Supplementary Memorandum submitted by
Families Acting for Innocent Relatives
INTRODUCTION
Victims in Northern Ireland are very much a
product of the past, and anyone who is genuine in their commitment
to deal with the past must firstly deal with victims. They must
be given primacy in any initiative which is developed. Sadly to
date this has not been the case as even the past in Northern Ireland
has been politicised. It has always been said of Northern Ireland
that we live in the past and it is indeed close and impacts on
all aspects of our lives. Many victims are trapped not by choice
but by birth in a centuries old conflict, which predates and will
doubtless outlive the present political deal making. The past
has shaped both perpetrator and victims alike, and the only comfort
many draw is that we can all learn from the past.
Our aim as a group is to support victims and
help them move forward and to enjoy equal citizenship and rights,
free from the fear of political violence. Therefore we are keenly
interested in creating a positive future for all, free from violence
and offering hope for our children. In order to do this we have
an obligation to deal with the past. This is a topic which has
never been fully opened in the province as it has a Pandora's
Box risk attached. It has the potential to retraumatise victims,
to raise then dash hopes, to create new victims and to add to
rather than detract from the causes of conflict.
METHODOLOGY
Therefore, while we welcome the current initiatives
by government we must urge caution. There are over thirty years
of violence contended past to deal with and we as a group have
had little over thirty days to gather our thoughts to respond
to you. Therefore our first statement must be we need more time,
if you value this work, and wish to truly contribute to a solution
rather than cause another problem people must be given time. We
ask that your current time scale be addressed now or else groups
who must be included will not have an opportunity to respond.
This could be best done by asking the Victims Unit to support
in terms of funding and resources a process that would facilitate
groups to respond to these issues.
As a voluntary group comprised of victims we
must canvass the opinion of a membership which comprised over
a thousand people. We are based in a rural area and the logistical
difficulties of such a task at this time of year ought to be apparent.
Whilst we are aware that you wish to have this process completed
before Parliament breaks for the elections and we would ask that
if you make a report now that it be made clear that is the reason
and that it include a statement of intent to revisit the issue.
Secondly, we wish to raise the issue of how
submissions are received in the process. When you open up debate
and receive a range of opinions there must be a method of weighting
submissions. For example an individual who has had no experience
of conflict or is perhaps too young to remember the past at its
worst may respond, others may use the name of a group to respond.
How will you rank what they have to say in comparison to a victims
group who have lived with and in the midst of the worst of the
conflict, a group comprised of hundreds of people—surely
their opinion must carry more weight?
In short we require confidence building measures
and a realistic time scale. Your process must be transparent and
accessible with a procedure for weighting submissions according
to relevancy, experience and numerical support. If these guarantees
cannot be given then groups such as ourselves will be reluctant
to invest time and effort in engaging with the Committee. I trust
you accept our points in this regard and we stress that what we
have included is our preliminary thoughts. It is a series of documents
and opinions which have already been endorsed by our membership
and collectively represent our work and policy. As I have said
as a group we day and daily deal with the past and try to resolve
existing conflict.
To add a degree of clarity to our submission
it would be useful to explain that this is a preliminary submission
and that there is an ongoing process within our group and victims
sector generally to respond to this issue. We have produced a
range of documents and position papers many of which can be found
on our web-site www.victims.orga.uk.
DEALING WITH
THE LIVING
LEGACY OF
THE PAST
1. Recognition
As a self help group comprised of victims we
include a little information about ourselves and what we aim to
achieve. We see the creation of similar groups as a positive step
in addressing the past as they allow people to speak of their
experiences for the first time and to share history. They also
provide the vehicle for training and the building of confidence
capacity and skills to reintegrate victims into society. They
also offer the best route to effective genuine cross-community
engagement, and the building of a shared future.
We feel that a lasting memorial to the sacrifice
and loss must be established. However there are enough cold marble
memorials in our countryside and plans to create shared ones are
unworkable. Therefore we advocate the idea of a "Living Memorial"
Centre, a place dedicated to the memory of victims and a place
where their relatives can remember them. But also a place where
history can be recorded, archived and presented as a tool to break
the cycle of conflict. It is also a safe space for victims to
come and feel at home, where they can learn and be re-skilled,
where group activities can be housed and a range of services provided.
As a group we have already taken the first steps in such a pilot
project. Details of our ideas are included.
2. Redress and Reconciliation
Victims have certain rights that must be valued
and protected, these are well articulated and accepted internationally
and form the basis for redress and recognition of victims. This
we would argue is the first step in dealing with the past as it
necessary to accommodate victims in any process. Their rights
have often been violated and as a first step to dealing with these
past wrongs a new beginning for victims rights must be established.
To that end we include our policy paper on Human Rights and also
the text of the "Declaration of Basic Principles of Justice
for Victims of Crime and Abuse of Power." Annex I
Such international standards need to be applied
to help Northern Ireland deal with the past. They must however
be adapted along with other human rights frameworks to reflect
the fact that the majority of abuses were perpetrated by sub-state
organisations. These terrorist groups have never properly been
dealt with under the criminal justice system and also slip through
the net in terms of the human rights instruments, laws and protections.
Laws must be strengthened to protect democracy, the rule of law
and judiciary, and to ensure that the past is not repeated.
3. Practical Support Measures
The role of victim support groups is vital to
the process, they act as an interface with victims giving them
a voice and contact with the outside world. They must be the conduit
for any initiative to deal with the past.
