House of Commons - Northern Ireland Affairs

Select Committee on Northern Ireland Affairs Minutes of Evidence

Memoranda submitted by Northern Ireland Human Rights Commission

1. The Northern Ireland Human Rights Commission (the Commission) is a statutory body created by the Northern Ireland Act 1998. It has a range of functions including reviewing the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights[1], advising on legislative and other measures which ought to be taken to protect human rights[2], advising on whether a Bill is compatible with human rights[3] and promoting understanding and awareness of the importance of human rights in Northern Ireland. [4]In all of that work the Commission bases its positions on the full range of internationally accepted human rights standards, including the European Convention on Human Rights (ECHR), other treaty obligations in the Council of Europe and United Nations systems, and the non-binding or "soft law" standards developed by the human rights bodies.

2. The Commission welcomes the opportunity to contribute to the Inquiry of the Northern Ireland Affairs Committee (the Committee) on methods of dealing with the past in Northern Ireland, particularly since the Commission is of the view that a great deal more public discussion and consultation is required in this area before the way forward will become clear. The following matters are dealt with in this paper:

— Key issues in designing a truth process

— The scope of the Committee's inquiry

— The role of the Northern Ireland Human Rights Commission

— International standards for dealing with those affected by violence

— International examples of Truth Commissions

— The need for an indigenous process

— Some associated issues.

The paper concludes with an annex describing some international precedents which the Committee may wish to study in more detail.

KEY ISSUES IN DESIGNING A TRUTH PROCESS

3. The issues to be addressed in considering any systematic approach to dealing with past conflict through "truth commissions" and similar inquiries are many and complex. They include, first and foremost, the political environment. There must be a general acceptance that the time is right to address issues in that way; a greater probability that the process would assist, rather than destabilise, the peace process and establishment of new institutions; and a sufficient degree of co-operation from a sufficient number of parties to the conflict. In the Northern Ireland context, it is particularly important to acknowledge that the parties are not just the paramilitary organisations, or even "the two communities": the state itself had a major role, and an effective process would have to be capable of uncovering the full truth about lawful and unlawful activities by the state, including of course the issue of collusion.

4. The Committee needs to ask itself whether the Inquiries Bill currently before the upper House is indicative of a readiness on the part of the state to subject itself to thorough scrutiny. It must be apparent that certain features of that Bill render it completely inadequate as the legislative basis for a truth commission, or even for a series of smaller inquiries into particular incidents. No useful purpose would be served in Northern Ireland by constituting such a body while empowering Ministers to make and rescind appointments and fix terms of reference; to suppress information; to declare the whole inquiry, or any part of it, confidential; to declare certain evidence confidential and subject to a 30-year ban on disclosure; and to withhold legal representation and expenses from witnesses. This Commission understands the view of the Finucane family that the present Bill does not offer a realistic prospect of uncovering the full truth in that one case, and it is concerned that the Nelson, Hamill and Wright inquiries (under existing legislation) will lose credibility if they are taken over under provisions in the Bill.

5. Among the other key considerations is the sponsorship of the exercise: ie, whether it is constituted by Government alone, whether civil society is involved in the initiative, whether there is international support, and so on. There are many decisions to be made about its chronological and geographic scope, its mandate and its powers; the composition of the inquiry body; its staffing and resources; the methodology; questions of amnesty or impunity, which are particularly sensitive in relation to gross crimes; how the inquiry reports, and what happens afterwards. On all of these matters, the Committee's attention is drawn to an excellent resource developed by the Truth Commission's Project, a collaboration between academic and non-governmental organisations which seeks to draw lessons from an in-depth analysis of five such commissions. The Project's website, at www.truthcommission.org, presents its findings on "Strategic Choices in the Design of Truth Commissions". The Human Rights Commission has found the Project's work very useful and what follows partly draws on that work.

6. It is not clear to the Commission that the Government's preliminary consideration of "dealing with the past" has in fact addressed the key issues we have mentioned here. Although the Committee's announcement of the present inquiry refers to the Secretary of State "embarking on a programme of discussions" in May 2004, this does not seem to have been a very proactive effort: neither the Commission, nor several influential and representative victims' groups with which it has been involved, were invited to contribute. When the Minister with responsibility for victims' issues recently conducted a consultation on the next phase of the victims' policy, [5]the exercise was said to have "sought views and opinions from all interested parties",[6] but we have no doubt that the dialogue needs to be more open and inclusive if the outcome is to command public confidence.

