By any standards, the murder of Jean McConville stands out during the troubles. She was a mother of 10 with no connection to the violence. She was killed by the IRA, who did not admit to the killing but instead hid her body until it was discovered in 2003. That the body was discovered at all was down to the ongoing pursuit for truth of her children and family, and the deals of the peace process itself.
In 1999 the IRA agreed to respond to the claims of the families of the “disappeared”. This was a group of 16 victims of the troubles whose situation was similar to that of McConville in that, unlike many other IRA killings, there had never been an institutional admission of responsibility and no bodies have ever been found.
Westminster had passed legislation that provided that no forensic evidence from the bodies or exhumations could be used subsequently in criminal proceedings. This limited trade-off between truth and accountability, which received remarkably little attention at the time, enabled the IRA’s cooperation (not successful in all cases –- seven bodies were never found and admissions of responsibility were not made in all cases).
The Boston tapes
With the arrest (and freeing without charge) of Gerry Adams, the question of accountability for Jean McConville’s murder is more firmly on the table. It came about following an academic project at Boston College that recorded interviews with former combatants about their role in the conflict under guarantee of confidentiality until their death. Allegedly some confessed to involvement in killings or implicated others.
The Northern Ireland Police Service last year succeeded in obtaining the transcripts after fighting a lengthy legal battle in the US courts. The police service has since apparently been re-opening and investigating all the killings cases that the transcripts touch on. There have already been arrests and charges in relation to Jean McConville’s murder.
Adams denies any involvement. The arrest is likely to widen cracks in the peace process. It is difficult for the Northern Irish assembly to withstand the pressures of the past without having a wider process that deals with all its elements.
For unionists, knowing that key politicians are alleged by some people to have been complicit in violence is quite different from contemplating the possibility of prosecutions for specific particularly horrible killings. For republicans, selective investigation of the past makes it more difficult for them to sustain support and confidence in the now reformed legal institutions.
As a string of European Court of Human Rights cases illustrate, there are many cases of UK state killings and alleged collusion between the state and loyalist paramilitaries which have not received adequate investigation, and where the government resists inquiries. Most notable is the murder of Pat Finucane where the attenuated and inadequate de Silva inquiry documented multiple layers of collusion.
Republicans are already questioning the timing of the arrest during election campaigns north and south of the border, in which Adams is prominent, and Sinn Féin seemed poised to do well. The contrary argument runs that sometimes investigations just take the time they take and that it is in fact the lack of political interference that has resulted in unfortunately election timing (see Northern Irish secretary Theresa Villiers’ response, for example).
This is the second time in almost as many months that the past has threatened to destabilise political institutions in Northern Ireland. In late February first minister Peter Robinson said he would resign unless an inquiry was held into letters of comfort given to “on the runs” –- IRA suspects who had left the jurisdiction because they understood they were being sought in relation to offences, and had returned after they had been assured by the authorities that this was no longer the case.
The Haass failure
These latest difficulties take place against the backdrop of the Haass proposals to deal with outstanding issues in the peace process. These came on the back of new negotiations in late December between the Northern Irish political parties that were chaired by US diplomat Richard Haas and saw the past firmly on the agenda.
The parties agreed a broad mechanism, but not a formal agreement. The detail was not fully worked out, and it is difficult to say with certainty how it would have affected current events. But certainly it would have meant that the Disappeared investigations would have taken place in the context of a holistic mechanism for the past, and the families would have been given a choice as to whether to pursue public prosecutions or open the way towards getting more information voluntarily about their lost relatives.
So, implementation of yet another set of fairly sensible proposals did not take place. Instead Northern Ireland has been left to continue with the eclectic and incoherent approach to dealing with the past that has evolved.
In fact, we are being propelled into an ever more piecemeal and unsatisfactory process. For example in place of the Haass process we now have these latest arrests and an inquiry into letters of comfort that were themselves a sort of fix for a failure to solve the “on-the-runs” problem more transparently. This in turn was a fix to the partial provision on prisoner release in the 1998 Good Friday agreement.
In response we have politicians in Sinn Féin and the unionist DUP who are being forced into expressing lack of confidence in political and legal institutions they have taken huge political and personal risks to support. This is not like the early days post-agreement, where threats to withdraw support reflected reluctance to enter them in the first place.
This is now an established peace process where the rubicon has already been crossed, involving political sacrifice on all sides. Both sides know that both they and the peace process lose if the new institutions collapse or are undermined.
It is all a terrible mess. To sort it out, the politicians should ideally now commit to Haass and implement it –- the details can be refined in implementation. If they do not, the UK government (with the support of the Irish government) should move to implement it without formal local sign-off.
The proposals may not be perfect, but experience from other countries shows that no perfect mechanism for dealing with the past exists. The key question now is not how to get to something better. It is a choice between Northern Ireland having a dedicated thought-through forum in which to contend with the past, or being forced to make do with political and legal institutions that were not designed to deal with it.
The peace process has come too far and everyone -– not least the victims and their families -– has made sacrifices to get this far. Its achievements should not be treated so carelessly.