Perhaps surprisingly, the discussions on how we deal with our past have begun to become quite detailed. Now John Larkin has proposed the unilateral abandonment of all inquests, investigations, inquiries and prosecutions and cites the necessity for this to secure truth. The decision by John Larkin to intervene in this debate in this way is both surprising and unhelpful. The legal basis of his proposals are highly questionable, particularly regarding investigations and inquests. Article 2 obligations to effectively investigate are not for negotiations.
The Eames Bradley recommendations included proposals on transactional immunity – where truthful accounts of violations could be exchanged for limited immunity. We have seen limited immunity playing a valuable role in the processes for location of the remains of the Disappeared, in the decommissioning process and in the Smithwick Tribunal.
However these are not blanket processes. They are limited and they are tested.
International standards demand truth and justice for victims of violations. Transactional immunity that is tested can play a role in the context of a wider process that puts victims’ rights at its centre.
While we grapple for a way forward on dealing with the past, victims rights are not up for negotiation by vested interests. Victims of the conflict have nothing to trade in any trade off. They have suffered too egregiously for too long. Placing the actors’ needs ahead of victims rights will not resolve the painful issues at stake. Latin America in particular have learned that lesson.
Victims rights must have primacy and while tested transactional immunity will undoubtedly have a role to play in securing progress for victims it must not be played as a negotiation card between those with responsibility for reparation of harm.