Memorandum submitted by Mr Brandon Hamber
This submission outlines a number of areas for
consideration when thinking about the issue of dealing with the
past and reconciliation in societies coming out of conflict. It
consists of four sections. First, the breadth of the notion of
dealing with the past is considered. Second, the question of the
issue of victims of political violence is discussed. Third, some
points with regard to the idea of a truth commission for Northern
Ireland are outlined. The submission then ends with the extraction
of five broad lessons that may be helpful in thinking about dealing
with the past in any society in transition.
1. DEPTH AND
WIDTH OF
THE PROCESS
OF DEALING
WITH THE
PAST
Dealing with the past and building reconciliation
is a long-term, deep and wide process. As such there are multiple
(generally context specific) ways used to deal with the past in
different countries. In a submission such as this it is difficult
to outline all of these. Furthermore, research in Northern Ireland
has shown that reconciliation is a multifaceted concept in itself
and is also defined in different ways in different contexts. Although
this submission makes extensive reference to the notion of a truth
commission, it is important that we think about "dealing
with the past" as a process much wider than a narrow debate
on truth commissions. One criticism I would have of the South
African approach was an over-reliance on stressing the South African
Truth and Reconciliation Commission (TRC) as the primary mechanism
for dealing with the past, when clearly a range of mechanisms
were going to be necessary over a long period of time.
The Healing Through Remembering consultation
process heralded probably the most thorough public and civil society
investigation to date of strategies for dealing with the past
in Northern Ireland. Their consultation identified 14 key approaches
to dealing with the past. These include: storytelling and oral
history; memorials; museums, exhibitions and art; public and collective
commemorations; truth recovery processes; other forms of legal
processes such as trials and inquiries; community and intercommunity
interactions; support for individuals and victims; research and
social policy development; a Centre for remembrance; a financial
response, ie the establishment of a memorial fund for victims,
and a satisfactory compensation system; education and training;
supporting current remembering processes; and self-examination
of institutions, and apologies.
More specifically, the Project recommends: (1)
developing a living memorial museum; (2) establishing a day of
reflection; (3) setting up a network of commemoration projects;
(4) establishing a collective story-telling initiative; (5) establishing
an initiative to take the recommendations forward; and (6) initiating
an acknowledgment process towards truth recovery. In terms of
truth recovery, the Project felt that a formal truth-recovery
process should be given careful consideration, though only as
one part of dealing with the past. Importantly, the HTR final
Report stipulates that an important first step in a truth-recovery
process is acknowledgement, by all, of acts of commission and/or
omission.
I understand that the HTR project has made a
separate submission to the Committee, but I mention it as I believe
the breadth of the areas touched on by the Project's Report—and
the different methods for dealing with the past referred to in
their consultation as outlined above—highlight the various
components that will need to be addressed to holistically deal
with the past. I draw attention to them because some, if not all,
will need to be addressed in one way or another in any society
attempting to deal with the past and build reconciliation.
2. VICTIMS AND
DEALING WITH
THE PAST
Support services for victims of political violence
are a critical component of dealing with the past. A long-term
process of dealing with the needs of victims should be put in
place—to date a range of steps for addressing the needs
of victims have been set up in Northern Ireland.
That said, state responses to the impact of
the conflict in and about Northern Ireland have been criticised
for being slow and limited. There was until recently a "policy
silence" in the areas of health, social services, education
and other provisions for victims of the conflict. This has resulted
in a legacy of distrust (especially of statutory services) within
many community groups working with victims of the conflict. My
research and that of others has shown that the process of supporting
victims came fairly late in the day and initially was somewhat
chaotic in its development, although the process is currently
stabilising.
The biggest threat to support services in Northern
Ireland remains the lack of commitment to fund and support victims
over the long-term. International lessons suggest victims support
needs to continue for decades and the two-year funding cycles
for Victim Group Core Funding in Northern Ireland is inadequate
in that regard. Many victim groups remain concerned about the
possibility of long-term funding, sustainability and support.
Although they hold fairly divergent views at this stage about
how best to deal with the past (eg should there be a truth commission,
a memorial listing all those killed in the conflict), most however
would agree that ongoing support remains a priority.
Having said that, the provision of extensive
counselling or setting up public health facilities, although welcome,
do not fully address the wider notion of dealing with the past.