THE SCOPE OF THE NIAC INQUIRY

7. We would, with the greatest respect, suggest that the way the Northern Ireland Affairs Committee has framed the present inquiry might be misread as suggesting a lack of awareness of the complexity of the issues. Whether that view is, as we suppose, mistaken depends largely on how far the Committee is prepared to go in examining other aspects than its initial comparative study of the experience of other jurisdictions, which was the main focus of the announcement. Such a study is likely to be helpful, but there are some major questions around truth and reconciliation processes in general, as well as others arising from the specific issues in Northern Ireland.

8. In particular the inquiry's title, "Reconciliation: Ways of dealing with Northern Ireland's past", could be taken to imply that truth processes and reconciliation processes are one and the same thing, or alternatively that one must evolve into—or is at least a necessary precondition for—the other. Truth, in the sense of bringing some objective process to bear in establishing why and how conflicts evolved and who bears responsibility for particular events, is always desirable, but it is not always of the utmost urgency. In some circumstances the contesting of truth about the past could serve to prolong conflict, reopen wounds and deepen divisions. Reconciliation, in the sense of moving beyond hatred, violence, fear, disrespect and mistrust towards purely peaceful contention of ideas through democratic political discourse, is likewise unquestionably desirable; but whether it is an outcome of, or a precondition for, a discovery of the full truth is a question that cannot at this moment be answered for Northern Ireland. The Committee should strive to avoid any conflation of the distinct ideas of reconciliation and truth.

9. Peace-making and peace-building are distinct phases of emergence from conflict, and, depending on the particular circumstances prevailing at a given time and place, it may be decided that a painful exploration of the past is needed in order to allow people to come to terms with themselves and with the "other side". At another time and place, it may be the consensus that the society has been so traumatised by the past that a pause for reflection, perhaps even a lengthy period of something like national amnesia, is required before it becomes appropriate to investigate exactly what happened.

10. By way of illustration one might cite South Africa as a case where the truth process was seen by the vast majority as an essential and urgent requirement in the transition to democracy. The second approach of "not mentioning the war" may have had many unfortunate consequences in France, Germany, Japan, the Channel Islands and elsewhere (in terms of the quiet rehabilitation of fascists and collaborators, and victims and perpetrators alike dying off with their stories untold), but it did at least result in the rapid construction of stability and prosperity. Elsewhere, notably in Chile, a compelling reason for delaying "dealing with the past" or compromising as to the scope and effects of the process was the need to secure the supremacy of democratic institutions against the (usually) unspoken threat of a military backlash.

11. The announcement of the inquiry also, and perhaps deliberately, omits any mention of the difficult issues that arise around impunity and amnesty. While it may be argued that the truth is more likely to be established by a process in which all can speak freely without fear of prosecution, and while admissions, confessions or apologies, in particular, are less likely to emerge in any other context, it must also be recognised that an impunity-based process will feel to victims like a denial of justice, an insult added to grievous loss or injury. Many international examples have sought out a middle way, defining certain gross abuses as incapable of amnesty, or allowing for the imposition of reduced or token sanctions in return for frank admissions.

12. These, we trust, are issues to which the Committee will return later, or in future inquiries, and it is also necessary to point out that this Commission has by no means arrived at any definitive views on the way forward for Northern Ireland. We have a long way to go, and it may be that any opinions or analysis that we put forward in the present submission will change over time, as our own understanding deepens and in response to changes in the political and social context in which any process may happen. We welcome the fact that the Committee has, as we have, decided to begin with a broad-based examination of how other societies emerging from conflict have found their own answers to these very difficult questions.

13. This response will therefore outline the Commission's interest in the area and briefly review international standards in human rights and humanitarian law which impact upon victims. It will continue with a comparison of international examples of truth commissions, and consideration of an indigenous process for Northern Ireland, concluding with some associated issues.

THE ROLE OF THE NORTHERN IRELAND HUMAN RIGHTS COMMISSION

14. From the Human Rights Commission's point of view, of course, the main concern is to secure a rights-based process rather than a mere political accommodation; thus much of what follows is articulated in terms of the rights of victims of the conflict, and what we say about, for example, the mandate and methodology of a process comes from that perspective. The Commission has conducted a considerable amount of research and consultation on the rights of victims in Northern Ireland. This work included the publication in July 2003 of the report Human Rights and the Victims of Violence, in which the Commission acknowledged its responsibility to facilitate "discussion of what truth and reconciliation processes might eventually be appropriate for Northern Ireland".[7]

15. Such discussion has informed our work on developing a Bill of Rights for Northern Ireland and we have included proposals for protecting victims' rights in successive drafts, advocating that all victims of violence be treated equally, and concluding that "the deeds of the past need to be acknowledged before the Bill of Rights can work for anyone".[8]

16. To assist with this work, the Commission first created an internal Committee on Victims, and subsequently a Victims' Rights Working Group with members from outside the Commission representing the views of victims.

