowed and through which they are interpreted and acted upon’.Footnote 13 Reparations may contribute to the recognition of victim-survivors as rights holders, as those to whom duties to repair are owed by state and church institutions and other non-state actors. However, such ontological power likely remains limited by the configuration of victim-survivors as rights holders within a liberal democratic framework, which is problematic in settler colonial contexts, as discussed below.

8.3 Reparations and Historical-Structural Injustices

In the case of gross violations of human rights, full healing, restitution, or compensation may be impossible: ‘Nothing will restore a victim to the status quo ante after years of torture, sexual abuse, or illegal detention’, or after the loss of a loved one.Footnote 14 In the absence of further meaning, compensation for human rights violations may function as ‘hush money’ or suggest a market value only for the experience of harm and loss.Footnote 15 In addition, addressing non-recent violence and/or violence beyond lived experience directly warrants a distinctive response, owing to the longer lapse of time between the harm experienced and attempts to redress it and the likelihood such reparations may extend to descendants of those originally harmed.

There are divergent views about the ability of reparations to achieve this. John Torpey finds that reparations are either commemorative: ‘backward looking, not necessarily connected to current economic disadvantage’… or anti-systemic in nature: ‘rooted in claims that a past system of domination (colonialism, apartheid, slavery, segregation) was unjust and is the cause of continuing economic disadvantage suffered by those who lived under these systems or their descendants’.Footnote 16 Torpey suggests that these two types of reparation should be regarded as the extremes on a spectrum.Footnote 17 Similarly, Janna Thompson distinguishes between synchronic and diachronic theories of reparations.Footnote 18 Synchronic theories refer to relationships between contemporaries, typically applicable to reparations in mainstream transitional justice, which concern relatively recent armed conflicts or authoritarian regimes. Reparations for historical-structural injustice are criticised when thought of in this way, where the original victim of injustice has perished.Footnote 19 Brophy notes that the highest profile argument against reparations in the United States is that ‘the people currently asked to pay had nothing to do with the injustices of the past’.Footnote 20

In contrast, diachronic theories refer to obligations incurred by past generations. For Thompson, as societies represent inter-generational communities, current members of these communities may claim reparations for past injustices, such as slavery and taking the lands of Indigenous peoples, committed against their ancestors.Footnote 21 On this account, reparations are not designed to primarily remedy the original wrongdoing per se but the loss of inheritance that acts negatively upon the link between generations. It remains a moral and political choice of current state and churches to accept the responsibility to provide reparations,Footnote 22 for harms where the original victims are now deceased, but their descendants are marginalised and harmed, based on the endurance and reproduction of historical-structural injustices.

8.3.1 Reparation Schemes Considered

Of the forty-one reparation schemes considered in this book in Appendix 2, the majority are commemorative and synchronic and fail to address the structural conditions that framed and created the context for specific abuses, or the structural conditions that have persisted or been reproduced after non-recent harms. A majority of the schemes provided to victim-survivors of historical abuse are ex gratia, arising as a gift, without admission of responsibility from the states or churches who administer the schemes. A second category of schemes represents the outcomes of the settlement of litigation. These range from private settlements with exclusively financial outcomes, to broad, complex, and public settlements, such as the Indian Residential Schools Settlement Agreement (IRSSA) in Canada.

In Ireland, the redress schemes have all been ex gratia and designed and administered by government. The Residential Institutions Redress Board (RIRB) scheme was the result of survivor political and legal pressure and ran concurrently with the Commission to Inquire into Child Abuse (CICA) investigation, discussed in Chapter 6. It is the only scheme to have a financial contribution (of 11 per cent of the total cost) from churches, which were indemnified from any litigation for their contribution.Footnote 23 The Magdalene Restorative Justice Scheme arose as a response to the state’s McAleese commission report.Footnote 24 A redress scheme for survivors of mother and baby homes has been proposed by government in 2022 and is progressing through parliament at the time of writing. There is no aggregated data on the settlement of claims against state or religious orders regarding historical abuses.

In Australia, redress schemes have been mandated by state or national governments, with varying levels of survivor advocacy and engagement. The 2018 National Redress Scheme, arising from a recommendation of the Royal Commission into Institutional Responses to Child Abuse, involved negotiations between state and federal governments and non-government institutions in all Australian jurisdictions to join the scheme, including the Catholic Church, Anglican Church, Salvation Army, Scouts Australia, YMCA Australia, the Uniting Church, and the Lutheran Church of Australia.Footnote 25 In 2021, the Australian government authorised national redress for the Stolen Generations, which will build on existing redress schemes from two Australian states. In addition, aggregated data gathered by the Royal Commission on Institutional Responses to Child Abuse reveals that over 3,000 claims of child sexual abuse against religious orders were resolved between 1995 and 2015. Catholic Church authorities made total payments of $268 million to settle claims of child sexual abuse between 1 January 1980 and 28 February 2015.Footnote 26 Daly and Davis note the rarity and value of this data to compare validation rates and monetary payments between civil litigation and redress schemes.Footnote 27 In addition, successive cases and legislation purported to enable Indigenous people to claim limited land rights where traditional ownership could be proven, discussed in Chapter 7.

In contrast, Canada’s reparations processes for historical abuse have been driven by litigation and facilitated by the ability of some groups of victim-survivors to leverage the class-action lawsuit mechanism. The highest profile and heavily used scheme relates to the IRSSA, established in 2006, as part of a settlement agreement of over 7,000 legal claims against the federal government and a number of churches. A second large settlement agreement in 2018 relates to the ‘Sixties Scoop’ of Indigenous children to foster care and adoption. Several other schemes result from class actions and concern abuse in closed institutions. In Canada, limited published data regarding the settlement of clerical abuse cases in non-residential settings makes a holistic evaluation challenging. In contrast to Australia, a Specific Claims Tribunal was established in 2008 to assess monetary damage claims made by a First Nation against the Crown regarding the administration of land and other First Nation assets. To date, CAN$ 8.8 billion has been paid out in 587 settlements.Footnote 28

In the United Kingdom, a number of avenues of judicial reparation are available for victims of criminal harm. In England and Wales, victim-survivors can obtain reparation through awards of compensation by the criminal courts or by the Criminal Injuries Compensation Authority (CICA). However, the ongoing IICSA inquiry revealed that only around 0.02 per cent of criminal compensation orders relate to child sexual abuse.Footnote 29 In addition, a compilation of settlements against the English Catholic Church since ‘records allow’ to 2020 reveals that there have been 439 child sex abuse allegations against dioceses and forty-nine claims against religious orders.Footnote 30 On available data between 2003 and 2018, the Church of England addressed 217 claims for child abuse.Footnote 31 In addition, governments in Jersey, Northern Ireland, and Scotland have provided for reparations after and alongside public inquiries into institutional abuse. No aggregated settlement data is available in these jurisdictions.

In the United States, there are no national reparation schemes regarding racial injustice and limited and unsatisfactory schemes for Native peoples. Aggregated data on the settlement of clerical sexual abuse cases against the Catholic Church reveal that 5,679 survivors received a total of approximately $2.5 billion, with an average settlement of $268,466.Footnote 32 The United States was the first to establish a formal process for the hearing of Native American land claimsFootnote 33 but could only order monetary redress, not the return of Native lands.Footnote 34

This universe of reparation schemes and settlement agreements demonstrates the significant cost of redress to date. However, both the experience of these schemes and their limitations have been a source of challenge and frustration for victim-survivors and inhibit their contribution to any transitional justice for historical-structural injustices.

8.4 Assessing Reparation Schemes and Historical-Structural Injustices

Assessing these reparation schemes is challenging in a context of limited publicly available reports on their processes and outcomes for survivors.Footnote 35 The full scope may be difficult to calculate, particularly in private settlements with church institutions, which do not disclose comprehensive figures.Footnote 36 In Ireland, a legal prohibition on applicants discussing engagement with the statutory RIRB has made assessment of its work highly challenging.Footnote 37 With these caveats in place, reparation schemes can be assessed across the four dimensions of power.

8.4.1 Dimension 1: Agency

Reparations are a significant site of engagement between victim-survivors and states and churches, negotiating the establishment, cost, and procedure of any schemes. The record of such participation and ownership is mixed at best. Kathleen Daly notes that a majority of Canadian redress schemes and settlements involve negotiation with victim-survivors or, at least, their legal representatives, while four Canadian agreements only involved negotiations between legal representatives, with little or no victim participation.Footnote 38 In some instances, survivors were critical of the length of settlement proceedings that exhausted survivors and wasted funds of the defendants that could have helped survivors.Footnote 39 In the Jericho Hill, and Nova Scotia redress schemes, existing accounts from survivors were negative of the redress experience.Footnote 40 In contrast, the redress schemes for Grandview and St John’s and St Joseph’s were the product of significant participation from victim-survivor advocacy groups, leading to enhanced trust and reconciliation and a high validation and acceptance of claims by victim-survivors.Footnote 41 Both schemes allowed victims the opportunity to describe their own experiences and explain the consequences on their lives.Footnote 42 However, despite positive reviews from many victim-survivors, Daly noted that the language used for the Grandview redress scheme of ‘healing’ was misleading and premature.Footnote 43

Within the Canadian cases, Daly notes the experiences of participation for victim-survivors, ‘depend on the bargaining power of the advocacy group and the size and strength of the legal team’.Footnote 44 The most notable example was the IRSSA, which was the result of extensive engagement with victim-survivors, advocates, and their legal representatives.Footnote 45 Reimer et al found that 31 per cent of survivors surveyed were positive about their experiences with the common experience payment component of IRSSA, with most saying reparations were pragmatically useful in providing financial assistance but went on to suggest that ‘the satisfaction derived from the CEP money [Common Experience Payment] was for the most part temporary’.Footnote 46

In contrast, a majority of Australian redress schemes are stipulated by government, with limited evidence of victim participation or consultation.Footnote 47 In contrast, the recent National Redress Scheme resulted from significant engagement by victim-survivors with the Royal Commission on child abuse that recommended a national approach and with subsequent government negotiations.Footnote 48 However, a recent review of this scheme found it fundamentally unsatisfactory despite this engagement, noting: ‘The Scheme’s enabling legislation states, “Redress under the Scheme should be survivor focussed.” It currently is not … The feedback of survivors has been consistent about the need for change.’Footnote 49

In the United Kingdom, a 2019 review of criminal compensation schemes by the UK Victims’ Commission was highly critical of its operation, finding it ‘extremely traumatic for victims who have to repeat details of the crime numerous times’.Footnote 50 In 2019, the UK IICSA reported that ‘none of the avenues for redress which we have examined – civil justice, criminal compensation (CCOs and CICA awards) or support services – is always able to adequately provide the remedies which are sought as accountability and reparations for victims and survivors of sexual abuse’.Footnote 51 IICSA’s analysis indicated a number of limitations to even bespoke reparation schemes: acknowledgement and apology may not be feasible where offending individuals or institutions no longer exist or do not want to engage with a redress process;Footnote 52 a redress scheme may not afford victim-survivors a ‘day in court’, which may be seen as beneficial; a common experience or tariff approach may seem limited or impersonal.Footnote 53 In addition, if the reparation scheme is not funded by the responsible institution, it bears little difference to existing statutory schemes and does not communicate any sense of accountability for the responsible institution.Footnote 54 The Northern Irish and Scottish redress schemes were the result of extensive lobbying and negotiation by victim-survivors.Footnote 55

The RIRB and the Magdalene Laundries redress scheme in Ireland were the result of advocacy from victim-survivor organisations, but the implementation of the Magdalene scheme in legislation and policy resulted in the weakening of many of the benefits first proposed.Footnote 56 The Magdalene Scheme was subsequently found by the Ombudsman to have been maladministered.Footnote 57 In 2019 consultations with government, many survivors described their experiences of the RIRB process as adversarial, difficult, traumatic, and negative while Caranua was described as bureaucratic and unnecessarily unwieldy.Footnote 58 Sinead Pembroke found during her research on CICA and RIRB that, ‘the majority of survivors that were interviewed, felt the inquiry and redress process triggered feelings of shame and stigma in relation to their time in the institution’.Footnote 59 In addition, many participants also felt that ‘their solicitor had benefitted financially from their personal trauma’.Footnote 60 Fionna Fox and AnneMarie Crean note: ‘Victims report that the Redress Board was adversarial, confrontational and often times antagonistic, particularly when their claims of abuse were denied by the respective Religious Order.’Footnote 61

In the United States, while Congress hoped the Indian Claims Commission would be a means of avoiding litigation, it in fact adopted the culture and practices of the courts, and its hearings became long adversarial affairs.Footnote 62 Jennifer Balboni and Donna Bishop note that in Boston in the United States, clerical sexual abuse survivors ‘detested’ the sense that they were in competition with other survivors for a fixed pot of money, which was awarded based on a ranking of who was most ‘damaged’.Footnote 63

The majority of existing schemes consist of financial payments to victim-survivors. In a majority of cases, victim-survivors who engaged with a reparation scheme were obliged to waive rights to sue government or church entities for similar claims of abuse.Footnote 64 This requirement is typically intended to incentivise participation in the scheme and avoid double compensation. Disappointment with the amount received is a common finding across several schemes.Footnote 65 Survivors were unhappy when the Western Australian government reduced the maximum payment under its Redress WA scheme from $80,000 to $45,000, due to a larger than expected number of applicants.Footnote 66 In Ireland, Enright and Ring note that although the RIRB scheme was announced as being intended to provide compensation roughly equivalent to civil litigation, ‘the average payment was roughly half that made in successful civil cases against religious orders’.Footnote 67

In addition to financial payments, several schemes provided access to counselling or reclaiming medical, educational, or legal expenses.Footnote 68 Several schemes were also accompanied by apologies, addressed separately in Chapter 9. Several of the more ambitious schemes also contained elements of memorialisation and museums, regrettably beyond the scope of this book. Some schemes address reparations for cultural property, such as the 1990 US Native American Graves Protection and Repatriation Act (NAGPRA).Footnote 69 In Australia, some reparation packages do not have financial payments to survivors but instead focus on access to services and other benefits. For Forgotten Australians, one of the principal forms of redress in this period was the establishment of Find & Connect Support Services in 2010. It provides information on family tracing, personal records, counselling, and other support for all those placed in Australian orphanages, children’s homes, and other institutions. The website was developed by ‘a team of historians, archivists, and social workers’.Footnote 70 A 2014 evaluation of the service found it ‘demonstrated considerable progress in meeting the needs of the Forgotten Australians and Former Child Migrants who are using their services’, though noting some regional and institutional variation in access to records.Footnote 71

Existing empirical and anecdotal evidence suggests that while victim-survivor empowerment may be experienced in advocating and applying for reparations, the experience of satisfaction or benefit from such interactions may be fleeting. Daly also notes that participation can be both a justice interest and an emotional burden to survivors: ‘Participation itself can create emotional turmoil and dredge up bad memories. Complex processes and delays compound the problem.’Footnote 72 As a result, while survivor participation in advocacy design and implementation of reparation schemes may offer an episodic experience of empowerment, without more it is unlikely to change the structural distribution of power or the manner in which knowledge is shared across power in state or church institutions. In doing so, participation may also cause significant distress to survivors. Schemes, such as the RIRB and Magdalene schemes in Ireland, have proved largely unsatisfactory from survivor perspectives. Although several schemes combine financial payments with access to health services or information tracing, further research is needed to assess whether and how these schemes contributed to improving outcomes for survivors.

8.4.2 Dimension 2: Structure of Reparations

Existing reparation schemes largely operate within, rather than change existing legal and political structures of power. First, victim-survivor participation with these schemes is likely to intersect with the structural feature of the expertise (or lack thereof) of state and church officials who will negotiate, design, and implement reparation schemes and who, as Stephen Winter notes, have the advantage of being ‘repeat players’, including ‘the capacity to deploy long-term strategies that develop favourable precedents and rules. Whereas survivors usually participate in only one case (their own), the state employs experts who conduct hundreds of cases, enabling those officials to develop personal relationships with adjudicators, cultivate a reputation for credibility, and learn from experience.’Footnote 73

Second, no national reparation scheme has attempted to be comprehensive, and instead many schemes are received with victim-survivor unhappiness at perceived limitations in the completeness, scope, and comprehensiveness of reparation schemes. Completeness refers to the ‘ability of a programme to reach every victim, that is, turn every victim into a beneficiary’.Footnote 74 In some instances, the geographical scope is narrow, excluding some victims in the state. In the absence of nationwide reparation schemes in the United States regarding racial violence, several state- and city-level reparation initiatives have emerged.Footnote 75 Similarly, some states in Australia provided reparations for the Stolen Generations, with the national government only doing so in 2021. Narrow scope can occur even in schemes related to closed institutions nationwide. The Irish Magdalene Laundries scheme also initially failed to include all relevant institutions associated with Magdalene Laundries.Footnote 76 In making such determinations of scope, Claire McGettrick et al emphasise how the state and church sought to retain power and control of the process of survivor applications, with the relevant religious order ‘verifying’ a survivors’ ‘duration of stay’.Footnote 77 Other criticisms relate to the comprehensiveness of the schemes, which refers to the types of crime or harm that reparations seek to redress.Footnote 78 The majority of reparation schemes for historical abuse relate to child sexual abuse. This reflects the focus both of inquiries and of accountability mechanisms discussed in Chapters 6 and 7. This can be seen in the Australia National Redress Scheme, limited to sexual abuse, or in the IRSSA, which excluded violations of Indigenous cultural rights. The Magdalene Laundries scheme only provided redress for the duration of stay in these institutions and not for forced labour or any other human rights violations.Footnote 79

Even the broadest schemes do not claim to address the full scope of historical systems of harm and oppression, such as slavery, settler colonialism, or patriarchal power structures. Individualised schemes are important to recognise the lived experience of victim-survivors of particular harms. However, it is also significant to frame those individualised experiences as part of larger patterns of harm, particularly if reproduced over time as historical-structural injustices. Catherine Lu argues, ‘In cases where structural injustice enables widespread, coordinated, legalized, and normalized individual, collective, or corporate wrongdoing … a narrow account of reparation that aims to settle accounts only between the particular agents involved is no longer appropriate for determining the field of responsible agents for victim reparations.’Footnote 80

There is some evidence of the potential for reparations to contribute in this way. Anti-systemic schemes begin by providing compensation for detention within an institutional context that was legal at the time it took place, which may offer flat reparation per year institutionalised, and/or additional reparation for specific harms alleged, such as physical and sexual abuse or neglect.Footnote 81 Daly is in favour of this approach: ‘by linking money to time spent in an institution, the amount may better symbolize claimants’ realities of institutional life than a tort logic of “pain and suffering”, which is tied to incidents of abuse.’Footnote 82 The provision of reparation for detention within an institutional setting that was legal at the time it took place demonstrates the ability of states and churches to revisit historical contexts and recognise moral and political wrongdoing, rather than rely merely on the settlement of legal claims alone. This opens up the potential for reparations to be provided for other historical contexts outside institutional settings, including to descendants.

Providing reparations for historical-structural injustices, such as the legacy of slavery and Jim Crow in the United States, will require extending eligibility for reparations to the descendants of those who suffered historical harm as well as those who suffer contemporary forms of harm. Descendants may claim eligibility by arguing either that the historical injustice has enduring effects in the present or that as heirs to original victims they are entitled to remedy.Footnote 83 Evans and Wilkins note that these arguments remain challenging, ‘because the exact influence of specific past wrongs upon specific present conditions is difficult to determine’.Footnote 84 However, of existing schemes, eligible relatives or estates of deceased victims/survivors were able to apply for and/or receive payment in four schemes in limited circumstances, including the Irish RIRB scheme and Canadian Residential Schools scheme. Other schemes in Western Australia and Jersey explicitly excluded descendants. Other schemes, such as the Scottish Redress Scheme, have recognised the need for priority groups within the pool of eligible applicants, typically those of advanced age or subject to life-threatening or terminal illnesses. As a result, it remains possible to construct a reparations scheme with an inter-generational scope, where there is sufficient political will to support this. The problem is political, not legal, and reflects the limits of law’s ability to change culture and power structures alone. Interrogating the critiques of the structure and limits of existing schemes reveals their formal elements are capable of adaption to address historical-structural injustices in a more direct and comprehensive manner.

8.4.3 Epistemic Justice and Reparations

Reparations are often delivered through administrative, rather than litigation-based processes, claimed to be more efficient and less traumatic for survivors than litigation.Footnote 85 However, the existing cases studied here challenge that assumption. Limited survivor voice and epistemic justice in these schemes compound their direct and structural limitations. In the cases of private settlements, it is impossible to assess whether any epistemic justice is achieved for survivors or indeed the broader emotional experience for survivors. The lack of transparency in church settlements of clerical sexual abuse cases makes it difficult for survivors to compare settlements and share experiences of engaging with church authorities and lawyers and for such settlements to have any public communicative value, even if individual victim-survivors receive private apologies or appropriate processes.

Of government-mandated schemes, only some provided the opportunity for oral hearings, with others relying on the submission of documents or application forms by survivors. Daly also notes that the larger the pool of potential claimants, the less likelihood of oral hearings or provision of benefits and services beyond financial compensation.Footnote 86 Regarding the Canadian IRSSA, there was both a flat CEP and an individualised Independent Assessment Process. In evaluating the CEP, Reimer et al noted that a third of those in their sample ‘felt they were not believed in their first application’.Footnote 87 Fifteen per cent recognised reparations as symbolically important as a form of acknowledgement and recognition of wrongdoing.Footnote 88 However, Reimer et al also note engagement with this redress process was re-traumatising and distressing for some and was associated with a rise in ‘accidental deaths, suicides, and homicides’, which contributed to a ‘general demoralisation’ in some communities.Footnote 89 Other victim-survivors viewed the payments as inadequate or as hush money.Footnote 90 Participants generally agreed that the compensation process seemed ‘inconsistent, leaving them at the mercy of an outside agency in control of yet another aspect of their lives’.Footnote 91 In Jennifer Matsunaga’s empirical research, survivors criticised the CEP process as both faceless and requiring them to prove their presence in a residential school, despite a lack of ease in retrieving state and church records.Footnote 92 This research indicates the limits of reparations as a site of epistemic justice, with one government official stating: ‘many application forms would come in covered in writing and sometimes there would be pictures and we just didn’t know what to do with all that extra information’.Footnote 93 Negative victim-survivor experiences were reported regarding the redress scheme for the Nova Scotia Institutions, concluding claimants were ‘presumed to be guilty of fraud and not treated with respect’.Footnote 94 Subsequent interviews of victim-survivors describe negative experiences of feeling disrespected and not believed.Footnote 95

Regarding Irish redress schemes, Sinead Pembroke notes: ‘the redress scheme application procedure itself (writing a detailed statement, and an assessment by a psychologist in order to verify their trauma), resulted in psychological wounds being opened up after years of consignment to the deepest reaches of the mind. This had a negative effect on some survivors’ personal lives, and resulted in marital breakdowns.’Footnote 96 AnneMarie Crean and Fionna Fox write, ‘The Redress Board in effect became another forum where once again the balance of power was unfairly tilted against the victim.’Footnote 97 In particular, they emphasise that ‘victims report a lack of understanding of their individual circumstances coupled with a failure by the Board to understand and empathise with their past experiences of abuse and ongoing issues as a result’.Footnote 98 Máiréad Enright and Sinéad Ring frame such experiences as testimonial injustices, ‘where victim-survivors are prevented from acknowledgement as a giver of knowledge and as an informant’, noting it a particular injustice arising where it relates to the survivors’ construction of their own childhood.Footnote 99 They note the state’s broader responses to historical abuses constitute a form of epistemic injustice: ‘Redress schemes have financialized the wrongs done to victim-survivors and eclipsed other dimensions of their claims. Victim-survivors feel that the injuries they suffered are not heard and recognized as wrongs.’Footnote 100 The Magdalene Laundries scheme was criticised by the state’s own Ombudsman for denying the evidential value of women’s own testimony: ‘There was an overreliance on the records of the congregations and it is not apparent what weight if any was afforded to the testimony of the women and/or their relatives.’Footnote 101 These forms of epistemic injustice confirm that administering reparations through less complex means is no guarantee of avoiding distress to survivors. Instead, the limitations of the approaches adopted across jurisdictions demonstrate the real risk of re-traumatisation for survivors seeking reparations. The lack of capacity of those administering redress schemes to hear, accept, and acknowledge the experiences and voices of victim-survivors confirms reparations as a major site of epistemic injustice in dealing with the past. In attempting to simplify processes, whether through documentary applications or individualised assessments, many redress schemes demonstrate the inability to address the needs of victim-survivors and caution expectations for reparations for historical-structural abuses.