Of course, victim support services are necessary. Victims need
to be provided with the space to tell their stories, be heard
and be officially acknowledged. However, when considering the
notion of dealing with the past more broadly, we should not fall
into the simplistic trap of arguing that revealing (telling the
truth) or storytelling as it is sometimes called is instantly
healing. Storytelling may be a necessary step, but testimony is
not sufficient in itself to heal all victims, address the wounds
of the past or deal with the past more generally.
My work over the years has routinely shown that
victims are unlikely to divorce the questions of truth, justice,
the labelling of responsibility for violations, compensation and
official acknowledgement, from the healing process. Therein lies
the challenge: setting up sufficient support services for all
victims of political violence could be envisaged, but integrating
their other needs—some perhaps overridden in the name of
peace, such as the right to justice—is infinitely more complex.
Victim rights, and the intricate needs of individual
survivors with regard to truth, justice and reparation, are often
negated by compromises made to ensure peace (such as the release
of political prisoners). As such governments and political parties
may find themselves at odds with victims as political processes
often move forward more rapidly than personal processes. If so,
policymakers and governments will be required to deal as best
they can with the legitimate frustrations of victims whose rights
have been violated—a less than ideal position.
The denial of certain rights to victims often
leads to the understandable desire by victims to want their pain
to be legitimately heard. This sense of injustice is often at
the heart of the conflict between different victim groups (and
politicians) as to who are the "real" victims of the
conflict. It has become common for some groups to refer to themselves
as "real" or "innocent" victims in Northern
Ireland. Individuals from different sides of the conflict have
alleged that there is a hierarchy of victimhood, ie pointing out
that their specific type of victimisation is given a lower level
of official prioritisation than certain others. If we think of
the injustices many have suffered, such a "competition"
for victimhood makes sense. That said there is a responsibility
on politicians committed to peace to try to defuse this situation
rather than play into it.
Brice Dickson of the Northern Ireland Human
Rights Commission provides some useful pointers in dealing with
this situation. He notes that the nature of victimhood differs
according to the nature of the wrong that has been committed against
the victim. The wrong has two aspects to it: the act itself (eg,
the killing, the assault, the threat) and the consequences of
the act (eg, the death, the injury, the fear). If we are to decide
what rights victims should have, he argues, we should have regard
for both aspects. The former aspect calls for rights such as recognition,
acknowledgement and apology. The latter aspect calls for rights
such as compensation and access to services. The former is more
politically contentious as usually acknowledgement and recognition
are dealt with by truth commissions and other official processes.
Rights in relation to service delivery are more
straightforward. It would appear that law could underpin rights
to compensation and adequate services—the draft Bill of
Rights in Northern Ireland supports this. The difficulty, however,
comes when dealing with the complexity of needs of victims in
transitional societies related to truth, justice, recognition
and acknowledgement. Addressing such issues essentially requires
political solutions and commitment to openness, transparency and
public acknowledgment in some form (eg through reparation, apology,
and political parties, paramilitaries, security forces and governments
actively participating in peacebuilding initiatives and truth-recovery
processes if necessary).
Having said that, victims' rights in criminal
justice studies, albeit somewhat developed, remain the poor relative
to many other aspects of criminal justice the world over. In transitional
justice studies the concept is almost non-existent. A more rigorous
engagement with the issue of victims' rights still needs to be
developed and articulated. Focusing ongoing discussions concerning
victims and dealing with the past within and about Northern Ireland
in a rights discourse from the outset may be a useful starting
point.
3. A TRUTH COMMISSION
FOR NORTHERN
IRELAND?
Although victims need to be at the forefront
of any policy for addressing the past, the question of dealing
with the past and truth-recovery concerns wider society. In 1998
I undertook research on whether or not Northern Ireland should
have a truth commission. I came to the conclusion that, at that
time, an official truth recovery process seemed unlikely for Northern
Ireland. Others made similar arguments; namely, that no moral
or political authority existed to support an entity such as a
truth commission. I further argued in my research that the balance
of power between forces during transition generally determined
government policy on issues and, in Northern Ireland, at that
stage, the forces were too evenly weighed and all sides were opting
to leave their truths hidden for the time being. As such:
Most political players demand truth from those
they perceive as the other side or sides, but seem unwilling to
offer the truth from their side, or acknowledge and take responsibility
for their actions. This is mostly due to fear that such acknowledgement
(public or otherwise) will weaken in the new dispensation and
that the truth may be used against them within the context of
the delicate peace that prevails. There are also those in Northern
Ireland who refuse to accept that they did anything wrong or that
their action (or inaction) was complicit in perpetuating the conflict.
