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Preliminary observations and recommendations by the Special Rapporteur on his visit to the United Kingdom of Great Britain and Northern Ireland

London, 18 November 2015

Ladies and Gentlemen,

Today, I conclude my 10-day visit to the United Kingdom. The aim of my visit was to offer an objective assessment of the various initiatives undertaken to deal with the legacies of the violations and abuses that took place during the period that is widely referred to as ‘the troubles’ in Northern Ireland. 
I would like to thank the authorities for the invitation and the cooperation extended to me during the visit, which coincided with the end of the negotiations on the implementation of the 2014 Stormont House Agreement. I was able to meet, at both the national and devolved levels, with Government officials, representatives of the legislative and judicial branches, law enforcement officials, a broad range of victims and civil society actors. I visited London and various places in Northern Ireland, including Belfast and the Counties of Armagh, Fermanagh, Tyrone and Londonderry.

General considerations
Despite progress and various efforts, perhaps the greatest indication that the past has not been fully and adequately addressed is that the terms to talk about it remain deeply contested.  It is not just that there is no narrative of the past that is acceptable to all sides. It is that some of the basic conceptual ‘building blocks’ of such a narrative have been made unavailable. Hence, rather than being instruments of mutual understanding, the terms themselves have become the markers of difference.  These differences go well beyond those relating to legal categories applicable to a particular situation (for example, whether to designate a certain situation as a conflict or not). 

In this context, it seems that words about the past are for some ‘the continuation of the struggle through other means.’  Even terms that have agreed upon legal definitions, such as ‘victim’ have become the subject of intense contestation.  Indeed, the very notion of human rights, which in its universality is supposed to play a socially integrative function is seen by many as a banner for the defense of a partisan project. 

This situation is unlikely to be ‘fixed’ by legal means alone. The arduous task is to find a way in which everyone, together, can deal with a complicated past, not so that ‘closure’ can be achieved, but so that everyone is disburdened of the sense that past tragedies must be remembered.  Once everyone is recognized as an equal member of a shared political project, it is easier to manifest allegiances loyalties in ways that do not call for frequently rehearsing the many ways in which different communities aggrieved each other in the past. 

Truth, justice, reparations, and guarantees of non-recurrence, understood as parts of a comprehensive policy to redress the legacies of violations and abuse, can provide recognition to victims, promote civic trust, strengthen the rule of law, and contribute to reconciliation or social integration.  This is the case, however, only on the condition that these measures are not conceived as instruments of ‘turn-taking,’ as tools of patronage, or means of guaranteeing a lock over a particular constituency.  Nothing undermines more the socially integrative potential of justice measures than the reality, or even the perception that their design and implementation is not impartial.  In the end, truth, justice, reparation, and guarantees of non-recurrence work only if they are grounded in the notion of human rights, if the violation of fundamental rights is the one and only consideration triggering access to these measures.

Now, it may be said that all of this is well understood.  However, forty years after many of the incidents took place, and almost twenty years since the signature of the Belfast Agreement, efforts to deal with the past in Northern Ireland have not been comprehensive in any of the four pillars of a ‘transitional justice policy.’ There have been very significant initiatives regarding truth, justice, and guarantees of non-recurrence.  Indeed, there is amongst civil society deep and broad academic and practical expertise on transitional justice. There are more academic transitional justice centers in the UK and Ireland than virtually anywhere else (a stock of expertise that is regrettably not always fully utilized in the development of official initiatives).  Broad ranging proposals on the topic include the Consultative Group on the Past report, the Haass-O’Sullivan process, and countless reports with substantive proposals originating in various civil society organizations and academic centers–in many ways the predecessors of the 2014 Stormont House Agreement.  In what follows I will mention only some of the salient initiatives concerning the basic elements of a transitional justice policy.

In addition to the truth-telling function of many judicial procedures, four large scale and ambitious public inquiries, as well as scores of inquests, the reports of the Historical Enquiries Team (HET) although subject to different levels of assessment, and various very important reports by the Police Ombudsman for Northern Ireland, have greatly expanded the stock of knowledge about particular cases concerning ‘the Troubles’ and have been subject to different levels of satisfaction and evaluation.  So have countless investigations undertaken by civil society organizations with the aid of the families of victims, as well as some valuable and serious pieces of investigative journalism and the work of historians, legal scholars, and other members of the academia. 

Judiciaries in Northern Ireland, in other parts of the UK, and in the Republic of Ireland, over the decades of ‘the Troubles’ and since then, albeit in a fragmented way and facing some constraints that deserve further examination, have also been active.  Global figures of the number of judicial investigations and other procedures, as well as their final outcomes are difficult to come by. But since the choice was made to treat the problem as a law and order (counter terrorism) issue, there are questions about the distribution of judicial resources over time, but not about lack of action altogether, a topic to which I will return, both in this statement, and more extensively, in the report of this visit to be presented to the Human Rights Council. 