8.4.4 Ontology and Reparations

In some instances, particularly the settlement of class actions, reparations may represent the only mechanism for addressing the past and may by design fail to capture elements of truth seeking, accountability, or apology discussed in other chapters. As a result, reparations or settlements may be the sole contribution to the development of an ontological framing of victim-survivors. In the absence of an alternative narrative communicated around the redress, Daly concluded that survivors ‘equated money with their injuries, suffering, and value as a person’, which inevitably was re-traumatising.Footnote 102 Many survivors ‘objected to the use of categories to define and rate their childhood abuse experiences’, one saying ‘it’s like they were labelling beef’.Footnote 103 Negative experiences of Canadian redress schemes are united in the view that ‘the payment was interpreted as monetary exchange for abuse or injuries suffered, and a survivor’s “worth” was not recognized’.Footnote 104

The absence of communicative messages may also be significant. For instance, the Irish government has failed to memorialise either context of the industrial schools or Magdalene Laundries, re-emphasising the financial dimensions of redress in both instances and rendering redress something provided to individual applicants alone. Instead, in the absence of any mention of rights or responsibility, the meaning of the scheme becomes nebulous. McGettrick et al write regarding the Magdalene scheme: ‘The government’s designation of the Scheme as “ex gratia” effectively functioned as a declaration that neither State departments not religious congregations were to be treated as wrongdoers who might be inclined to treat survivors with a lack of respect.’Footnote 105 The ex gratia approach excludes the possibility of recognising survivors as rights holders and the state and church as duty bearers.

Sunga argues that ‘unless there is a clear articulation that a monetary award does not signify a market transaction, money will tend to indicate some form of exchange for abuse injuries.’Footnote 106 The consequences are that money payments may leave survivors to feel that ‘their worth has not been understood or acknowledged by the party responsible for the abuse’.Footnote 107 For Sunga, an alternative and explicit symbolism is necessary.Footnote 108 Sarah Pritchard suggests the potential for such money to communicate the vindication of survivor rights and the responsibility of offending actors.Footnote 109 Daly notes one common critique emerges that the opportunity for reparations to communicate a clear symbolic message was not taken: ‘Most survivors did not see the payment as symbolic, as recognition for injury and solace for pain. Instead, they equated the amount received in an individualized scheme to the level of abuse and injury they had experienced and to their “worth”. They did not understand why others received more money than they did.’Footnote 110 As a result, Daly concludes the word ‘compensation’ should be removed from redress schemes, which should avoid any link to a market value meaning and make explicit links to other non-monetary forms of redress or mechanisms to address the past.Footnote 111

An emphasis on symbolism challenges the dominant ex gratia approach to reparations for historical abuses, based more on the benevolence of the provider of the scheme than as a matter of recognition of rights. As a result, the symbolism of reparations involves questions of the epistemic justice and ontological power involved in reparations – what are reparations understood to symbolise, who gets to be heard on this issue, and how does it relate to the broader meaning and knowledge in society? The role and participation of victim-survivors will be key in legitimating reparations in their content, processes, and potential symbolism. Lisa LaPlante argues that ‘the “positionality” of victims will influence what they perceive to be necessary to feel repaired’ and that a government should ‘adopt a participatory approach while planning and implementing its reparation programs to accommodate better and manage the multiple justice aims and expectations of victims’.Footnote 112

In the case of reparations in settler colonial contexts, existing schemes remain predicated on existing settler authority, structures, and social ontology, and involve ‘inserting the Indigenous person into a reaffirmed colonial universe, where practices of economic, symbolic, and linguistic domination sit unchallenged’.Footnote 113 Rebecca Tsosie and others suggest that reparations for Indigenous peoples involve asserting claims for recognition of cultural and political rights as separate nations.Footnote 114 Regarding Indigenous land claims in Australia, Aileen Moreton-Robinson argues that ‘Indigenous ontological relations to land are incommensurate with those developed through capitalism, and they continue to unsettle white Australia’s sense of belonging, which is inextricably tied to white possession and power configured through the logic of capital and profound individual attachment’.Footnote 115 Recognition of these dimensions of Indigenous claims challenges a synchronic or commemorative account of reparations and requires reparations to be part of a broader dismantling of systems of assimilation, rather than part of them. To date, existing reparations processes neglect this dimension.

8.5 Transforming Reparations for Historical-Structural Injustices: The Impact on National Myths

The existing practice of reparations struggles to capture the distinctive circumstances of historical-structural injustices and continues a pattern of ambivalent success for reparation programmes familiar to mainstream transitional justice. Instead, the intention of reparations for historical-structural injustices should be not to undo or repair the harms done but to change the meaning of those harms by contributing to alleviating the material consequences of the harms today. In that way, reparations can contribute to either affirming or challenging the national and religious myths that undergird historical-structural injustices in each context explored in this book.

The design, process, and outcomes of reparations in Ireland miss the opportunity to communicate to victim-survivors and to society more broadly the acknowledgement of state and church responsibility, the status of victim-survivors as rights holders, and the admission of the inadequacy of the redress offered, despite significant expense. The processes of Irish redress schemes have been criticised by international human rights bodies and national civil society organisations.Footnote 116 Irish redress is inarticulate about its meaning and risks forming a type of state shame that both acknowledges and recovers state authority and control over survivors’ lives and interests.Footnote 117 In the absence of clearly communicated public narratives around these schemes, the Irish approach results in amplifying the risk that the money values and the distressing processes of reparations are all that are remembered from this attempt to address the past. To transform the Irish practice of reparations requires at a minimum changing survivor and public access to state and church archives regarding historical-structural abuses, currently highly restricted for survivors.Footnote 118

The Australian experience shows growing appreciation of the need for redress as a response to historical abuses. The role of information and access to records is particularly prominent in Australia as an alternative to non-financial forms of reparation. However, even the most ambitious schemes, such as the National Redress Scheme for child sexual abuse, reflect a divergence between a willingness to offer reparation to those who have experienced definable and closed categories of harm and resistance to the idea of transformative approaches to reparations that would involve more profound and existential public debates about justice for colonisation and harms to First Nations peoples.

In Canada, the IRSSA represents the most ambitious and complex reparations scheme regarding historical abuses completed to date. While its approach has much to commend it, its scope reveals the enormity of the challenges facing reparations for entire systems of settler colonisation, of which residential schools and closed institutions form only a part. It is possible to suggest that, although reflecting a significant legal victory for survivors, and significant cost to state and church institutions, the redress scheme may not disrupt a settler colonial or assimilationist ontology. Its failure to incorporate Indigenous forms of knowledge suggests the potential continuation of the peaceful settler Canadian myth.

In addition to existing settlement of child abuse cases in the United States, calls for reparations regarding slavery in the United States have a long heritage. The fundamental challenge to such proposals is the implications of what reparations would mean for the national US political self-image and national myth.Footnote 119 There were historical, unsuccessful attempts to provide reparations for slavery, intending to provide each family of ex-slaves ‘not more than forty acres of tillable land’.Footnote 120 Instead, Congress enacted the Southern Homestead Act in 1866, which provided eight-acre plots in five Southern states for former slaves to purchase, requiring capital for such purchases and not functioning effectively as reparation, and was in any event repealed by 1876.Footnote 121 Jeffrey Kerr-Ritchie notes the ongoing resonance of forty acres: ‘By the 1930s, “forty acres” had become a collective memory among older generations of former slaves, an indication of the failure of the federal government to fulfill its promise to make emancipation mean something tangible, material, and longlasting.’Footnote 122 The idea of forty acres thus moved from a synchronic and diachronic conception of reparations over time.

Reparations continue to be advocated for regarding slavery, racism, and racial violence into the present day,Footnote 123 but with significant focus on reparations for slavery and a lessened focus on reparations for lynching and other acts of racial violence within living memory.Footnote 124 In 1969, the civil rights leader James Forman presented the Black Manifesto to American churches, demanding that they pay blacks $500 million in reparations.Footnote 125 Similar demands for reparations were made in the twentieth century by groups such as the National Coalition of Blacks for Reparations in America, the Black Radical Congress, Student Nonviolent Coordinating Committee, the Black Panthers, and the Black Economic Development Conference.Footnote 126 In 1989, Congressman John Conyers Jr. (D-MI) introduced the Commission to Study Reparations Proposals for African Americans Act and has consistently reintroduced the bill in subsequent years as House Resolution 40. In 2021, the resolution cleared the US House Committee on the Judiciary and at the time of writing was eligible for a full vote.

Thomas Craemer estimates the potential cost of slavery reparations by establishing ‘the present value of U.S. slave labor in 2009 dollars to range from $5.9 to $14.2 trillion’.Footnote 127 In his view, the likelihood of such reparations depends less on legal process than on sufficient political will.Footnote 128 That political will, in turn, awaits a time when ‘successors or descendants of the perpetrating side openly acknowledge the historical injustice’.Footnote 129 However, the debate about reparations has proven to be highly divisive.Footnote 130 A 2016 poll found that 81 per cent of whites were opposed to reparations.Footnote 131 It would seem implausible for the US federal government to shift from denial of the need to engage in truth telling or accountability mechanisms, but to move first towards a reparations model for historical abuses.Footnote 132 A gradual political process building national support for reparations may be necessary if highly challenging with an extremely partisan Congress and Senate.Footnote 133

However, Native experience of reparations in the United States suggests a need for caution were any such reparations to be established. Regarding the Indian Claims Commission, Sandra Danforth notes: ‘The idea that money could be substituted for land, not to consider the related grievances, did not accord with the meaning of the losses to the claimants … Just redress would then have been viewed as an attempt to re-orient contemporary relations so as to change patterns which continue to produce grievances among Indians.’Footnote 134

As in the United States, in the absence of meaningful national political investigation and public discourse regarding responsibility for historical abuses, it seems difficult to envisage circumstances where the British state and churches admit the need for reparations of historical-structural injustice caused by British imperialism. There is limited appetite for reparations in UK political discourse, particularly anti-systemic or diachronic reparations regarding slavery or colonialism. In 2013, the fifteen countries that constitute the Caribbean Community (CARICOM) established the CARICOM Reparations Commission (CRC), to ‘prepare the case for reparatory justice for the first peoples and African descended communities of the Caribbean whose ancestors suffered genocide, capture from Africa followed by enslavement in the Americas and racial apartheid’.Footnote 135 However, such proposals did not receive much media or political attention or support in the UK itself among politicians or church leadership.Footnote 136

Early assessments of the Northern Ireland Historical Institutional Abuse Redress Board suggest it may replicate problems similar to the Irish RIRB and other redress schemesFootnote 137. In 2018, the Scottish government accepted recommendations on the issue of financial redress/compensation for victims/survivors of abuse in care in Scotland, as a result of national consultation with victim-survivors. This redress scheme opened at the end of 2021. The scheme will operate a combined flat payment with individual experience payment.

8.6 Conclusion

Reparations can make a material and existential difference to the lives of victim-survivors and their descendants and contribute to redressing the past in a way that is symbolically and politically important for society at large. When designed to address historical abuses in specific institutional contexts, government-mandated reparation schemes can nonetheless grow to a considerable scale, as with the RIRB in Ireland or the IRSSA in Canada. Reparations seem to operate as a mechanism to enable states to respond to historical abuses, represent themselves as just and benevolent in doing so, while also serving the value of seeking to conclusively settle the financial and material dimensions of addressing past wrongdoing, thereby ultimately maintaining control and not fundamentally disrupting the social and political status quo.Footnote 138 In the settler colonial context, redress may function to reassert the dominance of the settler political and legal system over Indigenous peoples.Footnote 139 Other wrongs, notably British and American reparations for the legacy of transatlantic slavery, remain unaddressed and while expanding reparations to these contexts remains possible, existing practice cautions a thorough consideration of whether any reparations scheme would meet victim-survivors’ and descendants’ needs and expectations.

A range of approaches have been employed across the jurisdictions examined in this book. In seeking to achieve these goals of material difference and symbolic or existential difference, the process and messaging of reparations is likely to last longer than a financial award, which will be necessarily inadequate to the profound nature of the harm it seeks to remedy. At a minimum, the process of oral hearings, correspondence, and victim-survivor consultation must be respectful and take steps to credibly accept the accounts offered by victim-survivors. In particular, it seems perverse to require victim-survivors to produce information related to institutional abuse, when denial of access to archival information formed a significant basis of delaying initial investigations and transitional justice advocacy regarding historical abuse in the first instance.

In the absence of express messaging, it seems likely that victim-survivor experience with even the best designed and most expensive processes will be varied, with some finding the process and outcome inadequate or even distressing and re-traumatising. As a result, if reparations are to serve victim-survivors’ and states’ interest in settlement of claims, the process must communicate the necessary inadequacy of reparations alone.

Magdalena Zolkos argues that the desire for restitution and reparation may in fact also be a desire to suppress and overcome historical trauma, when in fact, this may be impossible in the case of ‘unrectifiable’ losses, which are not merely failures of implementation but instead mark ‘a constitutive limit, or a threshold, for politics and for law in their encounter with situations of trauma, mourning, and dispossession.’Footnote 140 Similarly, Brandon Hamber suggests reparations can be a ‘double-edged sword’ as the promise of full remedy to international standards can never be achieved, no matter how inclusive or sensitive the justice or administrative reparation process.Footnote 141 Instead, governments and perpetrators must carry on ‘continually, and perhaps endlessly, trying to make substantial, personalised and culturally relevant symbolic, material and collective reparations’.Footnote 142 On this account, transformation means not only material reparation but also an inherent and explicit communication through the reparations process and content, that nothing will ever be enough to undo the harms done – a recognition of inherent inadequacy. This approach would eschew the liberal conception of progress inherent in mainstream transitional justice and instead embrace the paradox of a moral duty to respond to an abusive past but a frank and explicit accounting for the limits in doing so. The mission statement of the Conference on Jewish Material Claims against Germany recognises this: ‘We know the horrors of the Holocaust can never be repaired and must never be forgotten.’ Both elements must be acknowledged. However, for this to be meaningful and to communicate a credible transformation of relationship between victim-survivors, society, and state and churches, the process of reparations must also offer meaningful signals of a transforming or transformed relationship through the disruption of existing power dynamics.

9 Apologies

9.1 Introduction

Apologies offer a distinctive way for states and churches to narrate their response to historical abuses and operate as a key site where power and emotions intersect. At their best, apologies can empower survivors, admit wrongdoing and responsibility, recognise the rights of victim-survivors, and make solemn commitments to address the past through other transitional justice mechanisms, as part of a redefined state or church. At their worst, apologies can be mere tactical ploys or cheap political theatre to minimise legal liability without any material consequences. Section 9.2 evaluates apologies in transitional justice through the four dimensions of power. Section 9.3 assesses apologies for historical-structural injustice regarding emotions before Section 9.4 examines the national practice of state and church apologies for historical abuses. While several official apologies admit wrongdoing and/or acknowledge the suffering of victim-survivors, most apologies tend to function as episodic forms of power, while retaining the broader structural, epistemic, and ontological forms of power intact. The dominant emotion expressed in such apologies is shame, which may preclude an examination of the root causes and ongoing social consequences of historical-structural abuses.

9.2 Assessing Apologies in Transitional Justice

There is growing consensus around the necessary elements of an effective apology.Footnote 1 Conceptually apologies can be distinguished from excuse, which implies a wrong was unintentional and from a justification, which points to factors that made wrongdoing necessary.Footnote 2 Blatz, Schuman, and Ross suggest that apologies can be assessed through the following elements:Footnote 3 ‘1 = Remorse; 2 = Acceptance of responsibility; 3 = Admission of injustice/wrongdoing; 4 = Acknowledgement of harm and/or victim suffering; 5 = Forbearance; 6 repair; 7 = Praise for minority group; 8 = Praise for majority group; 9 = Praise for present 10 = Dissociation of injustice from present’.Footnote 4 These thorough criteria are employed to categorise the apologies in this chapter in Appendix 3. As with each chapter in Part II, the nature and practice of apologies can be evaluated across the four dimensions of power and the contexts of emotions and national myths.

9.2.1 Apologies and Agency

Apologies can be individual, institutional, or communal in nature. Apologies tend to be theorised from the interpersonal to state or communal levels.Footnote 5 While individual apologies may therefore be complemented with other apologies, they should not be equated.Footnote 6 Aaron Lazare notes that apologies involve an exchange of power and shame between offender and offended that may rehabilitate the offender and empower the offended.Footnote 7 McAlinden argues that ‘an apology may assist in: the displacement of internalised shame or self-blame by victims; the acknowledgement of blame and expression of shame and remorse by wrongdoers; and the acceptance of responsibility by institutions of Church and State and wider society for their involvement in sustaining abusive regimes’.Footnote 8 There is some practice of individualised and personal apologies from perpetrators and institutions responsible for historical-structural abuses.Footnote 9

9.2.2 Apologies and Structure

In the absence of empirical data on individualised apologies, the primary focus of this chapter is on official apologies by those representing state or church institutions. For Stephen Winter, state apologies for historical abuse warrant special scrutiny, as they will likely involve people who had ‘nothing to do with the injustices being apologised for’Footnote 10 but instead reflect the continuous claim to authority from state institutions.Footnote 11 State apologies may also seek to apologise on behalf of society as a whole, including societies long deceased. As a result, official apologies could be apt for addressing historical-structural injustices that involve both liabilities of specific actors and broader responsibility based on social connection.Footnote 12

However, the structural power of the legal system has the potential to further support or undercut the impact of official apologies. Without more, an apology could be interpreted as an admission of legal liability and responsibility.Footnote 13 However, the United States, United Kingdom, Canada, and Australia have introduced legislation to protect apologies from implying legal liability.Footnote 14 Apologies could include or exclude the language of rights and responsibilities, or prefer a more ambiguous or moralistic discourse designed to avoid legal accountability. As a result, it remains critical that apologies are not seen as an alternative to truth, accountability, or material reparations but as a mechanism to accompany such reparations as a form of acknowledgement and recognition.Footnote 15 Patricia Lundy and Bill Rolston argue that in the absence of accountability and official acceptance of responsibility, official apologies can function to shield state institutions from scrutiny or responsibility and to deny effective redress and voice to victims.Footnote 16 For Martha Minow, unless accompanied by material acts such as redress reflecting responsibility for wrongdoing, an apology ‘may seem superficial, insincere, or meaningless’.Footnote 17 Finally, the religious heritage of public apologies may complicate their use for historical abuses involving church institutions and actors.Footnote 18 Victim-survivors may feel unwilling or unable to engage with theologically motivated concepts or practices.

9.2.3 Apologies and Epistemic Justice

Apologies represent a potential site to address epistemic injustice. Victim-survivors can be involved in the drafting and presentation of an apology, and their voices and experiences can be included in the text of the apology itself. McAlinden notes that an unambiguous apology provides a form of epistemic justice for survivors and can validate victim experiences, providing ‘recognition and the overt removal of blame from victims’.Footnote 19 The drafting, delivery, and timing of a political apology are thus critical.Footnote 20 Alice McLachlan notes that the value of an apology may lie in ‘the process of constructing what ultimately gets said – who is involved, how equal and collaborative the process is, and who is chosen to speak – rather than the isolated act of speaking those words sincerely’.Footnote 21 Such engagement represents a site of episodic power for survivors, who may be given a role in shaping the narrative, timing, and material consequences of the apology. This interaction may briefly shift state-church and survivor power dynamics. However, MacLachlan notes that in contrast apologies can serve to reassert state control over the rhetorical space: ‘asserting a particular narrative while demanding that the hearer now respond’.Footnote 22 An institutional or national leader can, through the act of apology, cast themselves as right-thinking and enhance their legitimacy. For Joram Tarusarira, a more ambitious, transformative apology ‘incorporates the reparative and rehabilitative dimensions but adds an epistemic dimension by uprooting the logic behind the offence, thereby ensuring its non-repetition’.Footnote 23 In this regard, apologies may function to address prior epistemic and ontological injustices, where survivor voices, experiences, and equal status are amplified and when apologies are combined with other transitional justice initiatives. Such an approach seems necessary in light of the context in which historical abuses have taken place and their replication as historical-structural injustices.

9.2.4 Apologies and Ontology

The continuous nature of some state and church institutions may also result in apologies engaging national identity and ‘the emotional fabric of a nation’.Footnote 24 Linking an apology to broader national and religious myths involves calculations and sensitisation regarding whether and how to recast a new political vision for a state or church, or to reaffirm the claimed values of these institutions.Footnote 25 Celermajer describes this as an act of ‘re-covenanting’ – acknowledging a collective failure to live up to normative ideals in the past and renewing a commitment to live up to those ideals in the future.Footnote 26 Janna Thompson suggests an apology ‘signals the commitment of those who make it, sponsor it and support it to a national undertaking, and whether we can regard an apology as meaningful depends on our reasons for thinking that this undertaking has been initiated and will continue’.Footnote 27

Several authors affirm the potential value of political apologies for their moral recognition of the status, rights, and harms suffered by victim-survivors.Footnote 28 Such moral recognition can reaffirm what was and should always have been true – that the wrongful conduct violated the rights, dignity, and status of victim-survivors and their families. In this regard, apologies may function to shift the ontological power dynamics by recognising the worth of those victim-survivors previously deemed ‘moral dirt’, ‘savage’, and so on.

In addressing national identity or myths, Cindy Holder notes that official apologies involve state officials repudiating one theory of the state and providing an alternative, which justifies an apology for past state action. In doing so, ‘contemporary officials accept that prior officials believed that what was done followed from their positions but deny that prior officials were right about this’.Footnote 29 Similarly for Pablo de Greiff, an apology requires affirming a norm that the perpetrator and victims recognise as valid and binding.Footnote 30

As a result, states and churches will only apologise for transgressing some norm they believe important. They may resist apologising for the commission of harms, on which their existence or authority continue to rely – yet this dimension of an apology may be critical to ensure the non-recurrence or reproduction of structures of harm. Cuthbert and Quartly note: ‘it is not enough to say sorry without fully articulating the grounds on which the wrongs were done. It is only through a sustained and historically informed acknowledgment of the power structures that lead to such injustices that we can ensure that they are not repeated.’Footnote 31 For settler colonial states, it may be possible to apologise for specific sub-sets of harms, such as forced child migration or institutionalisation, but may remain impossible to apologise for the structure of settler colonisation itself. Churches and religious orders may apologise for harms committed in the conduct of their missional and salvific work but not for the claimed authority or idea behind the work as a whole. To do so would expose church and religious authority to the idea of theological error and fallibility. The willingness or capacity of a state or church to apologise for its very existence or authority structure may remain elusive.

Apologies for historical-structural abuses may thus operate at the limits of the potential for epistemic or ontological justice. Jacques Derrida suggests that the value of apology is at the highest when the challenge is at the highest,Footnote 32 when it is confronted with the impossible tasks of issuing or accepting an apology for an unforgivable wrong.Footnote 33 An apology that can explicitly state that it alone cannot fix unfixable harms and can point beyond itself to material and structural efforts addresses the causes of wrongdoing and offers a more comprehensive and honest narration of the problems faced when addressing historical abuses. An effective apology for historical-structural injustices thus needs not only acknowledgement of wrongdoing, responsibility, and victim suffering but also the national myth or claims of authority on which those harms were based, and finally a new vision for what the future of a state and/or church that can incorporate historical abuses into the narrative, myth, and self-image of the institution should look like. Such apologies offer the means to demonstrate continuities of historical violence with present injustices and to illustrate the national and religious understanding of responsibility for both of these forms of harm. Regrettably, these dimensions have proven the most elusive in the practice of apologies regarding historical abuses.

