Healing Through Remembering? The search for truth and justice

The idea of a truth commission has been suggested before as a way for Northern Ireland to deal with its past and its present. But there are other approaches to dealing with the legacy of conflict and a new project just launched aims to explore these with interested parties across Northern Ireland. BRANDON HAMBER explains.

Although the conflict in and about Northern Ireland has its own peculiar manifestations and is unique in many ways, the challenge facing the society about how it deals with its past is not wholly distinct. Most countries in conflict have had to, at least at some point in time, face up to and deal with the hurts that have taken place. Different contexts obviously allow for this to be dealt with in different ways, including attempts to simply forget the past and move on.

However, whether we like it or not, questions about truth, justice, compensation and more recently of reconciliation are inevitable in any society moving toward peace. Northern Ireland is probably no exception. The problem, though, for societies coming out of conflict, especially where a negotiation has taken place, is that the solution to dealing with these issues is not clear-cut and no perfect model exists.

For this reason, the Healing Through Remembering Project was launched in early October this year with the intention of exploring various models for dealing with the past in Northern Ireland. The Project seeks to identify and document possible mechanisms and realisable options for how remembering should occur so that healing can take place for all people affected by the conflict in and about Northern Ireland. Building on previous local and international initiatives, the Project will undertake a range of consultations with organisations, communities, politicians and individuals on ways of dealing with the past and in so doing attempt to highlight some of the models and options that may work for Northern Ireland.

Prosecution, with the most well known case being that of the Nuremberg Trials, is in some senses the most straightforward option to consider — but such an option is based on a scenario of clear winners and losers. Justice in the formal sense of the word can only be followed through the courts where the weight of complex compromises between the victors and vanquished, as often typified in a negotiated solution to a conflict, does not exist. Moves toward setting up the International Criminal Court are intended to reinvigorate this clear-cut form of justice for those charged with war crimes and genocide. This attempt is aimed to stabilise some form of international justice for crimes that are abhorrent the world over and should stand outside of national borders and norms. However, domestic situations, and especially negotiated peace deals, often pose a range of interesting dilemmas when considering the prosecution option.

Photo by Markus Winkler / Unsplash

In South Africa, it is argued that amnesty — for better of for worse — was an integral part of the peace settlement. This made justice through the courts — as the only means for dealing with political crimes committed in the past — almost impossible. It was possible, though, to demand truth from all those who committed political violence, irrespective of their political affiliation, in exchange for amnesty.

This was, in part, made possible by the power-balance at the time of the changes in 1994. The ANC had enough power to put a condition on amnesty, whilst the apartheid-regime had sufficient power to ensure that some form of amnesty would be granted. The result was a truth commission process in South Africa that attempted to paint as complete a picture as possible of the causes, nature and extent of the conflict through the testimony of so-called victims and perpetrators alike. It was hoped that exposing the truth about the past would contribute to it never happening again and opening the window for reconciliation. This less than perfect model has, at least in part, worked for South Africa, although many victims still feel dissatisfied with the price of the compromises made.

In Rwanda, the situation (and the conflict) is profoundly different. Initially it was hoped that justice could be carried out through the courts against those accused of atrocities committed in the 1994 genocide. However, it has proved logistically impossible to try all 120,000 suspects who are crammed into jails. So recently it was agreed that the 10,000 or so people accused of master-minding the genocide will remain in the legal system, but the remainder will be invited to confess to traditional hearings in exchange for reduced sentences. It remains to be seen if this model of partial reconciliation will work or not.

These models, and the many more that are out there including Commissions of Inquiry — and not to forget some of the Eastern European models where those affiliated to parties responsible for abuses under communist governments were simply expelled from all forms of public office — all reflect local complexity and sensitivity. They also drive home the point that often in societies in transition, justice and truth can become little more than ideals in the shadow of a fraught past and compromised future.

In Northern Ireland, there has been some discussion of the role of truth, justice, reconciliation and compensation in the society. Few, however, to date have been willing to call for an all-encompassing truth commission in which all parties to the conflict would have to come forward and acknowledge their role in violence. At the same time, endeavours aimed at uncovering the truth are ongoing, with the most notable of these being the Bloody Sunday Inquiry. There is also a range of local story-telling, documentation and commemorative initiatives underway.

