Amnesties, Prosecution and Truth Recovery

1. Amnesties, Prosecution and Truth Recovery Louise Mallinder Amnesties, Prosecution and Public Interest in Northern Ireland project

2. Project Background • Partnership between QUB Law School, TJI and Healing Through Remembering • Funded by AHRC • Project draws on international comparative research in South Africa, Argentina, Uruguay, Uganda and Bosnia on causes, operations and impact of amnesties • During previous project, NI developments (eg CGP) suggested relevance of research to this jurisdiction

3. Research Findings that Prompted this Project • Politics: the local political context is crucial to the legitimacy or otherwise of an amnesty process that results in perpetrators evading full criminal punishment • Ownership: the extent to which there is a public conversation on the need for and scope of an amnesty, and whether prosecutions are in the public interest, that includes not only political elites but also victims, civil society and combatant organisations is also key • Linkages: relationship between amnesties and other transitional justice mechanisms can significantly influence the social and political reaction to an amnesty • Inevitability: no transition from conflict is possible without an informed debate about amnesties and prosecution

4. Project Aims • To listen to the views of individuals, groups or institutions who are concerned with dealing with the past • To inform debate in NI on amnesties, prosecutions and the public interest • To provide information on the (a) international, (b) historical, and (c) legal context of amnesties, prosecutions and truth recovery in NI • To contribute to people making up their own mind from an informed position on how best to deal with the past

5. Activities to Date • 18 private meetings with e.g. victims, civil society organisations, ex-combatants, government agencies, and lawyers • One public event with the Commission for Victims and Survivors • Meetings are ongoing • Overall project results will be made publicly available through media and project report

6. What is an amnesty? • ‘Amnesty’ can be a ‘toxic’ debate • But amnesties used in different ways around the world • Core element of amnesty is to remove criminal liability for categories of offences or offenders • Amnesties generally limited in some way • Amnesties often now conditional (e.g. linked to weapons disposal, groups breaking up, truth recovery or future actions such as non-recidivism) • Amnesties and amnesty-like measures in NI have used some of these conditions

7. Amnesties and Article 2 ECHR • No direct decisions from European Ct Hum Rts on amnesties and Art 2 • Art 2 creates procedural obligations, ie state must conduct full, effective, prompt and open investigations • No requirement that investigations lead to prosecution – acknowledges difficulty of investigations & prosecutions for historical offences(Finucane v UK, 2003) • ‘There is no absolute right … to obtain a prosecution or conviction’ (Brecknell et al v UK, 2008) • ‘The State is justified in enacting ... any amnesty laws it might consider necessary ... [provided] a balance is maintained between the legitimate interests of the state and the interests of individual members of the public’ (Tarbuk v Croatia, 2012)

8. Interpreting Art 2 Obligations • In some circumstances, amnesties or other forms of leniency are permitted under ECHR • Amnesties must not prevent investigations • Victims’ interests must be considered in decisions on amnesty, but victims do not have a legal veto • ECHR’s position on torture may be more restrictive as torture is an international crime

9. Amnesties in NI : 1969 Amnesty • Policy of Stormont executive • Context of growing unrest • Covered ‘events associated with, or arising out of, political protests, utterances, marches, meetings, demonstrations occurring between 5 October 1968’ and 6 May 1969 • Covered civilians and RUC • Applied to criminal proceedings that were pending, or future, or those already convicted • Unconditional

10. NI Arms Decommissioning Act 1997 • Provided that no proceedings ‘will be brought in respect of anything done in accordance with a decommissioning scheme’ (eg moving weapons) • Decommissioned articles or evidence from them cannot be used in criminal proceedings • Initially the amnesty was to last 12-months, but was continually renewed by SoS until 2010

11. Early Release Scheme 1998 • Release of qualifying prisoners (convicted of scheduled offences and belonging to organisations on ceasefire) within two years • Released on time-limited or permanent license • By 31 Mar 2012 482 qualifying prisoners released in NI • 21 licences suspended (a recidivism rate of 4%) • Applies to paramilitaries convicted post-1998 • State forces not eligible for ERS – would serve full sentence unless released on license or pardoned (like ordinary offenders)

12. Incentivising Testimony • Location of Victims’ Remains: evidence provided is confidential and cannot be used in criminal proceedings • Bloody Sunday Inquiry: any written or oral evidence given by witnesses could not be used against them – although it could be used to prosecute others • CGP proposed similar measures • Viewed as necessary to encourage testimony

13. Difficulties Associated with Historical Prosecutions “The likelihood of solving cases was clearly going to be slight. Witnesses would be old or dead. Exhibits, if still available, could be contaminated or inadmissible. Informants and agents would be in the mix; the original paperwork incomplete or missing... At the height of the Troubles, 497 people were murdered in one year. The forensic laboratory was blown up twice. Numerous police stations were blown up, stations housing much of the investigative material. ... The fact that evidential opportunities lost at the time would be hard to recover did not render the initiative worthless. We had to shift the focus to ensure that, mindful of our primary role as investigators, the driving force behind this initiative would be to deliver a meaningful outcome for the families.” Sir Hugh Orde, 2009, on establishment of the Historical Enquiries Team

14. Legal Issues re Historical Prosecutions • Eye-witness evidence may be unavailable or unreliable • Lack of usable forensic evidence (i.e. available exhibits may be contaminated) • Reliability of confessional evidence • Investigations contaminated by agents (e.g. Denis Donaldson case) • Unreliability of ‘assisting offender’ evidence (e.g. collapse of ‘Supergrass’ trials, Martin O’Hagan non-prosecution) • Anyone convicted of pre-1998 paramilitary offences likely to serve a maximum of two years under ERS

15. Conclusion • Project is designed to inform the debate and let people make decisions from a position of knowledge • Knowledge of the international, the legal and the historical context of the relationship between truth, amnesties and prosecutions • Almost all transitional jurisdictions at different times have deployed a combination of amnesties and prosecutions so part of our job with regard to Northern Ireland is to explore the difficulties and advantages of both • While truth without some form of amnesty is very difficult to envisage, and historical prosecutions are difficult to achieve, neither ‘product’ should be oversold

16. Questions on this presentation or any aspect of this project can be discussed in the final session of today’s conference