“Transitional justice has facilitated republicans turning what ought to have been a hostile environment (namely, the historical record of over 2,000 attributable deaths, almost 60 percent of the total murder count, in a sectarian campaign of assassination and bombings – not to mention the accompanying litany of bloodshed, unblinking cruelty and lives destroyed) into a fertile soil allowing them to sustain a campaign of commemoration on ‘an industrial scale. (The approach has) saturated thinking about the past to such an extent that it may now have become the consensus,” Cillian McGrattan.
The political scientist Cillian McGrattan is among a group of unionist-supporting academics and lawyers who are hoping to launch a campaign to change root and branch the UK government’s long awaited Bill on dealing with the past . They argue instead for a general amnesty accompanied by the opening of state archives. They appear to write off the chances of voluntary confessions by former members of the security forces while the threat of prosecutions hangs over them and any chance of admissions by former paramilitaries regardless.
Their arguments may weigh heavily with unionists while making early interparty agreement less likely than ever, but with the caveat that a groundswell in favour of terms for an amnesty may grow over time.
The group believe that the principles of transitional justice developed by local human rights lawyers on which they claim the bill is based, load the dice unfairly against former members of the security forces and play into the hands of the republicans; so much so, that some of them are now favouring a general amnesty even though it would let former paramilitaries off the hook. They also argue that the Bill opens up a vista of legal process without end which will exacerbate community tensions rather than promote reconciliation.
These views are among the reasons for a remarkable paradox that has developed among the parties over handling legacy issues. Sinn Fein the inheritors of the IRA are so keen on aspects of the Bill that they insist they secured the funding of historic inquests in a “side deal” with the government, a claim the NIO have denied. This came after Arlene Foster the leader of the DUP the traditional defenders of law and order and the state, had blocked their funding in the Executive in a move which a court has just declared unlawful. Sinn Fein’s claims may be said therefore to corroborate the group’s worst fears. The party now appear less concerned about the government’s reservations on withholding documents on national security grounds.
The group instance historic inquests for which the chief justice has requested funding, such as the Ballymurphy massacre” and Loughgall, just two causes celebres which will review multiple killings by the Army. The group join critics of the Police Ombudsman’s handling and findings of police collusion in the Loughinisland murders. If the Ombudsman’s role were to be transferred to proposed independent Historic Investigations Unit, they argue it would mean the state perpetuating injustice against its own servants.
Their basic argument is that the Haass/ Stormont House Agreement structures incorporated into the Bill for reviewing up to 3700 historic cases will inevitably discriminate against former police officers and soldiers, after the courts began ordering that some secret state archives be opened to provide evidence as required. Such records are believed to contain the details of handling informers and other controversial state actions; whereas police reports of the deluge of paramilitary acts were often cursory and the forensic and other parts of the evidential trail have gone cold. Presumably the group hope that Sinn Fein would be embarrassed enough by fresh accounts of the squalor of the IRA campaign and the degree to which the organisation was penetrated, so as to take the shine off its reputation in the eyes of its supporters.
In his own presentation at a conference at Malone House in Belfast the week before last, its convenor, the unionist councillor and rights campaigner Jeff Dudgeon calls for a time limit on holding historic inquests and wants to “cherry pick the good bits from 1998, such as reconciliation, and start a long march on the road to a politically brokered, and legalized, amnesty.”
Amnesty is supported by Austen Morgan, the NI born barrister and legal commentator on post-Troubles legal process and onetime adviser to David Trimble. Among his reasons are the expected lack of evidence available and the burden the search for it would place on the police. In favour of amnesty he argues:
I was influenced strongly in my decision by the scandal of the OTRs, and the fact that Whitehall – between 2000 and 2014 – had run an administrative scheme, through which 187 IRA members (no loyalists were included) of 228 applicants had benefited from a secret amnesty.
He finally advocates an amnesty because there have been enough precedents for offering it in full or in part to opposite sides since 1998 for it to become generally viable now. They began with the prisoners’ early release scheme of 1998 ; they continued with Peter Hain’s Northern Ireland (Offences) Bill of 2005-6 following the exposure of the OTRs fiasco in 2005, with a de facto amnesty to regularise their position and then necessarily to include the security forces. Significantly it was Gerry Adams who was its most vociferous opponent, because it would have let the security forces off the hook while the OTRs who had been processed seemed beyond prosecution anyway.