We also refer you to a policy paper entitled
"A Fair Future" which spells out our vision for the
future of the victims sector which must be pivotal to any government
plans to deal with the past. It outlines our concerns for current
provision, and our ideas for the future including proposals for
a Victims Commissioner
INITIATIVES TO
DEAL WITH
THE PAST
Many victims were overcome with a sense of foreboding
when the Secretary of State followed his announcement about dealing
with the Past with a visit to South Africa. To many it was a signal
of his intent to import the failed South African model of a Truth
and Reconciliation Commission. The TRC is largely modelled on
the Chilean Truth Commission whose raison d'être was to
reconcile supporters and opponents of the military dictator, Augusto
Pinochet, and underpin the political deal that has since been
ridiculed by the international human rights community. The TRC
as we will show has not produced the results hoped for in its
native setting and is even less likely in Northern Ireland.
Since 1973, more than 20 "truth commissions"
have been established around the world, with the majority (15)
created between 1974-1994. Some were created by international
organizations like the United Nations (UN), a few by nongovernmental
organizations (NGOs), and the majority by the national governments
of the countries in question. The central failure of all is to
balance truth with justice and retain independence without losing
popular support.
The Problem of Justice
The central problem with these models is that
they trade truth for justice, in a manner which excludes and abuses
victims. This is often necessitated by the political agenda of
the work, as it was established to give a degree of legitimacy
to the current regime. No other concern has dominated discussions
of truth commissions, especially from legal scholars, as has the
issue of justice. For many, the proper response to the perpetrators
of human rights abuses, violence, ethnic cleansing, or genocide,
must be criminal proceedings by some sort of tribunal, a court
of law (international law, perhaps) duly authorized to render
judicial dispositions: to establish justiciable facts of the matter,
to render verdicts and, if called for, to punish. But truth commissions
(including the more ambitious truth and reconciliation commissions)
cannot by their nature deliver this sort of justice. Rather the
advocates of such appeasement have created a range of quasi-justice
forms and entities, among them "transitional justice,"
"restorative justice," or "retroactive justice,"
most of which aim, in the end, to move away from criminal verdicts—retributive
justice—and toward "truth-seeking" and reconciliation.
These alternative forms of justice mean that
the work of truth commissions falls, in Martha Minow's (1998)[1]
phrase, somewhere in the morally, politically, and emotionally
fraught continuum between "vengeance and forgiveness."
A great deal of the controversy, not to mention passion, that
surrounds the workings and assessment of these commissions by
different parties, has to do with the tension existing between
the two poles of this continuum. The range of "alternatives"
offered to "deal" with the past all fall short of the
present accepted method of truth recovery in the United Kingdom
namely the Criminal Justice System.
Advocates of the appeasement of those responsible
for human rights abuses argue that they must be granted amnesty,
their past actions blotted out in order that they be included
in the new political arrangements. In short many argue that they
must be appeased to ensure peace. However the victims who long
for peace and security more than most feel that reconciliation
requires justice as well as truth? Here, justice is most often
understood as being retributive and vengeful. Ours is not a desire
for revenge but a desire for equality and justice. For equality
before the law for all and equal protection under it . The kind
of justice meted out by a court of law, anywhere in the democratic
world, in a criminal trial in which the accused has been found
guilty of an offence in accordance with appropriate procedures,
and a punishment proportional to the offence has been determined,
is what we ask. The pursuit of retributive justice in a transition
to democracy is important, not only because of the intrinsic worth
of doing justice, but also because the enactment by the courts
of the rituals of retributive justice will educate society in
the practices of the rule of law that are crucial to the stability
of democracy. We ask for equal citizenship and for basic human
rights as are enjoyed by all those in a democracy—we ask
no more—we will accept no less!
The Problem of Truth
Like so many things in Northern Ireland the
truth is contested, with each side jealously defending their version.
In recent weeks this has led to a leading member of Sinn Fein,
Mitchell McLaughlin stating that the kidnap, murder and subsequent
decades of refusal to specify the location of the body of Jean
McConville, was not a criminal act. To Sinn Fein/IRA such was
the historical justification of their actions that no act of terrorism
of human rights abuse could be defined as criminal. They may express
regret or remorse but never accept the "truth" that
what they have done is wrong criminal and must never be repeated.
In a world in which it is yet possible for many
people, in the face of overwhelming evidence of every imaginable
sort, still to deny the magnitude, intention, or very existence,
of the Holocaust, it is not surprising that the authenticity of
more poorly documented human disasters may be made objects of
great contention. The leaders of Republican terrorism still deny
their own little holocaust and seek now to redraw history to their
liking. Any "truth" recovery process which does not
make a moral judgement of their human rights abuses followed by
sanctions cannot be support by the victims. The issue of the complexity
and multiplicity of truth is a central one linking the problematic
demands of justice and the hopes for reconciliation. It is also
the arena in which the parties' competing versions of history
and the politics of memory play themselves out. In Northern Ireland
all sides have their own version of the truth of "what really
happened".
In reflecting, especially on the South African
Commission, several authors like Verwoerd (2000) address the complexity
of truth-seeking, and they propose different genres of "truth"
to satisfy the different demands made on it, among them: historical
truth, moral truth, factual or forensic truth, personal or narrative
truth, social or dialogue truth, and healing and restorative truth.
