On dealing with the past, a hard sell on immunity should not rule out cooperation with historians.

I’ve belatedly come across a Queen’s Blog which is the submission legal academics Professor Kieran McEvoy Dr Louise Mallinder Prof Gordon Anthony and Luke Moffett have presented to Haass.  It’s a hard sell of a powerful case but with a couple of flaws I’ll come to later.   I would have blogged about this in preference to my previous post  had I seen it in time. In essence it updates the McEvoy account of how immunity from prosecution has often featured in our affairs and others’. The Mc Evoy roadshow has been busy, they tell Haass, holding 25 meetings all over the province and much else.  And what’s more they’ve got the money to keep going with much needed help and advice.  They may indeed be having a positive effect already if occasional remarks from the DUP become the settled view. The submission states that:

  • The obligation of the European Convention on Human Rights for “prompt” (!) inquiry does not require prosecutions.
  • While victims’ families have a right to be heard, they have no veto on immunity from prosecution.
  • Amnesties have been used repeatedly in Northern Ireland in various stages, including over arms decommissioning , early prisoners’ release , the search for the disappeared and the series of inquiries from Saville to Smithwick.

They ask, what are the challenges for a truth recovery mechanism?   First to show those who are summoned are telling the truth. That could be achieved by incentives such as popular pressure  as in the case of the disappeared, but  also by “powers to compel testimony requiring it to corroborate offender statements using victim and witness testimony and written documents, and imposing penalties for perjury.” The  former, the example of the disappeared, is an exception,  as the effective  pressure came mainly from within the same community. The latter, as they must suspect, skates on thin ice. Legal sanctions would surely be ineffective in the face of a de facto boycott and would risk killing off incentives. The idea  sits awkwardly  in what is mainly the case for easing legal pressure on witnesses.

In this document something has happened that I feared would happen. Prof McEvoy and co appear to disparage a role for historians which the  Arkiv group has recommended to Haass. They dismissively assert in terms that a historical approach is only something for politicians to cherry pick and imply that it compares  unfavourably with the rigour and precision of the legal approach. This is short sighted.

With so much concentration on removing obstacles to full inquiry,what precisely is to be be inquired into hasn’t been sufficiently discussed.  The guilt or innocence of a particular person of a particular crime? Surely not going  that far, only a fair trial would do. The patterns of conduct in case studies?  Presumably yes. State actors and paramilitaries to make the case against the other to set the ball rolling? Conceivably, particularly if backed up by the evidence of the written record. Confessions?  The whole of this discussion is predicated on the assumption that omerta will hold without conditional amnesty. But if some on one side open up – on say the role of informers – the other might open up somewhat. And look at what investigative journalists have achieved without benefit of  legal authority or privileged access to the official record.

Truth recovery requires more than a purely legal approach, essential though that is in part. McEvoy and co invoke Attorney General John Larkin over an end to prosecutions, But note this from Larkin:

 “What I am saying is take the lawyers out of it. Lawyers are very good at solving practical problems in the here and now, but lawyers aren’t good at historical research […] The people who should be getting history right are the historians … (Belfast Telegraph, 29.11.13, p.7)

But that view is also mistaken unless you take the wholly pessimistic view that significantly more facts about the course of the dirty war are  unobtainable. Among other things lawyers are needed to chase and analyse detailed facts and assess the reliability of witness statements; historians and others to see the wider pattern of events.

I add later.. Legal experts should figure prominently in any ” single mechanism, ” a body which is set up to replace the HET and the Police Ombudsman role in historic cases. This ought to more transparent in revealing the results and pulling them together in themes and conclusions.  One of their other tasks should be to review and publicly report on  the legitimacy of the 2000 odd cases reviews already dealt with by the HET and the Ombudsman and make recommendations– presumably without going back to square one in each case. This would require considerable experience of evidence handling  and other legal skills.

Historians would make their own contributions towards extracting the issues of wider public interest in case studies and narratives, as part of their task of review and appraisal based on the case record. But there is much else for them to examine in politics, the wider society and the historical background. This is the one of the functions for a  legacy commission,   described in  Eames- Bradley as examining  “linked and thematic cases emerging from the conflict.”   The examination of the wider context hasn’t even begun to be properly considered. There’s more than enough work  to keep a wide range of skilled people busy.

An occupational hazard of academics in their silos is to believe that they like politicians have the right answer. But the Troubles cannot be explained by concentrating on the Troubles alone. For “truth recovery” in its broadest sense historians and legal scholars should complement each other and add others including investigative journalists to the mix. That is the message Haas should have received and passed on to the politicians. It is not too late.

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  • TwilightoftheProds

    Hi Brian

    I don’t quite get your critique on the disparagement of historians- this McEvoy et al report says (p16) ‘As in a range of Truth Commissions in different international contexts, such a body would have to examine the causes, context and consequences of historical violations’…

    and McEvoy actually seems pretty disparaging of legalistic only approaches to ‘dealing with the past’ on previous form.

