Kath Noble

On global standards for public inquiries

Posted in The Island by kathnoble on May 14, 2008

Why the international observers of the Commission of Inquiry into serious human rights abuses should not have given up.

The international observers of the ongoing public inquiry into serious violations of human rights left in a huff a couple of weeks ago. They claimed to have done their best for the country. Global standards simply weren’t being met and proposals to get the process back on track had been repeatedly ignored. It was a problem of political will, they insisted. Government just didn’t seem to be very interested in getting to the bottom of these incidents. The eminent persons haughtily declared that nothing more could be achieved in such circumstances and pushed off home.

It only encouraged those people who like to think that there is some kind of international conspiracy at work here. For the decision to walk out was completely unwarranted.

The eminent persons did uncover some problems. They pointed out that provision for witness protection was totally inadequate. They were worried about the conflict of interest that would probably arise with the use of lawyers from the official bar who might also have been involved in giving advice to government bodies on the original cases. They were concerned that the work was taking too much time and that part of the state apparatus wasn’t cooperating fully. They particularly didn’t approve of the decision to start proceedings with a period of confidential investigations before moving onto open hearings. And they complained that there simply wasn’t enough money to do the job properly. The international observers pressed for action on all of these points in their quarterly reports and underlined the main issues in their final statement.

Some of these obstacles sound worse than others. But we needn’t delve into the details now. Plenty of newspaper space has already been devoted to claim and counterclaim. Let us just assume that the criticisms are all entirely reasonable. They might well be.

It still doesn’t seem to add up to a pointless exercise that should be dropped at once. Progress is clearly being made. Evidence is being presented in a public forum in which advocates for all sides appear to be doing their best to argue every single point. Some people do now feel able to tell what they know either with confidence in whatever security they have been offered by the authorities here or from the safety of another country. Attention is being focused on the process. It obviously isn’t perfect. But this flawed attempt is surely better than the alternative of just forgetting all about the crimes that have been committed. And those who are presiding over the effort to bring the truth to light and maybe also the perpetrators to justice deserve to be given every possible chance to prove themselves by coming to a useful conclusion. Sixteen incidents to be probed in the middle of such a bitter conflict were always going to amount to a heavy burden for them.

The international observers must be well aware of how public inquiries into broadly similar incidents have progressed elsewhere. Global standards apparently don’t refer to what other countries do but to what might be possible in an ideal world.

British experience shows this only too clearly. Bloody Sunday provides a particularly compelling example of how states tend to respond to allegations of human rights abuses by their security forces.

In 1972, British troops opened fire on a peaceful demonstration in Northern Ireland. Fourteen people were killed and a further thirteen injured. Half of them were teenagers. And a fair number were shot in the back as they ran away from the scene. The massacre took place in full view of thousands of local residents and was also witnessed by a number of foreign journalists. Protests engulfed the country and before long spread around the world too. The British government was deeply embarrassed by the attention that the incident brought to its internal problems and quickly decided to set up a public inquiry.

It was a whitewash. The Lord Chief Justice completed the investigation within ten weeks, and his final report of just a couple of dozen pages was published a few days later. The official line was upheld. Marchers were falsely accused of being in possession of nail bombs and having shot at the soldiers, while the army was merely upbraided for making a few mistakes in what were misleadingly presented as well-intentioned attempts to arrest troublemakers. 

It was far from a proper process. The Prime Minister made it clear from the outset that they were fighting a propaganda war as well as a military battle in Northern Ireland. Officials suppressed the fact that evidence given by the soldiers accused of wrongdoing didn’t tally with statements that they had made to military police in the immediate aftermath of the shootings. Forensic evidence that called into question their version of events wasn’t investigated. Army radio messages were ruled inadmissible. And the soldiers who were present but not implicated in the massacre had their affidavits rewritten by superior officers and weren’t called to the hearings to be questioned on them. The Lord Chief Justice claimed that nothing useful could be learnt from more than five hundred witnesses whose testimonies had been collected by the organisers of the march.

The British government finally accepted that this was wrong long after the peace process had got underway. In 1998, Bloody Sunday was made the subject of another public inquiry by a British Law Lord working in collaboration with senior judges from Australia and Canada.

