We are delighted to welcome this guest post by Louise Mallinder. Louise Mallinder is currently working on an Arts and Humanities Research Council (AHRC) project entitled Amnesties, Prosecutions and the Public Interest in the Northern Ireland transition. With colleagues at Queens (Kieran McEvoy, Gordon Anthony and Luke Moffett) and local NGO Healing Through Remembering, the project is designed to provide legal, historical and international information on dealing with past in order to let people make up their own mind on these difficult and sensitive issue. This blog is part of a series written in response to specific requests for ‘user friendly’ papers designed to provide technical guidance for civil society and political actors. These and other project outputs may be found on the project website at http://blogs.qub.ac.uk/amnesties/
Amnesties are often thought of as legal amnesia. Prosecutions on the other hand are often seen as a means to prove the truth of events beyond doubt. However, as our current project on Amnesties, Prosecutions and the Public Interest in the Northern Ireland Transition explores, both trials and amnesties have more complex relationships with the right to truth.
INTERNATIONAL LEGAL CONTEXT
International human rights courts have increasingly found that states have an obligation to investigate serious human rights violations (e.g. extra-judicial killings, disappearances, torture, sexual violence etc.) In giving effect to this obligation, a number of international courts and national courts (particularly in Latin America) have stated that victims and societies affected by serious violations have a ‘right to truth’. This right has also been recognised in non-legally binding United Nations guidelines. For example, the Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (2005) describes the right of victims and their families to know the truth about the circumstances in which the violations took place as ‘imprescriptible’, meaning that these rights cannot be restricted in any circumstances. The Principles also affirm that ‘every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes’.
THE REQUIREMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS
Measures to investigate the truth of crimes committed during the Troubles in Northern Ireland are subject to the European Convention on Human Rights. This Convention does not explicitly create an obligation for states to investigate human rights violations. However, the European Court of Human Rights in cases relating to Northern Ireland and other countries has found that violations of the right to life, torture or disappearances create obligations on states to carry out investigations. Its case law stipulates that to comply with the European Convention, such investigations must be
- Accessible to the family and sufficient public scrutiny
These requirements set the benchmarks for any truth recovery processes in Northern Ireland.
PROSECUTIONS, TRIALS AND TRUTH
The right to truth can of course be fulfilled through criminal prosecutions. In normal circumstances, attributes of trials such as independent and impartial judges, due process guarantees, and high evidential standards can offer an effective way of determining the facts of particular events and attributing responsibility. However, the criminal justice process can also distort the truth by creating spaces where prosecutors can exercise selectivity in deciding whether to prosecute and what charges to bring; creating incentives for defendants and witnesses to conceal the truth; and acquittals that do not reflect the truth of events can sometimes result from legal technicalities. The European Convention on Human Rights does not create an absolute right for victims to see those who harmed them prosecuted.
OTHER ROUTES TO TRUTH
In addition to trials, investigations can be carried out by a range of truth recovery bodies including:
- Truth commissions
- Public inquiries
- Civil proceedings
- Coroners inquests
- Human rights ombudsmen or human rights commission investigations
- Traditional or restorative justice mechanisms
- National archive projects
INCENTIVISING TRUTH RECOVERY
The most common method of incentivising those with information to contribute to a truth recovery process is the provide them with some form of amnesty or guarantee of immunity from prosecution. Where amnesty is conditioned on individual offenders providing information about their involvement in or knowledge of criminal acts or omissions, this can facilitate the work of truth recovery bodies. Such amnesties can result in information coming to light that may otherwise be difficult to access, and contribute to ensuring that the information produced by the truth recovery process is reflective of diverse experiences within a society.
Where offenders are required to disclose information in exchange for amnesty, options on to what extent the information and their identities are made public include:
- Disclosure of information on confidential application forms to be seen only by the truth recovery body, with no personal information disclosed in public reports.
- Private, confidential meetings with the investigative body, with no personal information disclosed in public reports
- Private meetings between offenders, and victims and their representatives, facilitated by the investigative body at which the discussions remain confidential
- Private meetings with investigative body, and potentially victims, with the possibility that offenders’ personal information will be disclosed in the final report
- Public testimony and offenders’ personal information will be disclosed in the final report
For a process offering amnesty in exchange for truth to be considered effective and fair, several issues may need to be considered at the outset.
- What types of information should offenders disclose?
- Are oral or written submissions sufficient or should they be supplemented with documentary and physical evidence?
- Should the information provided focus solely on individual events or should it describe the institutional context?
- How should offender testimony be corroborated?
- What resources and powers does the truth recovery process need to enable it to corroborate offender testimony effectively?
- Do other measures need to be put in place to encourage offenders to trust the process and engage with it fully?
- Where offenders are found not to have compiled fully or honestly with the process, can the information that they provide be used in criminal proceedings against them?
The experience of Northern Ireland to date, as elsewhere, would suggest that regardless whether or not a society establishes a formal truth recovery process such as a truth commission, it is almost impossible to simply ‘draw a line’ under the past. Truth, or least partial or piecemeal accounts of the past have been a constant feature of the Northern Ireland transition. The difficulties associated with such a piecemeal approach to the past is that it means that not all victims are afforded equal access to truth, revelations may be disjointed and of course that unmanaged series of processes always risks destabilising the political institutions and continuously corroding public confidence. If we decide as a society that we wish to engage in process of organised truth telling, it is difficult to envisage such a process without including some form of amnesty like measure,