Several years on, the endpoint has not shifted
significantly, but the debate and the intricacies of dealing with
the past have certainly gained political and public momentum.
In addition, various mechanisms that one could broadly call "truth-recovery
processes" in some shape or form are underway. International
lessons (eg the ongoing debates about the past in Chile, recent
prosecutions and additional commissions years after the official
truth commission) suggest a truth commission does not draw a line
in the sand. It can merely help shape future debate hopefully
more constructively. Michael Ignatieff feels truth commissions
do not find the complete truth but rather narrow the opportunity
for "permissible lies" about the past. He is of the
opinion that truth commissions can provide a frame for public
discourse and memory. They create a new public space for an ongoing
debate.
South Africa's TRC was a bold attempt, first
and foremost, to uncover the truth about what had happened in
its past and, in a minority of cases, this did occur. The atrocities
of the past were opened up for debate, examination and for lessons
to be learnt. Each individual act of coming together (and there
were several) or the few genuine acts of repentance seen during
the process cannot be scoffed at in a deeply divided society.
The TRC went a long way in naming individuals who were responsible
for past atrocities and outlining the causes of the conflict and
the wider historical context. It also taught some hard lessons
about the complexity of dealing with a conflict-ridden past. It
assisted in setting some accepted limits in the narrative of what
happened to whom and, in this, reduced the range of permissible
historical revisionism.
Several of the TRC's recommendations or, more
accurately, its calls for ongoing social, economic and political
reform in South Africa are also informative. The South African
government now and in the future would do well to measure its
progress against many of the TRC's recommendations. Several other
institutions (following TRC hearings that focused specifically
on them), including the media, the health sector, judiciary, churches
and business were also implored to ensure the development of a
more robust human rights culture within their structures, while
ensuring that South Africa becomes a more equal society.
That said, the TRC's amnesty provision meant
that justice through the courts remains elusive for many victims.
The granting of amnesty in exchange for truth remains a difficult
issue to bear for many victims in South Africa. Lauding South
Africa for its innovative approach—trading truth for amnesty—is
meaningless without referring to its context. South Africa's approach
to reconciliation cannot be applied elsewhere without first analysing
the power relations in that society and others. A truth commission
granting amnesty as in the South African case is not usual practice,
most focus on building a picture of the past, investigating unsolved
cases and labelling responsibility, largely (but not exclusively)
through the use of victim testimony.
Furthermore, truth commissions are generally
used to consolidate peace after a formal agreement has been secured,
not to try to make peace. The issue of timing in the incomplete
Northern Ireland process remains one of the biggest stumbling
blocks at this point. This does not mean questions of truth and
justice will disappear in Northern Ireland; they will need to
be confronted, but when the time is right and when consensus on
a method for doing this can be achieved.
The mandate of the South African TRC compelled
it to investigate the "causes, nature and extent" of
the South African conflict. The TRC could have certainly ventured
more boldly into the "nature and extent" of the conflict.
In addition, the TRC could have fostered a greater recognition
of the need for multiple and ongoing mechanisms over time to continue
truth finding and deliver justice in South Africa. However, the
South African TRC certainly elucidated the broad causal and historical
picture fairly well. This was obviously made easier by the fact
that a widely accepted truth already existed, ie, apartheid was
a morally abhorrent system that brutalised many. But, on assessment,
the TRC did not simply highlight the fact that apartheid was a
crime against humanity—uncomfortable `truths' of firmly
held narratives about the South African conflict were challenged
on all sides.
Contrary to this, the multitude of initiatives
taking place in Northern Ireland, largely unofficial, mean that
the "nature and extent" of the conflict is fairly well
documented. Ongoing projects and compilation of "victim lists"
have documented the extent of the conflict in Northern Ireland
in great detail (although developing an official list of those
injured and killed in the conflict would be a worthwhile endeavour).