17. Alongside such overarching projects, various relevant submissions and responses have been made by the Commission—for example in relation to death investigation and the inquest system in Northern Ireland, "on-the-runs",[9] terrorist attacks, and the public inquiry system. Some of these are available on our website (www.nihrc.org) and copies of all are available on request.

18. The Commission has also intervened in a number of relevant court cases that have considered the protective and investigative responsibilities of the state in relation to the right to life under Article 2 of the ECHR, including Amin, [10]McKerr, [11]Middleton, [12]McIlwaine[13] and Brolly[14].

19. "All measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment and must be subject to appropriate supervision".[15] The Commission believes that such standards must also be respected in peacemaking, and thereafter in peace-building processes such as historical clarification. In pursuit of the aim to live "free from fear"[16] our population must be released from the bind of long held questions and misconceptions as well as being offered the chance for any possible relief of long sought for acknowledgment.

INTERNATIONAL STANDARDS FOR DEALING WITH THOSE AFFECTED BY VIOLENCE

20. The Commission suggests that the discussion around dealing with the past in Northern Ireland can best proceed on the basis of the definition of victimhood suggested by the draft UN Basic Principles: [17]

"A person is a `victim' where, as a result of acts or omissions that constitute a violation of international human rights or humanitarian law norms, that person, individually or collectively, suffered harm, including physical or mental injury, emotional suffering, economic loss, or impairment of that person's fundamental legal rights. A `victim' may also be a legal personality, a dependant or a member of the immediate family or household of the direct victim, as well as a person who, in intervening to assist a victim or prevent the occurrence of further violations, has suffered physical, mental, or economic harm."

21. There is a duty on the state (one might even say, it is the state's primary function) to prevent violations of human rights in the first instance. This may be secured by several means:

(b) Government practices should be in conformity with treaties it has signed.

22. The state will never be in a position to guarantee against rights being breached. Following any breach of the rule of law, there are various duties upon the State to investigate the violation and to secure rights to the victim.

INVESTIGATION

23. Article 2 of the European Convention on Human Rights has been taken to impose a variety of obligations in respect of the right to life, one of which is the procedural duty to investigate a death where it is arguable that either the negative duty not to intentionally take life, save in certain circumstances, or the positive duty to safeguard life, has been breached. [20]

24. As to what constitutes a proper investigation, the Commission would refer to the Jordan decision[21] by which the European Court of Human Rights called for thorough, prompt, independent investigations which involve sufficient elements of public scrutiny and sufficiently involve the next-of-kin. In other notable Turkish cases the European caselaw established that "Neither the prevalence of violent armed clashes nor the high incidence of fatalities can displace the obligation under Article 2 to ensure that an effective, independent investigation is conducted into the deaths arising out of clashes involving the security forces." [22]

25. These rulings, of course, all involved deaths caused by the state, but in its decisions in cases such as Yasa v Turkey, [23]Ülku Ekinci v Turkey[24] and Buldan v Turkey[25] the Court has repeatedly stated that "the obligation is not confined to cases where it has been established that the killing was caused by an agent of the state". This has been confirmed in the domestic case of McIlwaine (see note 12 above).

26. However, in the recent domestic ruling by the House of Lords in McKerr it would now appear that, for some, the hope of an appropriate investigation has been dashed with the decision that the Article 2 right as enshrined in the Human Rights Act 1998 does not apply to cases where the death occurred before the Act came into force in October 2000. [26]It should, of course, be noted that the judgment dealt with the domestic justiciability of the domestic-law right corresponding to the right arising under the Convention; the original ECHR right certainly continues to apply to deaths arising at any time since the Convention itself became binding on the United Kingdom, so that at least in theory a remedy may be sought at Strasbourg. It is also possible that the Article 2 duty to investigate applies to deaths occurring in custody whether or not they occurred before October 2000. The date of death was assumed to be irrelevant in two recent House of Lords rulings in this area (Amin and Middleton, see above).

27. The UN Basic Principles also refer to the information rights of families, as do the Council of Europe Draft Guidelines, which also raise the verification of the facts of incidents and full public disclosure. The Commonwealth's Best Practice Guidelines for the Victims of Crime (2002) add the right to offer information and the right to be heard, as well as the timely processing of cases. [27]

28. In addition the Commission would argue that discussion of state obligations to investigate should include consideration of court procedures that are conducive to victim involvement, and case progression updates.[28]

Duties towards victims

29. The State is also obliged to provide or secure prompt and adequate reparation to victims. This term is taken to cover restitution, compensation, rehabilitation and satisfaction, with guarantees of non-repetition. Reparation focuses on the restorative rather than the retributive and, according to the long-established international jurisprudence, its aim must be to "wipe out all the consequences of the illegal act".[29] Many of the international instruments refer to obligations to make reparation. [30]

30. Throughout its work, the Commission has been alerted to difficulties experienced in Northern Ireland by the bereaved in relation to reparation, with many victims complaining that they felt stigmatised as if there were degrees of "worthiness" in victimhood. For example, not all dependants are entitled to compensation for the violent death of their loved one. [31]

31. Intimidation, or fear of reprisals, can affect the right to reparation, as many victims are afraid to draw attention to themselves by making a complaint in the first instance; the form of reparation or compensation likewise needs to take account of issues of vulnerability, so that, for example, where effective protection against non-repetition requires the victim's relocation, assistance to rebuild destroyed property is unlikely to be the appropriate form of compensation.