Reparations accompanied by an acknowledgment of responsibility do not seem to have been undertaken on a massive scale outside particular judicial cases. 

However, different service programmes on behalf of certain categories of victims have been established. 

It has not been easy to get a comprehensive view of such programmes, of their magnitude, access requirements and many other relevant details, and I have asked for further information both from the authorities, as well as from others. 

A more detailed assessment of such efforts depends on that information.  It is clear, however, that although various programmes are in place, they seem to be uneven in coverage, and to impose heavy burdens even on qualifying recipients, quite aside from the fact that again, they do not seem to have been designed as reparations programmes, so this is an area which in spite of investments almost everything remains to be done.  The 2014 Stormont House Agreement, for example, is still silent on this issue (although it does mention some services to victims).

Guarantees of non-recurrence
The area in which most progress has been achieved, and one that in many ways deserves to be highlighted, relates to police reforms.  The creation of the Police Service of Northern Ireland (PSNI) was not merely a cosmetic change of the Royal Ulster Constabulary (RUC).  It involved significant personnel turn-over, changes in operations and training, the appointment of a human rights advisor, the creation of a Police Board, and importantly, of the Office of the Police Ombudsman, which has been broadly seen as having made crucial contributions.  The end result is that the PSNI has both high rates of popular trust in polls, and a high degree of citizen involvement, a fact which is particularly significant given views about its predecessor institution, the RUC. 

Civil society and funding for large scale civil society peacebuilding work in multiple varieties which I cannot review here must also be mentioned as an important part of non-recurrence work that has taken place.

Concluding Remarks
Despite these and many other initiatives that I cannot list here, the legacies of the past have not been successfully or comprehensively addressed on any of these four dimensions.  This is evidenced at the ground level by the continued dissatisfaction of victims, obvious both in their self-reported suffering and in a variety of indicators that point towards unaddressed sequelae.  At the social level it is manifested in abiding fractures between social groups in Northern Ireland, but also between communities there and other stakeholders, including the Republic of Ireland and, especially, the UK.  At the political level, the fact that the past has not been adequately addressed is obvious not only in the way in which it continues to be an extraordinarily resilient polarizing and organizing fact of Northern Ireland politics, but also in the way in which it bursts into the political stage, often with the capacity to generate what without exaggeration can be called crises.  Finally, at the level of institutions, there is no question that legacy issues impose huge burdens –of various kinds, not just economic—on a range of institutions and on relations between citizens and official institutions.

New efforts should address previous shortcomings
Allow me to express three main concerns. First, the different elements of a comprehensive policy for dealing with the past cannot be implemented repeatedly for recurring ‘failures’ undermine their credibility. These measures are intended to mark a line between a problematic past on the one hand and a present and especially a future which instantiate clearly a commitment to rights.  There are only so many times a line can be drawn before the exercise loses its meaning. Therefore, it is important to make sure that there are good reasons to think that new efforts, in virtue of their design, the resources available for them, and the commitments on which they rest, are capable of producing results that former efforts did not achieve.

Mechanisms identifying structural underpinnings are called for
Second, efforts thus far have relied heavily on judicial procedures, leading to an inevitable ‘fragmentation’ of the issue.  Judicial procedures are traditionally case-based, and therefore primarily individualizing and perpetrator-centered.  Other measures taken in the past, including in the domain of truth, for instance, the work of the Historical Enquires Team (HET), have tracked this logic. 

Mechanisms designed to capture the more ‘structural,’ ‘systemic,’ nature of the violations that took place have received much less attention.  The ‘Troubles’ involved the violation of the rights of individuals, of course, and those violations need to be redressed.  But the ‘Troubles’ were not simply the aggregate of totally isolated events.  There are patterns, structures, institutions, organizations, chains of command, policies, etc. that are an essential part of this history, which need to be uncovered.  It is critical to devote more attention to the instruments that may capture this dimension of the story as well, for even if victims are given information about the immediate circumstances under which the violations took place, there will always be questions about whether those violations were part of a wider pattern, responding to a particular policy, carried out by structures whose continued existence may be suspected, under a particular chain of command, etc.  In other words, the resolution of individual cases, narrowly conceived, as important as that is, does not exhaust the work of truth and justice initiatives.  Indeed, trust in institutions, in the rule of law, depends largely on getting clarity about this dimension of the story. 

Attention to a broader range of rights’ violations needed
Third, and partly due to the few avenues left open to victims, mainly inquests, cases leading to death have received most of the attention from both institutions, and as a consequence, from civil society, despite the fact that other types of cases, ranging from illegal detentions to injury, severe harm, and  torture, far outnumber cases of death.  Because the victims of these violations and abuses of course also have rights to comprehensive redress, because some of them are in situations of extreme vulnerability, and because their un-redressed claims have a large impact on the credibility of institutions, these cases, not small in number, deserve urgent attention. In addition, the gender-related impact of the violations and abuses stemming from ‘the Troubles’ deserve more sustained and thorough analysis, as well as integration into policy-making.

