From lawyers to Haass. No truth recovery without a conditional amnesty

Following the historians’ pitch from Arkiv, it’s the turn of the lawyers.  Prof Kieran McEvoy in the Irish Times makes the case I agree with, for a conditional amnesty as part of truth recovery.   He makes the telling point that the historical cases review is unlikely to lead to more than a handful of prosecutions. Even if the number was greater than expected, is it worth going through the long and chancy process for the sake of a nominal two year sentence? What he has not addressed here  – but I’m sure is considering – is the impact of possible new evidence if cases  such as those implicating  the Glenanne gang  are reopened.

Amnesties are part of the discussion because, simply, there is little chance of truth recovery without them. Amnesties can be perfectly lawful under international law and remain highly prevalent.

Blanket amnesties (such as those given by Gen Pinochet in Chile) are no longer legally viable. However, conditional amnesties linked to other processes, such as truth recovery, can be lawful.

The key legal obligations for the UK government are under the European Convention of Human Rights. In particular, article two creates a duty on states to conduct a full, effective, prompt and open investigation. Crucially, there is no requirement an investigation should lead to a prosecution, if it is linked to another objective, such as truth recovery.
History of amnesty
What those who denounce them as morally unacceptable need to recognise is that amnesties have already been widely used here. For example, in 1969, the Stormont government introduced an amnesty in the wake of the public order disturbances which applied to both civilians and RUC personnel. One beneficiary was Ian Paisley. More recently, the “disappeared” legislation introduced both North and South included an amnesty which prevented information gleaned from that process being used for prosecutions. To date, 10 bodies have been recovered. In the Saville Inquiry and others (including the Smithwick Tribunal), those who gave evidence could not be prosecuted on their own testimony. One beneficiary of this was Martin McGuinness.

Prosecutions remain notoriously difficult for historical cases and there is, bluntly, no prospect that scores will be successful. To date the Historical Inquiries Team has reviewed over 2,200 cases and only two successful conflict-related prosecutions have been achieved. Eyewitness accounts are unreliable; witnesses or suspects may be dead; forensic evidence may not exist or be contaminated – the IRA blew up the forensic lab as well as many police stations which held exhibits; the involvement of agents may collapse a trial and defendants will often remain silent. Even where prosecutions of a paramilitary suspect are successful, under the terms of the Belfast Agreement for pre-1998 offences, they will serve a maximum of two years.

A sensitive, respectful but honest appraisal of what is doable is required.

Kieran McEvoy is professor of law and transitional justice at Queens University Belfast. He is director of the Amnesties, Prosecution and the Public Interest project, a partnership between Queens, the University of Ulster and Healing Through Remembering

 

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  • Son of Strongbow

    An amnesty is totally unacceptable. Where there is evidence people, whoever they may be, should be prosecuted.

    An amnesty together with a ‘truth’ recovery process is a nonsense.

    If because of the passage of time or lack of evidence there is little prospect of successful prosecutions what would entice any individual to take part? And even if they did how is what they say to be valued? Are we simple to take their word for it?

    We would see self-serving grandstanding, a recent taste of which was observed when a retired Provo informed us that “volunteers” were instructed to shepherd away the innocents when bombs were planted.

    It would be a mechanism to bed in fantasy history. With the absence of evidence to qualify what was being presented people (dead ones certainly) and organisations would be condemned or alternatively lauded to either mitigate the personal guilt of the individual on the platform or paint them in heroic hues.

    And if the cry is no, no an individual’s testimony would be tested? How? We’d be back where we started at evidence, or a lack thereof.

  • Turgon

    Brian Walker,
    “is it worth going through the long and chancy process for the sake of a nominal two year sentence? “

    That is a worryingly arrogant statement on at least two levels. Such a value judgement is not yours to make.

    The victims I know seem entirely content that the killer of their loved ones would at least have a chance of being convicted by the current proper judicial process. Of course two years is too short but very publicly the murderer would be pronounced a murderer, would receive the social opprobrium of that, would have a two year gap on their CV when they were in gaol. That would be at least a bit of justice: not revenge but at least a degree of justice.

    Finally I do not think that anyone currently in gaol for two years would regard it as merely nominal. Two years: 730 days. That is at least a while to sit there and think about what one has done.

  • Granni Trixie

    In theory I find the idea of amnesty morally repugnant plus I thnk that it would create more problems than it solves.

    However, I can accept the Idea that OTRs (such as Rita oHare) can return to NI as this is consistent with GFA which enabled many murderers to get out of jail. My understanding is that, in that event, they could expect not to do time but they would have to go to court for the record. So this is a kind of amnesty I could live with but I do not support Kieran mcevoys ideas because it would blur the lines between what society tolerates as wrong,

  • Brian Walker

    As McEvoy describes it I always saw it working on a case by case basis, in a line of limited amnesties from 1969 through Saville to the Cory inquiries. The Finucanes favour truth over prosecution as do many victims. Blair almost went for it in 1998 but baulked. The moment has probably passed. The irreconcilables can relax.

