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ANNEX A: TRUTH, RECONCILIATION AND REDRESS: EXAMPLES OF MODELS AND KEY PRINCIPLES
What exactly is a truth and reconciliation commission?
There is no one simple answer. This is because a variety of models of Truth Commissions ( TRs), Truth & Reconcilation Commissions ( TRCs) or Compensation Board or Redress schemes which incorporate some TRC principles, have been followed in different countries. The very words "Truth" "Justice" and "Reconciliation" can cause disagreement and controversy when people try to decide if they should support something of this kind.
Background
Many Truth Commissions have been established across the world, although a substantial majority have related to armed conflicts or dictatorships, to torture, rape and other abuses in war or civil disturbances. A minority have related to abuses of adults in psychiatric care, or abuses of children and young people in care, or the large-scale removal of children from their own parents and communities (for instance the aboriginal peoples of Australia and Canada).
Therefore most Commissions have been authorised by Governments, usually those which have replaced tyrannies or military dictatorships, and who wish to make a formal accounting of human rights abuses by earlier political regimes. However, pressure across many countries has increasingly grown for commissions of various kinds to investigate, and make some form of reparation for, large-scale maltreatment of the most vulnerable and stigmatised members of society - particularly children in the care of the State, of the Churches or other institutions.
Key elements of truth and reconciliation programmes
In its pure form a Truth and Reconciliation Commission takes a "restorative justice" approach in attempting to make peace with the past by investigating and publicly acknowledging abuses, torture or other human mistreatment over a set period. The vocabulary surrounding this approach emphasises the importance of ending collective societal denial, using the Commission process to heal the social and political fabric as far as possible, and to bring about lasting cultural change.
It is officially sanctioned, authorised and empowered by the State. This is in order to make access to the process and to the information provided through the process easier; to provide greater security for the information which is generated (e.g. to reduce the likelihood of vigilante reprisals) and most important, to signal that the findings will be taken seriously. Underpinning the process is the belief that the public or official exposure of truth is itself a form of justice.
Several different models of commission or redress have been tried, and a few examples are summarised below.
New developments in Canada:
The latest development in Canada is the launch, in June this year, of the independent Truth & Reconciliation Commission in respect of former Indian Residential Schools. ( IRS). It will run for five years. Advised by an IRS Survivor Committee and chaired by a senior judge, it will give anyone affected by the IRS experience a chance to come forward with personal experiences in a "safe, respectful and culturally appropriate" setting.
The TRC aims to:
• Research and examine the conditions giving rise to the IRS legacy.
• Create an accurate, public historical record and fill the blank pages of Canada's history.
• Contribute to a process of truth, healing and reconciliation and help to rebuild relationships between Canada's aboriginal and non-aboriginal peoples.
This TRC is determined to make practical steps towards genuine change by preparing a historical record on the policies and operations of the schools, making a report with future recommendations establishing a national research centre, hosting national events to foster awareness and public education, and supporting a commemoration initiative.
However, the TRC is neither a public inquiry nor a formal legal process, does not have subpoena powers to compel attendance, and cannot make findings on individual misconduct unless this is already established by law or by admission. It appears to be set up to allow criminal or civil actions to proceed separately, and must ensure its conduct "does not jeopardise any legal proceeding".
Further information on this initiative is available at the website www.trc-cvr.ca
South Africa: amnesty as a feature
The most famous example of any "Truth and Reconciliation" programme is the South African one. It was brought about by the National Unity and Reconciliation Act 1995 to investigate the nature, causes and extent of gross violations of human rights during the apartheid era and liberation struggle. It ran from 1996 to 1998, and reported its findings in 2004.
It granted amnesty to those who made full disclosures, giving victims the opportunity to talk through their experiences and to seek reparation. Amnesty is a controversial issue and is not necessarily a feature of other programmes elsewhere. The process consisted of three Committees running in tandem - one cataloguing human rights violations, one making decisions on the granting of amnesty and one making decisions on reparation.
In South Africa, narrative or personal truths, emerging especially through victims' and ' public testimony, sought to ensure that individual as well as collective acts of oppression could never be forgotten. It was in that sense an insurance against "collective amnesia" in the future.