Some of these sorts of truth aim to make an ineffaceable inscription
on history. "Forensic truth", for example, aspires to
uncover overwhelming material evidence—to establish an incontrovertible
"facticity"—and present it in so compelling and
scientifically irreproachable a way such that "no one can
argue that these killings didn't happen".
Some of these truths endeavour to create authoritative
and indelible memory. At the South African Truth and Reconciliation
Commission, "narrative" or "personal" truths,
emerging especially through victims' and perpetrators' public
testimony, seek to ensure that individual acts of oppression and
oppressed individuals cannot be forgotten. It is, as Henderson
(2000) and many others have argued, a kind of insurance against
collective amnesia: after the Truth and Reconciliation Commission,
no one in South Africa will again be able to say, "I do not
know what really happened".
However it is one thing to make public what
happened, "to establish the facts", and quite another
to establish a society-wide consensus on what they mean. Facts
do not necessarily conduce to shared truths. And even if they
did, in some objectivist and positivist universe, and although
truth is always a good thing, one cannot escape the fact that
as the African proverb reminds us, "truth is not always good
to say". Without an agreed independent arbiter any process
will simply be a method for collecting a range of differing often
antagonistic stories, versions of the truth. In short there needs
to be an arbitration, between truths, in short judgement has to
be exercised and the outcome binding on the participants. At present
the only process which satisfies these criteria is the criminal
justice system.
It exists to apply agreed rules to an issue,
it is empowered to compel parties to present their version of
events, their "truth" it then draws on other evidence
to reach a conclusion on what version or combination of versions
constitute an agreed "truth" and then acts to compensate
or sanction the parties involved. This is what we as victims feel
is needed in society.
The price of truth
Amnesty, or as it ought legally to be defined
impunity is the cost paid for truth. Only the simple minded or
most naive believe that the perpetrators of human rights violations,
the sub-state terrorist groups who were unaccountable for their
actions will simply in the interests of peace, stand up and confess
what they have done. The perfect example exists in Northern Ireland
where Sinn Fein/IRA have for over three decades, called for the
truth about "Bloody Sunday". The PIRA used the events
of that day to justify their existence and some of the worst atrocities
they committed, to assist recruitment and fund-raising. They cynically
hi-jacked the memory of those who were killed on that day for
political and military ends, calling on the British Government
to hold a full public inquiry into what happened—to establish
the truth. The multi-million pound Saville Inquiry followed with
the lives of soldiers involved being put at risk as they were
forced to testify. However, it is most instructional to reflect
upon Sinn Fein/IRA's response when given their long campaigned
for opportunity to reach the truth. When it became apparent that
they were responsible for the first shots fired on that day; and
when their realised that despite their engineering, the truth
was not a simple confirmation of their propaganda, they showed
their true intent. When called upon to give evidence in what he
had called others to do, at an inquiry he had long argued for
Martin McGuiness became evasive and forgetful. Indeed he could
not even manage to forward the truth at a personal level, claiming
he was only second in command of the PIRA on the day he went on
to refuse to answer questions. His lies and evasiveness, despite
assurance that he would be immune from prosecution, prompted Lord
Saville to conclude that
"I understand your answer as being that
you feel that your duty of honour overrides the desire of the
families for the tribunal to discover the whole truth about Bloody
Sunday".
It has transpired that the only person to refuse
to co-operate with the truth recovery process has been a member
of the PIRA who was given a jail sentence for contempt of court.
This does illustrate the contempt that terrorists will show any
process of commission which they do not control, that does not
offer them amnesty and which does not legitimise their actions
and rewrite history to their satisfaction. In short we cannot
trust terrorists to tell the truth, and are not prepared to sacrifice
justice to pay for their co-operation. The police if given the
resources and supported by the proper political will can ensure
that in time these men will be brought before the courts, where
the truth of what they have done will be laid bare and their victims.
As has been previously stated victims do not
maintain this position in order to exact revenge but rather as
this process has been the tried and tested model they are used
to. Indeed many became victims as they defended this and other
democratic institutions and practices during the troubles. Indeed
it is no surprise that Sinn Fein/IRA is so outspoken in its opposition
to these ideas as they have busied themselves for the past thirty
years in a murderous onslaught against police, judiciary, prison
service and any other agencies capable of bringing the light of
truth to shine on their terrorist activities.
Victims defended these institutions because
they represent the rule of law and justice the cornerstones of
democracy. Justice plays a vital role in any democratic society,
as it gives:
1. RECOGNITION
For a victim to get his or her day in court
is a liberating experience, it brings closure and healing to a
life torn apart. It gives the victim the recognition that they
have been wronged, not just by the perpetrator but by society
as a whole by the state who should have protected them. Those
who are guilty of commission are joined by those guilty of omission
as an independent arbiter looks at the matter. All sides submit
themselves to the decision of the court. The victims gets a chance
to tell their story in a place where it is valued and valuable,
not as part of some weak and watered down initiative but in an
empowering environment. It is for the most noble of ends, to ensure
justice is done.
2. RECOMPENSE
The process will also restore some of what the
victim has lost in terms of dignity, security and resources. While
victims are never in search of compensation they are entitled
to financial and other restorative measures. This again is more
meaningful if given as a result of such proceeding as opposed
to "benefit-like handouts" from government. It offers
individual assistance to address often individual needs
3. REDRESS
This refers to the outcomes that not only benefit
the victims but the rest of society, for example changes in the
law to ensure that the crime is not easily repeated or the circumstances
are not replicated. It offers to restore the balance in society
in favour of the ordinary law abiding citizen. The state uses
its resources including force to protect its citizens and to call
often powerful criminals to account. This redresses the imbalance
within society and ensures that criminality like terrorism does
not take root.
