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