9.2.5 Apologies for Historical Abuse and Emotion

Based on existing examples, state and church apologies are likely to use emotive language and may claim to have an emotional effect on speakers, victim-survivors, members of institutions, and society at large, which may or may not be validated in the context of further material consequences flowing from an apology. Govier and Verwoerd suggest in an effective apology, the perpetrator’s emotion, especially regret, may provide a reason for victims to move from resentment to acceptance.Footnote 34 An emotional apology may indicate an offender ‘gets it’ and takes responsibility.Footnote 35 MacLachlan notes that no one single emotion entirely captures what it is to be apologetic, which may include: ‘sorrow, guilt, regret, shame, or anger’.Footnote 36 As outlined in Appendix 3, in the non-exhaustive list of ninety-five apologies, thirty-one make reference to regret and twenty-two contain reference to shame. Mihai suggests that ‘shaming a community into acknowledging its violent past is a risky political strategy that can trigger a conservative backlash’.Footnote 37 Instead, she suggests an apology ‘must engage all possible objections in a way that goes back to the community’s pre-existing guiding principles and shows that, in spite of their plurivocality, these principles require that we firmly reject certain dangerous visions of the past’.Footnote 38

McAlinden suggests reintegrative shaming may work especially well for individual apologies and fostering offender accountability, ‘via the censure of wrongdoing rather than wrongdoers’.Footnote 39 However, as discussed in Chapter 5, the use of shame also risks reharming victim-survivors at structural and official levels. Sara Ahmed highlights shame’s contradiction: ‘It exposes the nation, and what it has covered over and covered up in its pride in itself, but at the same time it involves a narrative of recovery as the re-covering of the nation.’Footnote 40 As a result, apologies may serve to alleviate the interpersonal and lived experience of shame from victim-survivors but may be more problematic when expressing a state or institutional form of collective shame that results in a closure and limited engagement with the causes of historical-structural abuses by these actors. Others doubt whether institutions such as churches or states can effectively express emotions relevant to interpersonal apologies and instead should be judged exclusively by the policy ‘consequences they trigger’.Footnote 41 Consequently, in the absence of other meaningful policy consequences, an apology, especially one framed in shame, may seek to settle historical abuses determinatively and in an exclusionary fashion. An apology is part of a national or institutional commitment to addressing injustice, not a substitute for such a commitment.

9.3 National and Church Experiences with Apologies
9.3.1 United States

Several states have provided for apologies regarding the treatment of Native Americans, slavery, and Jim Crow.Footnote 42 These limited US official apologies arose from the initiative of government officials and not as a response to activist pressure.Footnote 43 Speaking on behalf of the Bureau of Indian Affairs (BIA), Kevin Gover, also a citizen of the Pawnee Nation, issued an apology in 2000 for the historical treatment by the BIA of Native peoples.Footnote 44 The apology received mixed reactions, with some Native leaders appreciating it while others concluding that an apology without addressing ‘intrusions on tribal sovereignty, under-funding of treaty-mandated Indian programs and the evasion of responsibility for fixing the trust management system’ was not adequate.Footnote 45 Such an apology did not challenge the broader ontological or structural conditions facing Native peoples. In 2009, President Barack Obama signed a further apology into law, which acknowledged responsibility for historical abuses to Native Americans but excluded any potential liability or reparations. Obama never read it aloud, leading some to question whether it constitutes a meaningful apology.Footnote 46

Apologies regarding slavery are limited both structurally and in terms of challenging national myths and identity. Beginning with Virginia in 2007, several state-level apologies were issued regarding slavery and Jim Crow. Angelique Davis argues the text of these apologies

allow for the legacy of slavery to continue and compound its present-day impacts in three ways: first, by minimizing the continuing legacy of the European Slave Trade; second, by thwarting concrete remedial measures including reparations claims; and third, by absolving White Americans, state governments, and the federal government for their role in these horrors and allowing them to continue to benefit from the continuing legacy of slavery in the United States.Footnote 47

In addition, several of these apologies explicitly exclude the possibility of reparations, minimising the potential material impact of the apologies and undermining the symbolic or communicative dimensions.

In addition, in 2008, Congress passed a resolution offering the federal government’s first formal apology to African Americans on behalf of the people of the United States.Footnote 48 The apology mentioned the wrongs committed against African Americans who suffered under segregation laws known as ‘Jim Crow’ laws. In 2009, the US Senate apologised for lynching campaigns against African Americans throughout much of the previous century.Footnote 49 However, in the absence of meaningful advancement of public inquiries or reparations regarding the treatment of African Americans, the acceptance and significance of the apology risk being hollowed over time. Tuğçe Kurtis et al suggest that the enduring beliefs in American exceptionalism and manifest destiny form part of collective identity in the United States and are formidable barriers to any serious reckoning with historical abuses.Footnote 50 Unless there is meaningful national pressure and commitment to reimagine national self-image and materially address the consequences of historical abuses, these federal- or state-level apologies are likely to be in vain.

9.3.2 Canada

The government and churches of Canada have offered several apologies to Indigenous peoples, particularly regarding residential schools. While they have increased in scope and recognition of wrongdoing, the apologies persist in maintaining the legitimacy of an integrationist approach to nation-building and avoid challenging settler ontology, thus limiting their transformative potential regarding Canada’s relationship with Indigenous peoples. In 1998, the Minister for Aboriginal Affairs apologised for ‘the tragedy of physical and sexual abuse’ at residential schoolsFootnote 51 but did not admit state responsibility. James and Stranger-Ross note that this statement ‘minimized Canadian wrongdoing by presenting as incidental sites of abuse what were in fact manifestations of a state-mandated policy of cultural destruction that was abusive in its very conception’.Footnote 52 By 2005, several Indigenous organisations were demanding ‘a more narratively comprehensive and ceremonially robust residential schools apology’,Footnote 53 amid growing political and financial pressure on the government to apologise due to the extensive litigation discussed in Chapter 7.Footnote 54

In 2008, Canadian Prime Minister Stephen Harper apologised to Canada’s Indigenous community for its residential school policy.Footnote 55 Harper recognised that the primary purpose of the schools had been to remove children from their families to assimilate them into the dominant culture, stating ‘these objectives were based on the assumption Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed, some sought, as it was infamously said, “to kill the Indian in the child”. Today, we recognise that this policy of assimilation was wrong, has caused great harm, and has no place in our country’. Significantly, after years of denial, this apology did not qualify state responsibility and explicitly used the word ‘apologise’.Footnote 56

The apology led to a range of responses from Indigenous leaders and communities. Phil Fontaine, then National Chief of the Assembly of First Nations, responded that the apology marked ‘a new dawn’ in the relationship between Aboriginal people and the rest of Canada.Footnote 57 In contrast, Clem Chartier, President of the Métis National Council, noted that many issues regarding the relationship between Métis people and residential schools were still unresolved.Footnote 58 The timing of the apology also prompted a range of responses. Holder suggests that an apology that wrestled with the TRC’s findings might therefore have provided a more useful basis for promoting well-informed Canadian discussions about self-determination and political transition in Indigenous–settler relations.Footnote 59 However, James and Stranger-Ross note the irony that the government had originally insisted on awaiting the conclusions of the TRC, which had been rejected by Indigenous peoples and advocacy organisations as obfuscation, particularly given the elderly age of many residential school survivors.Footnote 60

Neil Funk-Unrau concludes that while Harper’s apology acknowledged past wrongdoings and committed to improved future relations, it does not fully address the contemporary disparities arising from this historical injustice.Footnote 61 Several scholars concur that the apology had the effect of bracketing off the schools’ policy as an aberration and of absolving contemporary Canadians from responsibility for historical and contemporary injustices.Footnote 62 Although the apology took responsibility for residential schools, ‘it was silent about the policy’s underlying, colonial goal: to weaken the ability of Indigenous communities to resist the settler colonialism’.Footnote 63 Holder attributes this omission to the influence of Canadian integrationist conceptions of citizenship and democracy, which preclude seeing the imposition of state structures on Indigenous communities as political or moral wrongs.Footnote 64 Jennifer Henderson and Pauline Wakeham emphasise that the limiting and isolation of the apology in this manner does not disturb Canada’s national image as a ‘progressive beacon’, nor does it enable linkages between this apology and issues of Indigenous land restitution, sovereignty, or contemporary reproduction of historical-structural injustices.Footnote 65

In 2017 and 2019, Justin Trudeau continued the use of official apologies with a further apology to Innu, Inuit, and Nunatu Kavut people of Newfoundland and Labrador residential school survivors for the federal government’s treatment of Inuit with tuberculosis. The former group had been excluded from the Harper apology as the residential schools in those regions had not been run by the federal government. These apologies continue the structure of Harper’s apology in offering genuine regret, responsibility, but by being limited in not repenting of the broader colonial and settler contexts. A national apology to the missing and murdered Indigenous women and girls recognised in 2019 as being subjected to genocide remains outstanding. The Canadian experience with apologies shows that apologies can result from significant political and activist pressure and represent significant national moments but still also form an incomplete narrative regarding dealing with the past that does not challenge the legitimacy of the Canadian state or its myths of the benevolent peacemaker.

9.3.3 Australia

Australia is among the most ‘apology friendly’ countries in the world. While again evidencing growth in the narrative sophistication of the apologies offered, Australia’s apologies remain limited by the narration of national identity, which does not problematise the settler democracy conception of the state and society.

The 1997 Bringing Them Home report called for those organisations responsible for forced removals to deliver apologies to Indigenous peoples.Footnote 66 Haydie Gooder and Jane Jacobs note that several state leaders and police forces had offered apologies on behalf of their governments and their constituents for their role in these laws, which ‘amplified the absence of an official apology from the Prime Minister’.Footnote 67 In May 1997, Prime Minister John Howard admitted past injustices to Indigenous Australians but also stated that ‘Australians of this generation should not be required to accept guilt and blame for past actions and policies over which they had no control’. Gooder and Jacobs noted that this received ‘jeers from an increasingly dissatisfied audience’ of Indigenous peoples, prompting Howard to go off script and ‘with raised voice and clenched fist, he defended recent government policies that had significantly eroded the material and symbolic gains that had come with recognition of native title in the early 1990s’.Footnote 68

In contrast, Prime Minister Kevin Rudd’s two national apologies were products of prolonged agitation and public inquiry.Footnote 69 During the 2007 election campaign, Rudd promised a formal apology to Australia’s Indigenous peoples, but as Michael Tager notes, to win parliamentary support for the apology, the new government rejected compensating the ‘Stolen Generations’, and Indigenous Affairs Minister Jennifer Macklin asserted, ‘the apology will be made on behalf of the Australian government and does not attribute guilt to the current generation of Australian people’.Footnote 70 Such an approach expressly disavows the ongoing impact of historical-structural injustices in the present. Rudd delivered the apology in parliament in 2008 and it received live national television coverage with approximately a hundred members of the Stolen Generations in attendance.Footnote 71 Rudd admitted that the laws passed by former parliaments created the Stolen Generations and, therefore, those institutions should apologise. He received generally positive responses to his apology from Aboriginal leaders.Footnote 72 Celermajer notes the inter-generational nature of wrongdoing challenged many Australians: ‘An apology seemed to accuse them, when they could not see what they had done wrong.’Footnote 73 AD Moses surveys available Indigenous responses and concludes:

reading of the apology and ‘reconciliation’ as nothing or little more than the continuation of colonial domination misses the point that most Indigenous people thought the terms of their national inclusion had changed significantly. The Indigenous sense of participating in the Australian national story as respected equals now seemed palpable, an experience that indicates Indigenous and non-Indigenous traditions could be commensurable rather than only inimical.Footnote 74

However, the impact of the apology may have dissipated over time.Footnote 75 Damien Short suggests that while some Indigenous peoples may have accepted the apology without compensation, this remained an outstanding issue for others, which may have diminished the impact, quality, and sincerity of the apology.Footnote 76 In the absence of a recognition of Indigenous sovereignty, the apology failed to challenge the settler ontology in which Australia continues to operate.

In 2009, Rudd also made a formal apology on behalf of the nation to Australian-born children in care, often known as ‘Forgotten Australians’, and to former child migrants. Cuthbert and Quartly note that child removal was both the basis of apology to the Stolen Generations and also became the basis on which other non-Indigenous victim-survivors of historical abuse pursued their claims for an official apology.Footnote 77 The authors note, however, that such an approach risked reducing injustice to Indigenous peoples as relating to the Stolen Generation alone, and repositioned and de-indigenised historical abuse to mean only the suffering of children.Footnote 78 Cuthbert and Quartly argue ‘by 2009 reconciliation was no longer an exclusively Indigenous issue; and innocence, ideally childhood innocence, appears to be a precondition for receiving a national apology in Australia’.Footnote 79

A similar challenge arises in extending an apology to women and to single mothers who were obliged to engage in forced adoption,Footnote 80 as in the subsequent apology from Prime Minister Gillard in 2013. The Gillard apology sought to acknowledge the pain, suffering, and coercion experienced by women, men, and children affected by forced adoptions. It pointed towards provision of access to counselling services and to adoption records as a commitment by the state of the need for material consequences. While the apology includes many beneficial components, it did not address the context of patriarchal dimensions to society, of the marginalisation and discrimination against women and single mothers that gave rise to such practices, or any social structures of gendered exclusion that may persist in Australia. Cuthbert and Quartly note:

A more mature politics of apology and reconciliation would not elide race by installing a universalized figure of childhood suffering in the center of the reconciliation stage, just as it would not allow the specifics of gender-based power in the forced removal of children for adoption to be elided in favor of the figure of a suffering, gender neutralized parent whose installation occludes the specific sufferings of women at the heart of these practices.Footnote 81

In 2018, Prime Minister Scott Morrison gave an apology to victim-survivors of child sexual abuse, which arose as a result of the publication of the report of the Royal Commission discussed in Chapter 6. Prior to the apology, the government appointed an independent, survivor-focused Reference Group to advise it on the form and content of the National Apology.Footnote 82 The apology received a positive if qualified reception, with media coverage marginalising the Indigenous experiences of child abuse and views of the apology,Footnote 83 with emphasis turning quickly to the need for reparations for victim-survivors, discussed in Chapter 8.

The normalisation of official apologies in Australia may have the effect of raising the minimum expectation of victim-survivors of historical abuse to include a meaningful apology, but also raises the expectation for the apology to point beyond itself to material provision of redress and other elements of transitional justice and attempts to redefine the Australian nation and its relationship to settler colonialism. Shame played a prominent role in Australian apologies, with some Australian commentators suggesting perpetrator shame was a necessary component of individual or social healing.Footnote 84 However, Sara Ahmed suggests shame may function as a form of epistemic injustice if the mere expression of shame is seen as ‘sufficient for a return to national pride’. Such references to shame may block ‘the hearing of the other’s testimony in turning back towards the “ideality” of the nation’.Footnote 85 By focusing largely on children to the exclusion of other forms of Indigenous harms and on the past as a different moral and political context, to the exclusion of continuities in the present, Australian apologies are inhibited in their potential to form the basis for significant transformation of Australian politics and law in light of historical abuses, whether through reparations, a treaty with Indigenous peoples, or more fundamental recognition of patterns of racism, misogyny, and class discrimination.

9.3.4 United Kingdom

In the absence of significant inquiries into the systemic nature of historical abuses in the United Kingdom, there is limited practice of official apologies.Footnote 86 Five British slavery apologies have been issued from 1999 to 2007. The City of Liverpool apologised in 1999. The other four British apologies for slavery arrived on the eve of the bicentenary of the Abolition of Slavery Act 1807. In 2006, Prime Minister Tony Blair expressed ‘deep sorrow’ over Britain’s participation in the slave trade, which he described as a crime against humanity, in a statement deemed a personal reflection and not an official state apology. Mihaela Mihai notes contrasting reactions, with liberal critics noting limited expression of responsibility for atrocities committed by Britain against Africans and limited commitment to addressing the structural injustices caused by the legacy of slavery. Instead, Blair’s account celebrated white abolitionists while ‘effacing the memory of black resistance’.Footnote 87 This approach formed a means to talk about historical abuses in a way that ‘limits the impact or influence of what was perceived as a potentially “damaging” event for Britain’s self-image’.Footnote 88

On Waterton and Wilson’s account, this limited engagement with responsibility for the past is a form of epistemic injustice as it: ‘skilfully worked to close down critical and dissenting voices from questioning Britain’s responsibilities to contemporary communities. This was not simply a government implemented directive, but rather symptomatic of the manner in which issues of multiculturalism and diversity are talked about in Britain.’Footnote 89 In addition, media accounts of the apology suggest that the statement stops short of a formal apology due to fears of a subsequent need for reparations for slavery.Footnote 90 In response to these apologies, political and media backlash questioned how one generation could be responsible for wrongs perpetrated by another, particularly at a time when morals were different around the issue,Footnote 91 and suggested the apology constituted an attack on British history.Footnote 92

In 2010, Prime Minister Gordon Brown made an apology regarding Britain’s role in the Australian child migration scheme. Gordon Lynch notes that Brown inaccurately generalised from the experience of child migrants to Australia in the post-World War II period to the whole child migration process from the nineteenth century.Footnote 93 Lynch concludes that it is problematic if an apology functions to provide public sympathy for historical suffering alone and excludes criminal and civil justice or more nuanced understandings of the past.Footnote 94 In addition to these apologies, there was a recommendation in the 2017 Hart inquiry report in Northern Ireland for an apology to victim-survivors of residential institutions, which was delivered in 2022. The broader context of the UK’s shifting and divided global self-image, in the context of Brexit and diminished global influence, may mask complex and underexplored impacts of practices of ‘othering’ and alienation within the territories of the United Kingdom and abroad. It may be the case that space for broader official apologies is especially narrow in this present context. In existing practice, the assumption that apologies can provide closure for historical-structural injustices fails to recognise how such injustices can be reproduced in the present.

9.3.5 Ireland

Ireland has had five official state historical abuse apologies and several from religious orders and churches but all were undermined by the treatment of victim-survivors in other aspects of transitional justice. In 1999, Taoiseach Bertie Ahern accepted the state’s complicity in the abuse of children in residential schools due to the ‘failure to intervene, to detect their pain, to come to their rescue’.Footnote 95 The apology announced the establishment of both the inquiry process and redress scheme for residential schools, support services, and limited legislative changes to enable civil action against individual perpetrators. The apology was repeated by Taoiseach Brian Cowen upon publication of the Ryan report in 2009. Emilie Pine notes that the apology lacks recognition of Ireland’s failure to admit and acknowledge abuse in residential schools for decades, especially since the state was made aware of such abuse since the 1970s.Footnote 96 While the apology was coupled with an inquiry and redress, the experience of survivors in both of those processes, discussed in Chapters 6 and 8, respectively, is likely to have impacted negatively on perceptions of that apology.

On publication of the McAleese report into the Magdalene Laundries in 2013, Taoiseach Enda Kenny made two statements, including an apology. McAlinden’s interviews with survivors indicate that many survivors valued Kenny’s apology, emphasising its value in separating the Irish state from Catholic and religious influence. Others in turn emphasised that the apology was mere ‘crocodile tears’ in the absence of a meaningful material response from state and church.Footnote 97

McAlinden notes that ‘Kenny ends his seminal 2013 apology with reference to a radically transformed Ireland in the present and future based on a new shared normative identity’,Footnote 98 emphasising compassion, empathy, and heart. However, such an approach may have been undermined by the apology’s emphasis on shame. The Taoiseach uses the word ‘shame’ three times in his apology, referring to Ireland’s present shameful knowledge of the past, second, a shameful recognition that historical Ireland rejected women institutionalised in Magdalene Laundries and, finally, in describing Ireland’s forgetting of survivors and failing them as a ‘national shame’.

Clara Fisher notes the central role of shame in the 2013 apology related to Ireland’s treatment of survivors of Magdalene Laundries, not the ways in which the women were shamed themselves: ‘Shame, once attached to and produced in Ireland’s “fallen women,” is displaced onto the Irish nation, precisely for its shaming of the women institutionalized in Magdalen Laundries. Interestingly, Kenny does not refer to the Church, to the religious orders, nor to the state as bearers of shame.’Footnote 99 In noting Kenny’s attempts to distinguish an abusive past from a more compassionate present that is ashamed of prior wrongdoing,Footnote 100 Fischer concludes: ‘By creating the distinction between a dark, less feeling, but more-or-less finished past of “Magdalen Ireland” and an enlightened, empathetic present, the Taoiseach’s apology deflects from the contemporary shaming of populations who are similarly constructed as deviant and subjected to problematic state policies.’Footnote 101

In 2021, Taoiseach Michael Martin issued a public apology to survivors of mother and baby homes. The apology frames the Commission report as the ‘definitive account’ of these institutions, which is problematic in light of the report’s limitations. There was no involvement of survivors in drafting the apology. It is arguable that the apology, given the day after the publication of the Commission report, was delivered too soon, especially given that many elderly survivors were still struggling to obtain physical copies of the report. There is no mention of the word ‘adoption’ in the apology, no responsibility for any coercive or forced adoptions or forced labour abuse evident in the claims of survivors. As a result, it remains unclear what the Taoiseach apologises for. The event of the apology raises expectations that the state will react in a meaningful way. However, in light of the prior mistreatment of survivors documented in prior chapters, survivors would be wise to be cautious and suspicious of government processes.

Ireland’s official apologies were well received by some victim-survivors and, in the case of Kenny’s, aim at a new more compassionate Ireland. However, these apologies are arguably undermined over time by the state’s treatment of survivors discussed in other chapters. In addition, the apologies largely exclude the roles of class, race, and gender as structural forms of injustices and minimise the extent to which historical-structural injustices persist in Irish society.

9.3.6 Christian Churches and Religious Orders

Christian churches have a long and problematic use of apologies for historical abuse. Luigi Accattoli has identified ninety-four instances where Pope John Paul II acknowledged wrongdoing committed by the church or asked forgiveness,Footnote 102 including apologies for violence during the Crusades and Reformation and for involvement in colonisation and slavery. In 2000, Pope John Paul II apologised for non-recent wrongs committed by the church against Jews, Indigenous peoples, women, and the poor.Footnote 103 However, Michael Marrus notes that in most cases Pope John Paul II apologised to God, not to victim-survivors or their descendants.Footnote 104 Such apologies fail to achieve an essential goal of the concept of apology as a dialogue between two parties or to serve the goal of restoring trust among a broken community or society. Pope Benedict XVI expressed his ‘dismay’, ‘deep sorrow’, and ‘distress’ at institutional and child sex abuse but did not denounce the cover-up of such abuse by the church or articulate concrete steps to hold to account bishops who failed to protect children.Footnote 105 In 2010, the Permanent Observer Mission of the Holy See (the UN representative from the Roman Catholic Vatican) issued a statement noting that the Doctrine of Discovery had been abrogated or annulled by subsequent church doctrine. However, such a statement did not amount to an apology and seems inherently inadequate in light of the pervasive impact of the doctrine in the nations studied in this book.Footnote 106

In addition to papal apologies, several religious order and national, diocesan level apologies exist relevant to residential institutions in Canada, Ireland, Northern Ireland, and Scotland, with further apologies for clerical abuse in open settings. However, such apologies typically fall short across the accepted criteria – they rarely accept responsibility, offer repair, or speak to the values of the institution or church involved. Janet Bavales notes that in Canadian church apologies regarding residential schools: ‘Most of the churches’ references to their offenses avoided describing themselves as agents of wrongful actions. In four of the six apologies (Anglican 1993, Catholic 1991, Oblate 1991, and United 1998), not one of the 18 clauses describing an offense was in active voice with the church (or “we”) as agent.’Footnote 107 Several of the Canadian churches have since repudiated the Doctrine of Discovery and affirmed the need for Indigenous self-determination.Footnote 108

In the United States, Anthea Butler White notes that while the Southern Baptist Convention’s apology regarding slavery is commendable, ‘it does not consider the theologies that were constructed around slaveholding or the perpetuation of those beliefs in the denomination. It does a great job at apologizing, but it does not address restitution for the structural racism within the denomination.’Footnote 109 In addition, both individual bishops and the US Conference of Catholic Bishops have apologised for successive state-level child abuse crises, but these apologies are undermined by ongoing resistance to implementing the church’s own child abuse standards and an aggressive litigation strategy against survivors.Footnote 110

In Australia, churches and religious orders made submissions of apology regarding the Stolen Generations to the Bringing Them Home inquiry.Footnote 111 Swain notes the changing character of Catholic apologies in Australia over the course of several inquiries:

Catholic apologies before the Bringing Them Home inquiry positioned their sorrow as the product of hindsight, expressing regret for policies and practices considered beneficial at the time. They also sought to share the blame, arguing that it was government, not the church that was responsible for the removal of Indigenous children from their families, and that it was never critical, at the time, of the institutions in which they were placed. As the scandal around sexual abuse grew, the church became increasingly suspicious of the media coverage, arguing that it was intent on celebrating the fall from grace of a respected institution which had claimed to be the moral guardian of society.Footnote 112

Both the Anglican and Catholic Churches in Australia apologised for their roles in child sexual abuse in response to Scott Morrison’s 2018 apology.

