The Northern Ireland Troubles (Legacy and Reconciliation) Act became law in the United Kingdom on Sept. 18. It is an attempt to resolve the many open investigations into murders committed during the 30-year armed conflict in Northern Ireland known as the Troubles.
The new law calls for setting up an independent commission to deal with the hundreds of killings that remain unsolved to this day. It would offer conditional amnesty to those who co-operate with the commission’s investigations.
The act was passed despite widespread condemnation from the communities of Northern Ireland and broader international parties. The British government says the act will “draw a line under the Troubles” and achieve reconciliation. But this claim is questionable and the act raises concerns regarding colonial legacies and the government’s culpability.
Opponents of the act argue that it violates the Good Friday Agreement by putting “victims’ rights at risk” in ceasing all open criminal investigations. Sinn Fein, the largest party in the Northern Ireland Assembly, said the act is a “denial of human rights of victims and their families.” Critics also say it will not achieve its purported goals of reconciliation and may actually “deepen divisions” between the communities of Northern Ireland.
A “Legacy and Reconciliation” Act
The act seeks to promote reconciliation through a loosely defined “Independent Commission for Reconciliation and Information Recovery.” This language of reconciliation and independent commissions appears on the surface to be based on notions of transitional justice and reconciliation. Supporters note that the 1998 Good Friday Agreement, which brought an end to the Troubles, also declared a goal of reconciliation.
Truth and reconciliation commissions are a key component of peace processes, helping societies transition out of conflict and into peaceful relations. Despite their varying effectiveness, they are generally seen as a positive step forward.
However, three factors reveal how the U.K. government’s agenda is disingenuous: the definition of justice, the dilemmas of colonial legacies and the government’s own culpability.
The people should define justice
Opposition to the act’s amnesty provision reflects a wider debate in peace processes between retributive and restorative justice and the role of amnesty. Retributive justice reflects the idea that perpetrators of crimes should be punished accordingly under the law. In Ireland, criminal justice for perpetrators — or retributive justice — is frequently described as inherent to victims’ rights.
Restorative justice emphasizes shared dialogue between the perpetrator and victim. However, offering perpetrators amnesty — or what some critics label impunity — to garner their participation is often criticized for not always delivering justice to victims.
South Africa, for example, selected a restorative justice process of truth-telling, with amnesty, to encourage perpetrator participation. But while dialogue occurred, action to implement the recommendations that followed was never taken, leaving many feeling justice had not been served.
The U.K.’s legislation suggests it is using amnesty to encourage perpetrators to come forward with the truth. However, one of the act’s other controversial moves includes shutting down existing investigations to shift all cases over to the new framework.
British military personnel are subject to a number of open investigations for their role in over 3,500 deaths of the Troubles. In simultaneously applying amnesty and closing investigations, the act clearly serves the interests of the British government. The legislation’s claims to restorative justice become a way to prevent the truth of government’s culpability coming out.
Reconciliation and colonial legacies
Northern Ireland faces another issue similar to Canada’s truth and reconciliation process. There has been no transition of the imperial or colonial institutions. Simply put, the colonial state’s that perpetrated violence are still in power. The problems of non-transition, colonialism and structural violence are widely critiqued by scholars of transitional justice in an Indigenous context. These criticisms carry important lessons for Northern Ireland.
The U.K. government that has passed this legislation — without the consent of the Northern Irish people — still claims sovereign authority over the territory. While a transition of sorts occurred with the creation of the Northern Ireland Assembly in 1998, there has been no transition of the Westminster government. Nor any transition of the Crown, whose imperial presence has been felt in Ireland for hundreds of years.
In Canada, despite being forced by legal settlement to co-operate with Indigenous groups, the Truth and Reconciliation Commission’s final report noted the government still retained a colonial lens of reconciliation in maintaining its “Crown Sovereignty.” The U.K. government is also defining reconciliation in a way that does not respond to the interests or appeals of the people of Northern Ireland.
Historicizing crimes
In seeking to draw a line under the conflict and relegating the issues to history, the act appears even more self-serving. The U.K. government is highly culpable in the Troubles — particularly in the 1972 Bloody Sunday massacre — lending to greater outcry at the notion they may be allowed to absolve themselves of responsibility through legislation.
When former British prime minister David Cameron apologized for Bloody Sunday in 2010, it was made clear that there was a distinction between the two regimes: his, and that of 1972. Records show that ministers as early as 1997 were aware of the impact of such an apology underpinning the liability of the British government and calls for justice.
Proponents of restorative justice processes could argue that an amnesty approach is a possible step toward healing and reconciliation. But such processes must align with the demands of the communities, victims and survivors.
Outcry about the act in Northern Ireland represents the challenge of doing reconciliation without real institutional transition. And of ignoring the legacies of history without addressing the demands for justice in the present day.