Select Committee on Northern Ireland Affairs Written Evidence


Memorandum submitted by Priscilla Hayner,[8] International Center for Transitional Justice, New York

  I am pleased to make a submission to the Committee's current inquiry on how to deal with Northern Ireland's past. This submission is made in the hope of bringing comparative expertise and experience that may be useful in the Committee's overall considerations, but without claiming extensive local knowledge as to the realities and needs of Northern Ireland. Those nuances and decisions must be worked through by those much closer to the situation on the ground.

  One might begin, however, by noting that the question of addressing the past is not new to Northern Ireland. Indeed, there seems to be an ongoing debate about these very questions throughout various communities in Northern Ireland that has been underway for several years. These discussions have been well-informed by a vibrant network of civil society organisations, academic experts, and, to some degree, international input providing suggestions from lessons learned elsewhere. Northern Ireland thus stands in a very different position than most countries, which often begin their quest to confront a difficult past with very little prior knowledge of the policy options before it, and little national expertise to turn to. Very few countries have developed such a depth and breadth of reflection and exploration around issues of justice, accountability, and reconciliation, even before many initiatives are officially undertaken. In Northern Ireland, in contrast, there have been a multitude of statements on the question from across the political spectrum, including specific proposals and ideas of different initiatives that might be considered.

  Second, it would of course be inaccurate to suggest that Northern Ireland has not already confronted its past in some ways. On the contrary, there have been important efforts by NGOs, scholars, and victims groups, as well as official inquiries into specific cases; there have been numerous initiatives to document, interview, analyse, count, publish, and, to some degree, memorialise aspects of this contentious past. Lack of interest or attention, simply put, cannot be the reason that strong calls continue for further efforts in this area.

  Northern Ireland is thus in the strong position of having a rich and well-researched base of information on which to reflect, and which to consider and incorporate into any further inquiry. But these many endeavors—what some have referred to as a "piecemeal" approach to investigating the past in Northern Ireland—are apparently felt to be insufficient by those closest to the situation. What is lacking, I would suggest, may be two fundamental elements. First, there is apparently still no overarching, authoritative, and widely-trusted statement or report that captures the full truth about the past and makes further recommendations as to how this should be memorialised and accounted for. This full truth would be more than an accounting and clarification of key facts about the past, although such facts are very important and must be included—the who, where, and what about past events, some of which remains clouded in mystery or, more painfully, in denial from those who were involved. This full truth should also address the "why" questions, explaining the context and reasoning of past policies, and documenting the connections between persons, organisations, or authorities that allowed, authorised, planned, or took part in abuses. A full truth allows one to see the patterns clearly, and effectively rewrites—through an honest accounting—the history of a place. Understanding the causes, and the patterns, also allows for a clear outline of what institutions, policies, or laws may need reform, and how such abuses can be prevented in the future. I would argue, equally, that individual case-specific inquiries, such as the Bloody Sunday Inquiry, will never be sufficient to answer this need for a full truth.

  However, no matter the strength of any inquiry and any report—and regardless of the impressive work that has been done to date documenting many truths in Northern Ireland—it seems that a second element is also still significantly lacking: that of a serious, and sincere, acknowledgement of the truth by the authorities or organisations that were involved, whether directly or indirectly, in what took place. The power of this form of acknowledgement has been seen in many contexts, and can fundamentally alter the way that these events are accepted and understood. This helps not only to offer clarity on previously contentious matters, but also helps to cut the bitterness and anger that results from painful facts being long denied. If a sincere apology comes also with this statement of acknowledgement—recognising that apologising is a step quite a bit further than acknowledgement—then that can even better address the long-felt bitterness. There have been some steps taken in this direction in the Northern Ireland context, but this could be considerably strengthened.

  There have, of course, been many official inquiries into specific events in Northern Ireland. It is already well recognised that an officially-sanctioned inquiry holds a different weight, and is perceived quite differently, than those inquiries and reports taken up by nongovernmental entities, as important as such efforts may be. It is in this context that discussions around the past, and the call for seriously addressing the past, continues, perhaps even more so since the signing of the Belfast Agreement in 1998. The question may thus be how, rather than whether, further initiatives to address the past should be taken up on an official level.


  The idea of dealing with the past opens a question as to the range of policy options that might be considered, and how, when, and in what way they could potentially be implemented. There are of course many possible policies that should be considered. Based on experiences around the world, however, it is important to reiterate that there is no one "correct" path that should be followed, but a variety of possible options. It is also clear that each initiative to address the past may affect other policy initiatives. It is thus useful to try to maintain a comprehensive perspective in considering the timing, nature, and inter-relationship between the various policies that may be considered.

  Formally addressing the past may require a variety of policy components. These may be instituted over many years, in succession or simultaneously. In some countries, some of these initiatives are thought at first not to be possible, but political realities change over time in a way that allow them to be taken up later. The range of possible approaches include, in brief:

    —  Judicial investigations and prosecutions of those thought to be responsible for crimes.