Early apologies by the Catholic Church leadership in Ireland limited responsibility for harm, with a 2003 statement from Cardinal Seán Brady apologising for the ‘hurt caused’ and ‘damage done’ by abuse and framed responsibility in pastoral, rather than legal terms, and finally emphasised that most child abuse occurs in the context of a family.Footnote 113 In his apology in response to the Murphy Report, Archbishop Desmond Connell apologises in oblique terms, largely without naming child abuse, and by doing so, ‘attempts to deflect personal responsibility for his own failures (i.e. mishandling of cases)’.Footnote 114 In contrast, Archbishop Diarmuid Martin’s 2009 apology is more explicit in naming sexual abuse, acknowledging the inherent inadequacy of apologies, and admitting efforts to protect the reputation of the church.Footnote 115 McAlinden notes that the context in which some Irish religious apologies occur challenges their sincerity. For instance, while the Christian Brothers issued an apology on the publication of the Ryan report, their conduct during the Commission to Inquire into Child Abuse (CICA) inquiry had delayed the commission and resulted in a right to anonymity for their members. Until publication, the Brothers had denied wrongdoing. McAlinden concludes: ‘Such a contradictory sentiment illustrates a context in which apologies are unlikely to be regarded as sincere.’Footnote 116

While the 2004 apology of the Sisters of Mercy who also operated residential care institutions and industrial schools in Ireland more clearly acknowledges victim-survivor hurt and congregational responsibility, leading to support for the ‘unambiguous’ apology by victim-survivors,Footnote 117 this approach is likely facilitated by the existence of an indemnity for religious orders related to the industrial schools in Ireland. For instance, in 2013 in response to the McAleese report the four religious orders involved in Magdalene Laundries issued statements of apology. However, some of these are ambivalent and struggle to address the criteria of effective apologies laid out above. The Sisters of Mercy note that while conditions in the laundries had been harsh, ‘some very supportive, lifelong friendships emerged and were sustained for several decades’, while the Good Shepherd Sisters stated that laundries were ‘part of the system and the culture of the time’. In 2021, religious orders apologised after the publication of the report into mother and baby homes. Though some of these statements meet many of the criteria of effective apologies, many neglect any offer of amends or redress to survivors, and the statement of the Sisters of Mercy again redirects responsibility to Irish society.

McAlinden’s research with survivors indicated that an apology should address not only the direct experience of physical or sexual abuse endured by survivors but also the longer-term impact on survivors of non-recent abuse, such as ‘inter-generational transmission of shame via the life-long consequences of the denial of opportunities for education’.Footnote 118 McAlinden affirms that the failure of Irish church apologies related to their epistemic and ontological dimensions: these apologies lacked ‘a common understanding of the injustice and … a narrative about the past which has been accepted by victims and perpetrators’.Footnote 119

In the United Kingdom, the General Synod of the Church of England offered a slavery apology in 2006. The apology detailed the knowledge by church bishops of the cruel treatment of slaves, and the church’s financial benefits from the slave trade and accepted direct responsibility. Itay Lotem notes the negative reaction to the apology both from African-heritage groups who criticised it as insincere and from the conservative press who thought it diverted attention from the ‘celebrations of British past benevolence and moral rectitude’.Footnote 120 In response to the Northern Irish Institutional Abuse inquiry, a number of religious orders made limited apologies. The apologies of both the De La Salle Brothers and Sisters of Nazareth in 2014 express remorse and regret and acknowledge the suffering of residents in their institutions, if not institutional responsibility.Footnote 121 Apologies subsequent to the publication of the Hart report in 2017 continue this pattern, with further relevant religious orders apologising and a conditional acceptance that the standard of care offered by the orders may have been inadequate in some cases.Footnote 122 In the absence of religiously funded reparations, such statements are likely calibrated with legal liability in mind. There is no reference to the theological or cultural contexts in which these institutions operated or abuse took place.

Across jurisdictions, the limited nature of church apologies has not prevented extensive litigation and financial expense to church institutions, discussed in prior chapters. Limited ability or willingness to accept responsibility for historical abuses as related to the purpose and mission of churches or religious orders are therefore more likely to reflect ongoing denial or lack of theological competence to address institutional wrongdoing and repentance. A key limitation for the Catholic Church offering meaningful and effective apologies is the theological commitment to the church’s own moral and spiritual perfection – those individuals who may commit moral wrongs may constitute the church, but the institution and idea itself remain beyond reproach.Footnote 123 David Novak suggests that changing this posture would be a fundamental shift for the Catholic Church: ‘For if the Church at this level were to apologise, that would presuppose a criterion of truth and right higher than the revelation upon which the Church bases its authority, the revelation that the Church claims as her own.’Footnote 124 Danielle Celemajer argues that the Catholic Church could draw on ‘its own historical forms of repentance to address this profoundly damaging aspect of its past’.Footnote 125 She notes: ‘Church practices of repentance have been so thoroughly privatised, with the collective and corporate dimensions virtually erased from our understanding of what Catholic repentance could look like.’Footnote 126 She concludes that a meaningful church apology would situate the sources of wrongs in ‘the practices, understandings and identities of the clergy and the Church on earth’. In particular, a meaningful apology would acknowledge and condemn ‘the ways in which the Church has failed to take seriously the charges against it, the entrenched and unequal power relations that have been institutionalised through practice and doctrine’,Footnote 127 contributing to the wrongdoing of individual priests. Though Christian churches may have the theological resources to address more meaningfully their past, there is little evidence in existing practice that they are committed to doing so.

9.4 Conclusion

However powerful or well calibrated to their potential audiences and political context public apologies may be, they alone are unlikely to meet victim-survivor justice needs.Footnote 128 Mark Gibney and Eric Roxstrom conclude that the West wants ‘credit for recognizing and acknowledging a wrong against others, but it also wants the world to remain exactly as it had been before the apology was issued’.Footnote 129 Judged by this criterion, and extending the analysis to Christian churches, the apologies for historical abuses in this chapter remain limited or flawed.

Apologies tell us in the most explicit terms possible how the state perceives its role in national myth making. In the absence of meaningful investigation, accountability, or redress, apologies in the United States risk remaining empty rhetoric. Expansion of apologies in Canada and Australia masks the need to apologise more existentially for the broader impact of colonisation and genocide as ongoing historical-structural injustices.Footnote 130 By combining the Stolen Generation apology with that for the Forgotten Australians, the risk is that a focus on children is a prerequisite for an apology. The Gillard apology regarding forced adoption extends the suitable audience to adults but does not change the overall pattern.

The Irish and Northern Irish apologies reflect a carefully calibrated political discourse but one that must be understood in the context of obstructionist practices to inquiry, accountability, and redress in the Republic of Ireland, and similar limitations regarding these elements in Northern Ireland. Apologies in the United Kingdom in the context of slavery are limited by the absence of other transitional justice elements and by the limited textual engagement with either responsibility or with the structural continuities of slavery and postcolonial contexts. As a result, the narrative constructed by apologies for historical abuse is better in some jurisdictions than others but remains largely limited by its failure to acknowledge historical abuses, not as separate and past, but as continuous with and reproduced in the present.

10 Reconciliation

10.1 Introduction

As an element of transitional justice, reconciliation aims for the transformation of relationships between victim-survivors, perpetrators, and wider society. In the context of historical-structural abuses, however, the practices and discourses of reconciliation have tended to operate as a form of inappropriate and premature settlement or closure of the grievances of victim-survivors and their descendants. Encouraging victim-survivors and a society to pursue reconciliation in the absence of addressing other elements of transitional justice may operate as a reaffirmation of the power structures of states and churches. While the experience of Canada and Australia contains an explicit reconciliation discourse and practice, in the absence of significant change in and imagination regarding power relationships in those societies, they join the United States, Ireland, and the United Kingdom in remaining deeply unreconciled societies. In addition, the reconciliation practice of the Catholic Church regarding historical abuse demonstrates its inability to effectively self-critique in its processes of reconciliation.

10.2 The Concept of Reconciliation

Reconciliation is a concept that defies straightforward description and definition.Footnote 1 Reconciliation theories view reconciliation as a ‘scalar’ concept, which allows for minimal and maximal conceptions.Footnote 2 The contested nature of reconciliation creates risks that victim-survivors may interpret reconciliation as meaning they must unfairly relinquish some claims, accept imperfect justice, or be required to forgive perpetrators.Footnote 3 Ambiguity regarding reconciliation may also enable churches or governments to claim they pursue reconciliation but maintain an approach that fosters impunity, retains power, and ignores victims and the causes of conflict or violence.Footnote 4

To mitigate these risks, we can first clarify the term. Reconciliation can be understood as not equivalent to impunity or a substitute for accountability.Footnote 5 Second, reconciliation should not be equated with forgiveness, expecting victim-survivors to personally forgive their perpetrators. Victim-survivors of gross violations of human rights would have good reasons to legitimately object to coerced or centrally organised forgiveness.Footnote 6 Third, we can distinguish between reconciliation and coexistence.Footnote 7 Crocker has suggested two levels of coexistence,Footnote 8 a thin conception of non-lethal coexistence and a thicker conception in which former perpetrators, victims, and bystanders respect each other as fellow citizens and participate in democratic decision-making. These conceptual caveats enable us to offer a negative definition of reconciliation that avoids the risks of equating it with other terms, suggesting it is more than mere non-violent coexistence but less than full interpersonal forgiveness and acceptance of past wrongdoings.

In the context of this book, it is helpful to examine reconciliation as a site of power across its role at interpersonal and societal levels.Footnote 9 First, reconciliation can be understood at an interpersonal level, as interactional reconciliation.Footnote 10 Such interactions will be affected by the risks of the use of violence or coercion, authority, and economic power. Second, structural reconciliation seems a critical component of responding to historical-structural injustices, where state and society take on responsibility for addressing harms and their reproduction over time. For Catherine Lu, structural reconciliation is necessary for ‘guiding genuine communication between agents about the terms of interactional reconciliation.’Footnote 11

Bloomfield argues that national reconciliation extends beyond direct victims and perpetrators to incorporate a community- and society-wide dimension ‘that demands a questioning of the attitudes, prejudices and negative stereotypes that we all develop about “the enemy”’.Footnote 12 However, significant risks arise in expanding the idea of reconciliation from the interactive to structural dimension. Top-down reconciliation may stretch elements of reconciliation designed for individuals to inappropriately apply to the state or nation, which do not have psyches or operate as the objects of therapy as an individual or group may.Footnote 13 A distinctive approach to addressing structural reconciliation must attend to both the objective and affective elements of the process.

Third, reconciliation can be assessed on how it addresses prior epistemic injustice. Susan Dwyer conceptualised reconciliation as ‘bringing apparently incompatible descriptions of events into narrative equilibrium’, a process involving the articulation of a range of interpretations of those events and the attempt by the parties ‘to choose from this range of interpretations some subset that allows them each to accommodate the disruptive event into their ongoing narratives’.Footnote 14 Similarly, for Verdeja, political reconciliation should be rooted in mutual respect, ‘the inter-subjective recognition of the moral worth of others, including indigenous peoples; an acknowledgment, in other words, of the equal moral status of other people’.Footnote 15 It may be the case, however, that reconciliation practices are imposed on victim-survivors in a manner that silences their articulated needs, visions, and views of reconciliation. Such approaches may cause fresh harms to survivors.

Finally, reconciliation that addresses settler colonial injustice must also confront the challenge of existential reconciliation, or the ‘disalienation of agents whose subjective freedom has been distorted by such injustice’.Footnote 16 Such a form of reconciliation relates to the ontological forms of power discussed in this book. In this context, the idea of reconciliation itself may prove problematic, particularly for settler colonial settings. Penelope Edmonds notes:

Conciliation was frequently invoked on unstable and violent frontiers in the establishment of nascent settler formations in the often-expedient establishment of a settler compact and was diplomatically marked by handshake or treaty. (Re)conciliation is a feature of the internal colonialism of late liberal settler democracies, post-frontier societies, where the state seeks to incorporate Indigenes within the idea of one nation, and where Indigenous people are often legally configured as non-sovereign in their own territories.Footnote 17

Similarly, Verdeja notes ‘the term re-conciliation itself carries with it an idea of a return to a prior desirable state. Such narratives graft onto different societies a general moral story about harmony, rupture, and eventual reunion that risks ignoring important historical and political features’.Footnote 18 As a result, reconciliation discourses may merely be a modern adaption of historical interactions between settler forces and Indigenous peoples and nations and reflect a series of assumptions and preferences that will only ever benefit the processes of settlement.

10.3 Reconciliation and Emotions

In assessing reconciliation practices, it is also important to assess the emotional dimension for victim-survivors and society. For Pablo de Greiff, an ‘unreconciled’ society is one in which ‘resentment characterises the relations between citizens and between citizens and their institutions. It is one in which people experience anger because their norm-based expectations have been threatened or defeated’.Footnote 19 De Greiff argues that if reconciliation is to have any substantial meaning, ‘it must refer to something individuals either experience or not’.Footnote 20 He cautions that law and policy can only make a modest contribution to reconciliation: ‘while transitional justice measures can contribute to making institutions trustworthy, actually trusting institutions is something that requires an attitudinal transformation that the implementation of transitional justice measures can only ground but not produce’.Footnote 21

In addition to the emotional dimension of interactive forms of reconciliation, there also remains a risk that elite-level practitioners focus on objective social conditions and neglect the subjective, emotional experience of individuals, and their attitudes towards one another regarding reconciliation.Footnote 22 Policy makers may overly privilege policy-driven initiatives and material and neglect the ‘subjective’ and lived experience of individuals subject to their policies. Michael Ure argues that ‘the unfinished project of reconciliation hinges on transforming the way political and legal institutions respond to and incorporate emotional responses to injuries and loss’.Footnote 23

Reconciliation at its epistemic and ontological or existential dimensions may also have a significant emotional impact. Edmonds notes the need to interrogate: ‘the way statebased enactments may direct us towards a tidy politics of consensus, while others may unsettle us into a more creative, dissenting and unruly political place’.Footnote 24 Miranda Johnson argues reconciliation ‘only re-entrenches settler belonging through an affective attachment to national renewal and has little to do with Indigenous conceptions of rights, reconciliation or sovereignties’.Footnote 25 She concludes: ‘Having acknowledged and apologized for the injustices of the past, the settler state redefines postcolonial nationhood in terms of indigeneity appropriated from its former victims.’Footnote 26 By acknowledging the affective and emotional dimensions to reconciliation, it is possible to acknowledge the narration of reconciliation is not merely an exercise in state or institutional policy but also claims to address the national self-image and national self-founding.

10.4 Reconciliation and Historical-Structural Injustices

Although reconciliation forms a significant part of transitional justice, it requires thorough adaption to the context of addressing historical-structural injustices. For de Greiff, unreconciled societies are characterised by widespread and systematic failures to recognise individuals as subjects of fundamental value and dignity. Reconciliation processes can be seen as the responses to these failures, where citizens can trust one another again and share a sufficient commitment to the norms and values of their state’s institutions.Footnote 27 Reconciliation on de Greiff’s account is epiphenomenal, that is, it results indirectly from pursuing law and policy rather than being a goal to seek directly.Footnote 28 As a result, there are very few things that can be done to promote reconciliation independently of other transitional justice practices.Footnote 29 Rather, as Bloomfield and Philpott agree, reconciliation is the whole relationship-oriented process within which the diverse elements of transitional justice are the constitutive parts.Footnote 30 However, a purely epiphenomenal approach may fail to account for contestation regarding instances where states or churches engage in explicit reconciliation activities. Verdeja notes such approaches may risk ‘treating significant differences as threats to the social order and thus inimical to reconciliation. The rejection of political disagreements leaves us with few conceptual tools to distinguish between acceptable political contestation and domination. Indeed, the tendency to equate reconciliation with consensus, if not deep harmony, means that other key aspects of politics – such as argument and disagreement – are erased’.Footnote 31

Instead, in the context of the cases studied in this book, accounts that embrace the reality of radical political disagreement about the nature and legitimacy of state and church authority are necessary after recognition of historical-structural injustices. Reconciliation accounts in mainstream transitional justice speak about the need for mutual trust among citizens and between citizens and the state.Footnote 32 The background assumption is a shared willingness to operate within the political community constructed by a state; this assumption cannot hold in settler colonial contexts, where Indigenous sovereign nations problematise the idea of mutual trust within a single democratic community. Damien Short suggests that although citizenship rights may seek to acknowledge the distinctive nature of Indigenous nations, they ‘emanate from an illegitimate settler state that has subordinated indigenous laws, autonomy and forms of government. From an indigenous perspective they are regarded as little more than acts of absorption’.Footnote 33 Similarly, Esme Murdock suggests reconciliation processes ‘largely do not consider, honor, or involve Indigenous geographies, histories, philosophies, or land-based epistemologies’.Footnote 34 She suggests the need to interrogate ‘what precisely is being reconciled and what precisely we are transitioning to when the outcomes of reconciliatory processes are not transforming colonial socio-ecological systems and structures’.Footnote 35 Courtney Jung suggests this logic of closure informs settler colonial approaches to reconciliation and reflects a desire not to have to deal with the ‘Indian problem’ any more.Footnote 36 Others concur that reconciliation is inherently assimilative or colonising.Footnote 37

In contrast, Verdeja suggests meaningful reconciliation is still possible and argues that reconciliation as mutual respect in settler contexts includes three elements: ‘(1) critical reflection on the past; (2) symbolic and material recognition; and (3) securing the means for political participation. These elements reflect the ethical issues that continue to arise in these societies, give greater conceptual coherence to reconciliation, and assist in assessing the ways in which contemporary reconciliation politics remain inadequate’.Footnote 38 For Verdeja, critical reflection includes public challenges to popular accounts of the past, including critique of basic social values and the kind of society citizens want.Footnote 39

Indigenous scholars in turn emphasise the need for Indigenous resurgence. Jeff Corntassel and Taiaiake Alfred argue that reconciliation must be predicated on meaningful restitution of Indigenous lands and reparations,Footnote 40 which would reflect a significant structural change in settler societies. In addition, reconciliation must operate to address prior epistemic and ontological injustices. Both Alfred and Kyle Powys Whyte emphasise the need for reconciliation to abandon notions of settler superiority as the basis for any direct reconciliation activity or political action.Footnote 41 Murdock argues justice and reconciliation between Indigenous peoples and settler states should centre on ‘Indigenous philosophies, collective capacities, and land-based epistemologies, and cannot temporalise injustice to the past as other frameworks of justice do’, particularly transitional justice.Footnote 42 Maddison thus suggests competing goals for Indigenous peoples and settler states engaging in reconciliation. For Indigenous peoples, reconciliation may form an opportunity to highlight the ways in which contemporary policies reinforce historical-structural injustices. In contrast, settler governments may seek to use reconciliation as a means to settle and close the past as purely historical and not relevant to contemporary policy and politics – completing the colonial project once and for all.Footnote 43

Beyond the settler context, reconciliation may be problematic for victim-survivors of harms perpetrated by religious actors or institutions. David Tombs suggests although there is extensive attention given to reconciliation in Christian doctrine, Christian churches and writers largely neglected the challenges of social reconciliation until the past few decades, due to the privatisation of religion in the public sphere and lack of churches’ willingness to engage in political controversy.Footnote 44 Reconciliation from a religious foundation has featured in transitions and conflict resolution in recent decades. Processes of racial reconciliation are familiar to transitional justice, with significant emphasis on ubuntu and racial reconciliation in South Africa’s approach to transitional justice,Footnote 45 and draw from the significant basis of reconciliation in religious and traditional thought.Footnote 46

However, some traditional or religious approaches to reconciliation may marginalise the role of women or young people or be subject to political manipulation.Footnote 47 For instance, Kate Gleeson and Aleardo Zanghellini argue that ‘Catholic appeal to grace has the potential for turning into an extraordinary demand made of victims not only to rehabilitate offenders and the Church in the eyes of the community, but also to work towards the spiritual absolution of the abuser’.Footnote 48 On their account, such an approach creates risks of a gendered abuse of power within mediation processes for clerical child abuse and remains ‘incompatible with orthodox restorative justice’ theories.Footnote 49 Catherine Lu concludes that reconciliation strategies are problematic if they focus on an individual, de-politicised account that emphasises psychological healing and social unity at the expense of addressing structural sources of harm and injustice.Footnote 50

As a result, existing accounts of reconciliation in transitional justice as settlement and as the restoration of civic trust and mutual respect within a liberal democratic paradigm may struggle in the contexts of settler colonialism, religious reconciliation, or racial reconciliation. Instead, it may be more profitable to think of reconciliation as a site of ongoing agonistic relationships. For Chantel Mouffe, it is necessary to transform antagonistic violence into agonistic relations, which enable a significant but shared contest between groups of different identities and values.Footnote 51 Verdeja notes that an agonistic approach centres on marginalised and excluded groups.Footnote 52 Paul Muldoon and Andrew Schaap argue that reconciliation politics ‘tend to be’ agonistic because they ‘open up a space of contestation and disagreement in relation to the claims identity groups make as victims of injustice’.Footnote 53 Schaap suggests: ‘reconciliation is not about settling accounts but remains as an unsettling experience since it seeks to enact a radical break with the social order that underpinned the violence of the past’.Footnote 54 Verdeja concludes based on these radical approaches that ‘no agreement on a morally satisfactory account of reconciliation can be developed prior to political struggle; and, reconciliation will remain incomplete, for new forms of contestation and negotiation over collective identity will always emerge due to the intrinsically agonistic nature of political life’.Footnote 55

One feature under-emphasised from detailed consideration in existing agonistic accounts of reconciliation is the application of reconciliation to intergenerational wrongs. How do present-day survivors engage in reconciliation where wrongdoing forms part of wrongs against them directly, and against their ancestors, possibly over several decades or centuries? Henderson and Wakeham suggest that premature attempts at closure and reconciliation reflect settler anxieties regarding reconciliation: ‘The problem at the level of relations between Indigenous and non-Indigenous institutions in Canada is not one of inadequate closure, … but one of repeated, pre-emptive attempts at reaching closure and “cure”’.Footnote 56 As a result, it may be more valuable to envisage reconciliation as an inter-generational process, one continued across different political contexts, rather than a process that can be concluded or settled once and for all. Former Canadian Truth Commissioner Murray Sinclair concurs: ‘Residential schools were with us for 130 years, until 1996. Seven generations of children went to residential schools. It’s going to take generations to fix things.’Footnote 57 Similarly, James Tully has argued that ‘reconciliation is neither a form of recognition handed down to Indigenous peoples from the state nor a final settlement of some kind. It is an ongoing partnership negotiated by free peoples based on principles they can both endorse and open to modification en passant’.Footnote 58 Such an approach is regrettably contrary to many of the national experiences of the states examined in this book.

10.5 National Experiences of Reconciliation
10.5.1 Canada

In Canada, there have been both political and legal expressions of reconciliation.Footnote 59 Antonio Buti notes: ‘The Canadian Supreme Court has essentially sought to resolve the underlying contradiction posed by white settlement of Indigenous lands by imposing a restrictive definition of Indigenous rights that construes them as derived from practices and traditions specific to Indigenous cultures rather than as “general and universal” rights.’Footnote 60 This case law and its limits are discussed in Chapter 7.

