Newton Emerson ‘s bleak assessment of how to deal with the past deserves serious attention (£).
The Boston College tapes make a mockery of all high-blown talk about “dealing with the past”. The idea that a formal process of investigation, truth recovery and historical assessment into 3,700 Troubles deaths could work at all, let alone satisfy all sides, looks absurd given the saga over one 42-year-old case.
As far as personal testimony is concerned the chilling effect of the use being put to the Boston tapes is hard to overestimate. But Newton goes further. In the Sunday Times he claims the contradiction is fundamental between the demand for prosecutions by politicians and (some) victims’ relatives and the option of producing a historical account of the Troubles. The latter he assumes, would not only require protection against self- incrimination as is usual in public inquiries but a general amnesty: and there is a difference.
Newton also asks :” Would a formal process, encompassing thousands of cases, not provoke a far greater torrent of unscheduled revelations? How would the legal and political blowback not derail a formal process, as it has done to the Boston project.”
It depends what is meant by “formal. ” And more to the point, who’s going to start singing? Can the circumstances be imagined? If an end to omerta was somehow suddenly signalled so would the case for an amnesty be enhanced. But this as unrealistic a prospect as would be its opposite, the effectiveness of any new powers to compel witnesses.
There is an additional complication he doesn’t refer to which is contained in the Haass document, the proposal of an Historical Investigations Unit which would replace the partly discredited Historical Enquiries Team (HET) and the Police Ombudsman’s role in past cases, with the job of completing the HET’s work of reviewing about 800 cases, the power to compel witnesses, to link up cases, carry out new investigations, recommend prosecutions and if it thinks fit, to review the entire record of the HET. Instead of laying the past to rest, this could bring it zombie-like, back to life.
The HIU proposal appears influenced by the” single mechanism” proposed to Haaas by Amnesty International , supported by the critical analyses of the legal inquiry down the decades, notably supplied by the transitional justice team in the University of Ulster. Potentially too, the HIU idea clashes with the next Hasss proposal of an Independent Commission for Information Retrieval ( ICIR). This would have a dual function of providing extended information for relatives and to allow information gathering in the archives to “tell the story” of the Troubles, through identifying themes, patterns of events and case studies .
The Emerson analysis (and he’s unlikely to be alone) appears to pose an impossible dilemma, between telling the story and satisfying relatives, which we’re told so often is the main driver for dealing with the past; or to put it more starkly, the incompatible choice between truth and justice.
In Northern Ireland we cherish our impossible dilemmas but does this one need to be quite so insoluble? Leave aside John Larkin’s call for an end to prosecutions and let nature take its course. Concentrate instead on his reasoning, that the evidential trail in most cases has gone permanently cold. There is an debate to be held among legal experts as to whether this is actually true or not and it includes implied charges of cover-up against the State authorities . But if true, why set up an expensive new body to carry out legal investigations if the evidence isn’t there any more? And why continue anguishing about an amnesty of the sake of a trickle of prosecutions? The so-called dilemma begins to seem soluble after all.
Moreover legislation for an powerful new structure of legal investigation seems inconceivable. Legal investigation seems likely to remain in the hands of the police, despite their protests. The case is as compelling as ever towards opening the files of closed historical cases to scrutiny by academic historians such as the Arkiv group , lawyers such Kieran McEvoy and transitional justice and our small but high performance corps of investigative journalists.
And what of future prosecutions? Still subject to the randomness which Newton correctly identifies . But it’s worth remembering that even Mrs Finucane isn’t calling for prosecutions. Essentially she wants two things that extend the already damning conclusions of the de Silva review to identifying the links in the chain of collusion as far as it stretches (not only “who pulled the trigger but who pulled the strings”) , and the right to confront and examine the identified persons, whether police, army, MI5, civil servants and ministers in an inquiry. Her case seems compelling and all the more so when judge- led inquiries were abruptly announced into the comfort letters and ”police spies “ inside the Stephen Lawrence campaign. The contrast is noted between the impact of scandals which excite English interest and our own.
Papers disclosed in the long drawn out judicial review of the latest refusal to grant a public inquiry into the Finucane murder included an email sent by Sir Jeremy Heywood, the Cabinet Secretary, to the Prime Minister stating the following: “Does the PM seriously think that it’s right to renege on a previous Government’s clear commitment to hold a full judicial inquiry? […]This was a dark moment in the country’s history – far worse than anything that was alleged in Iraq/Afghanistan […] I can’t really think of any argument to defend not having a public inquiry. What am I missing?
There can be no lapidary “official history” like those after a war. But accounts largely based on the archives, while inevitably provisional and open to debate, would inject a powerful third force of robust analysis and objectivity into the grossly politicised wrangling over the past. The writing of history also provides wider exploration and context. Making sense of the Troubles requires a wider approach than concentrating on the details of “the dirty war” alone.
This approach also has the clear benefit of avoiding running into the brick wall over an amnesty and should be attractive to our divided politicians. If the Stormont political parties were to adopt it, this in itself would be a clear sign of a certain desire to move ahead which somewhere in their mid-sets, they all share. They should begin by acknowledging to the relatives the limitations of legal process.
There’s plenty to uncover without an amnesty. It’s a huge task but one to relish for the chance of making a difference. Newton Emerson is too pessimistic. Everything does not depend on the fate of the Boston tapes .