  • It seems obvious that without amnesties there will be no genuine truth process – why would anyone volunteer their information – all of it if it risked several or even dozens of prosecutions.

    Full disclosure has to equal amnesty otherwise you are looking for a massive super grass trial lasting years with everyone grassing everyone else up.

  • Framer

    There is no such thing as truth – in Northern Ireland terms. The post-modernists have it about right for once.
    An amnesty adds nothing as it is effectively one-sided, pleasing and suiting only Republicans.
    If it was part of a package involving putting aside the past, it would merit attention but rewriting history through an unending series of investigations by inquests, HET, Police Ombudsman and public enquiries is far too attractive to be abandoned by SF et al.
    That is a rich seam that will keep hundreds of lawyers in clover for decades until every death is attributable to the British state and the IRA become the victors particularly in moral terms.
    And Protestant children will come to believe a single narrative, one involving deracination and self-hatred.

  • gendjinn

    There is a de facto amnesty for agents of the British state, the RUC, the Army – a specific example is the lack of prosecutions for murder against the paratroopers involved in Bloody Sunday. A trivially open and shut case given the wealth of documentation, witness statements and statements by the murderers.

    Until the Bloody Sunday paratroopers are charged and convicted neither the British state nor Unionism have any moral authority to demand convictions for any other crime or to criticise amnesty for any other group.

  • DoppiaVu

    Firstly, agree with Framer.

    Secondly, what incentive does any of this give for the big players to fess up to what they did or knew?

    Does anyone really expect Gerry to tell us the truth about anything? If what most people believe is true, it would be electoral suicide for him.

    Does anyone really expect the security services to open up, particularly as they are probably still utilising the same techniques to infiltrate the dissidents?

    Until someone can figure out a way to get the big players to come forward, this is all a waste of time. The most we will get is the drones and low-lifes using the process as a way to justify their vile deeds. The recent “shepherding away the innocent” nonsense being a perfect example.

  • “Following the historians’ pitch from Archiv, it’s the turn of the lawyers.”

    Just a small point: the group is called Arkiv.

    These moves by academics, whether they be historians or lawyers, all look very unseemly; they remind me of a legal eagle who made money out of inquiries and ‘invested’ some of it in a ‘rights’ organisation that was, er, calling for further inquiries.

    IIRC there was an amnesty following the previous lesser troubles but no truth process; it’s most unlikely that those in power in Belfast, London and Dublin would release all of the information about either bout of hostilities – ditto for the alphabet soup of paramilitaries.

  • Barnshee

    Amnesty might prevent state prosecution

    How could it prevent civil suite? Omagh has “reinforced” the need to maintain denial- Can`t have all those holiday homes /property empires risked bu “truth”

  • Brian Walker

    Cost is a powerful disincentive to civil process. Omagh was an exception for obvious reasons,-post 1998 and criminal evidence tantalising just out of reach.

  • ThomasPaine

    Framer (profile)
    31 October 2013 at 10:29 pm

    An amnesty adds nothing as it is effectively one-sided, pleasing and suiting only Republicans.

    A statement such as this beggars belief. You do realise it wouldn’t just be an amnesty for Republicans, right?

    So this across the board amnesty wouldn’t please the loyalists/RUC/state forces who colluded to murder innocent nationalists/Catholics/republicans then?

    It wouldn’t upset some of the families of victims on Bloody Sunday etc?

    It wouldn’t please some of the families of victims of Republican atrocities to know exactly what happened to their loved ones, when, why and by whom?

    The only way one could say that an amnesty would be one sided is if they believe “us’suns never did nuffin wrong so we didnt but themmuns were up to their necks in it do they were”

  • Brian Walker,
    “is it worth going through the long and chancy process for the sake of a nominal two year sentence? “

    “That is a worryingly arrogant statement on at least two levels. Such a value judgement is not yours to make.”

    @Turgon,

    Brian is a tax payer and probably pays at a higher rate than you do. He is not deciding the issue but only expressing an opinion, one that I think most tax payers would agree with.

    Two years may not be nothing, but some people have been known to spend a good portion of their sentences rubbing their shit on the walls. The people most likely to go to prison are the ones least likely to be hurt by a gap on their cv’s.

  • Barnshee

    “Cost is a powerful disincentive to civil process. Omagh was an exception for obvious reasons,-post 1998 and criminal evidence tantalising just out of reach”

    Don`t need proof just” balance of probabilities” pity its so expensive (why so expensive to fill out a few forms?)

