The sorry truth – Are we healing or hiding from the past? Brian Rowan assesses

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Alan McBride who lost his wife Sharon in the 1993 Shankill bomb

 

It is six months since Declan Kearney introduced the word sorry into a reconciliation debate here; sorry in a humanising context to acknowledge the many hurts of war.

Since then he has described the events of Bloody Friday – the IRA bombing blitz of Belfast 40 years ago – as “unjustifiable”.

Republicans are stretching their words and language, but is it about healing or hiding?

Hiding the real truth of events; concealing the detail within that changing language and generalised apology?

It is a question that is being asked as this reconciliation conversation develops; a question I will return to later in this piece.

Martin McGuinness, the now Deputy First Minister, was part of a leadership that directed the IRA war.

Recently, he described the bombing of Claudy 40 years ago as “indefensible”.

Then, at the weekend, Kearney spoke again, at a Sinn Fein summer school in west Cork, stating “there is no excuse for the human loss and suffering of the Shankill bomb”.

Why this specific mention of one dark day that dates back almost twenty years?

It was because he was sharing a platform and a debate with Alan McBride, the victims’ campaigner who lost his wife and father-in-law in that explosion on a Saturday afternoon in 1993.

I remember being there that day; remember the people digging in the rubble of the blast; remember the body count rising; remember the then assistant chief constable Ronnie Flanagan whispering to me the possibility that one of the bombers had been taken to hospital.

It was one of those days that speak out loudest from this conflict, because of the civilian dead, the nine Protestant people killed in a botched attempt by the IRA to target the UDA leadership, including Johnny Adair.

I remember many months later an interview with a police officer, who was at the bomb scene that day; an interview with me in which he described seeing a child’s foot poking through the rubble and not wanting to dig any deeper because he knew what he was going to find.

Declan Kearney is right.

There is “no excuse” for what happened that day, and on many other days, many of which are forgotten or ignored because the body count was not as high; not as numerically startling; the scenes not as dramatic or dark.

These are not just days for republicans to speak to, but those on the many other sides of this conflict.

The story of the Shankill bomb should not end with Thomas Begley, the IRA ‘volunteer’ killed in the blast, or with Sean Kelly, another IRA man, injured and later jailed.

He was freed from prison in July 2000 as part of the early release arrangements of the Good Friday Agreement and for almost twenty years has been the ‘bogeyman’ of that bomb and that day in October 1993.

So, much of the picture is missing; the detail relating to planning, the decision to deliver a bomb on a short fuse to a target on the Shankill, the inevitability that even if the IRA had been able to target the loyalist leadership, civilians were also going to be killed; sacrificed to achieve the goal.

Begley and Kelly had parts at the end of the plan, but who designed it, who made it happen?

In whatever process is constructed to answer the questions of the past, individual accountability is not going to happen, but in an organisational sense, the IRA or republican leadership could speak about that day.

It could expand on what Declan Kearney said about there being “no excuse” for what happened; could answer some of the questions above.

There is something else I remember from that day; a statement from the UDA-linked Ulster Freedom Fighters warning that a “heavy price” would be paid for “today’s atrocity”.

Part of the context of that period, long before the events of that October day, was a re-arming of the loyalist organisations and a marked surge in their activity – spanning the years of the early 1990s.

Amanda Fullerton’s father, the Sinn Fein councillor Eddie Fullerton was shot dead in Co Donegal in May 1991 – shot dead by the UDA-linked UFF during a declared truce by the then Combined Loyalist Military Command (CLMC).

Amanda was also part of that weekend debate in west Cork, during which Declan Kearney made clear that dealing with the past and all its hurts is a challenge not just for republicans:

“That means accepting and acknowledging hurt was caused on all sides; to both Alan McBride and Amanda Fullerton’s families; and, many others,” he said.

I was one of a small number of journalists to whom the CLMC truce statement was given; and I remember weeks later asking questions of the UFF after the Fullerton killing.

There was an explanation that the truce did not extend into the Irish Republic, but there was no reference to this in the original statement.

In this period of the early ‘90s I took scores of statements from the loyalist leadership, delivered with now defunct codewords including ‘The Ulster Troubles’ and ‘Crucible’.

I spoke to that leadership on the Fullerton killing, to a man since exiled from Northern Ireland – ordered out under threat.

I am not referring to Johnny Adair, but to another one-time ‘inner council’ leader.

As far back as January 1993 this source told me that Ulster Resistance sold guns to the UDA, to individual units.