    —  The provision of reparations for victims or their family members.

    —  Programs to screen and remove from employment members of the security forces, civil service, judiciary, or others found to be involved in past abuse, as well as screening new applicants before they are appointed—often called vetting or lustration programs.

    —  The creation of memorials, special libraries, or other means to formally and publicly remember and mark important events or periods in the past.

    —  Official truth-seeking into a pattern of abuses over many years through a non-judicial inquiry, often done in the form of a truth commission.

  Much has been written about each of these, and I will not try to summarise here the main experiences and lessons learned in each of these areas. It also seems that there has been some effort made in each of these areas in the Northern Ireland context.

  Because there have been some recent expressions of interest in the idea of a truth commission for Northern Ireland by various entities and individuals, and because this may be one of the areas in most need of careful thought and exploration, I would like to comment at more depth here on this particular component. It may also be useful to note that truth inquiries, in the form of a broad inquiry into patterns of past practice and key events, can usefully help to frame a broad range of other justice and reconciliation initiatives, from prosecutions to reparations to institutional reform. Thus, it should be stressed that any consideration of non-judicial truth-seeking through a truth commission type entity should not be considered independently, but as part of a broader package of initiatives that may take shape over time. It is especially important that a commission is not established in any way that precludes, or is perceived as somehow trying to circumvent, criminal investigations and prosecutions for past crimes. A truth commission should not limit broader justice measures, but instead facilitate or open the door to a range of further initiatives, including possible prosecutions, that will help to account for a difficult past.


  Experiences from other countries suggest a number of key lessons that should be considered if a truth-seeking policy were to be instituted for Northern Ireland. While there is a wide range of flexibility in many aspects of a possible truth inquiry, some fundamental lessons are clear which may have particular relevance for Northern Ireland.

  First, it must be stressed that truth commissions—using their generic name—vary widely in powers, mandate, breadth and depth of investigations undertaken, the type and number of commissioners appointed, and the methodology with which they approach their investigations and engagement with the public. Because the South African Truth and Reconciliation Commission has received so much international attention, and because many of its unique elements seemed so compelling—such as the power to grant amnesty in exchange for truth—the world's view of truth commissions has been disproportionately shaped by that commission. Further, many states have understandably resisted the notion that they should somehow "import"" a model of dealing with the past that was instituted elsewhere. I believe the general understanding in Northern Ireland of the role of a truth commission has indeed been overly impacted by the South African experience. I would thus suggest that any discussion of a truth inquiry for Northern Ireland begin with the insistence of a blank slate, and with a clear conviction that any model crafted will be unique to Northern Ireland, not relying on any other country as its example. It may be important to use language which makes this intention clear. I would question, for example, whether the "truth and reconciliation commission"" label would be ideal. In fact, it might be useful to begin to discuss the idea of a "commission on the past," a "Northern Ireland special commission," or the like, rather than a "truth commission," with the hope or avoiding preconceptions or misconceptions based on other countries' models. This would, one could hope, encourage people to think afresh about what sort of commission might be the most useful.

  This points, in fact, to a second issue, which is perhaps the most important consideration at this stage. That is: what process should be undertaken to assess whether a broad, officially-sanctioned truth inquiry is appropriate for Northern Ireland at this time? I would urge close consideration of this question of process, but I would also suggest that some form of formal process be decided upon to allow broad consultation and reflection to take place. The elements of such a consultative process should include the participation of a broad representation of sectors of Northern Ireland society; the opportunity for different models or mandates to be proposed and reacted to; and a space for individuals—including but not limited to victims and survivors—as well as organisations, parties, religious groups, and other entities to express misgivings or doubt as well as possible support for the idea. Ideally, this process should be established with some sort of timeline clearly established; this should of course incorporate views that have already been collected by nongovernmental initiatives, but having this as an official process would change the nature of the consultation as compared to past endeavors. It is important, of course, that this process—and ultimately the establishment of any commission—is not perceived to be a politically unilateral act, which would be likely to reduce its credibility considerably. (Whether this kind of officially sanctioned consultation is ideally undertaken in the current political context of Northern Ireland is a question I leave to local expertise. If done well, however, it could still be a process with a very strong sense of local ownership and authority.)

  The question of mandate—the parameters of inquiry for such a commission—raises many issues that should be the subject of such consultation. The beginning and end point of the inquiry, the kinds of acts or events that should be investigated, how long the commission should operate, and a host of other elements will help to shape the nature and impact of the exercise.