There seems to be growing controversy about whether more inquiries are needed in Northern Ireland and, if so, what they should look like and what cases should be selected. Similarly, most commemorative projects seem to focus on one community and an all-encompassing cross-community reconciliation initiative is yet to be mooted.

Of course, there are also those who say the past should simply be forgotten because any more delving into it will destabilise an already fragile peace process. At the same time, there are those who say the full truth needs to come out if a new future is to be built. In their view, there needs be an acknowledgement of wrong-doing from a range of role-players including paramilitaries, the State and even those who turned a blind eye allowing atrocities to continue, whilst doing very little to stop them.

The above opinions are undoubtedly controversial, but — whether we like it or not — questions about how the past should be addressed (or not) will continue to surface. To this end, it may be useful to start to try and debate the various options in a more open and public manner and the Healing Through Remembering Project intends to do just that.

The mission of the Project is simple: it is to go out there and ask people for their opinions on the issue of dealing with the past conflict. More specifically, the Project seeks to elicit opinion on whether remembering the events of the past can contribute to healing or not. The Project asks for practical suggestions on the type of initiatives that people think may be useful. Such initiatives could include, amongst others, the need for more localised story-telling initiatives, more (or less) need for public commissions of inquiry, or a process like a truth commission that could try and develop an official history of the causes and extent of the conflict.

There are no uncomplicated answers or even an easily identifiable option at this point, but the Project feels it is useful to ask the difficult questions if Northern Ireland is ever to hope to normalise. The ultimate purpose of the consultation process is to produce a document outlining a range of options for dealing with the past, remembering and truth recovery.

In terms of eliciting opinion, the consultation process will use four main mechanisms to ensure the depth and range of opinion is adequately tapped.

First, all interested groups and individuals, from any community, are invited to make a submission to the Project. To this end, all are asked to reflect on the question: How should people remember the events connected with the conflict in and about Northern Ireland and in so doing, individually and collectively contribute to healing the wounds of society?

Second, all umbrella bodies and organisations are encouraged to make a submission. The Project offers a limited opportunity for facilitating group meetings to clarify the aims of the project and assist with the submission writing process.

Third, a number of public events and discussions will be held at a variety of locations. These events will look at particular issues in more depth and will be aimed at imparting information to empower the public in making their submissions. Finally, to complement the above, key role players and experts — including, amongst others, community leaders, church leaders, politicians, academics, voluntary organisation leaders, journalists and publicly appointed figures of relevance — will be interviewed.

To conclude, it is clear that opinion out there ranges from those who think the past should simply be left alone, to those who still see prosecutions and an unwavering quest for the truth as the only way forward; notwithstanding those who favour some form of structured reconciliation process. The debate needs be opened up into a public space and all voices heard. This will help the Project to produce a practical menu of options of different approaches that — if implemented — may be useful in promoting healing in Northern Ireland through the process of remembering. It is also the only way to ensure that if, and only if, Northern Ireland chooses to embark on an official remembering process that is appropriate for the context and developed locally, and in so doing prevents some unsuitable model being forced in from the outside.

Published by Brandon Hamber in Scope: Social Affairs Magazine, November 2001.

Brandon Hamber works as an independent consultant to the Healing Through Remembering Project and is a research associate of Democratic Dialogue in Belfast.

Reference

Hamber, B. (2001). Healing through remembering? The search for truth and justice. Scope - Social Affairs Magazine, November. NICVA: Belfast, Northern Ireland. 

Cemeteries of Truth

On the Truth and Reconciliation Commission, South Africa

Each night upon the darkness someone is sketching
with black ink invisible words for the
world to see

Each day the stories pound upon each other in layers
creating narratives of darkness that are void and
rich in blackness

Each voice drains life from the wounded with an impact
that punches out humanity leaving spectacles of
brittle broken hollow bodies

Each face that carries a story tends to deflate from repeating
and cadavers become sore from the rubbing of too many
sympathetic hands

Each dishonest tongue wraps itself around bones looking for flesh
that has been consumed by gravediggers in the
cemeteries of truth

Published by Brandon Hamber in Context, 55, p.25 on 15 January 2001

Making Reparations to the Survivors of Past Political Violence

From Rhetoric to Responsibility: Making Reparations to the Survivors of Past Political Violence in South Africa edited by myself and Tlhoki Mofokeng is now available in the Amazon Kindle Store (£1.99 to read on Kindle) or request a free PDF.

