Truth Recovery in Northern Ireland: Critically Interpreting the Past

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This criticism makes two major questionable assumptions. In adversarial criminal justice systems, such as those found in Australia, the United Kingdom and South Africa, it is up to the prosecution, as the representative of the state, [] to decide whether to prosecute a particular perpetrator. Furthermore, even if the authorities decide to proceed with a prosecution, the success of their case often depends on factors outside the control of victims.

It is submitted that the criminal justice system and institutions in South Africa had been so discredited during the apartheid era and had become so dysfunctional [] that neither fairness nor consistency was likely within the system. The lack of criminal prosecutions and convictions, including the high profile acquittals of the former Minister of Defence, Magnas Malan, and the former head of the chemical weapons program, Dr Wouter Basson, [] suggests that few South African victims, if any, would have found satisfaction under the prosecution option.

While it is true to say that the TRC amnesty process removed the possibility of retribution against applicants in those cases where an applicant was successful, in practice this was not a viable option for the overwhelming majority of victims in any event. The second right of victims allegedly removed by the amnesty was the right to access reparations via criminal or civil processes against the offender or the state with respect to the acts, omissions or offences for which offenders received amnesty.

A number of counterarguments contradict this assertion. Firstly, with respect to the possibility of victims receiving reparations as a result of the criminal process, it must be recognised that the number of criminal trials of perpetrators would have been small. The number of convictions that would have resulted would have been even smaller.

Secondly, with respect to the possibility of victims receiving reparations via the civil courts, only a relatively small number of educated and resourceful victims would have been able to mount successful civil suits against perpetrators or the state. Many commentators [] and the South African Constitutional Court [] conceded that the likelihood of victims being able to successfully bring a civil suit was remote.

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The third right to which victims were arguably entitled was a full right to appeal an amnesty decision. This was also a problem at times for the TRC, [] which did not have the power to overturn a decision of the AC, but could only make an application to the courts for a reversal of the decision. A possible solution to these problems for future truth commissions, involving the establishment of an appeal body within the commission itself, was suggested earlier in this part.

Two comments could be made in relation to this criticism of the amnesty process.

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First, allowing for the possibility of conditional amnesty would not only have complicated the enabling legislation of the TRC, but would also have decreased the incentive for perpetrators to come forward and apply for amnesty. Awareness amongst perpetrators of the possibility that the AC could order them to pay reparation to victims or lose their jobs or benefits may well have resulted in more deciding to take their chances and not get involved in the TRC process.

Nevertheless, such an innovation undoubtedly warrants serious consideration by future truth commissions as a means of enhancing their fairness and credibility in the eyes of victims. Careful consideration should be given to providing any amnesty committee or body with the power to order conditional amnesty. Examples of such conditions may include requiring the applicant to make reparations to victims or forcing the applicant to agree to retire from their current employment either immediately or at some later time.

Providing such a committee or body with this capacity is bound to be a difficult drafting exercise, as the process must allow for the rights of applicants to due process to be protected, [] and not remove too much of the incentive for perpetrators to apply for amnesty.

However, this critique is unjustified as it would have been problematic to include this as a condition of amnesty because of the difficulties involved in assessing whether the remorse or apology was sincere. Many victims may have been even more traumatised by a false or insincere apology or gesture of remorse.

This problem was particularly evident in the earlier days of the TRC. Future truth commissions should be very wary of adopting symbols or approaches dominated by any particular religion, or ethnic or cultural group, that may alienate victims who do not agree with the approach.

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The criteria for amnesty could also be criticised on the basis that they made no mention of the views of victims or, in cases of unlawful killings, survivors of the victims as being at least relevant to decisions of the AC. In domestic criminal justice, it is common for decision-makers, such as judges during sentencing or prosecutors deciding whether to proceed with charges, to consider the views of victims as one factor amongst many in the exercise of their discretion.

Finally, a more rigorous application of this factor by the AC would almost certainly have acted as a disincentive for perpetrators to come forward, thus defeating one of the primary purposes of the amnesty process. It is highly likely that many AC members were aware of this possibility during their deliberations. However, this is not to suggest that the process could not have been improved by more accountable procedures.

Although the decisions of the AC were generally published, their reasons were often not very well articulated and were, in some cases, quite sparse. An obvious improvement that should be made for future truth commissions would be to oblige any person or committee making amnesty decisions to set out their findings in detail, which should then be widely published and made widely accessible. This would make the person or committee more accountable to victims and the public, and would also be in accordance with the quasi-judicial role of the entity.

The third group of criticisms of the amnesty process centred around the lack of resources for adequately assisting victims in their dealings with the AC. One specific complaint was that legal representation for victims during amnesty hearings was often inadequate. If victims were able to obtain representation at all, [] the standard of this representation was considerably lower than that of the highly paid government-funded representation for perpetrators. This problem could be resolved in future truth commissions by devoting sufficient resources to the provision of high-quality legal representation to victims.

