Nuala O’Loan
A seagull flies in front of a mural which shows a group of men, led by then-Fr Edward Daly, on Bloody Sunday in Derry in 1972. Not all families have received the answers the people of Derry got from the Bloody Sunday Inquiry. Photo: CNS 
The View
In 1993, the great American writer and civil rights activist Maya Angelou wrote that “History, despite its wrenching pain, cannot be un-lived, but if faced with courage, need not be lived again”.
Northern Ireland has been trying to find ways to face its past for decades now. In 2020, the New Decade, New Approach Agreement between the British and Irish governments provided that the British government would, within 100 days, publish and introduce legislation in parliament to implement the Stormont House Agreement, to address legacy issues in the North.
That agreement provided that to:
promote reconciliation;
uphold the rule of law;
acknowledge and address the suffering of victims and survivors;
facilitate the pursuit of justice and information recovery;
be human rights compliant;
and balanced, proportionate, transparent, fair and equitable, new institutions would be established.
There would be an oral history archive, victims and survivors would have access to high quality services, a historical investigations unit would take forward outstanding legacy cases, legacy inquests would continue, an independent commission on information retrieval would enable victims and survivors to seek and privately receive information about Troubles-related deaths, and an implementation and reconciliation group established by the British and Irish governments would oversee the work.
Renege
The British government is now seeking effectively to renege on large elements of its obligations. It will introduce a statute of limitations to prevent prosecutions for Troubles deaths occurring before 1998. This would mean that there would be no further investigation of such deaths. It has also suggested that instead there will be a South African-style truth and reconciliation commission.
Commission
The South African Truth and Reconciliation Commission sat for seven years from 1996 to bear witness to, record, and in some cases grant amnesty to the perpetrators of crimes relating to human rights violations, as well as offering reparation and rehabilitation to the victims.
It did not preclude investigations of deaths, and in fact although 7,111 applications for amnesty were made, only 849 were granted.
I visited South Africa as Police Ombudsman and spoke to some of those involved in the commission. There was a very clear view that the commission had not succeeded – that some but not all information was provided by perpetrators, that it did not achieve its aim of bringing about reconciliation, and that many of those bereaved and injured were left to carry their burdens alone, deprived of justice. It is not a model for Northern Ireland, and those who suggest that it is do not fully understand the very serious limitations of the South African process.
There are other models of truth commissions. One was the Timor Leste Commission for Reception, Truth, and Reconciliation. Its mandate was to investigate human rights violations committed between 1974 and 1999, (a very similar period to the period of the northern Troubles) which resulted in the death of an estimated 200,000 East Timorese. It was also to facilitate reconciliation and reintegration of minor criminal offenders who submit confessions, through local ‘community reconciliation processes’; and to recommend further measures to prevent future abuses and address the needs of victims. It reported in 2005.
Prosecution
The work of that commission was complemented by the investigation and prosecution of the most serious offenders – 84 individuals were convicted.
There are many other models of truth commission which have emerged from conflicts across the world, each has its deficiencies – very often the outcome of the negotiations to bring war to an end, where the needs of combatants, rather than those of victims were prioritised.
What is common to these models and to the proposals for the North is that the existence of a truth commission did not preclude the investigation of murders. In other words, as provided for in the Stormont House Agreement, the rule of law was to be respected.
It is of course the case that, in Northern Ireland many investigations will not result in prosecution because witnesses and perpetrators have died; memories are failing; crime scenes no longer exist; evidence has been destroyed (as Police Ombudsman, I encountered situations in which evidence had been destroyed for ‘health and safety reasons’, sometimes on a very large scale), evidence which might have derived from forensic examination of paramilitary arms which have been surrendered and decommissioned, and evidence deriving from the recovery of the bodies of the ‘disappeared’ following the receipt of information that cannot be used in a court. Despite this, if new evidence can be found then proper consideration should be given to a prosecution of those suspected of such serious crimes as murder. Without this we will not have a society based on the rule of law, and those whose loved ones died, whether at the hands of state agents or paramilitaries, will be deprived of that most basic of human rights, the right to proper investigation and prosecution.
Recover
The proposed independent commission on information retrieval is designed to recover information about crimes where there is no new evidence to put before a court. It is perhaps the nearest thing to a truth commission and it has been crafted to take account of the situation in Northern Ireland where very often, as they say ,’the dogs in the street knew’ who the perpetrators were, yet people have not been brought to justice.
Truth
However, even in this situation it will be necessary for all actors to tell the truth – the agents of the state and those who committed crimes in the names of paramilitary organisations. The activities of the police, the military, the intelligence agencies – north and south – would have to be revealed so that there can be understanding of situations in which, for example, paramilitaries were able to continue to operate despite the fact that there was advance knowledge of plans for murder, despite the fact that on occasion soldiers, concealed and carrying out observations, witnessed crimes but did not intervene so that their presence would not be disclosed. Complex situations, such as the extent to which the IRA operating in the Republic were under surveillance by An Garda Siochána, who were tracking vehicles used in the commission of crimes committed in the North, would have to be disclosed. Paramilitary organisations, republican and loyalist, would have to admit what they did, who planned the operations and why people were killed. Sometimes it was just to generate fear in the local community, so that they would know that they could not cooperate with the agents of the state to prevent atrocities.
Do we really believe that such truth would be told? I have seen no evidence that states or paramilitary organisations would tell the whole truth. Without it, the pain of those who have suffered will not be healed.
It is vital that we have not only an information recovery process but also proper investigation of those crimes which may be capable of prosecution. We need to face our past with courage.