32. Linking reparation to investigative rights, Part VII of the Council of Europe's Preliminary Draft Guidelines of the Committee of Ministers to Member States on the Protection of Victims of Terrorist Acts refers to compensation and the provision of information: "states should give information, according to appropriate measures, to victims of terrorist acts about the act of which they suffered."

33. Reparation may also be linked to the argument that in attempting to ensure that government action prevents recurrence of conflict, any strategy must consider the socio-economic difficulties in Northern Ireland. Thirty years of conflict has created and exacerbated economic and social problems in the region, and any process designed to deal with the conflict must not ignore these issues. Reconciliation, which may or may not be accelerated by a comprehensive truth process, is bound to have social and economic benefits.

34. Nevertheless, a legitimate part of any fiscal consideration is the cost of the inquiry itself. Whilst there is widespread support among the people of Northern Ireland for suggestions that there ought to be an effort to establish the truth of past events, there is also a general acceptance that the cost of such an exercise cannot relate on a pro-rata basis to the Bloody Sunday Tribunal's investigation of 14 killings, which may cost in the region of £150 million. Judge Cory addressed this issue in his reports, stating that proper planning would avoid such astronomical cost. The Commission is emphatic that what is required in Northern Ireland is a range and sequence of processes, a costed package deal with ring-fenced resources.

INTERNATIONAL EXAMPLES OF TRUTH COMMISSIONS

35. The Commission would stress at the outset of this comparative section that real value can be added only by the kind of detailed analysis which will probe decision-making in other jurisdictions to the extent that pitfalls within what are essentially viewed as successful exercises are highlighted. Even the best elements of such processes can undoubtedly be improved upon. The importance of detailed consultation with those who have been involved intimately with truth and reconciliation systems elsewhere cannot be overstated.

36. The Northern Ireland Affairs Committee may also benefit from considering examples of "truth processes" in contexts other than conflict. It may wish to examine the Commission to Inquire into Child Abuse, established in Ireland in 1999, which has developed interesting mechanisms and procedures for determining what happened in reform schools and other institutional settings over a long period of time and what "remedies" should be made available.

Starting point

37. Northern Ireland, unlike many jurisdictions in which truth commissions have operated, is somewhat unusual in having deferred detailed discussion of such a process. The fundamental elements of the peace agreement were arrived at some six years ago without any deal around a truth process, since when there has been continued violence at a much lower intensity, and various advances and setbacks in terms of the institutional underpinnings of the peace settlement. In all of the 29 official truth recovery projects considered by the Commission, [32]the peace-building component was most effective when the process followed a definitive end-point of the events to be considered, such as a universal conclusion of an armed conflict. However, Northern Ireland would not be unique if it sought to address the issues within a narrower time-frame. In Ghana, for example, the National Reconciliation Commission was created in 2002 to consider the period 1957 to 1993, [33]in Nigeria the Special Human Rights Commission began in 1999 to consider the period 1983 to 1994 and in Panama the Truth Commission was established in 2001 although the mandate was for the period 1968 to 1989. [34]

38. In that context, it could also be argued that the Belfast (Good Friday) Agreement was only part of the package of a deal for peace, so that the date of the Agreement is not necessarily to be taken as a cut-off point for the remit of a truth process. However, whilst we should not discard the possibility of such a process being set up without taking the Agreement as an essential reference point, it is equally important that the Government should not lose sight of the opportunity to locate the process within the overall peace settlement, as undoubtedly the passage of time makes it in many senses more difficult to revisit events. It is also worth noting that the early release scheme for prisoners, adumbrated in the Agreement and implemented by the Northern Ireland (Sentences) Act 1998, is predicated on the understanding that it should apply only to persons committing offences before the date of the Agreement (10 April 1998).

39. At this point the Commission would also seek to address the issue of ongoing violence, which is often used as an argument against beginning a truth and reconciliation process. For example in the cases of El Salvador and Guatemala stability had not been achieved before commissions were created, and the threat of violence continued. In other jurisdictions peace processes were far from fully developed at the inception of truth and recovery processes, with hope not yet overwhelming fear. The truth process, in such cases, was intended to contribute to stabilisation, rather than requiring stability as a condition for opening up the past.

