Look again now at the legacy commission

While the past should not nor cannot be forgotten as Eamonn rightly says, the question is how best to deal with it. Reconciliation or justice? appears to be the choice before us if moves towards winding down legal process gain traction.  It’s no easy decision and advocates of further legal action have by no means lost the battle. Saville’s para 4.7,  in which he’s unable to confirm or deny the existence of  a “culture” of impunity towards the army may have whetted the appetite for opening new inquiries into incidents like the “Ballymurphy massacre” and others.

…. it was alleged that before Bloody Sunday there were many previous unjustified shooting incidents by soldiers in Northern Ireland. As we pointed out in the course of the Inquiry, it was simply not possible to take this submission of an established “culture” forward, for this could only be done by examining in the same detail as Bloody Sunday the circumstances of each of those incidents, in order to decide, among other things, whether or not they involved unjustified firing by soldiers. In our view this would have been a wholly impracticable course for us to take, adding immeasurably to what was already a very long and complex inquiry.

In the Guardian the former police ombudsman Baroness Nuala O’Loan argues for  an alternative legal process, short of a new Saville:

The revelation that the then attorney general had stated that soldiers would not be prosecuted in respect of incidents that occurred while they were on duty; the fact that deaths and serious injuries caused by soldiers were effectively investigated only by the military for years (with no obvious outcome); the cover-up of the Bloody Sunday events; and the bizarre events surrounding the Stalker-Sampson inquiries  all encouraged the suspicion that the state would not be accountable for the actions of its agents. The activities of paramilitaries, both loyalist and republican, have in many cases not been properly dealt with.

After Saville, there will inevitably be calls for further inquiries, for instance into the case of the 11 people who were shot dead by the Paras in Ballymurphy in 1971 . What is now essential is the creation of a single, impartial, independent investigation office to deal with all the outstanding cases of the past. Properly funded and empowered for whatever period is necessary, working with full governmental co-operation, it could, in a much more cost-effective manner, deal with such cases.

 She herself examined “ shoot to kill” which was also the subject of rulings of human rights violations at the ECHR. As Blubber noted, a further major step was taken last month, when the High Court ruled  that the Stalker and Sampson reports should be released at last after a long record of harrassment, suppression and watering down.   The courts now seem to be moving decisively in favour of disclosure for its own sake and an aid to inquests delayed for decades.

Adds. The case of Michael McGreanery shot dead by the army in September 1971,  is the one referred to above by Lady O’Loan. It resulted in  the Attorney General’s ruling that soldiers should not be prosecuted  in respect of onb-duty incidents. The McGreanery case is  the subject of an HET report which the Independent on Sunday has seen.

The report, from the Police Service of Northern Ireland’s Historical Enquiries Team (HET), reveals how the chief of what was then the Royal Ulster Constabulary (RUC) in Londonderry recommended that the soldier who fired the fatal shot be prosecuted for murder. But this was overruled in December 1971 by the province’s attorney-general, Basil Kelly, who rejected any prosecution on the basis that the soldier was “acting in the course of his duty”.

The Indy Sun report adds that ” Sir Alasdair Fraser, Director of Public Prosecutions for Northern Ireland, will meet Northern Ireland’s new Chief Constable, Matt Baggott, tomorrow to discuss how police investigations might help future prosecutions.”

Lady O’Loan favours letting the law take its course. On the face of it, this has much to commend it. Why should Troubles cases be  different from others now that official cover-up is in retreat?

There are four counter arguments. One, the uproar created by the natural bias in favour of findings against the security forces whose actions can be measured against the law. By definition terrorists operate under no such constraints and the arguments over equivalence cannot be extended without limit.

Two,  the  Alice through the Looking glass situation for many, of appearing to accede to the monumental hypocrisy of Sinn Fein demands, whatever their independent merits.

Three, the Historic Enquiries Team’s record  of  satisfaction without prosecutions among victims’ families suggests that prosecutions may not always be necessary to win public confidence. With almost half of the unsolved murder cases closed without a single prosecution against a republican, there’s little reason to believe that the rest will produce  a different outcome.

And four, most important of all, for both sides the war is over; do we really want to revive the old processes?  To launch a major investigation on the ground against retired old warriors who thought it was all  over could unsettle the peace. Sinn Fein would be bound to oppose it and the elements within unionism now favouring closure would be bound to reply in kind.

