Memorandum submitted by Professor Tom
Hadden
1. INTRODUCTION
There is a very wide range of possible models
for truth commissions or truth and reconciliation commissions
drawn from those that have been established in the aftermath of
conflicts throughout the world. The attention of the Committee
will already have been directed towards many of these by other
submissions. The purpose of this brief contribution is to suggest
how this international experience might be applied in the particular
circumstance of Northern Ireland.
2. THE UNDERLYING
SITUATION
There are a number of different constituencies
to which the proceedings of any truth or reconciliation commission
in Northern Ireland might be addressed. At least five distinct
categories, each with different perspectives and expectations,
can be identified:
(d) the human rights community
None of these, however, is a coherent group
with a single objective. But it may assist to summarise some of
the views and demands within each group as they have emerged over
the past few years.
3. VICTIMS' PERSPECTIVES
It seems clear from various interviews and reports
that most victims want some form of acknowledgement of their suffering.[64]
But there is also a significant distinction between those who
focus their demand on an acknowledgement of the truth of what
happened to them or their relatives and the identification of
who was responsible and those who in addition demand justice in
the form of prosecution and punishment of those directly or indirect
responsible. It should be noted that these demands include the
activities of both state and non-state forces and that any process
that was perceived to be one-sided would be wide open to criticism
and might increase rather than diminish the prospects of reconciliation.
There is also a general demand for fairer compensation and better
support services for all victims.
4. PERPETRATORS'
PERSPECTIVES
The views and expectations of perpetrators and
their representatives are naturally quite different. The primary
focus from both state and paramilitary forces on either side of
the conflict appears to be on the assertion of the legitimacy
of their involvement in offensive and defensive operations. This
is usually linked to some willingness to admit and apologise for
incidents in which mistakes have been made and there have been
civilian or other innocent victims. But this does not typically
extend to victims they considered to be legitimate targets, whether
as members of terrorist groups or of state security forces. In
so far as their own positions are concerned most appear to expect
or demand an acknowledgement that their participation in the conflict
was not only understandable but entirely justifiable and that
some form of amnesty would be appropriate, even in cases where
mistakes were made.
5. COMMUNAL PERSPECTIVES
The views of those not directly involved in
the conflict whether as active participants or as victims or the
families of victims would appear to be equally diverse. There
is clearly a substantial body of opinion, probably of those less
directly affected by the conflict, in favour of putting the past
behind us and moving on without becoming involved in any formal
truth or reconciliation process. But there is also some support
for the idea of some form of truth and reconciliation commission
through which victims might be encouraged to tell their stories
and perpetrators to acknowledge what they did. Some proponents
of the idea would add that this might also permit some victims
to express their forgiveness and some perpetrators to express
their remorse. Others would place greater emphasis on the production
of a balanced account of the origins and the general nature of
the conflict and/or of some high profile or representative incidents
so that both main communities may be encouraged to develop a shared
understanding of what happened, why it happened and how anything
of the kind might be avoided in the future. It is not clear how
far those supporting either of these approaches envisage any form
of amnesty for perpetrators who come forward. But it is fairly
clear that without the offer of some kind of amnesty or immunity
from prosecution it is unlikely that those responsible for unlawful
activity of any kind will be willing to tell the truth.
6. HUMAN RIGHTS
PERSPECTIVES
There is on the surface a greater degree of
consensus within the human rights community on what is required
and permissible in respect of truth and reconciliation in the
aftermath of internal conflicts. There is a requirement of a prompt,
effective and independent inquiry into breaches of articles 2
and 3 of the European Convention on Human Rights.[65]
There is also an emerging general international principle barring
any form of impunity, including both formal amnesties and informal
inaction, in respect of serious human rights violations involving
international crimes such as torture or grave breaches of the
laws of armed conflict. But the practical interpretation of these
principles and relevant state practice diverges in important respects
from the prevailing demands of human rights activists.[66]
There is no clear consensus on what constitutes international
criminality for the purpose of the bar on impunity and the Office
of the Prosecutor of the International Criminal Court has indicated
that it will use its discretion to prosecute to pursue only the
most serious cases. The European Court of Human Rights has refrained
from requiring prosecutions in all cases in which violations of
articles 2 and 3 are established and has indicated that a full
scale inquiry may not be required in cases where there is little
prospect of success.[67]
The House of Lords has also held that in national law the obligation
to institute an inquiry may not apply in all cases in which the
incident occurred before the Human Rights Act came into force.[68]
And there are many examples of the adoption and acceptance of
formal or informal amnesties in respect of serious human rights
violations in the aftermath of serious internal conflicts throughout
the world.