4. RE -EDUCATION
The creation of case law is the most obvious
example of this but at a community level the full and fair application
of justice and the process it employs is instructional. It allows
victims to tell their story and reveals the facts of the issue
publicly. It shows society in the words of the old adage that
crime does not pay and it forces not just the perpetrator but
everyone to take responsibility for what has happened to the victim.
In Northern Ireland the ability to hold an individual or group
to account for a crime particularly a scheduled or sectarian offence
aids community relations. Rather than the victims or community
blaming the entire "other" community they have a clear
perpetrator to focus any natural and justifiable feelings towards.
5. PREVENTS REPETITION
For the victim this is perhaps the most important
outcome, as it provides a restoration of security and normality.
Often victims are witnesses who risk a lot to participate in the
judicial process, sanctions must be applied to perpetrators to
ensure their protection and future involvement of victims in the
process. By placing sanctions on offences the state is upholding
its obligations (under Article 2 of the European Convention on
Human Rights) to protect the lives of its citizens. In short sanctions
act as a deterrent to those who would consider committing similar
offences. Thereby victims and the wider community live in greater
security and safety, and are more able to deal with the past personally
and as a community if they feel the past is indeed in the past.
Anyone who continues to live in fear of a repetition of the past
will never be able to cope—this is the situation in South
Armagh.
If these sanctions are removed such as we have
seen in Northern Ireland the whole justice process breaks down.
Sadly the political process has produced just such an erosion
of justice with:
— the acceptance of special status
for "politically" motivated terrorist crimes;
— the negotiation of the release of
all who were imprisoned for such scheduled offences;
— a weak form of release under license
which has rarely been used despite perpetual reoffence;
— a refusal to blame and prosecute
terrorists involved in the political process, with one Secretary
of State even referring to internal feud killings as "house-keeping
matter";
— the destruction of the investigative
capacity of the RUC under the Patton reforms;
— the decision in 2002 not to pursue
outstanding extradition warrants for wanted terrorists;
— the reform of the criminal justice
system which removes its ability to insulate itself from attack
or influence by terrorism;
— a soft approach to "ordinary"
crime perpetrated by terrorist groups involved in the political
process;
— the policy of the present Chief Constable
to ignore the issue of the hundreds of unsolved murders committed
during the Troubles
— the Joint Declaration proposals to
grant amnesty to "On the Runs" wanted or even convicted
of serious terrorist crimes in Northern Ireland.
These and the countless other examples of appeasement
to terrorism has led to the erosion of not only democracy but
the rule of law and the equitable application of justice in Northern
Ireland. These concessions to terrorists have only served to exclude
and alienate victims and have created a dangerous precedent for
the rest of the United Kingdom. They have made dealing with the
past more difficult and have even politicised the issue as it
is clear now that without justice even an agreed record of the
past will be contested. As victims we must argue that justice
and our rights cannot be traded for truth much less an agreed
truth used as a shared history or founding myth of a new political
dispensation.
AN ANALYSIS OF THE SOUTH AFRICAN TRUTH AND
RECONCILIATION COMMISSION—ITS FAILINGS AND INCOMPATIBILITY
WITH N. IRELAND
Whilst a TRC may look like the perfect solution
for Northern Ireland, or the perfect cover for the Government
as they grant amnesty to terrorists it is like so many objects
of desire—not as flawless when examined closely. However
close examination has never been allowed, the TRC and its work
has been regarded by many as almost "relic like" possessed
of some magical power to heal all the wrongs of a nations past.
To criticise it is akin to heresy, with the critic tied to the
stake along with other rejectionists of the new South African
dawn.
However, in recent years the heresy has spread
beyond the confines of the reactionary Afrikaner community into
more mainstream popular and academic circles. As the more enlightened
amongst us scratch beneath the surface of South Africa all is
not well, like former Rhodesia the new shining political dispensation
has began to tarnish. Still the veneer holds, covering a multitude
of ugly sins, such as the hundreds of white farmers who continue
to be murdered, or the soaring crime rates, and the almost institutionalised
abuse of human rights.
Whilst many apologists point to these as a legacy
of the past, more discerning minds have begun to question if many
of the present problems cannot be traced back to the transition
period and initiatives like the TRC. It held such a central role
in the foundation of the state that it has influenced the outlook
of the new South Africa. For example the legitimisation of terrorism
in the pursuit of a political agenda is not a good precedent to
set in a country where violence is fast becoming a threat to stability.
The TRC was sold as a way of achieving a new start of dealing
with the past but as one critic the Inkatha MP Abraham Mzizi summed
up the suspicions of many he described the TRC as the "Truth
Revision Commission".
In summary the failings of the South African
TRC are:
1. LACK OF
INDEPENDENCE AND
OWNERSHIP
The justifiable response of many from the minority
white community to the TRC turned it from an initiative to promote
national unity into a politicised witch hunt. The composition
of the TRC and its operations tainted it in the eyes of many South
Africans, indeed many who originally advocated it soon turned
when they saw it in action. It remains a source of contention
rather that a source of unity, and has actually pardoned and perpetuated
human rights abuses. Such is the ethos of keeping political violence
in the past that present human rights violations are ignored as
unwelcome reminders that while the TRC lid may be on the pot,
it is still seething and boiling beneath.