In addition, reconciliation formed a considerable part of Canada’s transitional justice processes, in particular its TRC. The TRC’s mandate refers to reconciliation as ‘an ongoing individual and collective process’ emerging from ‘the truth of our common experiences’. The TRC involved the provision of individual testimony and public hearings, which are often framed as having a reconciliatory function for individuals. It hosted seven national truth and reconciliation events and seventeen community or regional hearings, where survivors and their families shared their truths in public or through private statements. The TRC also held or participated in regional events, outreach activities, and hearings, visiting over seventy communities. This amounted to over 300 events, drawing upward of 150,000 people.Footnote 61 Although the TRC intended to give survivors the opportunity for healing through truth telling,Footnote 62 some were critical of TRC processes. Glen Coulthard notes that formalised truth-telling processes exclude, evade, or dismiss ‘negative emotions’ like anger and resentment from the possible range of emotions felt and expressed by survivors. Those who ‘refuse to forgive and/or reconcile … are typically cast as being saddled by the damaging psychological residue of [the] legacy [of residential schools], of which anger and resentment are frequently highlighted’.Footnote 63

The TRC report suggests that while some may view reconciliation as the re-establishment of a conciliatory state, the Commission viewed reconciliation as ‘about coming to terms with the events of the past in a manner which overcomes conflict and establishes a peaceful and healthy relationship among people going forward’.Footnote 64 The report emphasised reconciliation is not about ‘closing a sad chapter of Canada’s past’ and that reconciliation will never occur unless we are also reconciled with the earth.Footnote 65 The report identified ten principles to guide reconciliation in Canada, including that the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was the framework for reconciliation; that First Nations peoples have rights in treaties, constitutional, and human rights settings that must be recognised and respected; and that reconciliation ‘requires constructive action on addressing the ongoing legacies of colonialism that have had destructive impacts on Aboriginal peoples’ education, cultures and languages, health, child welfare, administration of justice, and economic opportunities and prosperity’.Footnote 66 Their approach also emphasised epistemic justice by arguing that the perspectives of Aboriginal Elders and Traditional Knowledge Keepers on ‘the ethics, concepts, and practices of reconciliation are vital to long-term reconciliation’ and that ‘integrating Indigenous knowledge systems, oral histories, laws, protocols, and connections to the land into the reconciliation process are essential’.Footnote 67 This approach contrasts with the Canadian government’s response that largely affirms the status quo, discussed below. The TRC itself highlighted the difference between reconciliation viewed by the state and by Indigenous peoples, as reflecting competing views of sovereignty: the state asserting the supremacy of Crown sovereignty and Indigenous peoples seeking recognition of their own sovereignty.Footnote 68

In addition, broader structural reconciliation forms a significant part of the TRC’s final report’s calls to action under two high-level headings: ‘Legacy’ and ‘Reconciliation’. ‘Legacy’ addresses the consequences of colonialism and ’Reconciliation’ offers the principles for a shared future for Indigenous and settler peoples. The forty-two calls to action under ‘Legacy’ are divided into five subheadings: child welfare, education, language and culture, health, and justice.Footnote 69 ‘Reconciliation’, by contrast, includes fifty-two calls to action, ranging from the obligations arising under specific legal instruments to considering reconciliation as applied to museums, media, sport, and business, among others.Footnote 70 Under recommendation 45, the TRC calls on the government of Canada to ‘[r]enew or establish Treaty relationships based on principles of mutual recognition, mutual respect, and shared responsibility for maintaining those relationships into the future’. The same recommendation continues by asking Canada to ‘[r]epudiate concepts used to justify European sovereignty over Indigenous lands and peoples such as the Doctrine of Discovery and terra nullius’. The recommendations or calls also include healing relationships through ‘public truth sharing, apology, and commemoration’; ‘addressing the ongoing legacies of colonialism’ and creating ‘a more equitable and inclusive society by closing the gaps in social, health, and economic outcomes’; respecting and learning from the ‘perspectives and understandings of Aboriginal Elders and Traditional Knowledge Keepers’; supporting cultural revitalisation, including ‘integrating Indigenous knowledge systems, oral histories, laws, protocols, and connections to the land into the reconciliation process’; joint leadership, trust building, accountability, and resource investments; and ‘sustained public education and dialogue … about the history and legacy of residential schools, treaties, and Aboriginal rights, as well as the historical and contemporary contributions of Aboriginal peoples to Canadian society’.Footnote 71

Although highly ambitious, these calls have still been subjected to academic criticism. David MacDonald notes that the TRC’s approach did not define self-determination or examine how it would affect Canadian sovereignty.Footnote 72 To date, of the ninety-four calls to action, nineteen remain un-started, thirty remain merely in proposal stages, thirty-two are underway and thirteen are complete.Footnote 73 Those completed include the inquiry into violence against Aboriginal women. Of those calls un-started, as of October 2022, most notably, the government of Canada has also not started a process of publishing its legal opinions regarding Aboriginal or treaty rights.

The selection of calls to action to pursue is inevitably a political choice reflecting cost and political will, among other factors. In 2018 the Canadian government published a ‘Recognition and Implementation of Indigenous Rights Framework’ and a set of ten principles aimed at ‘transformative change’ for a renewed relationship, which continues the supremacy of Canadian law and existing set of Indigenous rights, discussed in Chapter 7. Nagy suggests: ‘The degree to which this agenda will destabilize the constitutional framework explained above remains tenuous at best.’Footnote 74

Some Canadian Indigenous scholars have rejected this approach to reconciliation, advocating for more profound land restitution, greater Indigenous nationhood, and the production of alternatives to modern Western capitalist societies.Footnote 75 Courtney Jung suggests: ‘Reconciliation may serve as a government project whose primary aim is to bolster state legitimacy. Reconciliation may reflect the desire, for settler-descendants, for expiation or a “move to innocence”’.Footnote 76 She concludes that reconciliation is a form of settler futurity: ‘Settler futurity is essentially a settlement of accounts, a moment when settler descendants can finally turn to Indigenous people and say “Okay, now we’re even”’. She continues:‘[t]he “transition” is to an even playing field in which the government, and non-Indigenous Canadians, can no longer be held accountable for past wrongs’.Footnote 77

Other scholars reject these criticisms. Paulette Regan argues that the commission’s vision of reconciliation is resurgent: ‘contingent on the land-based resurgence of Indigenous cultures, languages, knowledge systems, oral histories, laws, and governance structures … The commission’s work lays the foundation for a decolonizing paradigm shift in how reconciliation is conceptualized, negotiated, and practiced in formal and informal settings.’Footnote 78 James Tully and John Burrows suggest resurgence thinking that promotes radical separation from settlers is not indigenous to Turtle Island (North America) but rather draws from the decolonisation contexts of the 1950s and 1960s. They express concern that applying such a radical critique to settler colonial settings may result in viewing ‘the majority of Indigenous people as being co-opted’.Footnote 79 Sheryl Lightfoot equally emphasises that the pessimism traps developed by resurgence theorists ‘are diametrically opposed to the work and vision of Indigenous organizations who have been working on the ground for decades to assert Indigenous nationhood both domestically and internationally, in ways that often assertively and creatively challenge and shift the existing system of sovereign states’.Footnote 80 Even on these less radical terms, such accounts of reconciliation in settler colonial contexts reflect a profound redistribution of both material and ideational power, rather than an affirmation of the existing social order by victim-survivors and their descendants.

10.5.2 Australia

As in Canada, reconciliation in Australia has both legal and political expressions. Matilda Keynes notes that since the 1980s Australia has pursued an official reconciliation agenda ‘that has produced limited structural reforms for Aboriginal people, and which continues to neglect First Nations people’s own proposals for reconciliation and reform’.Footnote 81 Mark McMillan and Sophie Rigney concur that the Australian government’s approach to reconciliation ‘does not adequately acknowledge the harms of the state, and does not allow the capacity for Indigenous peoples to seek justice through reconciliation’.Footnote 82

The Royal Commission into Aboriginal Deaths in Custody began the use of official reconciliation by emphasising the need for reconciliation between Aboriginal and non-Aboriginal communities in Australia.Footnote 83 In 1991, the Council for Aboriginal Reconciliation was established, to ‘promote reconciliation between Aborigines and Torres Strait Islanders and the wider Australian community and by means that include the fostering of an ongoing national commitment to cooperate to address Aboriginal and Torres Strait Islander disadvantage’.Footnote 84 The twenty-five person council included representatives of government, business and academia, and high-profile Aboriginal people. Its advisory role included guiding the Minister on processes to further reconciliation, including community education. On Short’s account, the council failed to see Indigenous people as nations, capable of negotiating a treaty with the state, and instead emphasised its role in promoting a single, united Australia.Footnote 85 The council emphasised eight issues as essential for reconciliation, with several identifying the need to educate non-Indigenous Australians regarding Australia’s colonial history, the importance of Aboriginal and Torres Strait Islander relationships to land and sea, culture and heritage, and the current disadvantage and high levels of custody experienced by Indigenous peoples.Footnote 86

The early efforts of the council contributed to a broader people’s movement for reconciliation across different social groups.Footnote 87 The most significant grassroots reconciliation initiative was the National Sorry Day and the Sorry Book Campaign in 1998, in which over one thousand Sorry Books were signed by Australians throughout the country.Footnote 88 However, momentum for bottom-up reconciliation has since dissipated and been replaced with a focus on corporate initiatives to improve relationships between Aboriginal peoples and other Australians.Footnote 89 Maddison suggests that such strategies as community education and corporate-led reconciliation ‘suggest that Australia has not pursued reconciliation as a path toward decolonising relationships between First Nations and the settler state’.Footnote 90 Short concludes: ‘Both the Keating and Howard governments had the opportunity to give legislative effect to common law indigenous rights gains. Yet they bowed to the pressure of commercial interests, producing legislation that severely limited and reduced the gains’.Footnote 91

These efforts at reconciliation were greatly influenced by legal and political developments regarding Aboriginal rights in the 1990s discussed in Chapter 7. The Mabo judgment, the Native Title Act 1993, and the Bringing Them Home report on the Stolen Generation ‘marked the end of political bipartisanship over reconciliation and Indigenous policy more generally’.Footnote 92 As a result of the potentially profound impact of these processes and resistance to implementing the decisions discussed in Chapter 7, from 1998 the Australian government focused on ‘practical reconciliation’, to reduce material disadvantage in the areas of health, housing, education, and employment, but without specified targets, timeframes, or monitoring. This approach framed reconciliation as disconnected from historical abuses and settler colonisation: ‘The level of Indigenous disadvantage was deemed unacceptable, but was explained as a product of recent bad policy rather than a deeper history of colonial invasion and subsequent neglect.’Footnote 93 The practical reconciliation approach ignored Indigenous aspirations regarding land rights, cultural protection, and self-determination. Larissa Behrendt argues the clear agenda (of ‘practical reconciliation’) is one of assimilation and integration, reflecting the same logic as Welfare Boards and Aboriginal Protection Boards.Footnote 94

In 1999, Prime Minister Howard made a Motion of Reconciliation to the federal parliament, which recognises ‘the achievements of the Australian nation’ and ‘that the mistreatment of many indigenous Australians over a significant period represents the most blemished chapter in our national history’. While the motion went on to express regret for past unspecified injustices suffered by Indigenous Australians, it ended by stating, ‘[W]e, having achieved so much as a nation, can now move forward together for the benefit of all Australians’. McMillan and Rigney note that ‘the emphasis of this motion on the nationhood of Australia and “the achievements of the Australian nation” explicitly uses reconciliation as a nation-building exercise for the Australian state, further denying Indigenous sovereignties’.Footnote 95 As a result, they conclude: ‘Reconciliation has been conducted on “white” terms.’Footnote 96 Similarly, Damien Short suggests the reconciliation process is hence best understood as ‘a stage in the colonial project rather than a genuine attempt at atonement’; especially by neglecting Indigenous claims to sovereignty, nationhood, or land and by focusing on modern-day assimilation and integration, it adopts the same agenda that motivated historical abuses such as child removal.Footnote 97 Henry suggests that, ultimately, the reconciliation policy has allowed a denial of the harms perpetrated by the state, and therefore has been used to ‘bolster the legitimacy, authenticity and stability’ of the Australian state.Footnote 98 Maddison concludes: ‘reconciliation in Australia became a means of justifying colonial domination rather than transforming the relationship between Indigenous peoples and the settler state’.Footnote 99

Short concludes: ‘From the outset reconciliation in Australia placed a “colonial ceiling” on Indigenous aspirations by emphasising nation-building and national unity over sovereignty or the negotiation of a treaty.’Footnote 100 Indeed, the Australian reconciliation process remained ‘extremely tightly controlled and managed within political boundaries acceptable to the settler colonial state’.Footnote 101

Maddison and Nakata criticise Australian reconciliation for its focus on educating non-Indigenous people, ‘at the expense of addressing historical injustice or the negotiation of contemporary treaties’.Footnote 102 Maddison suggests that while the formal reconciliation process in Australia introduced a new moral language to address historical-structural injustice, it did not resolve any of the issues raised, such as reparations, a treaty, or the profound inequality between settler and Indigenous peoples.Footnote 103 Maddison concludes: ‘what settlers want from reconciliation, and what Indigenous peoples want in a transformed relationship with the settler, are profoundly, perhaps incommensurably different.’Footnote 104 Instead, she argues, ‘[W]hite Australia cannot solve black problems because white Australia is the problem’.Footnote 105 Palmer and Pocock suggest that ‘the burden of reconciliation falls differentially on Aboriginal people and white settlers in Australia’.Footnote 106 They suggest that ‘for settler Australia, a form of reparation – a reciprocal pain – might be found in a deep acknowledgement and acceptance of discomforting post-colonization history, through the affective force of Aboriginal postcontact heritage sites such as massacre sites and former fringe camps; this force could be a source of “reparative discomfort” … non-Indigenous people, by experiencing and holding strong over time this new and potentially painful imaginary, might make some contribution to the process of makarrata or peace-making’.Footnote 107

10.5.3 United States

Reconciliation does not form part of explicit government policy in the United States regarding either Native Americans or the slavery of African Americans. Modern efforts at reconciliation concerning race relations, slavery, and Jim Crow in the United States must reckon with the failure of one of the last nationwide attempts to address social division – Reconstruction.Footnote 108 After the Civil War, several constitutional amendments sought to ensure greater racial equality. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment provided for the equal protection of all citizens. The Fifteenth Amendment barred racial discrimination in voting. Adam Serwer suggests, ‘The Reconstruction amendments to the Constitution should have settled once and for all the question of whether America was a white man’s country or a nation for all its citizens’.Footnote 109 However, as discussed in Chapter 2, by 1876, the withdrawal of federal troops in the South subjected African Americans in the South to a new reproduction of racial discrimination and violence in the Jim Crow era. Serwer concludes: ‘In the aftermath of a terrible war, Americans … purchased an illusion of reconciliation, peace, and civility through a restoration of white rule. They should never again make such a bargain.’Footnote 110

Contemporary processes of racial reconciliation have proved challenging in the absence of national processes of truth telling and reparations. Eric Yamamoto asserts that interracial justice requires both ‘material changes in the structure of the relationship (social, economic, political) to guard against “cheap reconciliation,” [that is] just talk … [and] the kind of recognition and redress of deep grievances that sparks a joint transformation in consciousness, diminishes enmities, and forges new relational bonds’.Footnote 111

In 1997, President Clinton created the President’s Initiative on Race by executive order 13050. Clinton appointed a seven-member advisory board with an initial mandate of educating Americans regarding racial issues, promoting racial dialogue, and recommending solutions to racial divides and problems. He also pledged to meet with citizens and listen to their views in several ‘town-hall’ meetings, a format he had used successfully in his presidential campaigns. However, this initiative did not make a significant impact on race relations. Renée Smith suggests several reasons for this failure, including a limited and divided public buy-in on the need for the process, a lack of focus, and inability to engage in open dialogue as the advisory board was obliged to meet in public. Finally, and most critically, the initiative coincided with revelations regarding Clinton’s affair with Monica Lewinsky.Footnote 112 Smith suggests that the presidency is ‘not well suited for eliciting general public debate on complex and sensitive issues such as race relations. Nor is it well suited for coalescing diverse opinions on policy alternatives’.Footnote 113

The initiative issued a report which recommended strengthening civil rights enforcement, improving data collection on racial and ethnic discrimination, and strengthening the laws and enforcement against hate crimes.Footnote 114 Sherrilyn Ifill suggests:

Imagining this kind of talk at a national level was, in retrospect, overly ambitious. The truth is that talking about race is challenge enough within families, within communities, and within cities. The idea of a conversation involving the entire nation, with communities from coast to coast grappling with the immensely complex and alienating topic of race (within one four-year presidential term, no less), was naively ambitious, although admirable.Footnote 115

There are also religious dimensions to existing reconciliation processes in the United States. Anthea Butler notes that ‘the racial reconciliation movements of the 1990s between white evangelicals and African Americans took several forms and met with varying degrees of success. Before the 1990s, attempts at racial reconciliation often took the form of joint church services or days of visitation between churches’.Footnote 116 Andrea Smith states that such efforts ‘tended to focus on multicultural representation in congregations and denominations rather than on structural forms of white supremacy’.Footnote 117 State-level inquiries, such as the Greensboro Truth and Reconciliation Commission, reveal the potential for such inquiries to contribute to reconciliation at ‘cognitive-affective, behavioural, and social’ levels.Footnote 118 Some victim-survivors described the experience of humanising perpetrators through witnessing perpetrator testimony and engagement; however, others were critical of the limits or absence of new disclosures from perpetrators as a basis for reconciliation.Footnote 119 The most dramatic though rare example of reconciliation involved survivors who forgave a perpetrator for killing their family member.Footnote 120 The Greensboro commission reflects the potential for further transitional justice processes in the United States that could contribute to racial reconciliation but only in a context of some perpetrator involvement and, even in that rare context, with ambivalent results.

In considering the hesitancy of the United States to begin the process of racial reconciliation, Ifill suggests some whites do not see the contemporary relevance of historical abuses; others worry that addressing the past will challenge ‘white innocence’ and require them to take responsibility for a past they may be ignorant about. Finally, for racial crimes within lived memory, some whites may fear the potential for criminal accountability.Footnote 121 In the American context, Verdeja suggests that greater use of reconciliation discourse could ‘mean going beyond discussions over the use of indigenous symbols for sports teams or the purported benefits of indigenous-owned casinos that have dominated recent debates’.Footnote 122 By requiring some critical self-reflection, a process of reconciliation could also critique the ‘country’s founding principles of self-rule and democracy’ to the extent that they are implicated in the systematic exclusion and destruction of Indigenous and black communities.Footnote 123

10.5.4 Ireland

There is a lack of explicit reconciliation discourse in the context of Irish historical abuse. However, the discourse of reconciliation has played a significant role in Irish foreign policy regarding the Northern Irish peace process.Footnote 124 The combination of abuse by state and church authorities means that reconciliation could be differently experienced and conceived of by victim-survivors depending on whether they engage with state or church actors. In the absence of an explicit reconciliation policy towards survivors of various forms of historical abuses, it is possible to construct an epiphenomenal account of reconciliation across the other dimensions of transitional justice pursued by the Irish state, churches, and religious organisations.

While there is a rhetorical commitment to restoring the right relations with victim-survivors evident in the two-state apologies and several apologies from religious orders discussed in Chapter 9, these remain partial and piecemeal and are not predicated on the basis of recognition of citizens’ status or rights or on recognition of the illegitimacy of institutionalisation as a process in twentieth-century Ireland. The lack of memorialisation in the Irish context also demonstrates a limited commitment to recasting the national self-image or national narrative to incorporate recognition of historical abuses. This suggests addressing historical abuses remains short term, exceptional, rather than constitutive of the Irish state and society. This framing of historical abuses’ role in Irish society is also evident in the function of attempts to ‘seal’ access to survivor testimony and the archives of the Ryan Commission and the Residential Institutions Redress Board (RIRB) in late 2019.Footnote 125 At a process level, the lack of meaningful attempts to engage in reconciliation is also evident in the ‘gag order’ component of the Irish approach to inquiries and redress, prohibiting victim-survivors from speaking about their experiences with the state’s transitional justice mechanisms as discussed in Chapter 8. These practices reflect attempts to ‘settle’ the past in a manner that causes epistemic and structural harm to survivors.

10.5.5 United Kingdom

As in the case of Ireland, reconciliation with victim-survivors of historical-structural abuse does not form part of the approach taken in the United Kingdom. Apologies to victim-survivors are considered separately in Chapter 9. Again, reconciliation has formed part of British foreign policy regarding Northern IrelandFootnote 126 but has been kept separate from its response to institutional abuses. Reconciliation with victim-survivors of historical abuse in the United Kingdom will point to the broader processes of reconciliation in a state divided by lines of class, region, ethnicity, and religion. More broadly, there is a lack of the language of reconciliation in British engagement with former colonial states and societies. Instead, British engagement in post-colonial contexts can often be framed in terms of international trade or economic and human development, rather than in terms of reparations or responsibility for the past.Footnote 127 In the absence of other elements of addressing an abusive past, it seems grossly premature to consider reconciliation discourses and practices for a broader British involvement in historical-structural injustices.

10.5.6 Reconciliation and the Catholic Church

As a concept with a significant basis in religion and theology, reconciliation is significant in the thought if not practice of churches in addressing historical-structural injustices. In ‘Memory and Reconciliation: The Church and the Faults of the Past’, the Holy See distinguishes between the infallible character of the church and the potential for sin in its members.Footnote 128 Contrary to the theological history of sin and repentance in Christian churches outlined by Celemajer, the document asserts: ‘Sin is therefore always personal, even though it wounds the entire Church.’ Situations of ‘social sin’, which could be read as structural injustices, are always ‘the result of the accumulation and concentration of many personal sins … the imputability of a fault cannot properly be extended beyond the group of persons who had consented to it voluntarily, by means of acts or omissions, or through negligence’.Footnote 129 However, the document notes that the Biblical tradition of social repentance involved a systemic admission of fault. The document calls for a particular historical interpretation, noting that in judging historical abuses it must be remembered that historical periods are different, that the sociological and cultural times within which the church acts are different, and so, the standards by which the church are judged should be different, recognising diversity in historical and geographical situations.

Without naming specific time periods or geographical locations, the document acknowledges the role of the church in ‘forms of evangelization that employed improper means to announce the revealed truth or did not include an evangelical discernment suited to the cultural values of peoples or did not respect the consciences of the persons to whom the faith was presented, as well as all forms of force used in the repression and correction of errors’. It then acknowledges that ‘attention should be paid to all the failures, for which the sons and daughters of the Church may have been responsible, to denounce injustice and violence in the great variety of historical situations’, including express reference to situations of human rights violations and to the historical treatment of Jews by Christians. In addition, the document offers some limited potential acknowledgement of the need to end patterns of religious alienation: ‘it is important to avoid perpetuating negative images of the other, as well as causing unwarranted self-recrimination, by emphasising that, for believers, taking responsibility for past wrongs is a kind of sharing in the mystery of Christ, crucified and risen, who took upon himself the sins of all’. The document notes that acts of addressing historical abuses ‘can increase the credibility of the Christian message, since they stem from obedience to the truth and tend to produce fruits of reconciliation’. However, the practice of the church evidenced in other chapters tends to be lawyer-led, with an engagement with survivors that reflects the church’s rights as a legal actor to safeguard its own assets, information and members. An exception to a legalistic approach is the church’s use of restorative justice programmes. Gleeson and Zanghellini note that in the context of historical abuses, restorative justice programmes have been used for survivors and offenders in the United States, New Zealand, Australia, the Netherlands, and elsewhere,Footnote 130 despite the lack of evidence of the suitability of such approaches to address historical and sexual abuse. They note that due to the absence of sufficient publicly available data on the nature and processes of these initiatives, ‘[i]t is not apparent to what extent various church-led processes abide by restorative justice standards or provide a sense of justice for survivors and offenders’.Footnote 131 They conclude: ‘The Catholic doctrine of grace entails that in the context of Catholic restorative justice the goal of restoring justice to victims who have not lapsed into unbelief would take second place to the goal of restoring justification to the offender.’Footnote 132

While reconciliation may form a central part of Catholic theology, a practice that does not include corporate and institutional responsibility for past wrongdoing, particularly the cover-up or facilitation of such wrongdoing, as identified in Chapter 6, seems ill-suited to provide an effective form of engagement with victim-survivors and instead serves as another inappropriate form of settlement.

10.5 Conclusion

Across diverse contexts, a range of levels of interest from state and church leadership in reconciliation is evident. In addition, there persists ongoing scepticism about the nature and potential for reconciliation for historical abuses, especially for inter-generational abuses in the context of settler democracies. The persistence of this disagreement raises concerns about the very possibility of reconciliation. Strakosch notes: ‘As a polity, we see ourselves formulating transformative strategies, but these remain our solutions to our problems. We see ourselves engaging in profound political debates about possible ways forward, but these “good colonist/bad colonist” debates remain circumscribed by liberal categories.’Footnote 133 To truly enter into that shared space is to ‘attend to what is irreconcilable within settler colonial relations’ rather than to force reconciliations.Footnote 134

The reality for reconciliation regarding historical abuse is that a society will never be fully reconciled to itself. There are historical wrongs that cannot be undone, divisions and grievances that are generations deep. The challenge for societies addressing historical abuse is not to achieve a perfect and final form of reconciliation but instead to acknowledge and name the challenge of reconciliation in each successive government and for each successive generation. Reconciliation is the grammar of an ongoing conversation. It may be necessary to start the conversation or it may be necessary to refute the premises on which the conversation rests. As Tuck and Yang argue: ‘to be part of this process of mutual imagination, we as settlers must first give up the fundamental desire to attach these futures to the project of legitimising our current privileges once and for all’.Footnote 135 This aligns with Edmonds who conceives of reconciliation as ‘symbolic negotiations, forms of mythic exchange that reflect the struggle at the heart of the postcolonial condition itself’.Footnote 136 For Edmonds, ‘Reconciliation narratives involve the invention of new postcolonial socialities and imagined futures, as well as the creative reinterpretation of past events’.Footnote 137 These accounts ‘can be contrasted with the false ideals of reconciliation as an overcoming of negative sentiments or the creation of deep social harmony’.Footnote 138 In suggesting that reconciliation can offer an alternative to colonial modernities, Lu notes,

Reconciled individuals may still hold resentment against perpetrators, and reconciled societies may still be marked by difference, disagreement and conflict … progress toward reconciliation in any society involves addressing the alienation not only of those oppressed in various ways by contemporary structured and structural injustice, but also of those whose identities and beliefs about themselves, others, and the world are called into question in the process of decolonization.Footnote 139

The state foregoes the path of seeking to control, dominate, or further realienate individuals to a new, post-historical abuse conception of state–citizen relationships but instead embraces a reality and set of lived experiences, where allegiance and support remain necessarily contested, challenged, and complex. These forms of relationship are sufficient, even if they do not comply with traditional liberal conceptions of citizenship. The same too can be said regarding reconciliation with churches and Christianity. Institutionally and theologically, both need to commit to the proposition that their role is not to constitute patterns of inclusion or membership of the ‘saved’ but instead to provide one among many possible mechanisms for individuals to pursue their own non-violent conception of their relationship to existence (and/or the divine).