However, unlike South Africa, agreeing on or
at least having a broadly accepted narrative of the "causes"
of the Northern Ireland conflict is one of the biggest challenges
to building some form of reconciliation into the future. The fear—not
to mention complexity—of exploring the "causes"
in an open, honest and inclusive way is the principal obstacle
to engaging in a macro truth finding process. Such a process,
if designed correctly and impartially, would mean for all parties
involved—including the governments, political parties, security
forces, paramilitaries and the public at large—potentially
compromising on long-held beliefs about the causes of the conflict,
or at least being prepared to allow their own perspectives to
be scrutinised, and perhaps proved mistaken or misguided. The
challenge such a process might present is one of the reasons why
many would not support the idea of a truth commission, but equally
this could be the very reason for making such a recommendation.
CONCLUSION: LESSONS
LEARNED
This section briefly outlines some of the lessons
from my research and work on transitional justice issues that
may be relevant to the Committee's work.
1. Inclusivity, consensus and respecting
victim rights:
Any initiative to deal with the past works best
if it is broadly inclusive and is driven by consensus. Truth-recovery
processes and in fact any strategy for dealing with the past are
most effective when there is consensus on their remit and focus.
This requires genuine consultation and a serious engagement with
the issues at hand. Victims also need to have their say in such
a process. Many may want to tell their stories and have them officially
documented, something that some truth commissions have done particularly
effectively. But equally it is naïve to think that most victims
will be satisfied with this alone. Investigation and, potentially,
prosecutions will be high on victims' agendas if international
experience is anything to go by. This needs to be respected and
become part of the debate from the outset, as does the discussion
on victim rights as was mentioned earlier.
2. Victim-centred but society wide:
Any process of dealing with the past should
not only focus on victims alone because the whole society generally
has a responsibility to address the legacy of the past. Although
processes for dealing with the past need to be victim-centred,
the voting public more widely, governments, political parties,
organisations, paramilitaries, security forces and public institutions
need to be part of the process of dealing with the past. They
all have a role in acknowledging the part they themselves played
in the conflict and in finding ways to contribute to effectively
addressing the consequences of conflict and meeting the needs
of victims. The South African TRC sectoral hearings could be instructive
in that regard.
3. Transparency and public accountability:
Any process of remembering or dealing with the
past needs to be transparent and publicly accountable. In South
Africa, for example, the selection of truth commissioners was
a public process. The public was asked to nominate individuals
that they felt had a good human rights track record to be commissioners.
These individuals, some three hundred, were then interviewed in
public (by a selection panel selected by President Mandela) and
in the full glare of television cameras. Their pasts were open
to discussion if necessary and the public could send in questions
to the panel if they wanted. Ultimately seventeen individuals
were selected. In this way, the legitimacy of the commission was
built from the start. This teaches us that transparency in selection
process and operation is vital in truth-recovery related processes
or any dealing with the past initiative.
4. Authentic investment in uncovering the
truth in a wide-ranging manner:
A genuine strategy for dealing with a violent
past should not merely be set up for pragmatic and political reasons.
There are a number of countries where truth commissions have been
used as a way of "white-washing" the past. There needs
to be an authentic investment in uncovering the truth and dealing
with the past as ways of learning lessons for the future. If one
thinks of the example of a truth commission (as one mechanism
for dealing with the past, of course), the discussion should not
be narrowed at the outset (eg truth-recovery being discussed as
something that is only dependent upon justice being relinquished
as in the South African case, rather than a necessary process
in itself). Some truth commissions have recommended prosecutions
after their investigations. A creative and wide-ranging discussion
is needed. As mentioned above, dealing with the past is long term
and multifaceted, and cannot be reduced to one mechanism.
5. Long-term commitment to reconciliation
and not point-scoring:
Dealing with decades of conflict is long term,
complex and time consuming. It will not entail a single approach
or model, and the past cannot simply be put to rest. International
lessons suggest it takes decades. There are no quick fixes. We
should not rush into opinions on different methods before we have
agreed that remembering, acknowledgement, truth and justice are
important issues for victims and society at large. These are the
principles from which any process needs to begin. The past can
only be dealt with if all concerned enter the debate in an inclusive
and sincere way, aimed at entrenching peace as the ultimate goal.
The importance of getting this right should not be underestimated
and political parties have a responsibility to create a conducive
environment for such work to take place. More broadly, any discussion
needs to be aimed at societal reconciliation and not point-scoring.
If we do not first agree on the underlying principles (such as
the importance of truth and justice or the rights of victims)
all discussion will be contorted and subject to political wrangling.
This will ultimately result in mechanisms that will continue the
conflict by different means, rather than find ways to resolve
it constructively.
December 2004
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