Much of this type of approach, in its purest form, is underpinned by religious belief - particularly the concept of forgiveness. This in turn is associated with Christian approaches. So some of the hearings placed individuals under considerable pressure to express remorse, with some refusing to do so on the basis that their behaviour was what was expected of them in their secular role (such as police or army), at that time and in their culture. That may become a significant consideration in the Scottish context, if such a model was to be used with faith organisations such as the Churches.
Archbishop Desmond Tutu, however, made cultural links as well as religious ones: he pointed out that restorative justice reflected a fundamental, venerable African value, of healing social relationships at the expense of exacting vengeance. Other societies may thus be able to identify cultural values which accord with their chosen principles of T&R.
Irish Republic: redress model
Truth and reconciliation models vary over whether or not they include a redress process. Such a process is designed to provide financial and other compensation.
Redress is usually time-limited. It begins with directly engaging with survivors in negotiating the elements of the programme, such as the harms covered, the validation process and the compensation and benefits offered. It is intended to be less formal and costly than judicial options.
For instance, the Irish Residential Institutions Redress Board in 2002 was brought about by the Residential Institutions Redress Board Act. It set out to make awards to those who claimed to have been abused whilst in care. Individuals had to present their cases to a Board involving both legal and policy experts. It was a non-fault compensation body which did not decide on liability: that means individuals could still take court action for aspects of suffering not covered by the Redress Board award. A sliding scale of payments reflected the range of suffering experienced. This appears to have worked well, and there is no record to date of any significant dissatisfaction with the process or outcomes, either from survivors or staff.
Nova Scotia, Canada: redress model
Again this was not a TRC as such, but a form of redress scheme only.
After public allegations of physical and sexual abuse by former residents of youth detention centres in Nova Scotia grew in the early 1990s, a judicial report found evidence of serious abuses at the Nova Scotia School for Boys. The Justice Department set up an alternative dispute resolution programme and offered out of court settlements to victims of this home and others. However financial compensation was awarded readily on the basis of unsworn statements, and little corroboration, and employees were not allowed to address abuse allegations made against them. There were claims that fraud was going on, and angry protests of injustice among ex- staff, while victims of abuse for their part found very small numbers of staff were ever prosecuted.
Nobody was sure of the truth or extent of actual abuse, while different mass media in Nova Scotia took radically different positions. The government not only paid about 56 million dollars in compensation to claimants, but felt bound to offer compensation to more than 150 former employees as wrongly accused people. The critical Kaufman report remarked that this poorly planned redress scheme "left in its wake true victims of abuse who are now assumed by many to have defrauded the Government, employees who have been branded as abusers without appropriate recourse, and a public confused and unenlightened about the extent to which young people were or were not abused."
New Zealand: a public acknowledgment model
The New Zealand Government adopted, between 2004 and 2007, a "hybrid" model which incorporated elements of both reconciliation and redress.
Its confidential debates allowed former in-patients of psychiatric hospitals, their families and staff members to speak formally about their experiences in psychiatric institutions before November 1992. After some lobbying, Government had decided on this approach, which was accompanied by legislation, creating safeguards to uphold individuals' rights to financial redress for abuse after that date.
Confidential discussions, led by independent panels, were set up with clearly agreed terms of reference signed up to in advance by attendees. These included family and staff members.
As with the Scottish experience, participants admitted to hospital as children or adolescents described sexual and physical abuse and of becoming the target of sexual abuse from staff or other residents. Many said they had been discharged without the skills needed to deal with adulthood and were still paralysed by their experiences.
The official acknowledgement by the State of the importance of the issue was valued from the outset. However, these discussions stopped short of being a Commission of Inquiry with powers to test and evaluate evidence. Thus the Forum was not about financial compensation or liability. The final report was a position statement, but did not include recommendations. Those that came did so because they wanted to be taken seriously and knew that they were talking in an affirming environment which was not "checking" for authenticity but trying to make sense of what had happened. The focus was on conditions, treatment and the impact of the experience on their lives.
Information, access to relevant services and agencies, including provision for access to counselling was offered in lieu of financial compensation . This may have relevance to Scotland given that survivors' support organisations indicate that most survivors' main concern is not for financial compensation, but for full acknowledgment, and support which enables them to lead fulfilling lives.
Many participants told the Forum that they valued the opportunity for their story to be heard by those in authority and in Government, and reported positive personal outcomes. While a minority considered it to be a cynical exercise to avoid a pay-out, others viewed it more positively and many saw it as a way of informing the Government so that - they hoped - history would not repeat itself.
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