APPENDIX 38
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.
A COMPARATIVE VIEW
OF POLICY
OPTIONS
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.
TRUTH-SEEKING
FOR NORTHERN
IRELAND?
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.
FRAMING THE
PAST
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 www.ictj.org. Back
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