Resources

40. Few things are more vital to the effectiveness of any process, and its prospects of success (however measured), than the provision and maintenance of adequate financial and staffing resources. With no staff or budget, the Commission in the Philippines was quickly overwhelmed, whilst the process in South Africa had a budget of $9 million per year of operation with some 400 staff at one point. Guatemala had a budget of $9.5 million and Sierra Leone $4.5 million.

41. The Commission would also stress the importance of funding in relation to prior consultation, to ensure that the selected model commands wide confidence, and also in relation to the resourcing of any measures needed to address recommendations arising from the process. The resources must also be commensurate with the powers of the inquiry: for example, the powers to compel witnesses and to require production of documents—which must be among the minimum criteria for an effective investigative process—cannot be exercised justly unless the parties have access to appropriate levels of legal advice and representation, normally at public expense.

42. That said, the broader political support of both the Irish and British governments, with in particular a clear commitment to full disclosure, is the most vital element in any package of resources. This will be considered in greater detail below.

Time line

43. Beyond the issue of when to initiate the process, the Commission would stress the importance of the decision around what period to consider. Debates in this jurisdiction will yield various time lines depending on differing perspectives about the root causes of the conflict, and the key events that marked its outbreak and its presumed conclusion. Whilst this Commission shares the view that historical clarification requires that "inquiries need to consider the incubation periods and broader context",[35] specific points of focus will also be needed.

44. There are a number of international examples of processes which examined several decades, such as that in Germany spanning 40 years (although this was a largely academic exercise), Ghana, which covered a period of 36 years as did Guatemala, and South Africa reviewing 34 years. The larger part of the selection of truth and reconciliation processes reviewed by the Commission covered a period of years in single figures. [36]

45. One of the issues to be addressed within time horizon discussions in Northern Ireland is that some abuses of human rights have occurred since the Belfast (Good Friday) Agreement. [37]The August 1998 Omagh bomb atrocity, which is generally recognised as "the most grave and exceptional crime in the history of Northern Ireland",[38] might very well fall outside an agreed time line, because to include that event demands that we look past the Agreement. Extending the time line beyond the Agreement does allow for the argument that other abuses occurring within the new period should also be considered, but the Commission would recommend such action be taken. The Omagh bomb is an important part of the history of these islands and is regarded by some as a pivotal event in the conflict about which many questions remain.

46. Another such case is the murder of human rights lawyer Rosemary Nelson, on 15 March 1999, a matter in which the UK Government has already conceded the need for a judicial inquiry. Consideration needs to be given to how any truth process should take account of the outcome of such stand-alone inquiries, particularly if they are allowed to proceed under legislation that does not command full public confidence (other such inquiries are proposed for pre-Agreement murders).

Geographical scope

47. The geographical area to be covered by a truth and recovery mechanism will have considerable impact on the process. One consideration is the need to acknowledge that displacement is a feature of armed conflicts, so that many surviving victims and perpetrators reside outside the affected area. Indeed, the Chilean National Commission on Political Prisoners and Torture interviewed victims residing in over 40 countries. [39]It is also necessary to examine incidents connected with the conflict that took place in other jurisdictions; in the Northern Ireland context that would extend the scope to events in Great Britain, to various European jurisdictions and, depending on the matters under investigation, possibly also to North American and other sources of funding and materiel. Most of the British Army, security and intelligence personnel involved in the Northern Ireland conflict are likely to be serving or retired outside Northern Ireland, as are many of those involved in policy making.

48. We must also recognise the fact that even in relation to acts occurring in or originating in Northern Ireland, crucial evidence relating to what happened lies beyond the region's borders. The recent review of the Barron report[40] took a great deal of time to consider this most perplexing of problems—how can we have a peace process sponsored (as we might expect it to be) by the two governments when those governments are not prepared to share information with each other? The difficulties around "letters of request" and such mechanisms are myriad, and any truth recovery process could be crippled by the lack of provision that has so recently been highlighted by the families bereaved in Omagh, Dublin and Monaghan.

49. The Truth and Reconciliation Commission for Serbia and Montenegro is investigating war crimes in Slovenia, Croatia, Bosnia and Kosovo and could add much to our outstanding of how to make this international aspect of the process work. The experience of countries such as Rwanda, where a number of countries have been involved in the peace-making, and possibly also East Timor and Germany, could be enlightening in this regard.

50. In this sense the Commission would also highlight the evidential arrangements made in investigations into historical events which are not related to truth processes, such as the Porton Down inquiry[41] in which agreements were reached with, for example, the government of the United Sates of America for evidence. The Commission would emphasise the importance of looking at all the legal, social and economic examples of best practice which could fit within our package of "dealing with the past", not solely relying on evidence of best practice secured through peacekeeping or peace-making processes.