This book is a collection of chapters that deal with the issue of making reparations to those victimised during South Africa's apartheid past and who appeared before the Truth and Reconciliation Commission (TRC). Despite the obligation clearly stated in the Promotion of National Unity and Reconciliation Act (hereafter TRC Act) to make some form of reparations to those found to be victims by the TRC, the issue of making reparations to those wronged in the past has received negligible attention. This book is more than a call to grant reparations. It provides summarised information on the TRC and its reparations policy. Furthermore, it provides an overview of the legal ramifications and moral arguments for reparations, whilst providing additional information on reparations processes abroad. 

The book has 8 chapters:

CHAPTER 1
Contextualising Reconciliation and Reparations in South Africa
Brandon Hamber & Tlhoki Mofokeng

CHAPTER 2
The TRC's Recommendations on Rehabilitation and Reparation
Mpho Leseka

CHAPTER 3
Common Guilt or Common Responsibility? Moral Arguments for Reparations in South Africa
Fr Michael Lapsley, S.S.M. & Karin Chubb

CHAPTER 4
The Unfinished Business of the TRC
Yasmin Sooka

CHAPTER 5
Constitutional, International and Comparative Law Perspectives on Reparation
Shadrack Gutto  

CHAPTER 6
An Assessment of the Impact of Urgent Interim Reparations
Anna Crawford-Pinnerup

CHAPTER 7
Financing a Reparations Scheme for Victims of Political Violence
Brandon Hamber & Kamilla Rasmussen  

CHAPTER 8
Dealing with the Difficulties of Granting Reparations in South Africa
Brandon Hamber

Get on the Amazon Kindle Store (£1.99 to read on Kindle) or request a free PDF.

No justice in amnesty without reparations

The last few weeks have seen a flurry of media reports on the Truth and Reconciliation Commission's reparations policy.  Victims who testified before the TRC accuse government of moving too slowly on the TRC's recommendations.  The government blames the TRC for not spending all the money allocated to the reparations budget.  In turn, the TRC is accusing the government of failure to act promptly on its recommendations.  

Whichever way you look at it, the victims are getting a raw deal.  They have been victimised by what happened to them in the past and have had to watch perpetrators getting amnesty.  They waited for two and half years for so-called urgent interim payments, which, on average, amount to little more than R3500 for violations such as murder and rape.  To make matters worse, the TRC's long-term reparations recommendations, tabled in October 1998, still await substantial discussion that moves beyond political posturing towards exploring feasible options.

Recently victims groups have made some strong statements in the press.  The Khulumani Victim Support Group have taken to the streets to protest the slowness of government’s response to the TRC's proposals.  The Justice Ministry’s spokesperson, Paul Setsetse, admitted in the City Press recently that the long-term process has “moved slowly” and that “there are no intentions to scale down final reparations or to sweep the issue under the carpet”.  This remains to be seen. 

Concrete proposals need to be put on the table.   These must move beyond the focus on the minimal urgent payments, which have obscured the real issue.   A long-term reparations policy needs to be fleshed out and debated publicly.  If this does not happen, victims may have cause to consider different legal options.  One is to investigate the constitutionality of limiting reparations in light of the generous amnesty provisions.  The other option may be to appeal to the international human rights community, many of whom are itching to test more legislation following the relative successes of the Pinochet case. 

The right to reparation for wrongful acts has long been recognised as a fundamental principle of law essential to the functioning of legal systems.  In this sense the right to reparation is not new.  However, internationally the will to enforce it seems to have increased.  

The hiatus in the reparations process in South Africa is in sharp contrast to the importance that reparations is currently being given internationally.  The UN Commission on Human Rights will adopt in the near future a set of Basic Principles and Guidelines on the right to reparation known as the ‘Van Boven Principles’.  Furthermore, the International Criminal Court, to which South Africa is a signatory, will be the first international criminal tribunal to have the power to award reparation to the victims of crimes which come before it.