He was describing a significant development in that re-arming of the loyalist organisations that sparked that surge of killing in the years immediately pre-dating the 1994 ceasefire.

The information was part of a BBC news report I compiled in January 1993.

Will those loyalists who know the story of this period come forward to fill in the missing detail that relates to their decisions; the orders and actions, how the strings were being manipulated in the background?

This takes us back to the earlier question of healing or hiding; hiding in terms of burying detail and information.

We don’t know what republicans are prepared to reveal, because we don’t know the contributions and responses of many others.

No one knows where this reconciliation debate is going; no one knows its potential because the question of amnesty has not been addressed and there have not been the conversations to determine levels of co-operation from all sides and within what type of mechanism.

Building that process and finding the international architects who can design it – make it happen – should be the principal aim of any on-going conversation.

Alan McBride suggested the report of the Eames/Bradley Consultative Group on the Past  – binned three years ago – should be given another chance, but it has a design flaw.

It left the question of amnesty hanging, and suggested a Legacy Commission with investigation and information-recovery units.

Investigations won’t work, won’t deliver the missing detail, and there is no point establishing a Commission of any kind until levels of co-operation are known and terms and conditions agreed.

This is the unfinished work; determining who will co-operate – republican, loyalist, security forces/intelligence services, politicians/governments, churches, media and others;

Deciding how much information can be delivered and how best that is achieved; and remembering that a process on the past is not just about the IRA’s answers, but also about the questions those republicans want answered.

Who will help and who will hinder are questions for everyone – not just the IRA; not just Adams and McGuinness.

 

 

The full text of Declan Kearney’s address to the summer school in west Cork is below:

National Reconciliation – Uncomfortable Conversations.  Dealing with the Legacy of the Political Conflict.

In his own very individual gesture of reconciliation on Easter Sunday 1965, at a ceremony to unveil a monument to Michael Collins at Sam’s Cross Tom Barry said:

“Let us leave it that each of us, like I did myself, believed in the correctness of our choice.  I concede that those who were on the opposite side believed that their decision was the right one too.  But let us end futile recriminations of an event which happened over 43 years ago…”

Initiatives and gestures aimed at healing past hurt and division are crucial to peace building and reconciliation in the aftermath of political conflict.

But their potential can be trammelled unless they help build broader strategic commitment to achieving reconciliation.

No reconciliation process was established after the Irish Civil; War, and we continue to live with that legacy.

Britain’s occupation of Ireland has been the catalyst for centuries of conflict and enmity between our islands.

This reality resulted in the Tan War of 1919, and its conclusion became the mid wife for the civil war, and onset of partition.

The political and economic structure of the six counties state became the context for over 30 years of war and the armed struggle.

Today nationalists and unionists live with the legacy of partition in all its forms.

Citizens across this island continue to share a legacy of political conflict which has shaped the development of modern Ireland, north and south, and that finds expression in continued partitionism, sectarianism, division, segregation, distrust and fear.

So, we have a choice to make at this point in the Irish Peace Process.

We can acquiesce in a new status quo which normalises partitionism, sectarianism, division and fear, and do nothing: or, we can decide that what we have is still not good enough, and in the context of the Good Friday Agreement discuss what we can do to bring about more change and progress.

That’s why Sinn Fein has put forward the view that it’s time to open a new phase in the Peace Process, based upon the development of authentic reconciliation.

Of course republicans remain wedded to the achievement of a united Ireland…legitimacy and mutual respect for all political aspirations is what the GFA was all about.

Our vision is of an Ireland which is at peace with itself; confident, forward looking; based upon equality and dedicated to the celebration and protection of all its citizens diversity.

There is no place in our vision for division, hurt and fear.

The strategic challenge in Irish society now is to address and reconcile these fault lines within and between our communities.

Reconciliation must become a national imperative.

A prerequisite to Sinn Fein’s ultimate aim of an Ireland of Equals is an Ireland at peace with itself.  That’s why over the last six months our Party has brought renewed impetus to this discussion within republicanism.

It is why we have challenged ourselves to think critically about our relationship with the Protestant, unionist and loyalist community in the north; sought to open new engagements with that community; pursued this reconciliation initiative; and, spoken of, and then acted on the need to make more compromises, and take more initiatives to advance the Peace Process, and in the wider national interest; such as meeting Queen Elizabeth during her recent visit to Ireland.

Continuing to move forward will mean republicans being prepared to step outside our historical and political comfort zones, and embrace new thinking.