    There are things that history can do, and things that legal can do – I think everyone accepts that.

    I’ve got a history background, so I’m sensitive to attempts to sneer at it -I didn’t feel that here.

  • As you mention historians, surprised you did not also mention ARKIV http://arkivni.wordpress.com/

  • TwilightoftheProds

    Brian linked to Arkiv above – and Arkiv are right to spotlight that historians and archivists are a big part of these dealing with the past projects – historians and social scientists help deepen the context and interpretation past individual acts, legal processes provide documentation and cross examination etc – there could be a mutual process here.

  • cynic2

    Ah the joys of Christmas as the children argue over the presents

    …….that bikes mine no its not its mine

    Then the plaintive cry “Mammmy ………..”

  • Yes, cynic2, it is all so predictably pathetic and repressive, isn’t it.

  • sean treacy

    There can be no role for Arkiv in any truth recovery process.Members of Arciv were involved with one so called political party/ movement to which truth was a total stranger during a long period of our troubles.

  • cynic2

    “all so predictably pathetic and repressive, isn’t it.”

    I assume you mean regressive?

    Dontcha just love it when people (lawyers historians or anyone else) are so keen to “do” things to yoy

  • Scáth Shéamais

    Arkiv deserve to be dismissed, one only need look at their “review” of Lethal Allies to know why.

  • I assume you mean regressive? … cynic2 19 December 2013 at 2:44 pm

    Hi, cynic2, 🙂

    I was thinking about that just after I posted and would concur, but also think that the statement also passes muster as it is written.

    How sad it is that so many are so busy milking the Troubles and screwing so many for money. Methinks though in a dodgy fiat capitalist society it is ever so to keep the population down and out of decidedly iffy schemes. And a stupid unquestioning society is easily used and abused by both ignorant and arrogant politicians and public servants who would mistake their roles to be masters.

  • cynic2

    ” milking the Troubles and screwing so many for money.”

    Heaven forfend!!!! Why every Human Rights (TM) Lawyer in the country will be weeping and rending their clothes at the very suggestion, which probably breaks at least 2 international conventions on the protection of lawyers and gives them a cause of action against you and Mick. I can hear the tills clinking already

    As for “who would mistake their roles” – I fear they already have assumed that role. You / we / us have little choice. They won the peace no matter how corrupt, venial, lying, slithery, connivingly incompetent they are. Our choice has been reduced to one between one batch of useless lying grafters and another batch of equally useless lying grafters. Only the felgs get changed

  • Mainland Ulsterman

    Sean Tracy,
    “Arkiv deserve to be dismissed, one only need look at their “review” of Lethal Allies to know why.”
    Surely historical training and rigour are an essential part of, erm, interpreting history, at the risk of stating the obvious?

    You’re right, the dismissal of a historical approach as too open to subjectivity – while understandable – doesn’t hold water. We can try to separate out three aspects of the work historians do: (1) establish the basic facts; (2) describe the FULL context within which each event happened; and (3) provide a meta-narrative that picks out the most important threads and patterns. At the very least, the first two can aspire to some kind of “objective”, if basic truth. The third brings in room for some “subjective” judgments to be made, but if (1) and (2) are done thoroughly, actually much less room than we might imagine.

    What historians do, at the very least, is myth-busting, through painstaking professional work on establishing (1) and (2) above. It should be possible to do this in some kind of objective way. And this could be transformative. Hearing a fair narrative of the Troubles being spoken as an agreed truth by our public representatives on both sides – and given to outsiders as the key document to look at on our history – could go a long way to addressing the sense of wrong felt by many ordinary people, especially on the unionist side. Contemporary attitudes to the Troubles are significantly coloured by continuing (willing) avoidance of the basic facts of who killed whom and in what numbers.

    I do believe that knowledge of just how much of the violence was carried out by terrorists (especially Republicans), if universally acknowledged by all parties, would transform the public conversation about the Troubles. The anti-security force narrative pushed by some would be put back in a proper context. The tendency to focus on individual incidents and ignore the bigger picture has played into the hands of those who seek to skew our understanding of what happened towards favourable events from their perspective. It’s robust big picture facts we all need if we want to have an informed conversation about the Troubles and move on in a way that is sustainable because it is honest and fair.

  • sean treacy

    The “anti security force narrative” that you talk about stems from the fact that a massive amount of loyalist killings were instigated and assisted by these “security forces” This and the fact that the direct killings carried out by these same “security forces” were sanction free while republicans were pursued to the ends of the earth would tend to counter your argument.

  • “This and the fact that the direct killings carried out by these same “security forces” were sanction free while republicans were pursued to the ends of the earth would tend to counter your argument.”


    No, just to Gibraltar, the United States and Colombia. Which begs the question, why did they go to those places in the first instance?