Photo by Tingey Injury Law Firm on Unsplash

Reparation is recognised under international treaties and customary law in decisions by the United Nations Human Rights Committee, the Inter-American Court of Human Rights, the European Court of Human Rights and national law and practice, as well as in a number of other international treaties. Recent developments suggest that soon reparation will become an international standard not just a principle.  Therefore, if reparations are not granted to victims in the long run, and lets hope this is not the case, it may be possible for them to test whether this would contravene South Africa's international obligations. 

Another way in international law which may have relevance for the situation in South Africa is the developing concept of ‘legitimate expectations’. A 'legitimate expectation' is a tool of administrative law intended to provide procedural fairness. According to this concept, if a government publishes a policy or makes a representation about how it will proceed in making decisions, those affected by the decision must be given the opportunity of a hearing if the decision-makers act in a manner which is contrary to the policy.  Given the fact that reparations is enshrined in the act which gave birth to the TRC this may be a further route to consider if reparations are not granted. 

Australia has recently seen a successful case drawing on the principles of ‘legitimate expectations’.  This may set a precedent in which the ratification of international treaties will bind administrative decision-makers to take account of these treaties where they affect individual rights of their citizens.  For example, if the right to reparations is built into an international treaty, as it is in the Convention Against Torture of which South Africa is a signatory, the signatory will be obliged to make reparations.

Notwithstanding the reparations debate, there are also other international precedents that have developed recently which have implications for the TRC process.  Victims could, for example, challenge South African amnesties in the courts of other countries.  The reverberations from the Pinochet case in the UK has meant that the concept of ‘universal jurisdiction’ has become more widely recognised.  Certain crimes such as war crimes, crimes against humanity, genocide and torture are so universally abhorred that they constitute crimes against international law. A number of international treaties place signatory states under a duty to ensure that suspects who come within their borders are brought to justice, either by prosecuting them in their own courts, or by extraditing them for trial elsewhere.

Craig Williamson, for example, by admitting his responsibility for blowing up the ANC offices in London, is liable for prosecution should he ever come within British jurisdiction.   Other perpetrators given amnesty may also find that should they travel abroad from South Africa that the status of their amnesty will be challenged. There is also the possibility that amnesties granted in South Africa could be considered null and void internationally.

The survivors who came before the TRC have made an enormous sacrifice on top of the suffering they have endured. Our experience with survivors indicates what most of them want justice, not just truth.  The amnesty process has removed their right to criminal or civil action in the name of national reconciliation. Amnesty without reparations is tantamount to impunity.  Is the South African government now seriously asking them to forego their right to reparation?

At this stage, government would probably answer, no.  President Mbeki has stated they are committed to victims.  At the same time, however there is little evidence of a clear long-term reparations strategy waiting to be unveiled. 

The more victims feel frustrated by the delay in meaningful reparations, the more likely they will be to seek alternative forms of redress; a situation the government should closely attend to if it wishes to avoid international embarrassment. 

Originally published by Brandon Hamber &  Bill Dishington, Sunday Independent, 25 June 2000

Brandon Hamber was a former Programme Manager at the Centre for the Study of Violence & Reconciliation in Johannesburg.

Bill Dishington is Information Director from Redress in London.

The Double-binds of Making Reparations

Hamber, B. (2000). Repairing the Irreparable: Dealing with the double-binds of making reparations for crimes of the past. Ethnicity and Health, 5(3/4), pp.215-226 [Download]

Official silence on reparations cheats victims of past conflicts of their rights

A basic value recognised through the establishment of the Truth and Reconciliation Commission (TRC) was that it is better to deal with difficulties than to keep them hidden.  Yet, when it comes to the issue of reparations for those wronged in the political conflicts of the past, it appears that the government, which is responsible for implementing the TRC recommendations, is choosing to ignore the issue completely.  They appear to hope that if they do not say anything their responsibility will be forgotten. 

