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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