Another criticism relating to resources was that the provision of psychological support for victims during amnesty hearings was often either nonexistent or inadequate. This was significant given the formality of AC hearings, and the fact that the revelations made during the testimony before the AC, such as the manner in which a victim died, would be likely to have devastating effects on many victims and survivors. Support and counselling after the amnesty hearing was also inadequate, especially where there was a need for ongoing and long-term follow-up and support following the revelations made at the AC.

Again, these problems could be overcome in future truth commissions by ensuring the availability of sufficient resources for the counselling and psychological support of victims. Although some such meetings did take place, often during or after amnesty hearings, these came about mainly due to the initiative of the individuals involved rather than through TRC facilitation. Again, this could be solved in future truth commissions by some allocation of resources to a properly coordinated program of victim—offender meetings for those victims who wish to pursue this potentially important option.

Apparently, many perpetrators did not come forward to apply for amnesty for this reason, and the TRC was reluctant to use its substantial powers of search, seizure and subpoena. However, a related problem was that there was also some evidence of poor cooperation and coordination between the TRC and prosecution services in South Africa, [] and this is something for which the TRC must accept some blame.

Any future truth commission should thus ensure that there is proper coordination between itself and the prosecution authorities, which may also involve greater resources being allocated to the prosecution services. Where perpetrators were prepared to come forward, it seemed to many victims that a significant number of applicants for amnesty adopted a very minimalist and formal approach to their testimony — they would say and divulge just enough to be successful in their amnesty application, but no more.

Often victims felt that such perpetrators were not acting within the legislative requirements under the Reconciliation Act , let alone within the spirit of the reconciliation ideals of the TRC. Pigou comments:.

Truth Recovery in Northern Ireland: Critically Interpreting the Past

Clearly, greater resources devoted to the principles and analytical capacity of any future truth commission would help resolve these problems. To many victims, the answer to this question was either obvious or of no interest, but they did want to know who in their community had collaborated with those perpetrators.

Perhaps the lesson to be learnt from this criticism is that future truth commissions should take the time to truly listen to what victims want out of the process, without having any rigid preset notions of what needs uncovering. In contrast to the quasi-judicial, formal AC hearings, HRVC hearings were intended to be more informal and to allow victims to speak in a culturally appropriate and supportive atmosphere, without the threat of cross-examination.

However, while the Reconciliation Act appeared to give the TRC and its Committees a wide discretion to decide upon its own rules of procedure, s 30 of the Reconciliation Act provided for some due process rights for alleged perpetrators. A series of cases concerning the interpretation of this provision culminated in an important ruling of the Supreme Court, Cape Provincial Division in Du Preez v Truth and Reconciliation Commission.

Often supporters of victims turned out en masse at the hearings in order to sustain the victims. Despite some counterarguments, [] many, including psychologists, assert that there is therapeutic value for victims of traumatic events in being able to tell their story in such a supportive atmosphere and as part of a publicly-recognised process. It is indisputable that many survivors and relatives of victims have found the public hearing process psychologically beneficial.

It should be noted that the approach of the TRC had a number of benefits for victims over and above the criminal trial approach. First, victims during criminal trials are limited in their testimony by formal rules of evidence and procedure, and may be subject to rigorous and often traumatic cross-examination by defence lawyers.

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Finally, until the intervention of the South African courts, cross-examination of victims was not a feature of the HRVC hearings and, even after the ruling which granted certain rights to alleged perpetrators, [] alleged perpetrators were not present in the majority of cases and so cross-examination of victims or survivors did not occur. In the small number of cases where such cross-examination did occur, it is submitted that there was still a vast difference between the level of support received by victims during the HRVC hearings and that available in the formal atmosphere of criminal courts.

Another significant and often underrated benefit of the victim hearings was the ability of the HRVC to conduct institutional and special hearings on sectors of South African society and with respect to certain categories of victims. Special hearings were also carried out on compulsory military service, children and youth, and women. Again, the HRVC approach had a number of advantages over the criminal trial model.

It is not the task of criminal courts to criticise other courts or institutions in general, but the HRVC was able to do this in its hearings and recommendations regarding the legal profession. Criminal courts are specifically concerned with the particular case before them, rather than in determining systematic problems or breaches of the criminal law, their causes and any preventative steps needed for the future.

This is precisely what is allowed for by the broader mandate of the HRVC process. Their situation and suffering should also be acknowledged in the report of the commission. A second criticism of the HRVC was that it might have done more to actively seek and obtain victim submissions. This was perhaps a question of the TRC devoting more of its resources to this crucial task. It has also been asserted that those selected to give evidence at the public hearings were not representative of the victims of gross human rights violations.

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While the TRC made a considerable effort to provide psychological support and counselling to those victims who did testify before the HRVC, [] another criticism was that such support was uneven. Again, greater resources should have been allocated to this task, particularly given the psychological damage that can ensue if victims are left to their own devices. Another related criticism was that follow-up support and counselling after victims had testified before the HRVC was often inadequate.