2. DISGRACE OF
AMNESTY
Thousands of human rights abusers and perhaps
millions of abuses have been pardoned by the amnesty committees
of the TRC. But even in this most sordid and base element of the
project there has been discrimination. While it was decided to
grant amnesty to 37 ANC leaders, including the then Deputy President
Thabo Mbeki, without requiring them to specify the actions for
which they were seeking amnesty, as laid down in the TRC founding
law, others such as Clive Derby Lewis remain in prison.
3. BIAS AGAINST
THE STATE
The 17 TRC commissioners are overwhelmingly
"pro-struggle", meaning dedicated opponents of the previous
government. Not a single commissioner can be categorised as a
representative of either the National Party or the Inkatha Freedom
Party. The only original commissioner with links to Afrikaner
nationalism is Chris de Jager. He has since resigned, accusing
the TRC of bias.
There is only minimal evidence about the ANC-led
people's war, the murder of South Africans deemed to be "enemies
of the people" or the ANC's use of violence to assert its
hegemony over rival political movements in the black community,
including various formations of the black consciousness movement
and, of course, Inkatha.
Yet while the TRC has investigated the role
of the State Security Council (SSC) in developing a counter-insurgency
strategy against the ANC-led rebellion in the 1980s, there has
been no equivalent investigation into the parallel ANC organisation,
the Political Military Council (PMC) which planned the revolutionary
war against the minority regime. The TRC has pursued the question
of whether the SSC, and the political leaders who served on it,
sanctioned the murder of opponents of the old regime. But it has
shown far less energy and commitment establishing whether members
of the PMC were culpable of atrocities committed in the ANC prison
camps in Angola and for the attacks on civilians in South Africa..
The absence of vigorous investigation into the ANC's involvement
into alleged criminal activities has made life a lot easier for
its political "big shots" (to borrow Mandela's phrase).
4. POLITICISATION
OF THE
PROJECT
Suspicions about the TRC's moral and political
preference for the ANC over rival parties are manifest in the
findings of a MarkData survey. It shows that a minority of whites,
coloureds and Indian believe that the commission is fair and unbiased.
While a clear majority of blacks believe that it is fair and unbiased,
more than a third do not endorse that view. Of those who think
that the TRC prefers one party above its rivals, the ANC is the
most frequently named party. Critically for the TRC's mandate
to promote national unity and reconciliation between former adversaries,
the proportion of people who think that it will either create
hostility (27%) or make little difference (23%) is larger than
the proportion who believe it will bring South Africans closer
together (40%).
5. RECREATION
OF HISTORY
It is clearly seen as a case of the victors
rewriting history to exclude or redefine their actions. The situation
is compounded by fears that the TRC's final report will form the
basis of a new official history, one which will sanitise or even
sanctify the ANC and demonise parties which are associated in
any way with the old order. These fears originate in part from
an article by TRC commissioner Richard Lyster. Emphasising his
concern that the nation should not be left with "a number
of contradictory versions of our history" that could serve
factional interests, he has identified the TRC's final task as
providing the government with a "publicly sanctioned history"
which "can be taught in our schools". The premise of
his argument is that the TRC represents a wide spread of ideological
views. His premise is faulty. The Inkatha MP Abraham Mzizi summed
up the suspicions of many when he described the TRC as the "Truth
Revision Commission".
INCOMPATIBILITY WITH
NORTHERN IRELAND
Stigmatisation of our Conflict
Often parallels are drawn between South Africa
and Northern Ireland which by inference stigmatise the past. We
must make the point that ours was in fact a mirror image of the
South African experience where instead of a majority being denied
their rights and democratic expression by a minority we saw the
opposite. Here a violent terrorist minority sought to overturn
the democratic wish of the majority and impose their political
will through force. In the process they abused the rights of all
and murdered with abandon. To equate that to a struggle for liberation
and freedom is simply to accept the propaganda of the terrorist.
If our problem was therefore different then
it follows that the solution must also be different. Victims of
terrorism are insulted when comparisons are drawn because it implies
that we were similar to those who created and sustained an apartheid
state. In our province the only groups who sought segregation
were the terrorists with their No-Go areas and the only repression
was the terrorism visited on all communities by them. To equate
the actions of a terrorist minority here to a liberation struggle
in Africa is an insult to victims and will only serve to prejudice
any efforts to deal with the past. Many feel that the TRC offered
legitimisation and indeed moral superiority to those who had fought
the government. This if applied to our situation victims and those
from a pro-state community would not participate.
Inherent Fundamental Flaws in the Model
As has been outlined above the models used internationally
each possess fundamental flaws. Indeed it is claimed only Chile,
El Salvador and South Africa producing final reports[2].
The levels of dissatisfaction and the internal difficulties of
previous commissions can only lead one to the conclusion that
they have fundamental flaws both at a conceptual and practical
level. In the end they have been born out of political negotiation
and deal-making, they are by nature compromise solutions.
Differential in Accountability of Actors
Any process which holds various actors to account
is naturally biased against the state and those who exercised
legitimate authority and force. They were public bodies, with
clearly defined command and control structures, with mechanisms
for accountability. They were administered and financed publicly
and have clear paper trails. Sub-state terrorist groups have no
such mechanisms for accountability, they operated outside, often
above the law with a tight secretive cellular structure. They
exert fear and a residual loyalty in host communities making their
activities hard to prove.
