APPENDIX 3
Memorandum submitted by the Committee
on the Administration of Justice
BASIC PRINCIPLES FOR A TRUTH PROCESS IN NORTHERN
IRELAND
The Good Friday Agreement, for a variety of
reasons, focused on the future rather than on the past. The Agreement
did not necessarily seek to ignore the past, but rather to affirm
a better future to avoid a repetition of the past. The opening
preamble makes it clear that it is precisely to honour those who
have died, been injured, and their families, that we need to make
a fresh start, and dedicate ourselves to a future of reconciliation,
tolerance, and mutual trust, and to the protection and vindication
of the rights of all. With hindsight, there is now some doubt
as to whether it is desirable or indeed possible to fully commit
to a shared and peaceful future, without some addressing of the
legacy of the past.
There has been significant discussion recently
regarding mechanisms to deal with the past. The Chief Constable
has suggested that a Truth and Reconciliation Commission be established
to examine the past and particularly 1,800 unsolved killings.
There have been references by government ministers to the possibility
of establishing such a Commission. It may well be that a variety
of processes will be needed properly to examine the past.
CAJ has worked for many years with families
who have lost loved ones during the conflict in Northern Ireland.
We have campaigned on individual cases, on improving the inquest
system, and have successfully taken cases to the European Court
of Human Rights on article 2 of the Convention. We believe that
any new proposal to deal with the past needs to be measured against
certain criteria to ensure that is will act in accordance with
domestic and international human rights standards and that it
will properly engage with the rights of victims and others.
While our mandate relates only to the actions
of the state we believe that the issue of truth can only be addressed
in the context of a full and informed examination of the past
including the actions of all relevant actors.
Independence
Any process must be completely independent of
all parties to the conflict including the state. Those who are
charged with chairing the process must be persons of. sufficient
standing in the international human rights community to command
respect across the community in Northern Ireland.
Transparency
Co-operation on the part of the state must include
full disclosure of material including documents relevant to the
conflict. Nothing should be exempted from this undertaking save
information which would clearly put someone's life in danger.
Any process must involve public hearings.
Accountability
The process should be primarily about ensuring
that institutions and individuals are held accountable for their
actions or inactions. This need not necessarily be about punishment
or actual imprisonment. A range of accountability measures could
be considered.
Procedures should be article 2 and 3 compliant
In the Jordan el al cases the European
Court of Human Rights laid down a series of tests to ensure that
any investigation into a violation of the right to life should
be compliant with article 2 of the Convention. Any process suggested
by the government to examine past cases in Northern Ireland must
comply with article 2. Similarly the European Court of Human Rights
in a series of cases has laid down tests for article 3 investigations.
There cane be no impunity or blanket amnesty
Truth processes which grant unqualified amnesty
for those accused of serious violations are in violation of human
rights law. There is a growing legal debate about what—short
of a blanket amnesty—is an acceptable compromise when reconciliation
and political stability are major concerns. In South Africa for
instance, amnesty could only be obtained in return for a full
and frank admission of one's activities.
The process should be voluntary
Families or victims should retain the option
of pursuing their case through general legal processes and should
not be forced to take part in a truth and reconciliation process.
Process of acknowledgement of wrong-doing
There must be acknowledgement from the state
and all parties to the conflict that wrongs were committed and
there must be undertakings by all parties to co-operate with a
fair and impartial truth seeking mechanism.
Integrity of criminal justice process should be
upheld
The conflict in Northern Ireland has warped
the criminal justice system and undermined public confidence in
it. We believe any truth process should not repeat this pattern.
Indeed a crucial aspect of any process will be to try and restore
confidence in the criminal justice system by making recommendations
where appropriate about how to improve it.
Must comply with international human rights law
We have already highlighted out view that any
truth and reconciliation process examining deaths or allegations
of torture and ill-treatment should comply with articles 2 and
3 of the European Convention on Human Rights which of course is
now partof domestic law. However, other relevant international
human rights standards should be the parameters for any such process.
No hierarchy of victims
Victims of the conflict should be self-defined.
There should be no discrimination as between different classes
of victims.
Report should be produced and published
The process should culminate in a published
report which, in addition to describing the work undertaken, will
make recommendations to ensure that such violations do no recur.
In addition the process should be capable of making reparations
where appropriate.
September 2003
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