As part of coming clean generally,  the best idea available is to look again at the Eames-Bradley’s proposal for a legacy commission, with its emphasis on reconciliation rather than the will-o’ the -wisp of individual justice. If there is any hope at all of former paramilitaries ever telling the truth, it lies here rather  in than the unconvincing threat of prosecutions against former paramilitaries, or  one-sided justice applied to the security forces.

The testimony of one principal party to the Troubles has been overlooked: that of government and the security forces high command. The further disclosure of the main record of operations under redaction ( blacking out) should be advanced and given access to genuine scholars, under terms similar to those applied to the release of Cold War intelligence.  Among many other things  revelations about the network of informants would be interesting, to put it mildly. They might even tempt the IRA to tell more of their side of the story.

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  • Sam Flanagan

    Brian;
    Would you care to elaborate by who and what you mean when you use the term “genuine scholars?” Knowing you from what you usually publish you would mean some creature of the ilk of Edmund A Walsh.

    Perhaps you would care to name a few of the “genuine scholars” you have in mind, I would love to have a good laugh!

    I suspect there are quite a few “journalists” who would like their identities “redacted” from any “main record of operations.”

  • Pete Baker

    “Among many other things revelations about the network of informants would be interesting, to put it mildly. They might even tempt the IRA to tell more of their side of the story.”

    Brian

    It might force the IRA to tell more of their side of the story, only by fact of those Provisional IRA informants telling their stories.

    But the Provisional IRA are not minded to tell anything unless forced to do so.

    It would put at risk the political fortunes of Sinn Féin.

    And that is their priority at the moment.

  • jim

    lets begin with how many houses you can buy on an industrial wage.genuine scholars wont need to be able to count too good to work this one out

  • Kathy C

    in the bbc today it is reported:

    “Mr Cameron apologised following the publication of the Bloody Sunday inquiry this week, for what he said were the “unjustified and unjustifiable” actions of British soldiers when 13 people on a civil rights march were killed in in Londonderry 1972.

    “But those wrongs cannot be allowed to cloud the reputation of our Armed Forces and the pride they inspire,” he said.”

    Wow…killing innocent Irish Catholics should not cloud the repution of the british military killers and the pride they inspire.
    Gee it only took 4 days for the british gov’t to come out and praise their military. But then again…they only shot down in cold blood innocent Irish Catholics…maybe this kind of thing STILL inspires the british.

    It doesn’t matter what any commission comes up with….if bloody sunday is how the brits will handle the truth…apologize that the british military murdered innocent civilians….and then a few days later….come out and praise the same military and say they inspire people. It tells me that the british still think it’s ok to shoot and kill innocent Irish Catholics

  • Brian Walker

    Sam, In the end I would guess disclosure of material not required for legal process might in the first instance be made to a panel “representative of the community,” Then a free for all.
    Pete, I see no political incentive for the IRA to confess and quite a lot of risks in doing so as you say. But if limited disclosure of case files is allowed in time, some of them might want to put their side of the story, as happened with the official Irish army oral history in the Republic – 40 years after the civil war ended. For that to happen, the de facto amnesty would have to become accepted and perhaps legally enacted.

    I’m arguing that a comprehensive approach is needed with a tough minded revisiting of the topics of Eames Bradley. This time, though it partly goes against the grain, I would argue for an international review commission, not only representative of the NI community, but including lawyers, former police officers and officials – and indeed a jourmalist or two -, and not limited to the inexpert lay and community relations people.

    There would be a holistic apprach to the troubles, taking in the Republic, GB and the international dimensions of arms smugglnig and fund raising. The budget should be capped.

  • fitzjameshorse1745

    Truth is the exact opposite of Creative Ambiguity. The Peace Process/Agreement is based on the latter. I am not a big fan of Creative Ambiguity but curiously I am a big fan of Peace.
    Ultimately its make your mind up Time…..Truth (with risks) or Creative Ambiguity (and a Peace Process increasingly bedded in).
    As Mr Walker puts it “Reconciliation or Justice”.

    Yet reading too many papers last week, I was intrigued that Journalists themselves have not found an agreed “line” to take. What role for Victims? Defining Victims? Prosecutions? Truth Commissions? Compensation? (ah yes the general population perks up at the thought) Libya? Police Trauma? Ex-Soldiers Homeless? Budget? Memorials?
    Actually deep down its all about Money.
    And more lawyers.