The TRC handed over its reparations proposals, which include both financial and symbolic strategies to assist victims, to government in October 1998.  Sixteen months later there has been no substantial debate in parliament.  The lack of government involvement has so stifled discussion that the issue is in danger of falling off the agenda.   Thabo Mbeki even failed to mention follow up to the TRC in his opening address to parliament

The result of the general lack of government engagement with follow up to the TRC has created a political vacuum.  Government is filling this gap with claims that they do not have enough money to make reparations – an odd statement considering they have not investigated possible options for funding.   Other people are fond of labeling victims by saying that the struggle was not about money.  This conveniently denies victims their legal rights and implies that those who went before the TRC, despite being encouraged to do so, went only for opportunistic reasons.  

Still others point out that the 18 000 odd TRC victims eligible for reparations do not represent the majority of those victimised by apartheid. They argue, perhaps correctly, that reparations should benefit entire communities.  But this view fails to acknowledge that those who came forward to the TRC did so in good faith and speaking before the TRC was an opportunity available to all South Africans.  

The Constitutional Court ruled that amnesty could be granted because reparations, be they broad or specific, will be made available.   The UN Economic and Social Council clearly states that survivors and the families of victims of human rights violations have a right to truth, a right to justice, a right to non-recurrence and the right to reparation.    There are at least five other international instruments, which talk of the need and right to reparation. 

Given this it is sad that the South African government, which is supposedly in sync with international human rights trends, has not even started to review such instruments.  This is even more distressing in the context that we have already circumvented the right to justice for many victims through the granting of amnesty. 

 It is startling that the government has only made one public announcement about reparations since October 1998.  The Ministry of Justice released a reactive statement in late 1999 following the victim’s protests to highlight the government’s slow progress on the issue of reparations.  Predictably, costs were highlighted in the Ministry of Justice’s statement as a “major constraint” to implementing the TRC recommendations.  Perhaps this is a factor, but at this stage, it is pure speculation considering no substantial research has been undertaken into the issue.

Photo by Old Mate on Unsplash

The lack of public debate so far runs the risk of reducing the critical question of reparations to the pragmatics of cost before any principles have been set.  Step one in the process should be to establish whether survivors of violence have a right to reparation in the first place.  To date, most South Africans and government have failed to even attempt to answer this question.  The principle must be established, and a thorough investigation undertaken before government starts to say the costs of a reparation programme are too great.

Furthermore, developing countries have borne these sorts of costs before.  In Chile - a country with a GDP per capita not very much higher than ours - children of those killed during the military dictatorship of Pinochet have a right to a monthly pension until they reach 25 years of age. For the rest of the beneficiaries the pension is for life. The monthly pension is between R1,400 and R2,000 for the family of the deceased depending on the number of dependants.  About 800 scholarships a year are also granted to the families of victims.  Victims also get free medical and psychological care. The fiscal burden of this programme is about R120 million per year.   The South African TRC proposes R480 million a year - for the next six years -  for a country over three times the size of Chile.

Over the next few years, government will find 30 billion rand to buy weapons, and even during the life of the TRC they found about R100 million a year to keep the process afloat, but they seem unwilling to consider finding funds to finish the process.

The political will to assist victims seems to be gone. However, letting sleeping dogs lie is rarely the cry of the victims.  Granted reparations cannot bring back the dead, but they are a moral right in any healthy society.  In the context of the loss of a breadwinner they can help restore a family to their previous level of subsistence.  Importantly, they reaffirm the victim’s dignity – something accusations of opportunism and government lethargy severely undermine.  Reparations tell the survivor that they are important and a valued member of society. 

A letter from the Truth Commission informing you that you are now officially ‘a victim’, is surely not enough to heal wounds and acknowledge pain. To date, well over 500 people have been granted amnesty in South Africa for murder and torture.  Granted, reparations alone cannot fully cancel the injustice of amnesty, but it is a start. 

The bare minimum is that we should debate the issue of reparations publicly and honestly.   If we then get to the point that we think reparations should not be granted, then we need to have the courage to stand face to face with victims and tell them that, despite their sacrifices, they have been deprioritised in favour of another budget item.  

Originally published  by Brandon Hamber in the Sunday Independent, 20 February 2000

Brandon Hamber was, at the time, co-ordinator of the Transition and Reconciliation Unit at the Centre for the Study of Violence and Reconciliation (CSVR).