The approaches of the states and churches studied in this book are either too small or seek to use reconciliation as a form of settlement, for what Indigenous peoples, African Americans, and victim-survivor groups may prefer to frame as an ongoing form of non-violent political contestation. Muldoon notes: ‘Reconciliation – or the reconciled state – seems destined to remain an incomplete project; the always deferred “not yet” of the receding post-colonial horizon.’Footnote 140 Reconciliation depends upon recognition as equals – this is what states are not willing to do for Indigenous nations and what empires and churches are not willing to do with survivors – to admit they are not exceptional, but in fact we are all warranted an equal stake in dialogue that extends to challenge the foundations of state and church authority and the existing distributions of power and wealth. Without addressing these foundations, reconciliation will remain in the service of existing structures.

11 Conclusions

11.1 Introduction

This book assessed whether transitional justice can meaningfully respond to historical abuses of states and churches in Ireland, the United States, the United Kingdom, Canada, and Australia, and the broader global legacy of abuses in the Roman Catholic Church. It identified significant dissatisfaction at the approach taken, in existing critical literature and among survivor communities. This dissatisfaction stems from a failure by church and state to (i) change meaningfully the use and distribution of power, (ii) address the emotional and lived experience of survivors, and (iii) engage in the reimagination of national and religious myths and identity, required in taking responsibility for historical-structural injustices. In light of these failures, states, churches, and societies may employ the rhetoric and practices of transitional justice to legitimate existing structures of power and emotional narratives that continue to subordinate and marginalise historically abused groups and individuals and seek legitimation in existing national and religious myths. Such transitional justice is unrepentant justice: even as they claim to serve the needs of victim-survivors, states and churches retain the belief in their own legitimacy, authority, and capacity to control and shape the lives of those in their territories, denominations, and beyond. These states continue to assert the legitimacy of coercive confinement for asylum seekers, in prisons, and their capacity to morally and legally categorise and ‘other’ those deemed social problems. Churches continue to assert their capacity to ‘other’ those deemed morally and spiritually problematic, such as those who identify as LGBTQI+. The logic of historical-structural injustices continues today. This brief conclusion reflects on the potential of justice efforts in the face of this lack of repentance.

11.2 Assessing Transitional Justice for the Historical Abuses of Church and State

This book concerned attempts in recent decades to address historical-structural injustices, reflecting both individual and institutional acts of violence within lived memory and inter-generational structures and patterns of violence, discrimination and harm. Part I considered both the nature and extent of longer and inter-generational forms of non-recent violence. Chapter 2 outlined organised violence among states and churches and demonstrated the consistent forms of ‘othering’ used to justify and legitimate these forms of harm over different historical and national contexts. Chapter 3 considered that if transitional justice focused only on addressing historical abuses within lived memory, it would not connect non-recent abuses to current harms experienced by the descendant members of historically marginalised groups. As a result, the chapter employed the concept of historical-structural injustice, to articulate how non-recent forms of violence can be more effectively understood as part of widespread and systemic patterns of socially reproduced violence, as well as the result of the direct commission or perpetration of violence by specific individuals, institutions, and states. In turn, the chapter argued that an evaluation of the role of power and emotion would reveal that resistance is the result of an unwillingness or inability of existing holders and beneficiaries of power structures to divest themselves of power and authority and to enable the articulation of new national and religious myths and forms of identity.

Chapter 4 considered power as a four-dimensional phenomenon, examining its role as a form of agency, as a structure, and at its epistemic and ontological levels. While the abuse of power was present across these dimensions in historical-structural injustices themselves, the chapter also suggested that these patterns and practices of power may be present in transitional justice mechanisms and processes, with the effect of limiting their ability to address historical-structural injustices directly. In particular, the chapter argued that existing practices and structures of power are sustained and reproduced by national and religious myths that legitimate and justify the status quo. Chapter 5 combined this analysis of power with assessing the parallel role of emotions in shaping both historical-structural abuses and attempts to address the past. Particular emphasis is placed on the emotion of shame. As an emotion that in its structure is a criticism of individual identity rather than individual conduct, it is an emotion that is pervasive in existing accounts of historical-structural injustices but also in attempts to respond to the past. The suggestion of this chapter is that while shame may play some beneficial role at an individual level, when deployed by powerful actors across existing structures, it is capable of reinforcing the structure of society based on ‘othering’ and the creation of inferior social categories.

Part II evaluated existing transitional justice mechanisms through these lenses of power and emotion. Transitional justice provides several episodic experiences and contests of power for victim-survivors, state, and church institutions. In some instances, inquiries, apologies, and redress schemes have also affected national attitudes and awareness regarding abusive aspects of the past. However, current practices also reflect fundamental sites of resistance to addressing historical-structural injustice across each of the dimensions of power and emotion examined in the book, which are likely to remain and adapt in the future. Evaluating how states and churches address historical abuses across four dimensions of power reveals some of the limitations of current approaches.

Victim-survivor participation in inquiries and reparations is essential to legitimate these mechanisms. The experience of survivors in both instances is ambivalent – although some find inquiry processes helpful and empowering forms of recognition, as in some Australian inquiries, but others have frustrated, distressed, and re-traumatised survivors, especially Irish and some UK inquiries. Similarly, with redress schemes, while they can grow to some considerable scale such as the Irish RIRB or Canadian IRSSA schemes, even the best designed and most munificent schemes struggle to address the ‘unrectifiable loss’ of historical-structural injustices completely and may cause forms of distress and re-traumatisation. In addition, litigation processes considered in Chapter 7 offer limited and instrumental forms of survivor participation and empowerment and continue broader patterns of distress and re-traumatisation within victim engagement with the legal system. While apologies discussed in Chapter 9 can be crafted in a manner that involves survivor participation, their benefits to survivors are maximised when combined with other material measures designed to address survivor priorities directly. Finally, Chapter 10 highlighted the persistence of non-empowering forms of governance under the banner of reconciliation.

In contrast to these victim experiences, there are some actors who stand to lose in practical, economic, and authority-based terms by a shift towards a redistribution of power, even on the imperfect terms of current transitional justice practices. States and land-based economic actors, such as those involved in extractive industries such as oil or mineral wealth, all stand to lose power if land is redistributed to First Nations peoples. Churches may stand to lose financially if redress schemes continue to be developed that seek contributions from responsible non-state actors. In addition to material and economic power, addressing the past may challenge the authority of individuals and institutions. Politicians who operate out of a political ideology that relies on division along racial, gendered, or religious lines have good reason to resist a more inclusive electorate that is not divided along identity lines. Churches whose theology continues to operate from a scapegoating posture and who assert their claims to spiritual authority are threatened by more inclusive redistributions of power. Attempts to change these distributions of power are likely to be resisted and fought. McAuliffe notes that where elites have guarded power to date, they remain unlikely to voluntarily concede it where they have the option not to do so.Footnote 1 John Borrows concurs that efforts to enable Indigenous self-determination and self-governance are likely to be met with substantial opposition from those who benefit from the prevailing allocation of power.Footnote 2

Secondly, the structure of transitional justice mechanisms means that even the best practices are limited by design. Inquiries’ inability to shape the implementation of their recommendations and the tendency to separate historical injustices from contemporary harms limit their potential to reorder fundamentally current social political and legal structures. The good practices of the Canadian TRC and MMIWG inquiries and the Australian RCIRCSA offer a better approach than traditional inquiry models but fundamentally remain contingent on external political will. Litigation mechanisms are typically designed to avoid addressing structural injustices and frame harms as deviations from structurally just baselines. In contrast, those landmark cases such as Brown in the United States or Mabo in Australia represent potential sites for significant change to existing structures. However, although these victories are profound and significant, there appears a persistent retrenchment and opposition to fully embracing the fundamental challenge posed by these decisions to the legal and political systems they seek to restructure. Similarly, while potentially broad or expensive in material terms, redress mechanisms nonetheless struggle to address the full scale and impact of settler colonial or imperial processes, with notable gaps in the provision of reparations for transatlantic slavery and limited return or restitution of Indigenous lands. Apologies are typically designed to exclude admission of legal liability or recognition of the violation of rights. Reconciliation policies remain structurally predicated on the existence and legitimacy of states and churches that have constituted and constructed themselves in part through historical-structural abuses.

In contrast to mechanisms that may positively affect the structural harms experienced by victim-survivors, the structure of transitional justice itself may also enable resistance to meaningfully address the past. The capacity of transitional justice to address historical-structural injustice is hampered by its current focus on ‘strengthening rather than challenging the state’,Footnote 3 which will disable its role in addressing settler colonialism or other processes requiring changes to structural features of states and churches. Augustine Park has argued a ‘radicalised transitional justice would abandon liberal teleology, recognising the deep interrelation between liberalism and settler colonialism’. Such a move would disrupt ‘the settler’s linear concept of time and the colonial ideology of progress.’Footnote 4 Similarly, Balint et al suggest that the relevant transition: ‘is from unjust to just relations – transforming of the social political economic and legal frameworks that underlie settler colonialism’.Footnote 5 While such a radical model of transitional justice grows in academic popularity, it must address the foreseeable resistance and challenges that a model would face, to overcome potential scepticism about whether such transition or transformation is possible.Footnote 6

Expecting the existing mechanisms of transitional justice to address structural injustices directly seems implausible in light of the current practices adopted by relevant states and churches. For de Greiff, the known inadequacy of transitional justice mechanisms is a central challenge.Footnote 7 He notes the profound challenge involved in transitional justice as an effective form of social change: ‘Although our knowledge of institutional transformation processes is deficient, it still outstrips our ability to effect changes in culture or personality. Again, this is not the result of mere chance. Culture and personality structures, … are resistant to direct interventions.’Footnote 8 Transitional justice, with its commitment to an alternative future but one that involves a problematic state and limited means to address broader processes of structural and cultural change, may be necessarily inadequate to the task of addressing historical-structural injustices, at least in its current form.

Third, transitional justice in inquiries, litigation, and redress, especially, presents opportunities for the healing and validation of victim-survivor experiences but also significant risks of re-traumatisation, distress, or fresh forms of epistemic injustices. The experiences of survivors in Irish mechanisms routinely constitute new forms of epistemic injustice, ignoring or marginalising survivor experience and denying recognition of framing of historical abuse as the violation of rights, with the exception of the O’Keeffe case before the ECHR. Existing accounts also criticise the treatment of survivor experiences in the Northern Irish and English and Welsh inquiries. In contrast, inquiries in Canada, especially the TRC and MMIWG processes, emphasised the distinct value of First Nations knowledge and expertise and aligned with the well-received treatment of survivor testimony in the Australian Lost Innocents, Bringing Them Home, and Forgotten Australian inquiries, and the recent RCIRCSA. Redress schemes that aim to avoid the potentially re-traumatising experience of litigation can nonetheless form a fresh site of epistemic injustice where they preclude survivors from a further opportunity to express their experiences and have these validated and acknowledged. Chapter 9 concluded that while some states’ and churches’ practices of apologies were broader and more holistic, the narrative constructed by apologies for historical abuse remains largely limited by its failure to acknowledge historical abuses, not as separate and past, but as continuous with and reproduced in the present. Chapter 10 concluded that as currently practised, reconciliation seeks to operate as a form of settlement designed to close down ongoing and perhaps perennial forms of contestation about the legitimacy of state- and church-led efforts to address the past. Instead, an agonistic conception of reconciliation offers the potential to serve as a site of ongoing contestation and a mechanism to evaluate whether and how the voices, knowledge, and views of survivors and marginalised communities and peoples form part of states’ and churches’ response to the past and reformed structures and practices of power, emotion, and national or religious myths.

Moreover, with all the testimony gathered, it remains unclear the extent to which it impacts the discourse and behaviour of institutions, churches, states, and societies that were involved in abuses. Those who retain power and privilege in these contexts today have the luxury to ignore, dismiss, or minimise the need for radical change that arises from addressing survivor experiences directly. As Carol Gilligan has observed, positions of power are distinguished precisely by their ability to ‘opt not to listen. And [to] do so with impunity’.Footnote 9 The effect of transitional justice processes may thus be to require survivor testimony, disclosure, and potential re-traumatisation, in the hope of seeing harms officially acknowledged, but ultimately this process will not affect how survivors are treated or viewed in society. Viewing epistemic injustice as one dimension of power, acts of listening, or performances of emotion by state and church officials, such as in apologies, are necessary but insufficient – such processes should accompany material changes for individual survivors and for the structures that gave rise to and reproduce historical-structural injustices, and not be a substitute for such changes.

Finally, meaningfully addressing historical-structural injustices requires the reworking of national and religious myths and identities, seeking to engender change in social and institutional consciousness and attitudes to the past, to the nation and to victim-survivor populations and historically marginalised groups. Lu suggests ‘contemporary agents must struggle to turn away from the images of themselves and each other produced through objectionable social and political structures and relations and effect a turning around or reorientation of their vision’.Footnote 10 The inability or unwillingness of states, churches, and societies to fully accept both legal or interactional responsibility and ongoing social responsibility for historical abuses today arises in part because these groups want to maintain social, cultural, and national identities and myths that tell ourselves that we are fundamentally good people – and accepting the full reality and cost of historical-structural injustices fundamentally and necessarily challenges that picture. We want to tell ourselves that we are not perfect, but criminal, violent, or abusive conduct remains exceptional, the purview of a ‘few bad apples’. Cognitive psychologists tell us that typically people prefer to understand events as caused by the character or personality traits of individuals, rather than caused by forces such as the social and cultural environment or institution in which the event takes place.Footnote 11 This preference comes from our desire to be comforted by the belief that we live in a ‘just world’, in which justice is imposed and predictable based on what people deserve.Footnote 12 In doing so, we may declare ourselves, our states, and our churches innocent of any complicity or responsibility for historical-structural injustices.

For instance, Alissa Macoun argues that

We declare ourselves innocent when we assume that non-Indigenous people are basically benevolent bystanders to racism and colonialism, just requiring additional information or education in order to do good. We declare ourselves innocent when we assume that we educated white progressives are fundamentally different from other non-Indigenous people, the solution to a problem that lies in the hearts and minds of others rather than in our own institutions, knowledges, and practices. We declare ourselves innocent when we acknowledge a racist colonial past but assume a separation between this past and our racist colonial present. We declare ourselves innocent when we see ourselves as agents of progressive futurity and not also of colonial institutions and racial power.Footnote 13

For Christians, such a severance of the past and present and harm and responsibility is especially pernicious. Former Archbishop of Canterbury Rowan Williams notes that the church, as the body of Christ, should be conceived of as extending over time and space and not merely over different geographical nations: ‘The Body of Christ is not just a body that exists at any one time; it exists across history and we therefore share the shame and the sinfulness of our predecessors, and part of what we can do, with them and for them in the Body of Christ, in prayerful acknowledgement of the failure that is part of us, not just of some distant “them”.’ He continued:

To speak here of repentance and apology is not words alone; it is part of our witness to the Gospel, to a world that needs to hear that the past must be faced and healed and cannot be ignored … by doing so we are actually discharging our responsibility to preach good news, not simply to look backwards in awkwardness and embarrassment, but to speak of the freedom we are given to face ourselves, including the unacceptable regions of … our history.Footnote 14

Conceived of in this way, Christian churches and communities have specific spiritual and theological obligations to address the harmful aspects of the past, especially those that are perpetuated in the present.

Resistance to this challenge to national and religious identities and myths functions as a form of denial of social connection and historical connection. Western states and churches do not see the need to problematise their myths or conception of legitimate power. They see that they only stand to lose by doing so. The focus on power and national and religious identity reinforces the profound and fundamental nature of addressing historical-structural injustices. The scale of the challenge is vast and daunting, the work of multiple generations. The demands for reparations, decolonisation, and transfer of power and land, involved as alternatives to existing processes, would fundamentally and radically change the nature and structure of the societies and churches examined and be met with significant claims of ignorance, innocence, and protest. By seeking to apply transitional justice to historical-structural injustices, it is no longer possible to suggest that current liberal democracies are a suitable utopian end point for transitional justice processes and mechanisms. Instead, the only way to relegitimate the power and authority of states and churches responsible for historical-structural injustices is to give it away and to recognise what was always true: that claims to power, authority, and truth are shared with the most marginalised in these societies and churches. The power and authority within Indigenous peoples, African Americans, women, children, victim-survivors of historical-structural abuses considered in this book and those historically marginalised groups beyond the present scope, as experts in their own experiences, harms, and futures, form the basis for more legitimate and just societies and churches.

11.3 Whither Transition

In the context of these critiques, it is worth considering whether transitional justice retains any value for addressing large-scale and non-recent violence in the settings considered in the book. The field and its institutional responses to violence are capable of capture, manipulation, and being consistent with the existing distributions of power and authority in society. Equally, these state-led responses are capable of instrumentalising the participation of victim-survivors to relegitimate the state at the expense of survivor re-traumatisation and further marginalisation or disempowerment.

And yet, there remains something significant about framing mechanisms to address the past as a broader process of social change, that is, as transitional justice. First, transitional justice has been and continues to be employed by victim-survivors of historical-structural injustices as one framework to address their demands for justice measures. The case selection for this book concerns national and religious contexts where (i) living victim-survivors are advocating for state and church responses to accusations of non-recent violence on a large scale and (ii) where descendants of social groups, especially women, Indigenous peoples, and African Americans, can and do make claims that ongoing forms of discrimination and harm that they experience bear some relationship or continuity with similar forms of violence or prejudice against these same social forms of identity in prior generations. These factors offer the basis for distinguishing cases of historical-structural injustices with ongoing effects and agents in contemporary societies, from those that do not. For instance, Winter gives the example of the Viking invasion of Ireland not being a basis for state redress from Denmark to Ireland.Footnote 15 It is in the cases where justice issues remain live, contested, and lived by victim-survivors, families, and descendants that transitional justice remains of value.

Second, in employing transitional justice in this context, both Stephen Winter and Nicola Henry concur on the capacity of transitional justice to unify diverse issues, debates, institutions, and practices as part of a broader and more coherent evaluative framework.Footnote 16 However, in doing so, the unifying function of transitional justice may work in different directions. A concern with unity or coherence may be compatible with transitional justice as the (re)building of legitimacy alone. Stephen Winter suggests: ‘state redress both improves the historical congruency of state actions with legitimating values and satisfies outstanding rectificatory demands. In doing so, it removes burdens from political legitimacy and thereby extends and strengthens political authority’.Footnote 17 For Winter, a focus on the need for political legitimacy highlights that the inadequacy of transitional justice mechanisms remains ‘to the task of political transformation. Only when we see how they are unified by the larger theory of political legitimacy does a modest transformative prospect emerge.’Footnote 18

While Winter provides a good descriptive account of some of the existing functions of redress mechanisms in state redress, he also concedes ‘still it is likely that there are other, more effective, ways to stop communal cycles of violence than by improving the legitimacy of state institutions’.Footnote 19 His account eschews consideration of the ongoing dimensions of historical-structural injustices, and the role of emotions and articulated national myths, such as national shame,Footnote 20 as sites of resistance to the potential legitimating work of transitional justice. Part of the work of this book in examining those further issues is to suggest that transitional justice mechanisms will be necessarily inadequate to their task of addressing victim needs and contributing to social change if they do not extend beyond the role of enhancing state legitimacy.

In contrast, for Nicola Henry, this unifying function of transitional justice ‘in turn refocuses attention to the fundamental questions that need to be asked about redress in such democracies’.Footnote 21 For Henry, rather than necessarily resolving crises of state legitimacy, transitional justice may also ‘productively assist to destabilize or challenge the power of the state, even through measures that are designed and implemented by the state’.Footnote 22 Transitional justice may thus play a useful agonistic role in ‘bringing together competing ideas on, first, what kind of change has occurred, and second, what kind of change is desired in the future’, extending to addressing the ‘complex social, economic, cultural, interpersonal, and generational tragedies generated by historical injustices of the past’.Footnote 23

Third, considering transitional justice in the context of historical-structural injustices and the case studies selected in this book prompts consideration, not just of what an adequate single justice initiative is but what the transition involved in these contexts is. Balint et al suggest this should concern:

not solely transition to a democratic regime as initially understood in the transitional justice paradigm, but also as transition from unjust relations to just relations and the transformation of the social, political, economic and legal frameworks such as those that underlie settler colonialism. It is the structural injustice of settler colonialism, and colonialism generally, that continues as the core injustice into the present. This includes the ongoing denial of indigenous sovereignty and the potential to place indigenous peoples outside the rule of law in governance.Footnote 24

More recently, Balint et al suggest, ‘It is through a more committed recognition of the past and its enduring significance in the present that the beginning of just relations might be found.’Footnote 25 On their account, acknowledging the enduring impact of the past on the present may enable ‘the present to be conceptualized as not only a place of injustice, but of possibility, responsibility, and relationality. It compels a recognition that there are possibilities to interact justly still’.Footnote 26 This book shares their commitment to persist with the need for justice and to remedy structural injustices explicitly and directly.

As a result, there remains distinctive value in employing a transitional justice framework to address past large-scale violence, particularly where the consequences of such violence retain impact in contemporary societies. Transitional justice can unify diverse discourses and practices, can engage questions of whether and how the state (or church) can be legitimated as those institutions address the past, and can prompt the question and fresh consideration of whether, from what, and to what, there is a transition in state, church, and society. However, unless and until transitional justice measures address explicitly the role of power, individual and social emotions, and national myths, progressing the task of addressing historical-structural injustices may remain elusive.

11.4 Power, Emotions, and Progress

On this account, there is no reason to suggest that historical-structural injustices can be undone by a single (set of) transitional justice mechanisms. There is no reason to suggest that a particular configuration of institutional designs could avoid co-option or the reconsolidation of power. It is foreseeable that actors who benefit from existing power structures will seek to reassert that distribution of power when challenged on an episodic or individualised basis. Knowing this should challenge the suggestion that the mere pursuit of a bottom-up, survivor empowerment would be capable of overcoming these structural limitations. Instead, the longer time frame of violence to be addressed, the reproduction of violence in contemporary societies, and the deeply embedded structures of power and cultural identity all suggest the need to revise the sense of progress that such transitional justice could feasibly claim to achieve.

For Michael Walzer, moral progress is concerned not with the discovery or invention of new principles but with the inclusion under old principles of previously excluded men and women.Footnote 27 On this account, moral progress is a matter of correcting epistemic errors about who ‘counts’ as a person.Footnote 28 A second approach, associated with Axel Honneth, describes moral progress in terms of improved institutional implementation of existing moral principles.Footnote 29 Such accounts of progress would mirror attempts to ‘recognise’ Indigenous peoples within a liberal democracy or suggest the need for further implementation of existing transitional justice strategies.

For Rahel Jaeggi, progress is different from a particular outcome. It instead ‘refers to the form of change, to the process of transformation towards the good or better as such. To assert that the abolition of slavery represents progress is not the same thing as to say it is right’.Footnote 30 On this account, ‘[p]rogress is not the ongoing mastering of a basic problem or a set of basic problems; instead it is a matter of ongoing and progressive problem solving in the course of which its ends and means can undergo transformation – without a definite end. An advantage of such a conception is that it can be conceived as plural’.Footnote 31 In this regard, Amy Allen suggests progress must be problematised if framed as a form of triumph, and that, with relevance to progress in the context of settler colonial states, instead: ‘A genuinely open and open-ended dialogue with colonized or subaltern subjects requires a kind of humility or modesty about our normative commitments and ideals that is inconsistent with these vindicatory narratives.’Footnote 32 As a result, even if deemed ‘successful’ in addressing the past, transitional justice must be problematised as a form of progress. Transitional justice in the service of progress as the expansion of a liberal democracy seems inappropriate for settler colonial contexts. Progress as the better implementation of pre-existing values also seems inappropriate in UK, US, and Irish contexts where those values were implicated in historical-structural abuses.