    The thought of the panic in all those “vested interests” at the prospect of a summons is very attractive.

  • Comrade Stalin

    If there is an amnesty and truth process, how do we know antagonists will participate in it, especially if they already feel sure that no evidence exists which could ever prosecute them in the future ?

  • gendjinn

    Comrade Stalin,

    T&R worked in South Africa because the victims of state collusion were not in government. They could trade amnesty for testimony and then prosecute those that did not include.

    This can’t work here as the British state has a de facto amnesty for the army & intelligence services and is already refusing to prosecute offenders in those ranks. Although they are more than happy to hang the RUC & UDR out to dry.

    In that environment, and with a maximum 2 year sentence, there is no advantage to any other antagonist to participate in T&R process.

    There have to be prosecutions & convictions for Bloody Sunday and a full, independent inquiry into the Finucane murder before any other issues can be addressed. Until the British state role in murder and collaboration with terrorists is formally admitted and confirmed by judicial convictions there is little hope of anyone else offering up evidence for other crimes.

  • gendjinn

    … were now in government…

  • Barnshee

    “Until the British state role in murder and collaboration with terrorists is formally admitted and confirmed by judicial convictions there is little hope of anyone else offering up evidence for other crimes.”

    The “British State” operates through cabinet government and the houses of parliament.

    Where is the evidence THAT THESE BODIES

    1 Collaborated with terrorists ?
    2 Collaborated with murder ?

    State servants ? collaborated ? — certainly a lot of people took republican murder gang action very personally The “state ” appeared to be incompetent/unwilling — collusion/information passing was inevitable.

    Add in the “protected informer|” scenario eg”steaknife/scap” fiasco and the competing bodies MI5 RUC-Special Branch, Army and the stage was set for the chaos which followed.

    Prior Approval by the state for all this? hardly -unlike the ROI where the government ministers were caught with their “fingers in the till”

    State servant E Collins ( Customs Officer) collaborated with the IRA to set up and murder his colleague Ivan Tombs. The state must have collaborated ? hardly

    What we need is full disclosure from the UK government of all data held on deals done, individuals suborned and agents recruited.

    That will be more than enough

  • Gendjinn[1.20] Haass could start by telling the OO and DUP et al that their marching has nothing to do with ‘British Culture and he should remind them that this is Guy Fawkes Day and point out that you don’t see English/Welsh/Scots marching through known catholic areas in their cities to mark that event,

  • Neil

    http://www.u.tv/News/Loyalist-parade-in-Glasgow-rerouted/6bb92978-8807-4eeb-9044-e050d3ed16c1

    Funny you should say that. Seems those pretend Brits over in Britain don’t realise they have an absolute right to march anywhere and everywhere. One of our local super Brits should go over and put them straight.

  • Neil[2.29] Of course those OO and APD marches in Glasgow and Liverpool are just a spill over from here with loyalists living in those towns and their far Right fellowtravellers who are the only Brits with loyalist sympathies. Maybe they will mark Guy Fawkes day over there with effigies of the Pope instead of Guy Fawkes.

  • Charles_Gould

    Not sure OO parades in Scotland as a spill over; they seem to have a different character and organism.

  • babyface finlayson

    Brian
    “As McEvoy describes it I always saw it working on a case by case basis”,
    That seems the only way forward to me.
    If families can be consulted on a case by case basis, those who are willing to agree to amnesty can hope for truth.
    Those families still wishing to pursue prosecution are rightly entitled to do so and the state owes it to them to keep the cases open, however slim the chances of success.
    And though it is true that central players, ie those who pulled the trigger, may not want to take part in a truth process, there must be others on the periphery who could come forward to help fill in the blanks,
    So no consent from family, no amnesty.

  • Greenflag

    “To date the Historical Inquiries Team has reviewed over 2,200 cases and only 2 successful conflict-related prosecutions have been achieved. ”

    Those are not good odds .It would seem that like it or not there will not be much more truth recovery without a conditional amnesty .

    The British State will never come clean on it’s more nefarious activities in the NI conflict at least not in those areas where agents may have broken the law to protect informers etc .Why would the other side ever come clean on it’s nefarious activities .

    Everybody is in favour of perfect justice . The problem in conflicts like that of NI over a 40 year time span is that it’s rarely if ever achieved .

    So why waste time and money in pursuit of an unobtainable ideal ? Why not spend the time and money and effort in ensuring that NI does’nt have to go through another 40 years of navel gazing and communal self destruction ?

    Mr Haas will come and go and make no difference to what has become not so much a search for justice but a political proxy game for parties on both sides of the constitutional divide .

    There are those who would say that given the history and politics of Northern Ireland since 1920 to expect anything else would be naive at best .