In legal terms they are not held accountable
in the same way as states for human rights abuses, and yet were
often as in Northern Ireland's case the worst offenders. Therefore
they have most to lose from telling the truth unless they are
granted amnesty. As it is the state forces are open to challenge
and are accountable; their orders, actions and outcomes are matters
of public record. Therefore yet again terrorists are at a distinct
advantage; they can secure more concessions to tell their story
and it more difficult to discern if it is the truth.
Propaganda Potential for Terrorists
In light of the problems articulated thus far,
any such process would run the risk of becoming a propaganda victory
for the terrorists. They would be able to portray the state as
the aggressor, they could lie or evade questions about their role
as we have already seem at the Saville Inquiry and would seek
to rewrite history to legitimise their violence. They have spent
decades selling their terrorism as a just war of liberation, would
be well placed to use any truth recovery process as a propaganda
process.
They are the masters of spin and would use any
opportunity to propagate their message. This would lead to further
conflict, as each side sought to ensure their version of the past
was portrayed accurately.
Amnesty—The Price of Truth
As has been outlined before the trading of truth
for justice with the imposition of amnesties would be unacceptable
to victims and would lead to the politicisation of the entire
process.
The Past is Not Over
The main problem in Northern Ireland is that
the conflict is not over. The people which we represent continue
to live in fear with several of our workers currently under death
threat. The ongoing conflict means that daily victims and ordinary
people in communities across Northern Ireland are forced to live
in fear and to dwell in the past. For them they cannot deal with
the past they are forced to survive it.
Many of the models of conflict resolution and
indeed the ideas for dealing with the past presuppose that all
is well and that violence is a thing of the past. This is not
the case. Until there is an end to terrorism and its attendant
criminality, until there is full decommissioning and the dismantling
of terror group structures we cannot speak of the past as if it
were over.
No Agreed Constitutional Settlement
Truth Commissions are often a product of constitutional
settlements they offer a way of dealing with issues that remain
after the future constitutionally has been settled. In South Africa
for example there will never be a return to the old days and ways,
it is not possible that the majority will ever lose power or that
the whites will be in a position to force their will for say the
creation of a new apartheid state. However here, such certainty
does not exist.
All but the most naive accept that the present
deal and its institutions will one day if demographics allow be
changed or indeed removed. Indeed at the Core of the Agreement
there exists a method and criteria for such a change for the end
of the country as it is now known. This may not happen at a speed
agreed by all and this along with many other circumstances could
lead to instability and the descent to violence. In short we cannot
say that the past is behind us and that stability will reign.
Truth is Known
These latter points speak for themselves and
are related. Many victims due to the nature of the conflict and
the localisation of violence know or at least have strong suspicions
about who did what. They knew the people and still see them, there
lies many unspoken truths in Ulster. Therefore many conclude that
what more can they be told they know why their loved one was killed
to them it was sectarian and do not wish to afford the killers
a public platform on which to justify their actions.
Its All too Close
We are not South Africa in either geographical
or socio-economic terms. The gulf that exists between groups there
in those terms meant that they were never likely to know or see
their opponents. Here the killers could be neighbours and most
certainly were of a similar socio-economic background. Perhaps
the segregation of housing lent a little distance to the conflict
but not that much. Also in terms of time many feel they are not
ready it is too soon, especially as those responsible now sit
in government.
Retraumatisation or Revenge
Many victims don't want to have the past brought
up in such a public and traumatic way. They have worked long and
hard to deal with the past and have their own individual coping
mechanisms. For others they require the support of groups such
as ours to deal with these issues and to cope. Much good work
could be undone by a public, forced political truth commission.
But in time with the ongoing work of groups such as FAIR people
will be able to deal with the past.
THE WAY
FORWARD—AN
INTERNATIONAL RESPONSE
"Justice and the rule of law: the role of
the United Nations," within the context of the August 2004
Report of the Secretary-General on these issues.
FAIR strongly believes that accountability for
atrocities is at the core of laying the foundation for the rule
of law and respect for human rights in conflict and post-conflict
societies. We have seen time and again how impunity for atrocities
committed in the past sends the message that such crimes will
be tolerated in the future.
The UN Secretary-General's report affirms the
centrality of justice and the rule of law in promoting immediate
and long-term peace in post-conflict societies, and identifies
the importance of prosecutions for serious crimes. Human Rights
Watch believes that perpetrators of genocide, war crimes, and
crimes against humanity must be prosecuted to advance the cause
of justice and the rule of law by ensuring that justice is done.
Where national courts are unable or unwilling to try these cases,
this requires the political will of Security Council members supported
by the provision of adequate human and financial resources.
We would like to highlight several of the most
important of the Secretary-General's recommendations related to
Security Council mandates and resolutions on accountability for
past atrocities. Human Rights Watch believes that consistent implementation
of these concrete recommendations when the Security Council responds
to a new conflict or post-conflict situation would make a vital
contribution to strengthening the international communities response
on justice and the rule of law.
The words of the United Nations on this matter
mirror our own sentiments so closely that we have reproduced them
here:
"The Security Council recalls the important
statement made by the Secretary General to the 59th session of
the United Nations General Assembly on 21 September 2004 and endorses
his view that `It is by reintroducing the rule of law and confidence
in its impartial application that we can hope to resuscitate societies
shattered by conflict'. The Council stresses the importance and
urgency of the restoration of justice and the rule of law in post-conflict
societies, not only to come to terms with past abuses, but also
to promote national reconciliation and to help prevent a return
to conflict in the future."