Moving unilaterally is always risky and never easy; but those who are inspired by a vision of greater change must always be prepared to do that. 

For our society, that means building new relationships, developing trust, and creating new possibilities. Recent events in Belfast, and parallel failure of leadership from within Orangeism and political unionism should reinforce, not reduce, our resolve to do so.

The welcome Royal Black apology to the parishioners and clergy of St Patrick’s is a significant acknowledgement of local communities’ rights to be treated with respect by those who wish to parade. 

But we are left no wiser by this statement as to what sense of injustice or hurt can be caused by determinations requiring loyalist bands to desist from playing music outside Catholic chapels;  and, why that should lead to three nights of orchestrated street violence.

Even in these circumstances republicans need to have the courage and conviction to keep taking initiatives, regardless to the stance of others. 

Leadership and vision are paramount.

But the question must be asked, and by many more than just our Party; where are the initiatives from unionism, or the British government?  Where is their big thinking?

That is surely an uncomfortable conversation which must take place within the Protestant, unionist and loyalist community, and also in Hillsborough Castle.

The future of the Peace Process rests upon the successful development of reconciliation, and more political momentum is needed for that.

Leadership is required from all sides.  For our part, we will face up to the challenges which supporting reconciliation brings.

No right thinking republican has ever glamorised war.

We should not seek to romanticise war, or armed struggle; nor the actions of the IRA in this, or any previous generation.

And, there never was “a good old IRA” – way back when – as some establishment revisionists in this state might suggest.

But neither, will I or other present day republican leaders, hypocritically seek to distance ourselves from the consequences of the armed struggle.

Asserting that a political context forced the use of armed struggle as a last resort, cannot disguise the massive human hurt caused by IRA actions.

There is no excuse for the human loss and suffering caused by the Shankill bomb.  No reasonable person would try to say otherwise.

But while we might wish it could be otherwise, that past cannot now be undone, nor disowned by republicans.

So our political commitment and dedication today is to ensure that such pain and suffering never again become the experience of any republican, unionist, and English or Irish citizen.

We must also do our best to acknowledge, salve and heal that hurt with humanising language, compassion and considered initiatives; and try to replace divisions, with new human and political relationships.

And it will be for many others to do likewise, without futile recriminations, if possible… to paraphrase Tom Barry.

That means accepting and acknowledging hurt was caused on all sides; to both Alan McBride and Amanda Fullerton’s families; and, many others.

There are those in government and state structures, political parties, combatant groups, media, and churches – and, some who have been in several of these roles, north and south; who author their own moral duplicity.

Those who speak in moral tongues yet conveniently ignore St Matthew’s caution about ensuring they remove the beam from their own eyes before considering the size of the mote in the eyes of others. 

They too have uncomfortable conversations to reflect upon.

Some sections of society north and south seem content to manage a remodelled status quo based upon normalised partitonism, sectarianism, and division, and to tolerate “acceptable” levels of fear; and even instability.

That agenda is impossible and has to be confronted with leadership and vision.

I believe at the outset of this decade of centenaries to commemorate epoch making events of modern Ireland, we should begin a national discussion on reconciliation at every level in Irish society; and, which also addresses the historic division between Britain and Ireland, and the British state’s contribution to how that is done.

A national discussion aimed at finding new common ground on those issues which divide us, or threaten the Peace Process; forging new relationships; building increased mutual respect and trust among our people north and south; and, developing a national reconciliation strategy, rooted in the principles of the GFA.

In short, to commit to a new phase of the Peace Process which promises new economic and social opportunities for all citizens.

Truth recovery is also an important part of how we all deal with the legacy of the conflict.

It is another uncomfortable conversation, particularly for those who have sought to avoid this issue and distance themselves from their role in our most recent political conflict.

The silence of the British government on the past is an unsustainable policy position.

Ending that silence and facing up to the implications of its role in the war would be an initiative in itself from the British Government and NIO.

We believe truth recovery needs to be comprehensively discussed, and a society wide consensus, involving both governments, agreed on how to proceed.

The Irish Peace Process is rightly held up as an international conflict resolution model.

But there is much heavier lifting to do.

The continuing fault lines in Irish society have the potential to be recycled on a trans generational basis. 

We can stop that happening with courageous leadership and more bold initiatives.

However, we also need to convince the widest cross section of opinion in Irish society to take ownership of a national discussion on reconciliation.

 A strategy for national reconciliation and building support for that is essential to ensure future generations can share a new Ireland, truly at peace with itself.   


