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/
The balance between amnesties and prosecutions is often the most controversial aspect of transitional justice policymaking. The decision is often presented as an either/or choice between justice and impunity. However, as our current project on Amnesties, Prosecutions and the Public Interest in the Northern Ireland Transition explores, amnesties can be designed in ways that seek to respect the right of victims to justice. This blog will provide a brief analysis of the legal framework that is applicable to victims of past violence in Northern Ireland.
VICTIMS’ RIGHT TO JUSTICE
The phrase ‘right to justice’ is usually thought to offer protections for accused persons to ensure they receive a fair trial. This can include the rights to be presumed innocent, to have a public hearing within a reasonable time before an independent and impartial court, to not be charged twice for the same crime and to not be charged for actions that were not previously crimes.
In recent years, human rights courts and UN policies have also asserted victims’ right to justice. For example, the UN Updated Set of Principles on Impunity (non-binding) states that victims of gross violations of human rights and their families ‘should be able to institute proceedings, on either an individual or a collective basis, particularly as parties civiles or as persons conducting private prosecutions in States whose law of criminal procedure recognizes these procedures’. The ability to directly bring criminal cases against perpetrators, rather than relying on the discretion of public prosecutors, has been widely used by victims in civil law jurisdictions, particularly in Latin America. It is theoretically possible for victims in the Northern Ireland legal system but it is very rarely used due to its expense and the fact that such cases are not eligible for legal aid. In addition, in some cases private prosecutions in Northern Ireland may require the consent of the Attorney General. As has been recognized by international courts, this right does not equate to a right to force the state to prosecute.
The UN’s Basic Principles and Guidelines on the Right to a Remedy proclaim that the obligation on states to respect and ensure respect for human rights requires that states ensure victims of gross violations of human rights and serious violations of international humanitarian law have ‘equal and effective access to justice’. States have this duty irrespective of whether state or non-state actors were responsible for the violations. The Basic Principles and Guidelines require that states take a range of measures to facilitate victims’ access to justice, including disseminating information on available remedies and implementing witness protection arrangements.
Where an amnesty blocks the possibility of criminal prosecutions, at face value, this would seem to breach a victims’ right to justice. However, the case law of international courts indicates two areas of flexibility in the legal standards.
NO ABSOLUTE RIGHT TO PROSECUTION
The basic principle of international law is that there is no guaranteed right to a prosecution for human rights violations. States can decide whether to pursue or decline prosecution by balancing the victims’ right to justice against other legal concerns, such as the duty to protect the lives of possible witnesses or to act in the public interest.
This position has been recognized by the European Court of Human Rights. When confronted with cases of serious human rights violations, the court has declined to proclaim a duty to prosecute and punish. Instead, in the 1996 Aksoy v Turkey case, it said that
the notion of an “effective remedy” entails a thorough and effective investigation capable of leading to the identification and punishment of those responsible.
The phrase ‘capable of leading to’ describes the quality of the investigation, rather than imposing an obligation on the state to prosecute and punish those responsible. Furthermore, in Brecknell v United Kingdom, the court found that victims have ‘no absolute right … to obtain a prosecution or conviction’.
ALTERNATIVE JUSTICE MECHANISMS
Human rights courts and the UN Basic Principles and Guidelines recognize that victims’ access to justice can be fulfilled through access to administrative bodies (e.g. truth commissions, public inquiries or officially mandated restorative justice processes). Within Northern Ireland, the case law of the European Court of Human Rights requires that these processes be independent, prompt, effective and accessible to the family and sufficient public scrutiny.
PERMISSIBILITY OF AMNESTIES
The European Court of Human Rights has not dealt directly on the question of whether amnesty violates a victims’ access to justice. In Abdülsamet Yaman v Turkey the court pronounced on a hypothetical amnesty for torture stating that for the purposes of an ‘effective remedy’ amnesties should not be permissible. It made similar statements in Tuna v Turkey on a hypothetical amnesty for violations of the right to life. However, these decisions did not relate to a transitional context wherein amnesty was being considered as part of a broader process of national reconciliation, nor did they address instances where amnesty was conditional offenders participating in alternative investigative and accountability processes. In recent decisions, the Court has commented in passing that amnesties for war crimes and torture committed by state agents would not be permissible under international law. However, in its most recent decision in Tarbuk v Croatia the Court stated:
even in such fundamental areas of the protection of human rights as the right to life, the State is justified in enacting, in the context of its criminal policy, any amnesty laws it might consider necessary, with the proviso, however, that a balance is maintained between the legitimate interests of the State and the interests of individual members of the public.
This suggests that where an amnesty prevents victims accessing any form of justice it would violate the European Convention on Human Rights. However, where amnesty seeks to balance the needs of victims with the needs of society as a whole through for example offering victims access to alternative processes this could fulfill the victims’ right to justice.
AMNESTIES AND RESTORATIVE JUSTICE
Where amnesties prevent criminal prosecutions, they are frequently criticized as violating victims’ right to justice. However, in many parts of the world, victims and communities are also familiar with restorative approaches to justice than with formal criminal proceedings. Restorative Justice is an approach to crime and anti-social behavior, which focused on the healing of relationships rather than simply on the punishment of the perpetrator. The mandates, composition, processes and outcomes of restorative mechanisms vary considerably between communities. However, they are generally inclusive – involving victims, offenders, and affected communities. Restorative justice recognizes that harming others creates responsibilities for offenders to right their wrongs. In this way, restorative justice offers a form of accountability through which offenders are identified, required to answer for their actions or omissions, and may be required to comply with some of sanctions, such as apologies, community service or other measures designed to repair as much as possible the damage they have caused. Depending on the design of a restorative justice process, different measures may be required to protect the interests of victims and facilitate their meaningful participation in the process.
Amnesties are a long established method designed to deal with the past in the aftermath of conflict, violence or authoritarianism. It is possible to design an amnesty or amnesty like measure, which is compatible with the victim’s right to justice. The victim’s right to justice under international law does not guarantee that the person who harmed them will ultimately be prosecuted. However, it does place an obligation on the state to carry out an effective investigation of past abuses and to provide a remedy where harms have occurred. In some circumstances, where truth recovery may form part of the victim’s remedy (perhaps linked with other measures such as acknowledgement of the wrong and reparations to the victim), amnesties may be a necessary element designed to give effect to that remedy.