First, the Secretary-General recommends that
Security Council resolutions and mandates should "give priority
attention to . . . explicitly mandating support for the rule of
law and for transitional justice, particularly where United Nations
support for judicial and prosecutorial processes is required."
While justice for atrocities should be rendered
by national courts whenever possible, all too often, they simply
do not have the ability or willingness to try these types of cases
in conflict and post-conflict situations, as victims of terrorism
in Northern Ireland we have been forced to watch as the perpetrators
of some of the most heinous crimes and human rights abuses have
been freed from prison, the police force has been rendered ineffective
in fighting terrorism and presently the UK government has undertaken
to introduce a form of amnesty for terrorists still wanted for
their crimes.
As victims who have suffered as a result of
their service in the armed forces and police we value traditional
British processes of policing, justice and democracy. Therefore
we endorse an approach that keeps Northern Ireland in line with
the rest of the United Kingdom, whilst taking into account the
particular circumstances of our situation and provides additional
protections against terrorism. If this cannot be achieved in a
domestic framework then we advocate international intervention.
International tribunals are by nature imperfect remedies and should
be pursued only as a last resort. However, as the Secretary-General
observes, the international community plays a crucial role in
ensuring accountability when the alternative would be impunity.
For example we have observed in a report released recently, for
example, how the failure to address impunity in Afghanistan is
threatening the likelihood of free and fair elections.
— Even with their limitations, the
ad hoc international tribunals and hybrid tribunals have had historic
achievements by avoiding a massive justice deficit—for example,
holding those with greatest responsibility for massacres in Srebrenica
and the masterminds of the Rwandan genocide accountable—and
establishing rich jurisprudence on international criminal law.
They have also improved operations over time, demonstrating the
possibility to learn from experience to improve future accountability
efforts.
— At the same time, there is no substitute
for a strong national judiciary, free from direct political interference.
FAIR believes that the complementary relationship between the
International Criminal Court and national courts should be utilized
to enhance the capacities of national justice systems. This will
ensure that victims rights and the due process of law are not
curtailed in the interests of domestic peace deals.
A second key recommendation is that Security
Council resolutions and mandates should ensure that United Nations-sponsored
tribunals should include at least partial funding through assessed
contributions.
— Research on the Special Court for
Sierra Leone shows that funding a tribunal through voluntary contributions
is extremely problematic. In Northern Ireland victims have similar
practical problems when accessing justice, with one group representing
the Omagh families being forced to make a one million pound appeal
to the general public to fund a civil action.
A third essential recommendation is that Security
Council resolutions and mandates should insist upon full governmental
cooperation with international and mixed tribunals, including
in the surrender of accused persons.
— We welcome Security Council resolutions
calling on member states to fulfill their legal obligations to
cooperate with the ad hoc tribunals by bringing indictees to them,
and urge the Security Council to back up these calls with concrete
measures that will provide repercussions for failure to cooperate.
This matter has come into focus recently with the case of the
three PIRA terrorists convicted in Columbia, who have gone on
the run. Fears they may flee to the Republic of Ireland who will
undoubtedly refuse to extradite them highlight the problems facing
victims who rely on justice to serve them.
A final area of key concern for the Council
raised by the Secretary-General is its particular role in relation
to the International Criminal Court, because it is empowered to
refer situations to the court, including situations in countries
that are not ICC states parties. Where national courts cannot
or will not address serious crimes, FAIR firmly believes that
the Security Council has a responsibility to utilize this authority
to ensure accountability.
We urge you to incorporate the observations,
conclusions, and recommendations of the Secretary-General and
to seize this opportunity to strengthen the UN role in promoting
justice and the rule of law in its response to conflict and post-conflict
situations. The eyes of the world are indeed on the UK at this
time. We have faced a terrorist war for over thirty years, a war
that was brought to the very gates of Downing Street and to the
very Palace of Westminster. Now we must unite to deal with the
past and to ensure the survival of democracy, the rule of law
and justice as equal rights for the all the people of the UK.
It is a task that has been embraced at International
and European level and many now look to the UK as a leader. In
dealing with the past the Government must set its primary goal
as ending the repetition of the past, ending the ongoing terrorism
and ensuring that it will never be repeated. To do this they must
resource and support the rule of law and must end the political
interference and sacrifice of justice for the sake of so-called
"peace".
CONCLUSION
Whilst truth is necessary to deal with the past
and to aid reconciliation by bringing closure for victims ,it
must be borne in mind that in terms of the past there exists in
the United Kingdom a truth recovery process. It has been tried
and tested and has evolved through centuries of experience and
has afforded society a means by which to learn of the past, to
recognise that victims have been wronged, to apply independent
arbitration to differing accounts of the past and to arrive at
a conclusion as to the accepted truth of historical events. The
process provides redress and reparation for victims and allows
for the impartial enforcement of sanctions on those who have broken
society's rules of conduct. It is a process that can prevent the
repeat of the past, draw lessons from it and to make changes to
the way society deals with it. It gives security to society by
removing the perpetrators and working to rectify the situation
that led to their actions. The sanctions applied to them and their
actions sends out a clear message to all that such acts as have
been committed in the past will not be accepted in the future.
In short we have the British Criminal Justice System, it has recently
been reviewed and there appears to be new and complete political
acceptance of it. It offers the best way of dealing with the past.