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About Author

Brian Rowan

Brian Rowan is a journalist/author. A former BBC correspondent in Belfast, four times he has been a category winner in the Northern Ireland Press and Broadcast Awards. He is the author of several books on the peace process and contributed chapters to 'Reporting the Troubles' and 'Brexit and Northern Ireland: Bordering on Confusion'.

14 Comments

  1. The claim made in the Sinn Fein address at the Cork Summer School, specifying that the British Government’s “silence on the past is an unsustainable policy position” is inaccurate and just doesn’t stack up.
    It is important that such inaccuracies are corrected and the truth acknowledged rather than us all becoming complicit in the maxim that if you say things often enough they become the truth. Unfortunately that is the classic tactic often employed in propaganda and misinformation.
    The facts:
    The Saville Inquiry, on what has become known as Bloody Sunday, was commissioned in 1998 by Tony Blair, the British Government Prime Minister.
    David Cameron, another British Government Prime Minister, at the conclusion of that inquiry, called the attacks and resultant deaths “unjustifiable” and went on to say clearly that “it was wrong” and that the British Government were “responsible for the conduct of [their] armed forces” Indeed, some of those armed forces were called to give evidence at the Inquiry.
    That is just picking out two of the obvious ‘public facts’ that make a mockery of the previous claim, and they certainly don’t indicate an overwhelming, construed or institutionalised silence exists. And let me just point out that each of these examples pre-date what has become known as the Declan Kearney initiative.
    Of course this article is about a much wider process, to which we are all trying to navigate a path, thats goes far beyond what Sinn Fein alone is doing and saying, and to portray it in the context of ‘look what Sinn Fein is doing yous are all doing nothing’ does not assist the development of a process, and reminds me quite frankly of the politics of ‘claim and blame’.
    Fair enough, if they had said that the British Government are not doing enough i could have understood that, but to say that Unionism, British Goverment etc are collectively silent on the past, misrepresents any genuine efforts to deal with that past, and does not present an accurate or verifiable account of the current state of play.

    • John – Thanks for your contributions to this discussion.
      The question I am asking in the piece above is how do we get all the sides into the same process that moves this search for truth or information beyond the ‘headline’ high body count days such as the Shankill bomb and Bloody Sunday.How do we begin to get to the detail and the structure within which it is delivered?Who designs the structure and sets the rules?You know my argument. We need international help to achieve this – not an International Truth Commission as a starting point, but an international team to explore off-stage with all sides what is possible and under what terms and conditions.When we have that information and process design and rules, we can all decide if it is worth doing.I think it is wrong to blame the past on a few ‘bogeymen’, and, in the absence of a comprehensive process, that’s what we are doing.

      • i understand the bigger picture barney, i just question whether that bigger picture is best served with a side helping of inaccuracies that does not acknowledge current contributions, and if that is the starting point for conversations that are happening on-stage currently, i believe it may detract from the bigger picture. Unfortunately those inaccuracies i have highlighted, and direct references to British Government and Unionists having not played any part or made any contribution, only helps maintain these sections of our society as the ‘bogeymen’ of the process.

        • John – you know my thinking on this.
          I don’t want a blame process. I want an information and explanation process, facilitated by amnesty, that looks not just at what happened but why, and also at why it should never happen again.
          Declan Kearney was very clear on this in that Nolan Show interview this morning when he said “the conditions of conflict and war have been removed, there is no longer a basis for armed struggle or war in this society”.The sooner we get to a structured process the sooner we end the very public tit-for-tat spats of who did what.None of us should be shovelling blame on top of any one side, and the sooner the discussion moves beyond that point the better.If you ask me do the two governments – British and Irish – want a process that will shovel their ugly truths up onto the surface, I think you know my answer.

        • John, as a student of this subject on the past I accept your bonafides and commitment to tackling this issue. I would opine people like Declan Kearney and you have travelled too far down this road of reconciliation to allow any gap to open up between you. You are right however that republicans ought to give both Labour and Conservative governments credit for their generosity in the cases raised. You are right too John to draw attention to the fact that Loyalists expressed ‘abject and true remorse to all the innocent victims.’