Instead, progress may be measured by the dismantling, transfer, and sharing of power across the four dimensions explored in the book: material victim empowerment; changing legal and structural conditions but also amplifying voice, belief, knowledge; and a shared rewriting of national and religious myths. At a basic, interactional level, those concerned to address historical-structural injustices in their communities can model change by divesting themselves of power and privilege. Alissa Macoun insists we cannot ‘see ourselves as agents of progressive futurity and not also of colonial institutions’. We cannot ‘make ourselves the subjects and heroes of our own stories’.Footnote 33 Instead, it is incumbent on those who benefit from a society or church that is built on historical-structural injustices to learn from those who have suffered and stand in solidarity with those activists seeking to engage in social change.

Second, existing legal and social structures must cease to be sites of discontinuity and division between past and present and instead explicitly acknowledge their origins in the claims of redemptive violence. Law can be the basis for telling our whole stories as societies and communities, both good and bad, and for amplifying voices of the marginalised, rather than narrowing and excluding them. A ‘living’ law offers the means of showing continuities between Indigenous laws and ways of knowing and challenging dominant laws and conceptions of justice.Footnote 34

Third, the ongoing promotion of victim-survivors as the primary source of knowledge and experience on the abusive past remains key. Achieving epistemic justice may remain illusory, but exhaustive efforts to amplify survivors within existing national and religious narratives would be a significant contribution. Richard Kearney emphasises that:

even where narrative testimony can never measure up to the complexities and alterities of the past, it is important – ethically and poetically – to continue to remember. Or at least to keep on trying. I would go so far as to say that it is precisely when one is right up against the limits of the immemorial that one most experiences the moral obligation to bear witness to history, echoing the words of Beckett’s unnameable narrator: ‘I can’t go on, I’ll go on’. The alternative, as I see it, is the expansion of the postmodern malady of melancholy without reprieve or redress. And that is unacceptable.Footnote 35

Finally, our national and religious myths must incorporate the negative and combine the ambitions of nationalisms and Christian theology for utopias and progress, with the lived experiences of suffering caused in the name of these lofty ideals. Gordon Lynch cautions us to remember: ‘When the moral certainties of humanitarian action dull sensitivity to the experiences of those believed to be its beneficiaries, then humanitarianism is as capable of causing harm as any other sacred tradition.’Footnote 36 This truth can be applied to the supposed humanitarianism of institutionalisation, child migration, coercive adoptions, and theories of racial superiority all framed in part as humanitarian and as Christian – and indeed to contemporary efforts of transitional justice.

It is possible to suggest that everyone, in successive generations of states and churches, is a survivor of a political and theological order that has as a central feature these patterns structures and practices of violence. Mahmood Mamdani suggests that decolonisation would involve recognition of a shared identity as survivors of political modernity, which ‘requires that we stop accepting that our differences should define who benefits from the state and who is marginalized by it’.Footnote 37 Instead, our imaginations are required to consider how to rework national and religious identities and myths in light of historical-structural injustices.

Imagine new national and religious myths that tell our whole story as peoples who share time and space with a violent past and present, who employ narratives and myths that describe the sincerely held but morally wrong beliefs of settlers and of Christian and white superiority; that incorporate the knowledge and experiences of suffering of individual victim-survivors, their families, of historically marginalised communities, of women, of African Americans, and Indigenous peoples; that incorporate the fallibility of state and church authority as a central feature and lesson of our collective memory and mythology; that revere the endurance and courage of those who have pursued justice for historical-structural harms over successive generations; and that emphasise our current collective responsibility to address the impact of our past on our present.

Finally, imagine national myths that are not triumphalist in nature but recognise the challenging reality that we live within a very imperfect and unjust world – and that is the context in which transitional justice efforts will always operate. Robert Meister suggests that ‘transitional justice tends to assume that past victims never really win – their choice is whether to persist in struggle or to stop’.Footnote 38 Meister suggests that this inadequacy is rooted in a secularised Christian eschatology, that at some future point in time justice will be done – so time itself is sufficient: ‘This is a secular shell of messianism to which redemption never comes.’Footnote 39 Such a view suggests transitional justice efforts despite extensive advocacy, time, money, and effort are doomed to failure in their imperfections and limits.

In contrast, Rosemary Radford Reuther suggests a better model comes from the Jubilee tradition in Hebrew Scripture,Footnote 40 which assumes that there needs to be periodic and increasing renewal, every seven days, every seven years, and every seven times seven years (fiftieth year), with most radical reform intended to ‘undo the unjust accumulations of wealth for some and oppression for others that have accumulated over the last several generations, re-establishing the basis for a viable society of equitable sharing of the means of life’.Footnote 41 None of these alternatives are irreversible; those in power who seek to avoid responsibility for past injustice will no doubt continue to have the means and opportunity to do so. However, naming the roles of power, emotion, and national myths, and the need to rework and redistribute their practice can emphasise dealing with the past is deeply relational and can contribute to the undoing of otherness. An emphasis on our shared, and inter-generational, responsibility to address the violence of the past done in our communities, nations, churches, and identities may be the most appropriate expectation of transitional justice for historical-structural injustices, to make it harder to repeat the sins of our fathers.


6 Investigating Historical-Structural Injustices

1 Anne-Marie McAlinden, ‘An Inconvenient Truth: Barriers to Truth Recovery in the Aftermath of Institutional Child Abuse in Ireland’ (2013) 33 Legal Studies 189, 192.

2 Commission of Investigation, Report by Commission of Investigation into Catholic Archdiocese of Dublin (Department of Justice, Equality and Law Reform 2009) para 1.24; ‘Report of the Grand Jury, In Re County Investigating Grand Jury, MISC. NO. 03-00-239, (C. P. Philadelphia, 2003)’ 2.

3 Kathleen Daly, Redressing Institutional Abuse of Children (Palgrave Macmillan UK 2014) 105–6.

4 Scott Prasser, Royal Commissions and Public Inquiries in Australia (LexisNexis Butterworths 2006) 22.

5 Jason Beer and others (eds), Public Inquiries (Oxford University Press 2011) 1–31.

6 Katie Wright, ‘Remaking Collective Knowledge: An Analysis of the Complex and Multiple Effects of Inquiries into Historical Institutional Child Abuse’ (2017) 74 Child Abuse & Neglect 10, 11–12.

7 Scott Prasser, ‘Royal Commissions in Australia: When Should Governments Appoint Them?’ (2006) 65 Australian Journal of Public Administration 28, 32.

8 Timothy D Lytton, Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse (Harvard University Press 2008) 130–1.

9 Shurlee Swain, Katie Wright and Johanna Sköld, ‘Conceptualising and Categorising Child Abuse Inquiries: From Damage Control to Foregrounding Survivor Testimony’ (2018) 31(3) Journal of Historical Sociology 282, 284.

10 Jeremy Sarkin, ‘Redesigning the Definition a Truth Commission, but Also Designing a Forward-Looking Non-Prescriptive Definition to Make Them Potentially More Successful’ (2018) 19 Human Rights Review 349, 351.

11 United Nations Security Council. ‘Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies’ (3 Aug 2004) S/2004/616, 4.

12 Kim Stanton, ‘Intransigent Injustice: Truth, Reconciliation and the Missing Women Inquiry in Canada’ (2013) 1 Transitional Justice Review 59, 62.

13 Kate Gleeson and Sinéad Ring, ‘Confronting the Past and Changing the Future? Public Inquiries into Institutional Child Abuse, Ireland and Australia’ (2020) 29 Griffith Law Review 109, 111.

14 ‘Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, Pablo de Greiff, A/HRC/24/42’ para 51.

15 Georges Balandier, Political Anthropology (1st American ed, Pantheon Books 1970) 41.

16 Brandon Hamber, Dineo Nageng and Gabriel O’Malley, ‘“Telling It Like It Is …”: Understanding the Truth and Reconciliation Commission from the Perspective of Survivors’ (2000) 26 Psychology in Society (PINS) 18.

17 Merryl Lawry-White, ‘The Reparative Effect of Truth Seeking in Transitional Justice’ (2015) 64 International and Comparative Law Quarterly 141, 166; Brandon Hamber, Transforming Societies after Political Violence: Truth, Reconciliation, and Mental Health (Springer 2009); David Mendeloff, ‘Trauma and Vengeance: Assessing the Psychological and Emotional Effects of Post-Conflict Justice’ (2009) 31 Human Rights Quarterly 592.

18 Fiona C Ross, ‘On Having Voice and Being Heard: Some After-Effects of Testifying Before the South African Truth and Reconciliation Commission’ (2003) 3 Anthropological Theory 325.

19 Karen Brounéus, ‘Truth-Telling as Talking Cure? Insecurity and Retraumatization in the Rwandan Gacaca Courts’ (2008) 39 Security Dialogue 55, 71.

20 Susanne Karstedt, ‘The Emotion Dynamics of Transitional Justice: An Emotion Sharing Perspective’ (2016) 8 Emotion Review 50, 53.

21 Anne-Marie McAlinden and Bronwyn Naylor, ‘Reframing Public Inquiries as “Procedural Justice” for Victims of Institutional Child Abuse: Towards a Hybrid Model of Justice’ (2016) 38 Sydney Law Review 277, 282.

22 Chris Greer and Eugene McLaughlin, ‘Theorizing Institutional Scandal and the Regulatory State’ (2017) 21 Theoretical Criminology 112, 126.

23 Swain, Wright and Sköld (Footnote n 9) 286.

24 Onur Bakiner, Truth Commissions: Memory, Power, and Legitimacy (University of Pennsylvania Press 2016) 224.

25 Oz Frankel, ‘Vulnerable Populations, Social Investigations, and Epistemic Justice in Early Victorian Britain’ (2017) 7 Oñati Socio-Legal Series 261.

26 Christine M Koggel, ‘Epistemic Injustice in a Settler Nation: Canada’s History of Erasing, Silencing, Marginalizing’ (2018) 14 Journal of Global Ethics 240.

27 Stanley Cohen, Visions of Social Control: Crime, Punishment, and Classification (Polity Press/Blackwell 1985) 195.

28 Sonali Chakravarti, Sing the Rage: Listening to Anger after Mass Violence (The University of Chicago Press 2014) 19.

29 Michael Ure, ‘Post-Traumatic Societies: On Reconciliation, Justice and the Emotions’ (2008) 11 European Journal of Social Theory 283, 285–7.

30 Onur Bakiner, ‘One Truth among Others? Truth Commissions’ Struggle for Truth and Memory’ (2015) 8 Memory Studies 345, 356.

31 Bakiner (Footnote n 30).

32 Onur Bakiner, Truth Commissions: Memory, Power, and Legitimacy (University of Pennsylvania Press 2016) 2.

33 Adam Ashforth, ‘Reckoning Schemes of Legitimation: On Commissions of Inquiry as Power/Knowledge Forms’ (1990) 3 Journal of Historical Sociology 1, 9.

34 Jennifer Balint, Julie Evans and Nesam McMillan, ‘Justice Claims in Colonial Contexts: Commissions of Inquiry in Historical Perspective’ (2016) 42 Australian Feminist Law Journal 75, 77.

35 Bill Rolston and Phil Scraton, ‘In the Full Glare of English Politics’ (2005) 45 The British Journal of Criminology 547, 553.

36 Suellen Murray, Supporting Adult Care-Leavers: International Good Practice (Policy Press 2015) 195; Malin Arvidsson, ‘Contextualising Reparation Politics’ in Shurlee Swain and Johanna Sköld (eds), Apologies and the Legacy of Abuse of Children in ‘Care’: International Perspectives (Palgrave Macmillan 2015) 75; Brian Corby, Alan Doig and Vicky Roberts, ‘Inquiries into Child Abuse’ (1998) 20 Journal of Social Welfare and Family Law 377, 382.

37 Claire McGettrick and others, Ireland and the Magdalene Laundries: A Campaign for Justice (I B Tauris & Company, Limited 2021) 72–5.

38 Wright (Footnote n 6) 10.

39 McAlinden (Footnote n 1) 213.

40 ‘Report of the Ferns Inquiry’ (2005); ‘The Commission to Inquire into Child Abuse Report’ (Government Publications 2009).

41 McGettrick and others (Footnote n 37) 50–67.

42 ‘Clann Report: Principal Submissions to the Commission of Investigation into Mother and Baby Homes’ (2018) <>.

43 Lytton (Footnote n 8) 124.

44 ‘Beyond the Mandate: Continuing the Conversation Report of the Maine Wabanaki-State Child Welfare Truth & Reconciliation Commission’ (Maine Wabanaki-State Child Welfare Truth & Reconciliation Commission 2015) 13.

45 Kim Stanton, ‘Canada’s Truth and Reconciliation Commission: Settling the Past?’ (2011) 2 International Indigenous Policy Journal 1, 5.

46 Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015) 399.

47 National Inquiry into Missing and Murdered Indigenous Women and Girls (Canada), Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (Executive Summary) (National Inquiry into Missing and Murdered Indigenous Women and Girls, 2019) 34–5.

48 Colin Luoma, ‘Closing the Cultural Rights Gap in Transitional Justice: Developments from Canada’s National Inquiry into Missing and Murdered Indigenous Women and Girls’ (2021) 39 Netherlands Quarterly of Human Rights 30, 34.

49 AR Hart and others, Report of the Historical Institutional Abuse Inquiry (2017) 4.

50 Brandon Hamber and Patricia Lundy, ‘Lessons from Transitional Justice? Toward a New Framing of a Victim-Centered Approach in the Case of Historical Institutional Abuse’ (2020) 15 Victims & Offenders 744, 755.

51 Maeve O’Rourke, Philip Scraton and Deirdre Mahon, ‘Mother and Baby Institutions, Magdalene Laundries and Workhouses in Northern Ireland: Truth, Acknowledgement and Accountability’ (Truth Recovery Design Panel 2021).

52 Sarkin (Footnote n 10) 359.

53 George Gilligan, ‘Official Inquiry, Truth and Criminal Justice’ in George Gilligan and John Pratt (eds), Crime, Truth and Justice: Official Inquiry, Discourse, Knowledge (Willan Publishing 2004) 18–19.

54 Bruce Arnold, The Irish Gulag: How the State Betrayed Its Innocent Children (Gill & Macmillan 2009) 98–109; Gleeson and Ring (Footnote n 13) 117.

55 Gleeson and Ring (Footnote n 13) 123.

56 Meredith Wilkie (ed), Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Human Rights and Equal Opportunity Commission 1997) 16–17.

57 Michael Salter, ‘The Transitional Space of Public Inquiries: The Case of the Australian Royal Commission into Institutional Responses to Child Sexual Abuse’ (2020) 53 Australian & New Zealand Journal of Criminology 213, 224.

58 Wright (Footnote n 6) 17.

59 Truth and Reconciliation Commission of Canada (Footnote n 46) 399.

60 Luoma (Footnote n 48) 35.

61 Daniel Posthumus and Kelebogile Zvobgo, ‘Democratizing Truth: An Analysis of Truth Commissions in the United States’ (2021) 15(3) International Journal of Transitional Justice 510, 528.

62 Wilkie (Footnote n 56), Part 6 Contemporary Separations.

63 Gleeson and Ring (Footnote n 13) 125.

64 Frank Golding, ‘Sexual Abuse as the Core Transgression of Childhood Innocence: Unintended Consequences for Care Leavers’ (2018) 42 Journal of Australian Studies 191.

65 Posthumus and Zvobgo (Footnote n 61) 528.

66 Sherrilyn A Ifill, ‘Creating a Truth and Reconciliation Commission for Lynching’ (2003) 21 Law and Inequality 263.

67 Gleeson and Ring (Footnote n 13) 118.

68 ‘Report of the Inter-Departmental Committee to Establish the Facts of State Involvement with the Magdalen Laundries’ (Department of Justice 2013) chapter 2, para 4–14.

69 Corby, Doig and Roberts (Footnote n 36) 383.

70 Luoma (Footnote n 48) 45.

73 Matt James, ‘A Carnival of Truth? Knowledge, Ignorance and the Canadian Truth and Reconciliation Commission’ (2012) 6 International Journal of Transitional Justice 182, 190.

74 Michael Murray v Commission to Inquire into Child Abuse [2003] High Court of Ireland 2003 1998P (17 October 2003) (Abbott J).

75 Gleeson and Ring (Footnote n 13) 118.

76 Arnold (Footnote n 54) 296–312.

77 James (Footnote n 73) 190.

78 Wright (Footnote n 6) 16.

79 Matthew Colton, ‘Victimization, Care and Justice: Reflections on the Experiences of Victims/Survivors Involved in Large-Scale Historical Investigations of Child Sexual Abuse in Residential Institutions’ (2002) 32 British Journal of Social Work 541.

80 Katie Wright, ‘Challenging Institutional Denial: Psychological Discourse, Therapeutic Culture and Public Inquiries’ (2018) 42 Journal of Australian Studies 177.

83 Salter (Footnote n 57) 222.

85 Gleeson and Ring (Footnote n 13) 127.

86 Truth and Reconciliation Commission of Canada, The Survivors Speak: A Report of the Truth and Reconciliation Commission of Canada (2015) 153–64.

87 Koggel (Footnote n 26) 250–1.

88 Ronald Niezen, Truth and Indignation: Canada’s Truth and Reconciliation Commission on Indian Residential Schools (University of Toronto Press 2017) 68.

89 Anne-Marie Reynaud, Emotions, Remembering and Feeling Better: Dealing with the Indian Residential Schools Settlement Agreement in Canada (Verlag 2017) 245.

90 Carol Brennan, ‘Trials and Contestations: Ireland’s Ryan Commission’ in Shurlee Swain and Johanna Sköld (eds), Apologies and the Legacy of Children in ‘Care’: International Perspectives (Palgrave Macmillan UK 2015) 56.

92 Sinead Pembroke, ‘Historical Institutional Child Abuse in Ireland: Survivor Perspectives on Taking Part in the Commission to Inquire into Child Abuse (CICA) and the Redress Scheme’ (2019) 22 Contemporary Justice Review 43, 51.

93 Footnote ibid 56–7.

94 McGettrick and others (Footnote n 37) 87.

95 Máiréad Enright and Sinéad Ring, ‘State Legal Responses to Historical Institutional Abuse: Shame, Sovereignty, and Epistemic Injustice’ (2020) 55 Éire-Ireland 68, 88.

96 Commission of Investigation into Mother and Baby Homes, Final Report, Confidential Committee Report, (Official Publications 2021) 12.

97 Catriona Crowe, ‘The Commission and the Survivors’ <>.

98 Commission of Investigation into Mother and Baby Homes, Final Report, Recommendations (Official Publications 2021) 9

99 Elaine Loughlin, ‘Regina Doherty: “Cold” Mother and Baby Home Report Must Be Independently Reviewed’ Irish Examiner (Cork, 17 January 2021).

100 ‘Clann Report: Principal Submissions to the Commission of Investigation into Mother and Baby Homes’ (Footnote n 42).

101 Footnote ibid 7–8; 108–17.

102 Colton (Footnote n 79) 545.

103 Corby, Doig and Roberts (Footnote n 36) 386.

104 Patricia Lundy, ‘“I Just Want Justice”: The Impact of Historical Institutional Child-Abuse Inquiries from the Survivor’s Perspective’ (2020) 55 Éire-Ireland 252.

105 Hamber and Lundy (Footnote n 50) 753–4.

106 Commission of Inquiry into Abuse of Children in Queensland Institutions, ‘Report of the Commission of Inquiry into Abuse of Children in Queensland Institutions’ (Department of Families, Youth and Community Care, Brisbane 1999) iii.

107 Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (Royal Commission into Institutional Responses to Child Sexual Abuse 2017) Vol. 16, 3.

108 Truth and Reconciliation Commission of Canada (Footnote n 46) 25.

109 National Inquiry into Missing and Murdered Indigenous Women and Girls (Canada) (Footnote n 47) 49.

110 Hamber and Lundy (Footnote n 50) 755.

111 Footnote ibid 757.

112 Footnote ibid 758.

113 Footnote ibid 755.

114 David Androff, ‘“To Not Hate”: Reconciliation among Victims of Violence and Participants of the Greensboro Truth and Reconciliation Commission’ (2010) 13 Contemporary Justice Review 269, 272.

115 Marie Wilson, ‘The Truth and Reconciliation Commission of Canada’ in Wilton Littlechild and Elsa Stamatopoulou (eds), Indigenous Peoples’ Access to Justice, Including Truth and Reconciliation Processes (Columbia University Press 2014) 135.

116 Ronald Niezen, ‘Human Rights As Therapy: The Healing Paradigms of Transitional Justice’ in Danielle Celermajer and Alexandre Lefebvre (eds), The Subject of Human Rights (Stanford University Press 2020) 169–71.

117 Johanna Sköld, ‘Historical Abuse – A Contemporary Issue: Compiling Inquiries into Abuse and Neglect of Children in Out-of-Home Care Worldwide’ (2013) 14 Journal of Scandinavian Studies in Criminology and Crime Prevention 5, 7.

118 Wright (Footnote n 6) 16.

119 Royal Commission into Institutional Responses to Child Sexual Abuse, Preface and Executive Summary (Royal Commission into Institutional Responses to Child Sexual Abuse 2017) 6; ‘The Commission to Inquire into Child Abuse Report’ (Footnote n 40), Executive Summary, 21; Truth and Reconciliation Commission of Canada, Canada’s Residential Schools: The Final Report of the Truth and Reconciliation Commission of Canada Volume 1, Part 1 (2015) 570; National Inquiry into Missing and Murdered Indigenous Women and Girls (Canada) (Footnote n 47) 3.

120 Royal Commission into Institutional Responses to Child Sexual Abuse (Footnote n 107) vol. 16, 26; Her Majesty’s Inspectorate of Constabulary, ‘“Mistakes Were Made” HMIC’s Review into Allegations and Intelligence Material Concerning Jimmy Savile between 1964 and 2012’ (HMIC 2013) 18.

121 Truth and Reconciliation Commission of Canada (Footnote n 46) 105–10; ‘The Commission to Inquire into Child Abuse Report’ (Footnote n 40), Executive Summary, 21; ‘Report of the Grand Jury (Pennsylvania)’ (Office of the Attorney General 2018) 1; John Jay College of Criminal Justice and Catholic Church (eds), The Nature and Scope of Sexual Abuse of Minors by Catholic Priests and Deacons in the United States, 1950–2002: A Research Study Conducted by the John Jay College of Criminal Justice, the City University of New York: For the United States Conference of Catholic Bishops (United States Conference of Catholic Bishops 2004) 2, 6.

122 ‘The Commission to Inquire into Child Abuse Report’ (Footnote n 40) vol, 2, 21; vol. 3, 107; Executive Summary, 21.

123 Footnote ibid 5, chapter 3.

124 Gleeson and Ring (Footnote n 13) 119.

125 Enright and Ring (Footnote n 95) 87.

126 Hart and others (Footnote n 49) 8–42.

127 Hamber and Lundy (Footnote n 50) 752.

128 ‘Beyond the Mandate: Continuing the Conversation Report of the Maine Wabanaki-State Child Welfare Truth & Reconciliation Commission’ (Footnote n 44) 64.

129 Wilkie (Footnote n 56) 239.

130 Mark McMillan and Sophie Rigney, ‘Race, Reconciliation, and Justice in Australia: From Denial to Acknowledgment’ (2018) 41 Ethnic and Racial Studies 759, 767.

131 Wilkie (Footnote n 56) 178.

132 Michael Tager, ‘Apologies to Indigenous Peoples in Comparative Perspective’ (2014) 5 International Indigenous Policy Journal 1, 6–7.

133 Ann Curthoys, Ann Genovese and Alexander Reilly, Rights and Redemption: History, Law and Indigenous People (UNSW Press 2008) 118.

134 Truth and Reconciliation Commission of Canada (Footnote n 46) 1.

135 David B MacDonald, ‘Canada’s History Wars: Indigenous Genocide and Public Memory in the United States, Australia and Canada’ (2015) 17 Journal of Genocide Research 411.