It has taken rather longer than the original effort. Initial investigations were only completed in 2000. Hearings then went on for the next five years and the final report isn’t expected to be released until the end of 2008. It has cost about Rs. 40 billion. Truth has been given precedence over justice too. Witnesses have effectively been promised immunity from prosecution, so there is now almost no chance of anybody being held to account for what happened. And the terms of reference didn’t include looking into the manipulation of the earlier public inquiry.

The British establishment still hasn’t been keen to collaborate. Guns used in the shootings were destroyed. Hundreds of army photographs were withheld along with video footage taken from a military helicopter. Various other documents were denied. The Defence Ministry claimed that it couldn’t even identify the soldiers who were present in the area at the time never mind work out exactly what happened on the day of the massacre. Bloody Sunday hasn’t been properly acknowledged by the state in more than 36 years.

Britain consistently refused public inquiries into later incidents in Northern Ireland. The British forces were often accused of the rather less obvious crime of collusion with paramilitaries in the murder of Republican militants and prominent Catholics. A couple of cases stand out. In 1989, Republican solicitor Pat Finucane was shot dead in front of his family in Belfast, while Catholic lawyer Rosemary Nelson succumbed to a car bomb outside her Lurgan home in 1999. Both had worked on high profile cases and had proved troublesome opponents in court. The British secret services were suspected of running agents who had been actively involved in planning these and many other assassinations throughout the 1980s and 1990s. It all happened behind the scenes but was at the same time well known.

The United Nations Special Rapporteur was one of the many people who were left disappointed after calling for a public inquiry.

The Deputy Police Chief of an English district was sent out to investigate instead. It took him fourteen years to come to any conclusions. The British security forces were undoubtedly guilty as charged, and prosecutions of the officers responsible should be launched at once. But that was it. In 2003, the British government reluctantly agreed to publish a fifteen page summary of his report that in full amounted to more than 3,000 pages with almost 200 floppy disk attachments. Secrecy was said to be necessary to avoid prejudicing any future legal action against specified individuals. Except that there hasn’t been any. In 2007, the British government finally decided not to move forward with the cases of the officers implicated in the murder of Pat Finucane. 

The Deputy Police Chief also reported serious attempts to mislead and obstruct his work. The British agent at the heart of the allegations was warned the night before he was due to be arrested so that he could flee the country. Files were lost and subsequently discovered to have been shredded. The Deputy Police Chief even had his office burnt down at one point.

It certainly didn’t dampen the demand for a public inquiry. Britain was forced to shift its position on this issue when the peace process was nearing its end. In 2002, a Canadian judge was allowed to review the evidence collected to date and concluded that public inquiries ought to be conducted into a number of incidents including the murders of both Pat Finucane and Rosemary Nelson. It was a case of better late than never. In 2005, the British government eventually decided to go ahead with this work after pushing through new legislation transferring all powers over public inquiries to the Prime Minster. He alone now appointed the members, set the terms of reference, decided what should be made public and had the power to terminate the process. Parliament could do little about it. The Canadian judge commented that this would make any meaningful public inquiry impossible and urged his compatriots to refuse to sit on all bodies set up under the new arrangement. 

In 2005, the Rosemary Nelson inquiry got underway but three years later still shows no sign of reporting. Pat Finucane’s family refused to cooperate with the authorities and it has recently emerged that the British government quietly decided to stop preparations for an inquiry back in 2006.

Collusion remains a very murky episode in the history of the British state.

Global standards sound a bit less widespread now. The eminent persons would never be invited to oversee public inquiries in most other countries. But flaws are as much a part of those experiences as they are proving to be here.

The international observers were right to raise their concerns forcefully. For that is what they were invited to do. The fact that others have made even worse mistakes in similar circumstances is no reason to accept them here. But they surely don’t believe that people are going to be better off now that they have given up their work and it leaves everybody wondering why they really decided to leave. They just appeared to be fed up with what was obviously going to be an unpopular job.

Officials shouldn’t have bothered getting upset at their obvious eagerness to use the regular press briefings to embarrass the administration by timing them to coincide with sessions of the human rights council. It wasn’t unreasonable. But the eminent persons had no business complaining about the spirited replies that they received on those occasions either. That was equally part of the process. They should have applied a little perspective and kept at their work to the bitter end.

The international observers only succeeded in reinforcing the impression already prevalent in the country that such people aren’t serious about the principles that they espouse.

This article was published on the editorial page of The Island on May 14th, 2008. The internet version can be accessed here.

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