  2. Sinn Fein are to be commented for saying that Bloody Friday, Claudy & the Shankill bomb were wrong and unjustified,..just like Loyalists that have went on record to say that the Ormeau bookies were wrong and thus unjustified, or who expressed ‘abject and true remorse to all the innocent victims’,..and a British Government that said that Bloody Sunday was wrong and unjustified.
    These represent attempts by many different sources to deal with the past, and all use a similarity of words, they all acknowledge hurt, and even touch on culpability.
    It has already begun.
    We must acknowledge these contributions and not diminish that they happened or indeed their importance.
    This is a process, albeit ill-defined and mostly sponteneous, and often much too narrow in focus, that goes beyond what Sinn Fein has done or said.
    To portray it in those terms denies the truth and i for one begin to question motives, if that is our starting point.

  3. The word ‘sorry’ in a Northern Ireland conflict setting will always bring out a range of opinions – in this case I am no different. We will all come at it with our own interpretations that have been influenced by whatever baggage we have picked up along the way. Barney Rowan has accumulated much baggage in that time. No human being could have seen the things he witnessed or reported on such horrible acts committed by one human being against another without developing a mode of thought controlled in some small way by the emotion of memory – we are all the same.
    Barney quite rightly raises another post conflict issue and the reconciliation conversation he refers to has been gently taking shape. It is interesting that those shaping the conversation thus far are those that we might categorise as belonging to the combatants fraternity – well one side of it at least. ‘Sorry’ in its various guises has been spoken by Republicans and Loyalists but not by the security forces. And before anyone starts to scream ‘what about David Cameron’s apology for Bloody Sunday’ I think you all know what I am talking about. Yes British soldiers were found at fault for Bloody Sunday. But Special Branch, E4U, SAS, various rogue officers lifted files out of police stations and gave them to Loyalist paramilitaries. Double agents worked for both sides, people were allowed to be murdered in order not to blow the cover of the agents and there are a hundred other examples of rogue members of the State forces contributing to the conflict – but as of yet they have not contributed to the conversation on reconciliation. And just to clarify I am not indulging in what aboutery but merely pointing out that it was a dirty war with many participants and thus far we have heard sorry from two of them. The security forces have yet to contribute and we need them to say something – anything that adds to the fledging dialogue.
    These people are human beings also and subject to the same emotions as the rest of us. They too will have their dark hours when they reflect on what they done, what they witnessed and what they did not tell. Not one of us in Northern Ireland came out of this clean and in better emotional stability comapred to when it all started. It lasted too long for anyone to escape long term emotional hurt and it is the emotional processes that might further the conversation of reconciliation – but the conditions must be right.
    I am not sure that too many are going to rush forward to unburden themselves and tell us what they are “sorry” for if it means going to prison, being shunned for the rest of your life or exposing former brothers in arms to something similar or worse. Sadly some could not live with what they had done and could not tell anyone either – emotional stability deserted them and they descended into a life of depression, torn apart by guilt, before taking their own lives. Had they had recourse to emotionally releasing mechanisms they might still be with us. And to those who think they deserve it please remember that each time such an individual takes his life he takes the secret he could not tell with him – the very secret that some victims families were longing to hear is lost for eternity.
    If any process of national reconcilaition is going to work it needs all the parties to the conflict to firstly give support to their own former comrades – a strange but necessary place to begin. Emotional processing begins within ones own fraternity and then reaches out to the other. It is then encumbent upon all others to acknowledge this movement and do likewise – all others. If one group abstains then the process ends up playing handball against a sponge wall. No matter how hard you hit the ball it loses power upon impact and the ball dies at the foot of the wall – and therein lies the problem with any form of national conversation on reconciliation.
    I would dearly like it to happen, I think that some day it might happen in a limited form – its limits will not be set by initiatives devised by goverments – but by those who know what happened and how much they are prepared to disclose in response to disclosures by the other. Play against a sponge wall and the process will wither as further disclosures dry up. Emotions require to be acknowledged after all.
    To say sorry is an act of compromise, which evokes an emotional response which in turn creates a response in kind. It is fragile but worth trying. However it does have a weakness in that all must participate and I fear that some people will have secrets they would rather not reveal – and that will frustrate the conversation. It might not kill the conversation but will certainly make its content a lot less emotional and it is the emotions that hold the key to reconciliation. When anger turns to forgiveness, when hurt turns to healing and when frustration turns to closure the we will be emotional reconcilied.