136 Andrew Woolford, ‘Ontological Destruction: Genocide and Canadian Aboriginal Peoples’ (2009) 4 Genocide Studies and Prevention 81; James W Daschuk, Clearing the Plains: Disease, Politics of Starvation, and the Loss of Aboriginal Life (2019).

137 Andrew Woolford and Jeff Benvenuto, ‘Canada and Colonial Genocide’ (2015) 17 Journal of Genocide Research 373, 375.

139 National Inquiry into Missing and Murdered Indigenous Women and Girls (Canada) (Footnote n 47) 50.

140 Footnote ibid 333.

141 Luoma (Footnote n 48) 47.

142 National Inquiry into Missing and Murdered Indigenous Women and Girls (Canada), A Legal Analysis of Genocide: Supplementary Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (National Inquiry into Missing and Murdered Indigenous Women and Girls 2019).

143 Umut Özsu, ‘Genocide as Fact and Form’ (2020) 22 Journal of Genocide Research 62, 67.

144 Wilkie (Footnote n 56) 231–4; Australia and others, Commonwealth Contribution to Former Forced Adoption Policies and Practices (Commonwealth of Australia 2012) 24–8; The National Advisory Commission on Civil Disorders, The Kerner Report (2016 ed, Princeton University Press 2016) 112; Truth and Reconciliation Commission of Canada (Footnote n 46) 43–50; ‘Mother and Baby Homes Commission of Investigation Final Report’ (Government Publications 2021) Executive Summary, 1; Arnaud Winter, ‘The Report of the Archdiocesan Commission of Enquiry into Sexual Abuse of Children by Members of the Clergy’ (Archdiocese of St. John’s 1990) 93.

145 The National Advisory Commission on Civil Disorders (Footnote n 144) 1.

146 Steven M Gillon, Separate and Unequal: The Kerner Commission and the Unraveling of American Liberalism (1st ed, Basic Books 2018) 14.

147 ‘Mother and Baby Homes Commission of Investigation Final Report’ (Footnote n 144) Executive Summary, 16; Wilkie (Footnote n 56) 23, 103; Truth and Reconciliation Commission of Canada (Footnote n 46) 43; Australia and others, Lost Innocents: Righting the Record: Report on Child Migration (Senate Community Affairs References Committee Secretariat 2001) 33–5.

148 Law Commission of Canada, Restoring Dignity: Responding to Child Abuse in Canadian Institutions (Law Commission of Canada 2000) 5; Commission of Inquiry into Abuse of Children in Queensland Institutions (Footnote n 106) 100.

149 Royal Commission into Institutional Responses to Child Sexual Abuse (Footnote n 119) 13, 38, 41, 59; ‘Report by Commission of Investigation into the Handling by Church and State Authorities of Allegations and Suspicions of Child Abuse against Clerics of the Catholic Archdiocese of Dublin’ (Footnote n 2) 23; Truth and Reconciliation Commission of Canada (Footnote n 46) 4.

150 Paul Michael Garrett, ‘A “Catastrophic, Inept, Self-Serving” Church? Re-Examining Three Reports on Child Abuse in the Republic of Ireland’ (2013) 24 Journal of Progressive Human Services 43, 46.

151 Daly (Footnote n 3) 54–5; ‘The Commission to Inquire into Child Abuse Report’ (Footnote n 40) 22 (Executive Summary); ‘Pennsylvania 40th Statewide Investigating Grand Jury, Final Report’ (2019) 3 <>; Commission of Investigation (Footnote n 2) 16.

152 David Pilgrim, ‘Child Abuse in Irish Catholic Settings: A Non-Reductionist Account: Child Abuse in Irish Catholic Settings’ (2012) 21 Child Abuse Review 405, 408.

153 Sheila Redmond, ‘Fear and Denial at the Crossroads? Where Is the History of the “Child Abuse Scandal” within the Roman Catholic Church?’ [2012] Historical Papers: Canadian Society of Church History 141, 146; ‘Report of the Ferns Inquiry’ (Footnote n 40) 36.

154 Tracy J Trothen, Shattering the Illusion: Child Sexual Abuse and Canadian Religious Institutions (Wilfrid Laurier University Press 2012) 143.

155 Karen J Terry, John Jay College of Criminal Justice and Catholic Church (eds), The Causes and Context of Sexual Abuse of Minors by Catholic Priests in the United States, 1950–2010: A Report Presented to the United States Conference of Catholic Bishops by the John Jay College Research Team (USCCB Communications 2011) 3.

156 Truth and Reconciliation Commission of Canada (Footnote n 119) 24.

157 ‘Report of the Royal Commission on Aboriginal Peoples’ (1996) 15.

158 Elliott Johnston, ‘Royal Commission into Aboriginal Deaths in Custody’ (Commonwealth Government of Australia 1991) para 1.4.8-14, chapter 10 <>.

159 Wilkie (Footnote n 56) 27.

160 Australia and others, Lost Innocents (Footnote n 147) paras 2.38; 2.50; 2.58; 2.117.

161 Australia and others, Commonwealth Contribution to Former Forced Adoption Policies and Practices (Footnote n 144) para 2.21.

162 Royal Commission into Institutional Responses to Child Sexual Abuse (Footnote n 119) 3.

163 Sköld (Footnote n 117) 7.

164 Wright (Footnote n 6) 19; Scott Prasser, ‘Public Inquiries in Australia: An Overview’ (1985) 44 Australian Journal of Public Administration 1, 7.

165 Paulette Regan, Unsettling the Settler Within: Indian Residential Schools, Truth Telling, and Reconciliation in Canada (UBC Press 2010) 47.

166 Chakravarti (Footnote n 28) 9.

167 ‘The Commission to Inquire into Child Abuse Report’ (Footnote n 40) para 7.02.

168 Footnote ibid 7.05.

169 Footnote ibid 7.03.

170 ‘Ryan Report Implementation Plan: Fourth Progress Report’ (Ryan Report Monitoring Group 2014).

171 Nigel Parton, ‘From Maria Colwell to Victoria Climbié: Reflections on Public Inquiries into Child Abuse a Generation Apart’ (2004) 13 Child Abuse Review 80.

172 Corby, Doig and Roberts (Footnote n 36) 387.

173 David Howe, ‘Child Abuse and the Bureaucratisation of Social Work’ (1992) 40 The Sociological Review 491.

174 Janet Foster, Tim Newburn and Anna Souhami, ‘Assessing the Impact of the Stephen Lawrence Inquiry’ (Home Office Research 2005) Home Office Research Study 294.

175 Itay Lotem, The Memory of Colonialism in Britain and France: The Sins of Silence (Palgrave Macmillan 2021) 255.

176 Parenting Research Centre and others, Implementation of Recommendations Arising from Previous Inquiries of Relevance to the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission into Institutional Responses to Child Sexual Abuse 2015) <>

178 Australia and others, Lost Innocents and Forgotten Australians Revisited: Report on the Progress with the Implementation of the Recommendations of the Lost Innocents and Forgotten Australians Reports (Commonwealth of Australia 2009).

179 Inga Ting, ‘Policy Failure as Prisons Fill with Indigenous People’ Sydney Morning Herald (Sydney, 27 May 2013).

180 ‘Australian Government Response to the Royal Commission into Institutional Responses to Child Sexual Abuse’ (Commonwealth Government of Australia 2018) v <>.

181 Tager (Footnote n 132) 6–7.

182 Truth and Reconciliation Commission of Canada, Canada’s Residential Schools: The Final Report of the Truth and Reconciliation Commission of Canada, Volume 5 (McGill-Queen’s University Press 2015) 277–83.

183 Footnote ibid 283–95.

184 Matt James, ‘A Carnival of Truth? Knowledge, Ignorance and the Canadian Truth and Reconciliation Commission’ (2012) 6 International Journal of Transitional Justice 182, 198.

185 Footnote ibid 184.

186 Koggel (Footnote n 26) 242.

187 Ka’nhehsí:io Deer, ‘1 Year Later, Little Progress on Quebec Response to MMIWG Report, Say Families and Advocates’ Canadian Broadcasting Corporation (Ottawa, 3 June 2020) <>.

188 The National Advisory Commission on Civil Disorders (Footnote n 144) 229–62.

189 Posthumus and Zvobgo (Footnote n 61) 525.

190 Gillon (Footnote n 146) 15.

7 Litigation and Historical-Structural Injustices

1 William Schabas, ‘The Rwanda Case: Sometimes It’s Impossible’ in M Cherif Bassiouni (ed), Post-Conflict Justice (Transnational Publishers 2002).

2 Pablo de Greiff, ‘A Normative Conception of Transitional Justice’ (2010) 50 Politorbis 17; Ellen L Lutz and Caitlin Reiger (eds), Prosecuting Heads of State (Cambridge University Press 2009).

3 Penney Lewis, Delayed Prosecution for Childhood Sexual Abuse (Oxford University Press 2006) 23.

4 Judith Lewis Herman, ‘The Mental Health of Crime Victims: Impact of Legal Intervention’ (2003) 16 Journal of Traumatic Stress 159.

5 James T O’Reilly and Margaret SP Chalmers, The Clergy Sex Abuse Crisis and the Legal Responses (Oxford University Press 2014) 32.

6 Paula Case, Compensating Child Abuse in England and Wales (Cambridge University Press 2007) 37.

7 Faisal Rashid and Ian Barron, ‘The Roman Catholic Church: A Centuries Old History of Awareness of Clerical Child Sexual Abuse (from the First to the 19th Century)’ (2018) 27 Journal of Child Sexual Abuse 778.

8 United Nations Committee against Torture, ‘Concluding Observations on the Initial Report of the Holy See’ CAT/C/VAT/CO/1, para 10.

9 Beth A Simmons, Mobilizing for Human Rights. International Law in Domestic Politics (Cambridge University Press 2009).

10 James Gallen, ‘The European Court of Human Rights, Transitional Justice and Historical Abuse in Consolidated Democracies’ (2019) 19 Human Rights Law Review 675.

11 Antony Anghie, ‘Francisco De Vitoria and the Colonial Origins of International Law’ (1996) 5 Social & Legal Studies 321.

12 Noelle Higgins, ‘Creating a Space for Indigenous Rights: The Universal Periodic Review as a Mechanism for Promoting the Rights of Indigenous Peoples’ (2019) 23 The International Journal of Human Rights 125.

13 R v DPP [2009] IEHC 87.

14 Elisabeth Baumgartner and others, ‘Documentation, Human Rights and Transitional Justice’ (2016) 8 Journal of Human Rights Practice 1.

15 Kara Shead, ‘Responding to Historical Child Sexual Abuse: A Prosecution Perspective on Current Challenges and Future Directions’ (2014) 26 Current Issues in Criminal Justice 55.

16 Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (Royal Commission into Institutional Responses to Child Sexual Abuse 2015) 58.

17 Canon 381; Timothy A Byrnes, ‘Catholic Bishops and Sexual Abuse: Power, Constraint, and Institutional Context’ (2020) 62 Journal of Church and State 5, 9.

18 Re Residential Schools, 2002 ABQB 667; Re Residential Schools, 2001 ABCA 216; Hickey v McGowan [2017] IESC 6; [2017] ILRM 293; Various Claimants v The Catholic Child Welfare Society [2012] UKSC 56.

19 Western Australia, Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018, No. 3 of 2018.

20 Timothy D Lytton, Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse (Harvard University Press 2008) 69.

21 Jo Renee Formicola, Clerical Sexual Abuse: How the Crisis Changed US Catholic Church-State Relations (Palgrave Macmillan 2016) 55.

22 Commission of Investigation, Report by Commission of Investigation into Catholic Archdiocese of Dublin (Department of Justice, Equality and Law Reform 2009) para 4.6 and 4.87.

23 James Gallen, ‘Historical Abuse and the Statute of Limitations’ (2018) 39 Statute Law Review 103.

24 See UK Limitation Act 1980, S33, as applied in A v Hoare [2008] UKHL 6.

25 Marci Hamilton, ‘The Time Has Come for a Restatement of Child Sex Abuse’ (2013) 79 Brooklyn Law Review 397, 401.

26 Craig Empson, ‘Historical Infringements of Aboriginal Rights: Sui Generis as a Tool to Ignore the Past’ (2019) 24 Appeal: Review of Current Law and Law Reform 101, 110–12.

27 Royal Commission into Institutional Responses to Child Sexual Abuse (Footnote n 16) 52.

28 Western Australia, Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018, No. 3 of 2018; Queensland, Civil Liability and Other Legislation Amendment Act 2019 (Qld).

29 Marie Collins, ‘Removal of “Pontifical Secret” in Clerical Sex Abuse Trials a Step Forward for Justice’ The Irish Times (Dublin, 18 February 2020).

30 Kieran Tapsell, ‘Civil and Canon Law on Reporting Child Sexual Abuse to the Civil Authorities’ (2019) 31 Journal for the Academic Study of Religion 143.

31 Formicola (Footnote n 21) 11–13.

32 Lewis (Footnote n 3) 7.

33 Stogner v California (2003) 539 US 607 (USSC).

34 Laura Lammasniemi, ‘“Precocious Girls”: Age of Consent, Class and Family in Late Nineteenth-Century England’ (2020) 38 Law and History Review 241.

35 Lewis (Footnote n 3) 9.

36 Martha Chamallas, Introduction to Feminist Legal Theory (3rd ed, Aspen 2012) 303–39.

37 Helen Duffy, Strategic Human Rights Litigation (Hart Publishing 2018) 72.

38 Lytton (Footnote n 20) 136.

39 Ian Werkheiser, ‘A Right to Understand Injustice: Epistemology and the “Right to the Truth” in International Human Rights Discourse’ (2020) 58 The Southern Journal of Philosophy 186.

40 Duffy (Footnote n 37) 78.

41 Nathalie Des Rosiers, Bruce Feldthusen and Oleana AR Hankivsky, ‘Legal Compensation for Sexual Violence: Therapeutic Consequences and Consequences for the Judicial System’ (1998) 4 Psychology, Public Policy, and Law 433; Case (Footnote n 6) 46.

42 Dina Lupin Townsend and Leo Townsend, ‘Epistemic Injustice and Indigenous Peoples in the Inter-American Human Rights System’ (2021) 35 Social Epistemology 147.

43 Catherine Lu, Justice and Reconciliation in World Politics (Cambridge University Press 2017) 123.

44 Mahmood Mamdani, Neither Settler nor Native: The Making and Unmaking of Permanent Minorities (Belknap Press 2020) 17.

45 Kieran Tapsell, Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse (ATF Press 2014) 51.

46 Byrnes (Footnote n 17) 7.

47 Geoffrey Robinson, For Christ’s Sake: End Sexual Abuse in the Catholic Church … for Good (2013) 122.

48 Richard Scorer, Betrayed: The English Catholic Church and the Sex Abuse Crisis (Biteback Publishing 2014) 299.

49 Stephen Winter, Transitional Justice in Established Democracies: A Political Theory (Palgrave Macmillan 2014) 121.

50 Mark Tushnet, ‘An Essay on Rights’ (1984) 62 Texas Law Review 1363, 1398–402.

51 Patricia Williams, ‘Alchemical Notes: Reconstructing Ideals from Deconstructed Rights’ (1987) 22 Harvard Civil Rights-Civil Liberties Law Review 401.

52 Kimberlé Crenshaw, ‘Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law’ (1988) 101 Harvard Law Review 1331.

53 Seán Patrick Eudaily, The Present Politics of the Past: Indigenous Legal Activism and Resistance to (Neo)Liberal Governmentality (Routledge 2004) 49.

54 Commission of Investigation (Footnote n 22) para 5.28–31.

55 Footnote ibid 5.43.

56 Figures compiled from the annual reports from National Board for Safeguarding Children in the Catholic Church in Ireland, available at <>.

57 United Nations Committee Against Torture, Concluding Observations CAT/C/IRL/CO/1, para. 20

58 Sinéad Ring, ‘The Victim of Historical Child Sexual Abuse in the Irish Courts 1999–2006’ (2017) 26 Social & Legal Studies 562.

60 July Brown, Damien McKenna and Edel O’Kennedy, ‘Only a Witness: The Experience of Clients of One in Four in the Criminal Justice System’ (One in Four 2018) 23, 60, 95.

61 Commission of Investigation (Footnote n 22) para 5.35–6.

62 Footnote ibid 5.39.

63 Mike Milotte, ‘Adoption Controversy: Only One Person Was Ever Charged over Bogus Birth Certificates’ The Irish Times (Dublin, 1 June 2018).

64 Colin Smith and April Duff, ‘Access to Justice for Victims of Historic Institutional Abuse’ (2020) 55 Éire-Ireland 100.

66 Máiréad Enright and Sinéad Ring, ‘State Legal Responses to Historical Institutional Abuse: Shame, Sovereignty, and Epistemic Injustice’ (2020) 55 Éire-Ireland 68, 86.

67 United Nations Committee against Torture, ‘Concluding Observations’ CAT/C/IRL/CO/1

68 United Nations Human Rights Committee, ‘Concluding Observations on the Fourth Periodic Report of Ireland’; Addendum: Information received from Ireland on follow-up to the concluding observations, CCPR/C/IRL/CO/4/Add.1, paras 1–3.

69 O’Keeffe v Ireland [2014] ECHR 96.

70 Footnote ibid at para 162.

72 ‘Report into the Catholic Diocese of Cloyne’ (Department of Justice and Law Reform 2011) para 4.21; Child Sex Abuse: Framework for a Church Response 1996 Our Children Our Church 2005; 2009 Safeguarding Children, Standards and Guidance Document for the Catholic Church in Ireland.

73 Marie Keenan, Child Sexual Abuse and the Catholic Church: Gender, Power, and Organizational Culture (Oxford University Press 2012) 182.

74 ‘Commission of Investigation (Footnote n 22) para 1.15.

75 ‘Report into the Catholic Diocese of Cloyne’ (Footnote n 72) paras 1.31–1.37.

76 ‘Enda Kenny Speech on Cloyne Report’ RTE News (Dublin, 20 July 2011).

77 Lisa Featherstone, ‘“Children in a Terrible State”: Understandings of Trauma and Child Sexual Assault in 1970s and 1980s Australia’ (2018) 42 Journal of Australian Studies 164, 167.

78 ‘Proportion of Priests and Non‐ordained Religious Subject to a Claim of Child Sexual Abuse 1950‐2010’ (Royal Commission into Institutional Responses to Child Sexual Abuse 2017) 5.

80 Melissa Davey, ‘Royal Commission Has Led to More than 100 Child Abuse Prosecutions, Says Head’ The Guardian (London, 15 May 2017).

81 Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (Royal Commission into Institutional Responses to Child Sexual Abuse 2017) 15.

82 Section 316(1) of the Crimes Act 1900 (NSW); section 327 of the Crimes Act 1958 (Vic); section 49C of the Crimes Act 1958 (Vic)

83 Tony Foley, ‘Changing Institutional Culture in the Wake of Clerical Abuse – the Essentials of Restorative and Legal Regulation’ (2019) 22 Contemporary Justice Review 171, 179.

84 Royal Commission into Institutional Responses to Child Sexual Abuse, Preface and Executive Summary (Royal Commission into Institutional Responses to Child Sexual Abuse 2017) 62.

85 Footnote ibid 64–5.

87 Milirrpum v Nabalco Pty Ltd and the Commonwealth (1971) 17 FLR 141.

88 Mabo & Ors v Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1.

89 Footnote ibid para 83.

90 Ann Curthoys, Ann Genovese and Alexander Reilly, Rights and Redemption: History, Law and Indigenous People (UNSW Press 2008) xi.

92 Damien Short, ‘Reconciliation, Assimilation, and the Indigenous Peoples of Australia’ (2003) 24 International Political Science Review 491, 498.

93 Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606; Western Australia v Ward [2000] FCA 191.

94 Curthoys, Genovese and Reilly (Footnote n 90) 67.

95 Yorta Yorta Aboriginal Community v Victoria [2002] 214 CLR 422, para 50.

96 The Wik Peoples v State of Queensland & Ors [1996] HCA 40, (1996) 187 CLR 1; Curthoys, Genovese and Reilly (Footnote n 90) 64.

97 Jon Altman, ‘The Political Ecology and Political Economy of the Indigenous Land Titling “Revolution” in Australia’ [2014] Maori Law Review 1, 7.

98 Wadjularbinna Nulyarimma & Ors v Phillip Thompson; Buzzacott & Ors v Minister for the Environment (1999) 96 FCR 153; (1999) 165 ALR 621; [1999] FCA 1192.

99 Curthoys, Genovese and Reilly (Footnote n 90) 134.

100 Footnote ibid 132.

101 Cubillo v Commonwealth of Australia (includes summary dated 30 April 1999) [1999] FCA 518 (30 April 1999).

102 Curthoys, Genovese and Reilly (Footnote n 90) 136.

104 Antonio Buti, ‘The Stolen Generations and Litigation Revisited’ (2008) 32 Melbourne University Law Review 382, 386.

105 Trevorrow v State of South Australia (No 5) [2007] SASC 285 (1 August 2007) para 152.

106 Footnote ibid para 1229. Curthoys, Genovese and Reilly (Footnote n 90) 161–4.

107 Lampard-Trevorrow (2010) 106 SASR 331 417.

108 Curthoys, Genovese and Reilly (Footnote n 90) 8.

109 Hilary Charlesworth (ed), No Country Is an Island: Australia and International Law (University of New South Wales Press 2006) 64.

110 Larissa Behrendt, ‘Aboriginal Sovereignty: A Practical Roadmap’ in Julie Evans and others (eds), Sovereignty (University of Hawai’i Press 2012) 170.

111 United Nations Committee against Torture, ‘Concluding Observations on the Combined Fourth and Fifth Periodic Reports of Australia’ CAT/C/AUS/CO/4-5.

112 Truth and Reconciliation Commission of Canada, Canada’s Residential Schools: The Final Report of the Truth and Reconciliation Commission of Canada Volume 1, Part 1 (2015) 560.

113 ‘Assembly of First Nations Report on Canada’s Dispute Resolution Plan to Compensate for Abuses in Indian Residential Schools’ (Assembly of First Nations 2004) 6.

114 Ontario Sixties Scoop Steering Committee, ‘Sixties Scoop Survivors’ Decade-Long Journey for Justice Culminates in Historic Pan-Canadian Agreement’ (6 October 2017) <>.

115 Bruce Feldthusen, ‘Civil Liability for Sexual Assault in Aboriginal Residential Schools: The Baker Did It’ (2007) 22 Canadian Journal of Law and Society 61, 68–9.

116 Truth and Reconciliation Commission of Canada, Canada’s Residential Schools: The Final Report of the Truth and Reconciliation Commission of Canada, Volume 1, Part 2 (McGill-Queen’s University Press 2015) 560–1.

117 Jane Wangmann, ‘Liability for Institutional Child Sexual Assault: Where Does Lepore Leave Australia?’ (2004) 28 Melbourne University Law Review 169, 200.

118 ‘Protecting Minors from Sexual Abuse: A Call to the Catholic Faithful in Canada for Healing, Reconciliation, and Transformation’ (Canadian Conference of Catholic Bishops 2018) 13.

120 Footnote ibid 23–4.

122 Calder v British Columbia (AG) [1973] SCR 313, [1973] 4 WWR 1.

123 John Borrows, ‘Challenging Historical Frameworks: Aboriginal Rights, The Trickster, and Originalism’ (2017) 98 Canadian Historical Review 114, 120.

124 R v Van der Peet [1996] 2 SCR 507 [5, 73].

125 Borrows (Footnote n 123) 115.

126 Delgamuukw v British Columbia [1997] 3 SCR 1010 [144].

127 Footnote ibid 145.

128 Tsilhqot’in Nation v British Columbia 2014 SCC 44.

130 Borrows (Footnote n 123) 130.

131 Footnote ibid 134.

132 Cindy Blackstock, ‘The Complainant: The Canadian Human Rights Case on First Nations Child Welfare’ (2016) 62 McGill Law Journal 285.

133 Rauna Johanna Kuokkanen, Restructuring Relations: Indigenous Self-Determination, Governance, and Gender (Oxford University Press 2019) 37.

135 UNHRC, Sandra Lovelace v Canada, Communication no 24/1977, UN Doc CCPR/C/13/D/24/1977.

136 Kuokkanen (Footnote n 133) 72.

137 Rosemary Nagy, ‘Transformative Justice in a Settler Colonial Transition: Implementing the UN Declaration on the Rights of Indigenous Peoples in Canada’ (2022) 26(2) The International Journal of Human Rights 191, 206.

138 Kuokkanen (Footnote n 133) 39.

139 Section 1 of the Children and Young Persons Act 1933.