The failure to reach agreement on legacy issues at Stormont, of which I learned yesterday, is an illustration of the disruptive nature of these issues. This means that the complicated institutional setup proposed by the Stormont House Agreement is no longer on the table, at least not immediately.  I will therefore not make detailed comments on this structure except to reiterate that indefinitely postponing the legacy issues will serve no one’s purposes. Victims, some of whom have waited more than 40 years to see their rights violations redressed, are once again asked to wait longer.  The credibility of institutions will continue to suffer. 

Preliminary recommendations
Moving forward, my preliminary recommendations, subject to further elaboration include the following:

  • Means suitable to the examination of the more structural and systemic dimensions of the violence and rights violations that characterized the context ought to be examined. This is in addition to, not as a substitute for, mechanisms that might bring satisfaction to victims in terms of truth and justice. The strategic deployment of investigations is necessary in contexts in which there are large universes of victims and in which the violations are not simply the sum of isolated incidents.  
  • While case-based approaches or event-based investigations such as the Bloody Sunday investigation have been an absolutely critical part of the efforts to deal with the past in Northern Ireland, having a comprehensive understanding of the past calls for instruments that do not treat the past merely as a series unconnected events.   Instruments that do not focus on episodes alone are necessary in order to stem criticisms about the biased deployment of judicial resources and that are true to the fact that the fundamental issue here is about basic rights, that is, the equal rights of all.
  • Concern has been expressed about the costs of public inquiries of the sort that have been carried out in the past.  This warrants three comments: first, there are different ways of carrying out these inquiries, there is no single blue-print. Second, it is not that the current approach is inexpensive, but that the costs of myriad disaggregated cases is rarely tallied.  Third, and most importantly, the ‘costs’ of the various alternatives of dealing with the past are not merely the immediately quantifiable, direct costs.  Failure to deal with the past adequately also has significant indirect costs.
  • Any future arrangements for truth-disclosure and for justice will need to take on board the fact that none of the stakeholders can assume the position of neutral arbiters of ‘the Troubles’ and therefore will have to incorporate procedures to guarantee both the reality and the appearance of independence and impartiality.  This will also involve means for adjudicating issues concerning disclosure in a way that is credible to all.  Although everyone must acknowledge the significance of national security concerns, it must also be acknowledged that particularly in the days we are living in, it is easy to use ‘national security’ as a blanket term. This ends up obscuring practices which retrospectively, it is often recognized (unfortunately, mostly privately), were not especially efficient means of furthering security.  In particular, national security, in accordance with both national and international obligations, can only be served within the limits of the law, and allowing for adequate means of comprehensive redress in cases of breaches of obligations.  
  • The issue of reparations for victims will need to be tackled in a serious and systematic way.  Here it may be important to bear in mind the many international experiences that have established reparations programmes on the basis of broad acknowledgments of responsibility distinct from acknowledgments of criminal guilt. 
  • Recognizing the significance of the transformation of policing services in Northern Ireland, the issue of non-recurrence should not be reduced to policing.  In particular, I will in my report return to other dimensions of non-recurrence, including:
    • Archives. Thought should be given to the issue of the proper repository of records and archives.  At present, records of past violations are dispersed, held by various institutions, with different procedures regarding access and use, and, on many accounts, with little transparency even about preservation and administration.  The fact that the PSNI continues to hold records of past violations puts an unnecessary burden on the function of the institution in the present.
    • Education. While there are some integrated schools and programmes of “shared” education, the vast majority of children continue to be educated in a segregated schooling system. This also applies to history education leading to contradictory historical narratives.
    • Psychosocial support. Interviews with many victims have demonstrated the persisting trauma related to violence during ‘the Troubles’. There seems to be no fully integrated State policy in place equally covering the victims and the harms they are enduring. This gap has so far been filled by civil society, which can however not carry this burden on its own. The State needs to develop a comprehensive policy, in the design of which civil society needs to be fully involved.
    • Strengthening of civil society.  While civil society has been central to the transformation process in Northern Ireland, continued support is critically needed. I have been particularly impressed by the work of some organizations, which respond not only to one constituency but are available to any type of victim. This approach significantly contributes in the long-term to rebuilding social trust between and within communities.

Much has been accomplished in Northern Ireland, including the very significant fact that an almost 20 year-old peace agreement involving a particularly complicated set of arrangements concerning political devolution and an international dimension, continues to hold.  While this and other achievements deserve to be celebrated, much remains to be done.  The mandate stands ready to collaborate in any way it can to furthering the rights to truth, justice, reparation, and guarantees of non-recurrence, rights that pertain to all victims, and ultimately, to all.