  If a commission were ultimately to be established, similar preconditions of consultation should be applied to the selection of its members. There are useful examples elsewhere that may provide ideas for a creative selection process. Some countries have set up selection committees which themselves have representatives of various sectors, political parties, or other groupings; for example, each of 10, 12, or more specifically names groups, coalitions, or parties might be asked to appoint someone to the selection panel. Usually, victims groups are among those that are asked to appoint someone to the selection panel. The panel itself might then take nominations from the public, vet and interview finalists, and endeavor to come to a consensus on a group of commissioners that would be widely respected. In some cases, the group as a whole should be seen to be balanced and fair, even if specific individuals may carry their own historical perspective or political view that could be seen as biased. What is important is that the commissioners will search for the truth in an impartial and honest manner, and rigorously protect the commission's independence from undue outside influence.

  While this kind of selection panel is the most attractive approach in many contexts, there are other possible models for commissioner selection: in Guatemala, one commissioner was selected from a short list provided by a consortium of university presidents; another, an international who served as commission chair, was appointed by the United Nations Secretary-General; and the third was to be a national "of irreproachable conduct"" to be agreed by consensus between the parties to the peace accord. In Chile, President Patricio Aylwin intentionally selected eight commissioners that were split equally between those that supported and those that opposed the Pinochet regime. The success of this commission coming to a unanimous report was thus even more powerful—though this model of course carries risks, and explicitly political representation in commission membership is usually not advisable. In selecting commissioners, considerations of professional expertise and experience, gender, and other factors should of course also be considered.

  The distinction of an official inquiry is found in the backing that is provided by the government. This can take the form of funding as well as open access to official documents, clear directions to civil servants or security force personnel to cooperate with the inquiry, and, if needed, measures to provide physical protection to the commission if it finds itself at risk, which has been true in a number of countries. The official nature of the commission may also allow it certain powers, such as the power of subpoena or search and seizure, and the courts may be called on to help enforce these powers. It is important that the signal is clear from the government that a serious inquiry is expected, but at the same time it must also be clear that the commission is operationally entirely independent from the government.

  A commission should be considered not just a process of investigation and reporting, but equally a process of engaging the public in reflection and acceptance of what has taken place in the past. It is through public hearings that this sort of public engagement usually takes place, especially when hearings are broadcast on the radio or television, allowing a wide audience. These hearings are usually less investigative—as in a judicial or quasi-judicial commission of inquiry—and more for the purpose of hearing the voices and stories of victims. The more close questioning usually takes place behind closed doors through staff investigations, for example. Of course, careful rules of procedure should be established on aspects of due process, confidentiality, and other related areas. For example, if witnesses wish to name names of accused perpetrators, there must be consideration of the right for those named to respond, even if they may not be granted the right to question the witness directly. There is a range of past examples of how these procedural matters have been dealt with by truth commissions that could be considered in crafting any new commission's procedures. What is important, however, is that such a public process can be extraordinarily powerful, and is worthy of the staff time, resources, and care necessary for it to be done well. That said, it is not likely that all victims or survivors would be able to speak in public if they so desired, for sheer lack of time. A representative group would have to be selected, even while all, of course, would be interviewed at much greater depth by staff in private.


  Finally, a word about reconciliation, which I have not yet addressed in my comments above.

  Reconciliation is an important goal. Many societies frame their justice policies with this aim, understanding implicitly that a fractured society must find a way to live peacefully together, and to reduce the rancor about the past, in order to move forward to a new day.

  A word of caution, however, in over-emphasising the notion of reconciliation in any manner that might imply a reduced commitment to accountability, and, therefore, which fails to respect the demands of victims as well as the state's obligation to seek justice and truth about past crimes. This "thin" notion of reconciliation is of course only minimally desirable, unlikely to be sustained over time. While political arrangements that cease violent conflict can be an important step in any peace process, any society should take care not to institutionalise impunity or silence about past crimes in the name of a seemingly more comfortable initial peace. Ironically, a deeper peace is likely to result from a more painful, and potentially more fractious, process of confronting the most difficult truths of the past. It is in opening up for broad discussion and acknowledgement those things that have been previously denied that the bitterness of the past can be lessened. There is no guarantee that peering into these truths will not spark anger and pain, and in some country contexts outright conflict may even be threatened if the process is not handled well. However, the majority of societies in recent years have concluded that an honest peace—and ultimately, as a by product, a deeper form of reconciliation—is best earned through such an honest accounting.

  Of course, I would presume that this is the very premise of the Committee's inquiry on the subject of dealing with Northern Ireland's past. It is only because the notion of "reconciliation" has been misused (or just misunderstood) in a number of places around the world, and because it can carry so many different meanings to different people, that I offer this small word of caution here.

  Please allow me to commend the Committee for the decision to undertake this inquiry, and express my appreciation for the invitation to make a submission. I would be very glad to provide any further information on these matters in the future.

5 January 2005

8   Priscilla Hayner is the Director of Outreach and Analysis, and was a co-founder, of the International Center for Transitional Justice, an NGO headquartered in New York. She is also the author of Unspeakable Truths: Facing the Challenges of Truth Commissions, a study of over 20 truth commissions, published by Routledge in 2001. For further information, please see Back

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