Others may advocate a truth commission or truth
and reconciliation commission along the lines of a number of international
models. Others may argue for local community based restorative
justice methods as a way of dealing with the issues. However,
as victims who have given much to defend democracy against terrorism
and have served in the police force upholding the rule of law
and justice we must state clearly that anything short of a truth
recovery process as outlined above and in line with the rest of
the UK would be unacceptable. There are a range of arguments against
each of the above and if given more time we would like the opportunity
of speaking with the Committee to outline out particular and more
general and academic arguments against both truth and reconciliation
commissions or community based restorative justice methods.
The international community has seen the need
to deal with the past by ensuring the application of the rule
of law and ensuring justice now we urge the government to do like
wise.
DECLARATION OF
BASIC PRINCIPLES
OF JUSTICE
FOR VICTIMS
OF CRIME
AND ABUSE
OF POWER
A. Victims of crime
1. "Victims" means persons who,
individually or collectively, have suffered harm, including physical
or mental injury, emotional suffering, economic loss or substantial
impairment of their fundamental rights, through acts or omissions
that are in violation of criminal laws operative within Member
States, including those laws proscribing criminal abuse of power.
2. A person may be considered a victim,
under this Declaration, regardless of whether the perpetrator
is identified, apprehended, prosecuted or convicted and regardless
of the familial relationship between the perpetrator and the victim.
The term "victim" also includes, where appropriate,
the immediate family or dependants of the direct victim and persons
who have suffered harm in intervening to assist victims in distress
or to prevent victimisation.
3. The provisions contained herein shall
be applicable to all, without distinction of any kind, such as
race, colour, sex, age, language, religion, nationality, political
or other opinion, cultural beliefs or practices, property, birth
or family status, ethnic or social origin, and disability.
Access to justice and fair treatment
4. Victims should be treated with compassion
and respect for their dignity. They are entitled to access to
the mechanisms ofjustice and to prompt redress, as provided for
by national legislation, for the harm that they have suffered.
5. Judicial and administrative mechanisms
should be established and strengthened where necessary to enable
victims to obtain redress through formal or informal procedures
that are expeditious, fair, inexpensive and accessible. Victims
should be informed of their rights in seeking redress through
such mechanisms.
6. The responsiveness of judicial and administrative
processes to the needs of victims should be facilitated by:
(a) Informing victims of their role and the
scope, timing and progress of the proceedings and of the disposition
of their cases, especially where serious crimes are involved and
where they have requested such information;
(b) Allowing the views and concerns of victims
to be presented and considered at appropriate stages of the proceedings
where their personal interests are affected, without prejudice
to the accused and consistent with the relevant national criminal
justice system;
(c) Providing proper assistance to victims
throughout the legal process;
(d) Taking measures to minimise inconvenience
to victims, protect their privacy, when necessary, and ensure
their safety, as well as that of their families and witnesses
on their behalf from intimidation and retaliation;
(e) Avoiding unnecessary delay in the disposition
of cases and the execution of orders or decrees granting awards
to victims.
7. Informal mechanisms for the resolution
of disputes, including mediation, arbitration and customary justice
or indigenous practices, should be utilised where appropriate
to facilitate conciliation and redress for victims.
Restitution
8. Offenders or third parties responsible
for their behaviour should, where appropriate, make fair restitution
to victims, their families or dependants. Such restitution should
include the return of property or payment for the harm or loss
suffered, reimbursement of expenses incurred as a result of the
victimisation, the provision of services and the restoration of
rights.
9. Governments should review their practices,
regulations and laws to consider restitution as an available sentencing
option in criminal cases, in addition to other criminal sanctions.
10. In cases of substantial harm to the
environment, restitution, if ordered, should include, as far as
possible, restoration of the environment, reconstruction of the
infrastructure, replacement of community facilities and reimbursement
of the expenses of relocation, whenever such harm results in the
dislocation of a community.
11. Where public officials or other agents
acting in an official or quasi-official capacity have violated
national criminal laws, the victims should receive restitution
from the State whose officials or agents were responsible for
the harm inflicted. In cases where the Government under whose
authority the victimizing act or omission occurred is no longer
in existence, the State or Government successor in title should
provide restitution to the victims.
Compensation
12. When compensation is not fully available
from the offender or other sources, States should endeavour to
provide financial compensation to:
(a) Victims who have sustained significant
bodily injury or impairment of physical or mental health as a
result of serious crimes;
(b) The family, in particular dependants
of persons who have died or become physically or mentally incapacitated
as a result of such victimisation.
13. The establishment, strengthening and
expansion of national funds for compensation to victims should
be encouraged. Where appropriate, other funds may also be established
for this purpose, including in those cases where the State of
which the victim is a national is not in a position to compensate
the victim for the harm.
Assistance
14. Victims should receive the necessary
material, medical, psychological and social assistance through
governmental, voluntary, community-based and indigenous means.
15. Victims should be informed of the availability
of health and social services and other relevant assistance and
be readily afforded access to them.
16. Police, justice, health, social service
and other personnel concerned should receive training to sensitise
them to the needs of victims, and guidelines to ensure proper
and prompt aid.
17. In providing services and assistance
to victims, attention should be given to those who have special
needs because of the nature of the harm inflicted or because of
factors such as those mentioned in paragraph 3 above.
January 2005
1 Minow, Martha (1998). Between vengeance and forgiveness
facing history after genocide and mass violence. Boston, Beacon
Press. Back
2
United States Institute of Peace website 2005. Back
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