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Past trauma in context

For a small place, we get a lot of attention. When faced with difficult and sensitive issues, the two Governments have often resorted to internationalisation to nudge the process along.

Senator George Mitchell chaired the negotiations. The Independent International Commission on Decommissioning (IICD) dealt with weapons.

In spite of widespread criticism, the Independent Monitoring Commission (IMC) did play a crucial role in charting the bumpy transition of the main paramilitary organisations.

Canadian Judge Peter Corey investigated the various allegations of collusion and so forth.

In short, there would have been no peace process without internationalising difficult elements of the transition.

Dealing with the past is no different. There are some broad lessons which can be garnered from the international context.

One of the unfortunate features of the early conversations on truth in Northern Ireland was the dominance of the South African Truth and Reconciliation Commission model.

Televised hearings, an apparent pressure on victims to ‘forgive’, an amnesty which looked more like impunity for the worst abusers — often the local debate narrowed to being in favour of, or against, such a version of truth recovery.

As Eames-Bradley pointed out, of course there are a myriad of different ways of ‘doing’ truth recovery.

Those involved in designing truth recovery bodies in places such as Kenya, Sierra Leone or Burundi now call upon international expertise (such as the International Center for Transitional Justice) as a matter of course on generic issues such as timeframes, mandates, public or private hearings, victim reparations and so forth.

There are ‘bottom-up’ models (eg Guatemala, Rwanda) whereby local communities and civil society groups do much of the spadework.

In other instances, armed groups themselves conduct internal investigations and mechanisms are designed to check validity and liaise with victims and others (eg Uruguay, and the ANC in South Africa). In still others (eg Canada), the process is largely historical rather than legal.

The point is to avoid mechanistic imposing of models from one jurisdiction to another.

Rather, we need to draw out the thematic lessons of relevance and then design something that meets local needs.

All truth recovery bodies must act in accordance with international human rights law.

Oversimplifying for the sake of brevity, here are some key points:

There is no enforceable ‘right to truth’ under international law. Victims are entitled to a properly conducted investigation — not necessarily to a prosecution. Immunity from prosecution, designed to assist truth recovery, is lawful.

More broadly, as evidenced by the Saville Inquiry, inquiries can become long-running, highly legalistic and very expensive. This is a challenge, not a fatal flaw.

‘Open-ended’ truth recovery bodies are never established — they now have clear time limits.

With regard to lawyers’ fees, direct engagement with the Bar Council and Law Society and ring-fencing a finite amount of resources to cover the process to completion (as currently happens in Britain with ‘Very High Cost cases’) is the obvious way forward.

Broadly what is required is what Americans refer to as a ‘bull***t-free’ approach to law — ie clear advice on the legal parameters, a practical framework to keep costs down and strong political stewardship to ensure the process doesn’t get bogged down in legalese. The impetus towards truth recovery rightly focuses upon the needs of victims.

While sometimes the ‘healing’ power of truth is oversold, in my view, it is nonetheless morally compelling that the victims of conflict should be helped and assisted as much as possible.

Again from South Africa, it is imperative that victims should not feel pressurised to ‘forgive’.

From Uruguay, Chile or Argentina, contests over who are victims and perpetrators are not unique to Northern Ireland.

More broadly however, truth recovery is not simply about knowing more about the details of the actions of the 18-year-old with the AK47. Rather, it requires understanding the broader causes, context and consequences of all acts of violence. It should interrogate the myths of blamelessness in each sector of a conflicted society.

Total truth may be ambitious, but, as the Canadian politician Michael Ignatieff famously described, it does narrow the range for permissible lies.

Professor Kieran McEvoy is based at the School of Law, Queen’s University, Belfast. He has conducted research in more than a dozen post-conflict societies and is the author of The Trouble with Truth: Transition, Reconciliation and the Contested Past in Northern Ireland (Routledge, 2011)