Another good reason for amnesty is that Sinn Fein are urging the government to drop it for former security forces in the forthcoming consultation on the Bill, while the DUP are divided. While there is limited support among unionists for a sectional amnesty for security forces, there is a growing realisation that if amnesty is proposed at all, it must apply to all sides. Morgan defends his conclusion:
This advocacy of an amnesty is not designed to lock relatives and survivors into their private worlds of grief, while the rest of NI gets on with its life. Yes, inquests, investigations and prosecutions would stop. But, and this is crucial to the idea I am advocating, there would then be an opening of the archives, subject to human rights concerns. The outstanding precedent is the 2012 Report of the Hillsborough Independent Panel , into the 1989 Sheffield football tragedy which saw 96 Liverpool fans killed. Relatives and survivors would learn much more than might emerge in a criminal court. The perpetrators might have to confront their past deeds. And society generally could begin to see more clearly who killed whom in the NI troubles.”
The Belfast solicitor Neil Faris attacks the structures of the Hass/Stormont House Agreement framework for failing provide former security with protection against random allegations. The Historic Investigations Unit ( to examine the files for legal evidence) could impose retrospective “justice”: the Independent Commission on Information Retrieval would supply voluntary, privileged accounts of the fate of their loved ones to their relatives. These accounts could not be used in court but nor would those who supplied the information be necessarily exempt from prosecution. How are these two positions to be reconciled? The information intended for relatives privately would inevitably leak and there would be no real check on its veracity. This could expose state actors to false allegations without protection.
The supervising independent Implementation and Reconciliation Group would select “themes “ for scholars to study. On what basis? What self-respecting scholar would touch them with a bargepole? Faris concludes: “ It does seem to me that the Talks Participants proposals are simply not fit for purpose and should be abandoned.”
The intellectual basis of the government’s plans is deconstructed by the political scientist Cillian McGrattan. He concentrates his fire on the approach of transitional justice which has been so influential in the debate. The gist of his argument is that transitional justice may be appropriate for regime change as in South Africa but not for Northern Ireland where a distorted view of the past relegates the fundamentally democratic state to the role of party to a conflict. Transition implies a year zero where justice begins to reign but neglects or smooths over the issue of moral responsibility for the past and is therefore unethical. “Reconciliation, “ says McGrattan, “ is a myth.”
These papers follow a strongly rejectionist line against a government Bill which no one outside the parties has been allowed to see, although it has been in gestation for four years. The unwisdom of this reflexive secrecy has been tested to destruction over the abortive draft agreement for a return to Stormont. Had it been published years ago, the debate on the past might have progressed more quickly.
The case made by Dudgeon’s group vividly shows the enormous difficulty of trying to reconcile a political approach to dealing with the past with a mainly legal one. They may too easily reject legal process such as the long delayed inquests into police and army actions which whatever may be claimed for the benefit of hindsight, many dispassionate observers welcome as long overdue cases on which accountability was denied for decades. The group may also be too sanguine about the willingness of the state authorities to open up their archives to historians without the most specific legal instruction and political consensus. They are surely overdoing the pessimism by being so convinced that Sinn Fein has won the day in the court of public opinion over who was responsible for the Troubles. Equivalence is not likely to be generally conceded whatever more is revealed in further probes into the ill-defined concept of collusion.
The group’s best arguments are probably their fears of legal process without end in defiance of the hoped for time limit of five years, and their convincing view that endless litigation accompanied by controversy will further divide rather than reconcile. However after putting the new system out to test for say, five years, they might find the transitional justice lawyers closer to their conclusions than they think.
It is quite an irony though that a group of thoughtful unionists have embraced the idea of amnesty while the representatives of the former insurgents still oppose it. The politics of reaching the point of agreement looks impossibly difficult at the moment. All the same, there is a sense that the day of amnesty will come.
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London