A southern truth and reconciliation process meets with inevitable northern scepticism

A brave attempt to break the deadlock between the British government’s proposal for a Troubles  amnesty and the refusal  of all other parties and groups to contemplate it  received  an airing  in a webinar  last Friday hosted by UCD academics.

(TRP) is a group of southern independent great and good.. Their webinar was chaired by an Irish High Court Judge Mr Justice Richard Humphries, so presumably  they have influence . They support the implementation of a ‘Truth Recovery and Reconciliation Process’ as an alternative model for investigating and addressing unlawful killings committed during the Troubles.  The TRP  offers a third way between  the  Stormont House Agreement template  for an Historic  investigations Unit and a Information Retrieval  Commission that had seemed to be the way ahead, until the UK government suddenly and unilaterally replaced it with a “fast track “amnesty proposal  last July.  Although concentrating exclusively on the northern context – (an obvious weakness in my view) –   the cross border character of the TRP proposal is the first of its kind as far as I’m aware. It suggests the need for a comprehensive response from the Republic affecting its own justice system.

A Reconciliation Commission with two subsidiary bodies dedicated to implementing the Truth Recovery Process. It would be headed by a mutually agreed international Chair, or two senior members of the British and Irish judiciaries, to which the Commission would be answerable. The two operational components of the Commission would be: 1. A Truth Recovery Unit (In a Northern Ireland context this would replace the HIU). 2. A Justice Facilitation Unit. (In a Northern Ireland context this would replace the proposal for the ICIR)

While it could run along aside continuing legal process, – a point thrown in rather casually –   the Process relies on voluntary action to achieve disclosure according to the principles of restorative  justice , focusing on contact between perpetrator and victim. Both would have to sign off the authenticity of the information as a condition of amnesty.

The key differences between the Stormont House Agreement (‘SHA’) and TRP’s

proposal are:  

1. The SHA allows victims / family members only to initiate the process. Under the TRP, the process can be initiated by a former combatant or by a victim / family member.

1. The SHA does not allow for a restorative justice process between family members and former combatants.

1. The SHA does not provide immunity in respect of offences disclosed, whereas the TRP creates an immunity conditional upon good faith engagement with the process.

To rely on voluntary procedure  for an  amnesty, the TRP  has to be  confident that it doesn’t violate  Article 2 “ the right of life” of the European Convention on Human  Rights which requires the  State to conduct timely and effective  investigations into  violent incidents. The TRP lawyers Céile Varley B.L. and Michael Lynn S.C. believe that voluntary disclosure so long after the killing signed off by both parties and ratified by the Justice Facilitation Unit would meet the “minimum standard” required.

This was disputed by the northerners the academic lawyer Prof Brice Dickson and the victims campaigner Alan McBride. Dickson believed the TRP “let the government off the hook.” It failed to achieve Art 2 compliance  to satisfy the requirement for effective investigations. As for the aim of reconciliation, the victim “might end up hating the perpetrator even more. “  Dickson did however support the idea of some sort of conditional amnesty like a judicial process without penalty. McBride agreed:   “victims and survivors are dying off and we are running out of time”. Prosecutions arsing out of Operation Kenova had produced “high satisfaction. “ Models based on the Stormont House Agreement were not so far away from the TRP, he thought. But they all require judicial process.

For me, the key weakness of the TRP Process is the lack of incentive for perpetrators paramilitary and state alike to volunteer confessions in numbers, if they are under no pressure  to do so from the justice system. This is the problem all parties have yet fully to confront. Restorative justice seems a red herring. It’s a dubious process to rely on for massive crimes and can impose an unacceptable burden on victims.

Although no lawyer, I guess that the Model Bill team’s proposals for a judicial process without penalty is the more robust approach. While the scope for fresh investigations independently conducted is widely thought to be very limited, the appetite to try and to test  some of the results in court has not been satisfied.  That approach would achieve some measure of public accountability rather than taking the State’s word for it, sight unseen.  The UK government’s present stance, like so much to do with Northern Ireland, seems to be about trying out their own instincts to see how far they can get, until they hit the buffers of reality.