7. OFFICIAL PERSPECTIVES
From a governmental point of view there are
also a number of conflicting pressures. There is a general concern
to avoid a commitment to hold formal inquiries into the huge number
of disputed incidents for which public judicial inquiries have
been demanded and in the light of the huge cost of Lord Saville's
Bloody Sunday Inquiry to limit the expenditure involved in those
that are instituted. There is a related concern among the police
and prosecuting authorities to avoid any excessive expenditure
of manpower and resources in looking into the 2,000 or so old
cases in which there may be an obligation to institute effective
inquiries under articles 2 and 3 of the European Convention on
Human Rights. In addition the British and Irish Governments are
under pressure to find a way of meeting the demands of Sinn Fein
for an effective amnesty for the "on the runs" and other
suspects who have not yet been prosecuted for crimes committed
during the conflict. But there is also a desire to comply with
the requirements of international human rights law in so far as
that is practicable. The underlying objective is thus to find
a way of closing these cases in an acceptable way. One possibility
that has been floated in respect of the "on the runs"
would be to hold some form of judicial hearing which would make
a finding of responsibility in appropriate cases and then authorise
an immediate discharge for those responsible. A similar procedure
might be invoked in respect of cases against members of state
forces found to have acted unlawfully.
8. SOME PRACTICALITIES
It will be clear from this brief summary that
it will not be possible to meet the concerns of all the relevant
groups and constituencies in any single commission. Any set of
proposals in this area is bound to be controversial and to disappoint
or displease some of those involved. It should not therefore be
seen primarily as a means of reconciliation but rather of meeting
the legitimate concerns of at least some of those groups and individuals.
But the discussion highlights a number of practicalities that
should be taken into account in any set of proposals:
(a) there will be a need to secure a basic
level of co-operation from all sides, including the two governments
and the major paramilitary bodies;
(b) there will be a need to provide incentives
for individuals from all those bodies to tell the truth rather
than to conceal their potential legal liability—in this
sense there is a choice between establishing the truth and achieving
legal justice;
(c) there will be a need to avoid undue legalism
and its inevitable costs in the procedures of any commission—this
suggests that it may be necessary, as in South Africa, to separate
proceedings designed to establish the truth from those designed
to deal with individual legal liabilities;
(d) there will be a need to set specific
and achievable objectives for any commission or commissions, including
a limited time-span and a clear indication of the nature of the
eventual outcome or report.
9. SUGGESTED
FORMATS
My personal recommendation in the light of these
various considerations would be to separate two key roles for
any commission or commissions along the following lines:
(a) a truth and acknowledgement commission
with the principal purpose of providing a forum for victims and
perpetrators to tell their stories and preparing a general report
on the origins and nature of the conflict;
(b) a legal closure commission with the principal
function of settling the formal legal position, by way of amnesty,
discharge or case closure, of the very large number of individual
deaths and other incidents involving human rights abuses that
occurred during the conflict.
10. NEXT STEPS
If any progress is to be made in this area,
it would desirable for the Committee to make some specific recommendations
for possible formats along these or other lines rather than to
produce yet another discussion and review of the international
experience and the general issues involved. As already indicated,
any set of proposals will inevitably disappoint or displease some
of those involved in the discussion of the possibilities. But
the prospects of reaching any more general consensus on what might
be desirable will not be advanced without some indication of what
would actually be involved in any realistic and practicable set
of proposals.
30 December 2004
64 See, for example, Healing through Remembering,
June 2002. Back
65
Jordan v United Kingdom (2001) 34 European Human
Rights Reports 52 and related cases. Back
66
See generally, T Hadden, "Punishment, Amnesty and Truth:
Legal and Political Approaches" in Democracy and Ethnic
Conflict: Advancing Peace in Deeply Divided Societies, A Guelke
(ed), Palgrave Macmillan, 2004, pp 117-126. Back
67
Finucane v United Kingdom, (2003)37 European Human
Rights Reports 656. Back
68
In re McKerr [2004] 1 Weekly Law Reports 807. Back
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