51. Part of the geographical consideration is the nationality of truth commissioners (or equivalent appointees) and their staff. The Northern Ireland Human Rights Commission has repeatedly called for independence in official investigations and would therefore see value in independent and impartial nations providing some element of the investigative personnel for a process. However, on the whole, the Commissioners selected to serve on Truth Commissions have been nationals of the country, for example Peru (two members) and South Africa (17). By comparison, El Salvador was made up of three foreigners and Sierra Leone seven of mixed background. The International Criminal Tribunals in Rwanda and the Former Yugoslavia were run entirely by non-national staff.

52. Subject to the process having sufficient independence and credibility, this Commission's preference is for a locally owned project but with significant international involvement, and this should be reflected in the preparation and composition of any bodies.

53. As to the optimum number of Commissioners, whilst a large number can help alleviate the workload, the most obvious drawback is reaching decisions by unanimity or consensus, along with the organisational difficulty of bringing together a large body of persons of appropriate standing.

Mandate

54. The mandate of a truth commission is another vital area for consideration. Beyond time line and geographic area to be considered, what is to be investigated, how and with what outcome? Many would argue, for example, that the mandate of the South African Commission made its task unduly difficult, as many were confused about the legal status and procedural rights of those involved.

55. Part of the decision around what acts are to be investigated involves decisions around perpetrators. For example, in Peru the Truth and Reconciliation Commission considered both acts of the state and those of insurgents. Any mandate will need to outline whether the process is to consider individual or institutional responsibility or both. In Rwanda only government abuses were considered. The South African Commission considered both individual cases and structural causes, as did the Investigative Commission on the situation of the "disappeared" in Uruguay.

56. There needs to be careful delineation of the issues to be addressed; the starting point might be that deaths or disappearances must be clarified. By way of example, in South Korea the Commission only considered deaths, and in Serbia and Montenegro only war crimes. In Chile, the National Commission for Truth and Reconciliation was created only to consider human rights abuses resulting in death or disappearance, and in Uruguay the 1985 Commission had a mandate which prevented investigation into illegal imprisonment or torture, although these represented the more common violations.

57. Process and outcome may overlap when relations with the criminal justice system are considered. In terms of judicial powers, there is a strong argument that decisions around amnesties must be made at the outset, although in Argentina the initial blanket amnesty was later limited to the lower ranks (although there were not many prosecutions at higher levels). In Sierra Leone, the Commission worked alongside the Special Court after the abandonment of amnesty provisions. In Chile, where there was a very real fear of a military backlash, there was initial acceptance of a blanket amnesty and no "naming of names" of perpetrators, but the highest court in Chile has very recently invalidated the main amnesty law as going too far in providing impunity for perpetrators. Indeed the issue of the "on-the-runs" is still to be resolved in Northern Ireland; at the time of writing there is no clarity around how such persons are to be treated and what efforts, if any, are to be made to arrest or prosecute them. [42]In Sri Lanka, 400 members of the security forces were charged.

58. Equipping a Commission with wide judicial powers, whether or not these include powers of amnesty, will need to be accompanied by strong procedural safeguards. Given the importance of this matter the Commission will seek the opportunity to address such procedural safeguards separately from this general response. We have already touched on this in the chapter on amnesties in our July 2003 paper summarising the international law. [43]

Methods of information gathering

59. When considering how evidence is to be secured, should there be a power to subpoena witnesses, such as existed in Ethiopia through the Office of the Special Prosecutor, and also in South Africa? Argentina had no judicial powers, such as a power of subpoena, but it did provide supportive evidence for the court system, as did the Commissions in Chile and Sri Lanka.

60. As part of the investigative process, and linked to the subsequent process of dissemination, is the question of how evidence is taken, whether behind closed doors or in public. This is relevant to the issues around amnesty and to the possibility of legal and extra-legal repercussions for witnesses. Many Commissions, such as those in Guatemala, El Salvador, Chile and Argentina have heard evidence behind closed doors, whilst South Africa also had public sessions, as did East Timor (with very community-based hearings in some instances). With perhaps more sensitivity to the victim's perspective, in Sierra Leone private hearings were arranged for children and female victims of sexual violence.

61. How information is disseminated may be the crucial element of historical clarification, and most Commissions resulted in reports. [44]Undoubtedly some processes were more public than others, with the media present throughout, as in South Africa. The final report in Rwanda was also very widely distributed throughout the world as was that of Sierra Leone. [45]International dissemination can have an added impact at home given the sense of accountability on a world stage.

