Halting prosecutions for The Troubles will deny justice

Rough justice: would families of Bloody Sunday victims accept a ban on prosecutions? Paul Faith/PA Wire

Perhaps it is merely a symptom that Richard Haass’ engagement in Northern Ireland has stimulated widespread debate within the Criminal Justice system in Northern Ireland, or perhaps it is a demonstration of more purposeful choreography. A Criminal Justice Inspection (CJI) report on the costs and impacts for the criminal justice system in dealing with the past has just been released in the immediate aftermath of the proposal by the Northern Ireland attorney general, John Larkin, for legislation a halt to historic prosecutions of acts associated with the Troubles.

CJI estimates that the costs to the criminal justice system of dealing with the past under current arrangements may exceed £187m within five years. CJI also points to the non-monetary costs of failure to address the past – what are referred to in Northern Ireland as “legacy issues”. Among these costs is reduced public confidence in the criminal justice system and its ability to operate in the future.

CJI found a willingness and commitment amongst leaders and criminal justice organisations to address their obligations in relation to the past, but said they are hamstrung by an inability to deploy staff with the skills to address legacy issues. CJI conclude that the criminal justice system is not equipped to deal with the past, and that it is incapable of providing a comprehensive solution to legacy issues. This conclusion provides further context for the attorney general’s bold and controversial suggestion that Northern Ireland abandon historical prosecutions.

Several agencies, including the police, have pointed out that contemporary operations suffer from dividing their energies between present day demands and legacy issues. In his earlier interview, Larkin considered proposals for a truth commission – but concluded that the problem of managing Northern Ireland’s past conflict calls for a tailor-made solution.

Northern Ireland is not South Africa

True, those who look to South Africa for a model and call for a truth commission in Northern Ireland often do not take into account differences between the two settlements. The ANC in South Africa overwhelmed an ancien regime that, in spite of Mandela’s magnanimity, is nowadays largely regarded as evil and wrong. The resolution, such as it is in Northern Ireland, is much more equivocal. The constitutional settlement is consociational, bringing with it the underpinning assumption that there are two sides to the story.

Gerry Adams: his role should remain under scrutiny. Niall Carson/PA Wire

The principle of “parity of esteem” calls for both sides of that story to hold equal weight. Thus, any contemporary unveiling and investigation of past killings, disappearances and violent acts must be configured, understood and deployed politically according to the fault lines in the society itself.

Any past, current or future inquiry, disclosure, investigation or prosecution will lend credence to one of the two competing narratives about the past. This “war by other means”, which at present is being waged in books, documentaries and through public inquiries is, make no mistake, progress indeed.

Storing up more trouble

The contributions of the Historic Enquiries Team, the Police Ombudsman and various community-based inquiries all fuel an impetus to uncover the truth, to shed light on past deeds, to bring to public attention the past associations and culpabilities of various political actors. To what end? For sure, some of this uncovering is not about the past at all; it is a continuation of war by other means.

Attempts to expose Gerry Adams’ past, or that of Martin McGuinness, are undoubtedly based on the outrage some feel at their rehabilitation as legitimate politicians. The discrediting of politicians is a process that is observable well beyond Northern Ireland. But in Northern Ireland it is not (only) about smoking crack cocaine, extra-marital affairs, or fiddling your expenses; it is also about having blood on your hands – in the case of McGuinness and Adams, the blood spilled by Republicans.

On the other hand, it is about exposing the manner in which the state used Loyalist proxies to attack and subdue the Catholic community, in a largely counterproductive attempt to drive a wedge between them and Republican paramilitaries. And it is also about exposing some of those who enforced the law – such as it was, riddled with emergency measures and states of exception – as law breakers, criminals like those they sought to pursue, prosecute, and in some cases shoot to kill.

There is no monopoly on grievance in Northern Ireland. Paul Faith/PA Wire

There is a weariness with it all. The attorney general and others in Northern Ireland and beyond are tired of endless investigations, the money that is spent on them, the claims and counterclaims that inevitably follow the publication of each new investigation. The trouble with the Troubles is that it was not an equal opportunities phenomenon. Some of those who are weary of listening to these contests about the past survived largely unaffected, or were too young to have lived through the worst of it. And many of those who call for more inquiries and for prosecutions are those who have suffered most.

It is notable that the attorney general is calling for an end to prosecutions for largely pragmatic reasons. The diminishing feasibility of such prosecutions, and the way in which the legal process constructs aspects of the past as adversarial, is his professed rationale.

What is not addressed is the residual anger, despair, grief and disaffection of those who have suffered most. He alludes to victim-perpetrator mediation as a possible way forward. Whilst this may be of value to those victims who can stomach the idea, it does not address the power imbalance; the victim remains in thrall to the person who harmed them in the first place and their willingness to engage.

Faith in the rule of law

This also constitutes a problem of justice: any post-conflict settlement must hinge on a respect for, and faith in, the rule of law – something wrestled out of the hands of those who regarded justice as their exclusive entitlement, essential for themselves, but dispensable for others.

If we dispense with prosecutions for acts committed during the Troubles, will we erode the confidence not only of those for whom justice has been denied, but of the subsequent generations of their families, who must live with the impunity that such a decision will usher in?

This is not just a question for the attorney general, who is properly concerned (as is the chief constable) with the here-and-now of justice. It is also a question for those who understand grievances, the half-life duration of grievances, and their propensity to emerge with renewed vigour at some point in the future from what we mistook for a communal grave.

This is why the decision to dispense with prosecutions of past acts must not lie with the Attorney General or the Chief Constable. This is also why the proposal he makes is a useful one; it focuses minds on how we can deliver relief to those who have suffered most and to whom the most is owed. It may well be that prosecution is not the way forward. If it is not, then some other means of establishing a moral and just method of dispensing with past hurts must accompany a decision not to prosecute.

Some of us might be able to forgive and forget because we have little to forgive. For others who cannot, we have a communal moral duty to recognise their position – and to find some means, however imperfect or symbolic, of addressing their situation.

Those who were bereaved and/or injured are nowadays still living on a daily basis with the effects of loved ones killed, limbs lost, minds bruised by what happened. But for the impact of the Troubles on their lives, many could have led prosperous, productive and happy lives. Indeed, some did manage to do so; but many more had that opportunity taken away by what the conflict did to them.

The debate that follows the Attorney General’s proposals will generate heat, but if it can also shed some light on how the tragic history of past decades can be put to rest in a respectful and consensual manner, it will be useful.

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