Recommendations

62. It is important that any process be clear at the outset as to its more specific goals. If recommendations are to be made, what areas are to be touched upon—for example, will this include reparation? Will there be follow-up on any recommendations and what undertaking will be required of governments in signing up to the process? Many of the international examples have yet to see any action taken on the recommendations in their reports. It is interesting to note the recent developments in Chile, with the government announcing a $70 million reparation scheme designed to acknowledge the 28,000 victims identified in its report. In Sierra Leone there were three types of recommendations:

imperatives—eg abolition of the death penalty;

"work towards"—eg compulsory human rights education in schools and public services;

"seriously consider"—eg introducing alternative forms of dispute resolution.

63. Another lesson from international experience is that any `official' truth process in Northern Ireland needs to integrate and build on the very valuable work which has already been done by previous efforts including those of the numerous non-governmental groups involved in dealing with the conflict and its legacy. The importance of inclusion of previous official and unofficial work was evidenced in South Africa, Bolivia, Guatemala and Uruguay, which built on previous unofficial truth and reconciliation initiatives and processes. Entirely unofficial, but nevertheless worthy, processes have occurred in Brazil, Columbia and Paraguay.

AN INDIGENOUS PROCESS

64. Whilst many of the causes and effects of the conflict in Northern Ireland are common to other international conflicts which have been reviewed by truth commissions, the conjunction of factors in our conflict is unique and therefore the overall process must reflect that.

65. An indigenous process is vital for participation and a sense of ownership. This was most acutely illustrated in reporting by the BBC following the publication earlier this year of the Stevens Inquiry on the murder of Pat Finucane: "Sir John has the power to recommend sweeping changes in the way the police conduct operations. . . but he doesn't have the power to change the underlying attitude of politicians or communities." [46]

66. Self-design is part of a process of acceptance, and requires consultation. Indeed the United Nations view is that "pre-packaged solutions are ill-advised"[47] but that "the most successful transition justice experiences owe a large part of their successes to the quantity and quality of public and victim consultations".[48]

67. The community in Northern Ireland has had to face conflict for so many years that it has hardly dared to think of peace; an opportunity must be afforded for informed consideration of the place of truth process in making and building peace. It is vital that information is shared with the community around possible options, and experiences in other jurisdictions, in order to facilitate consultation. International experience teaches that ". . .the degree to which a truth commission operates with the civil society of a country—with the victims organisations, human rights organisations and others—influences its access to information, its effectiveness in addressing the needs of victims as well as its standing in the eyes of the public." [49]

68. An early assessment of community and survivor needs can also be crucial in managing the expectations that a society may hold with respect to a truth commission. [50]

69. The Commission recognises that consultation will not produce a uniform result: "the reality is that the work of conflict resolution is exactly that of contested ground. . . it is controversial." [51]It is vital that preparation considers the fact that opinions will be diverse, and makes provision for this beyond asking fixed "safe" questions.

70. In terms of the process of prior consultation, the Commission would refer to its own work on developing its thinking on a Bill of Rights, and that of the Patten Commission on the reform of policing in Northern Ireland.

71. Furthermore, consultation should not be confined to a pre-establishment period but should feed into the workings of the process via strategic sequencing throughout; it should include monitoring of the impact for some period after conclusion. Recent research for the Northern Ireland Office found that whilst at that time there was 70% support for a physical memorial and some form of truth commission, [52]"there is a need to monitor views about victimhood and associated factors on a regular (perhaps five-yearly) basis".

ASSOCIATED ISSUES

72. The Committee's invitation to contribute to the present inquiry advised that it "may also choose to examine associated issues which arise in the course of the inquiry", and the Commission regards this sense of openness as crucial to early discussions. As previously mentioned, many victims in Northern Ireland are campaigning or hoping for an independent inquiry into the death of their loved ones, and the Commission welcomes the opportunity to discuss its concerns as to the interplay between such investigative processes and the potential process(es) within the scope of the present NIAC inquiry. [53]

73. The Commission would refer to the recent statement of counsel for the Bloody Sunday Inquiry at the close of the 400 days of hearings: "It has to be said that, even after many days of evidence, the answer to even the first question—who shot them—is not, on the soldiers' evidence, in any way clear." [54]While that tribunal heard over 900 witnesses, it remains to be seen whether it will be able to resolve some of the most fundamental matters of fact. With that in mind, it is important not to raise expectations of the capacity of a tribunal-style or less formal process, however well supported, empowered and resourced, to uncover everything.

74. As recently recognised by the Oireachtas (Irish parliament) review of the Barron Report into the Dublin and Monaghan bombings, the length of time since the atrocities, the lack of any powers of compellability for Judge Barron, the resources available to him and the lack of co-operation from the UK authorities were insuperable obstacles to any conclusive determination of the facts. [55]These difficulties could beset future such inquiries or a full-scale Northern Ireland Truth Commission.

75. There is the option that cases such as Omagh would be heard within the process of a truth commission but considered under their own heading, as it were lifted out by a Weston Park-style[56] process for specific inquiry. If this were to happen, undoubtedly the mechanisms alluded to by Judge Cory in his reports (around controlling cost) would have to be considered very closely. Certainly any such selection process would have to be consulted on in order not to build resentment amongst victims in Northern Ireland; it might be too crude a criterion to use, for example, the number of deaths associated with a particular event. (As an aside, it would surely be inappropriate to exclude from the scope of any truth commission or similar exercise any events already subjected to scrutiny by inquiries where significant limitations in powers or mandate were highlighted by the inquiry itself or by those who commissioned it.)

76. Any truth process must recognise, as Professor Colin Warbrick advised the Oireachtas Joint Committee reviewing the Barron Report, that "States can do very little without co-operation but can do almost anything with co-operation." As members of that Committee struggled with the issues of evidence they pondered that "It must be possible, in appropriate cases, to provide a civil public inquiry in one jurisdiction with legal recognition in another member state where it could have evidence gathering and compellability powers." [57]The possibility of a cross-jurisdictional forum for victims North and South to liaise was also mooted, as was the "letter of request" procedure. [58]Judge Cory advised that agreement was needed between the two governments, and this is crucial to whichever mechanism is used to investigate other such cases.

77. Such considerations also impact upon ongoing criminal investigation of events. The Commission has been involved in discussions with the newly formed Serious Crime Review Team within the Police Service of Northern Ireland (PSNI). As part of such dialogue we were advised that the PSNI was involved in a scoping study based on a new database which was grading cases on the material available. A preliminary case assessment follows with a view to identifying evidential opportunities, with a report being provided to the Assistant Chief Constable (ACC) within six weeks. If the ACC decides that a full deferred review will take place, this will be considered by a panel that may elect to place the case before the new murder investigation team essentially as a fresh case.

78. The Commission, whilst recognising the amount of effort which has gone into to the creation of the Serious Crime Review Team and deferred case review plans, is concerned that the bereaved are not being contacted by the PSNI. They are not being recognised and treated in the same way as the families of victims in fresh cases, and are not given opportunities to contribute their knowledge to the investigation. There is insufficient public awareness about the work and it would be helpful to the work of the Review Team to have more clarity about the goals, processes, funding and the involvement of the bereaved.

79. The Commission has also for some time raised questions around how the correlation between some 2,000 unsolved murder cases and the backlog of some 2,000 cases in the coroner's system, and how the outcome of further review might affect any coroner's decision which has been made. The Commission has also furnished its views on reforming the office of coroner, and on how inquests could work better in Northern Ireland, and any suggestions around truth and recovery would have to address this limb of the investigative process also. [59]

80. As previously mentioned the Commission would wish to address in detail procedural issues around the provision of evidence such as compulsory disclosure under limited embargo. [60]There are many technical questions to be resolved once the initial matters of format, scope, timeline and so on are settled, and complete clarity of process is required to ensure maximum participation.

81. Beyond issues of investigation, the issues of prosecution, impunity and amnesty have been mentioned. The Commission has been advised, for example, that a fair proportion of the "on-the-run"[61] cases would evidentially be worth pursuing. However, it has been argued that acceptance of responsibility by a perpetrator may be almost as valuable to a victim as punishment of the perpetrators. The Commission has previously taken the stance that the value of amnesty to the recovery process might outweigh the benefit of individual prosecution, as indeed was the case in South Africa, where the family of Steve Biko were denied their right to "access to justice" because the country's need for ubuntu (reconciliation) was deemed by the Constitutional Court to take precedence.

82. The Commission remains convinced that, whilst no process may be completely successful in easing "the hurt of the last 30 years",[62] the impact of the Troubles on future generations can be alleviated, and that we can attempt with integrity to provide answers to the questions which have arguably prolonged aspects of grief for so many in our society. In order to do this, we must first ask the people of Northern Ireland how they have been harmed and how they might be helped, recognising throughout that a "reconciliation process is not finished when people peacefully coexist." [63]

83. The Commission would, in conclusion, encourage the Committee to prioritise work on this important and sensitive subject, and to provide an early indication of when and how it proposes to move beyond this initial comparative phase. It should seek out the views of victims' groups, and the expertise of those who have been directly involved in foreign processes, and those, such as the Truth Commissions Project referred to above (para 5), who have studied them. The Committee should encourage wider public debate and discussion, and in that context may wish to consider accelerating the timetable for publication of its first report and/or dispensing with the customary embargo on the publication of evidence until the report is issued.

December 2004