  4. I get very nervous when I hear talk about amnesty. It isn’t that I am against the debate or even the very idea but rather that I am concerned we are talking about what is legally impossible. It is true that there is also feeling in some sectors of our community that such a discussion should not be on the table at all. The unionist leaning towards seeking justice works against any notion of amnesty. But it may also be the case that the law will not allow it. So before we get too far into this there are people we need to hear from. We need to hear from those who hold fast to the right to an inquiry. We need to hear from the politicians. We need to hear from the Attorney General and the legal community in general and we need to hear from Europe. We need to hear if amnesty is possible, on what terms and what it would take from across a society as well as from European law, via Westminster most likely, to really get amnesty onto the table.
    During the work of the Consultative Group on the Past we did not spend too much time on the notion of amnesty it is true. Early in the process there was a leak that we were talking about amnesty. It was not the case but the reaction gave us a steer as to what society would tolerate. Amnesty would not have been tolerated at that time. We did spend some considerable on the notion of immunity and the report focusses on the creation of a space into which people could come to speak their truth and for that time and place there was immunity from the law. It would not, though, we came to understand, be easy to achieve. Our understanding was that derogation from European Law would have to be sought and indeed fought for. That, we believed, was the best we could do and the best that was achievable. However, we also believed that with the utter will of a society from top to bottom and including every side then perhaps a way could be found to make amnesty possible. My suspicion is that there are prices to be paid for that and paths to be walked that there is no indication our political leadership from any party is ready to walk.
    So, if there is anyone out there from the legal community who can shed some light then now is the time before we all get too carried away with something that may not be possible. And if there are possibilities in this then we need to know all that it would take to achieve it – all!
    Clearly there is a need for people to get things off their chests and clearly there is a need for some people to dig out the truth, or a truth at any rate. What safeguards can be put in place to allow that to happen and what influences can be brought to bear to bring everyone into the process? We need to structure the discussion and pull it together with a focus on actually dealing with things. I’m not sure we are there yet but in my view if we don’t get there soon then there is every danger of things getting worse and not better. There are good news stories to be celebrated but there is a little part of me that wonders if those good news stories are not now playing the role of lifting our eyes for just a moment from what needs to be done for the health of society and for the health and well-being of future generations. And there is a little bit of me that wonders too if things aren’t being changed behind my back leaving me standing in scenery that I don’t recognise but with feelings and memories that I am only too familiar with and which will assert themselves for my security. I worry more that I am not the only one with such concerns. For a secure and more reconciled future we all need to be involved in the work of remodelling the landscape in which we live rather than living in an uncertain world in which the scenery changes almost imperceptibly until we hardly recognise it but the landscape of sectarianism, divided memory, hurt and grief remain the same.

    • Lesley, your profound thoughts on the philosophy of amnesty or immunity to create space for people getting their story ‘off their chest’ are clearly controversial but evidently not designed to be so. Your reasoning and logic for establishing the proper legal basis for an environment conducive to closure for people are sustainable. Work on these scaffoldings for dealing with the past should be entrusted to legal opinion as early as possible to ensure there is a proper floor to carry what will be a heavy load come the day of any tribunal-call it what one wants.

    • Lesley – I suppose the questions you ask on amnesty and immunity would become part of the preparatory research before any process/structure/Commission is established.
      And the question is, amnesty for what?
      If society is being asked to contemplate amnesty as part of some information process on the past, then it is reasonable to ask what will be given for amnesty; what information will be released/shared by all the relevant parties?
      This is why I think international facilitators are needed – not an International Truth Commission as a first step, but facilitators to explore the amnesty question and precise levels of co-operation from all sides spanning the IRA, loyalists, security forces, intelligence services, politicians/governments and others.
      So, an amnesty, yes, if it opens up a genuine truth/information process that delivers the answers that all sides are looking for.
      But, an amnesty, no, if those truth/information doors are to remain closed.
      The reconciliation conversations are important, but more important, in my opinion, is shaping the process that takes all of this to another level.
      We can’t do that ourselves, which is why I suggest we need that international help.

    • THE LEGAL POSITION ON AMNESTIES AND
      THE DUTY TO PROSECUTE

      In response to Lesley’s call for
      members of the legal community to clarify the position on amnesties in terms of
      the local debate on truth recovery I thought I should respond. Together with my
      colleagues Louise Mallinder (UU) and Gordon Anthony (QUB), we are just
      beginning a project to have a public debate on precisely these issues in
      partnership with local NGO Healing Through Remembering. In addition, for the
      past four or five years Louise and I have also been studying amnesties
      internationally, including in what circumstances they are lawful and what
      effect they have had on other peace processes. These issues are complex, but
      below I have tried to simplify them as much as possible but forgive me if its a
      little long as I wanted to be as accurate as possible.

      1. PREVALENCE OF AMNESTIES

      The first point to make is that amnesties can be perfectly lawful and indeed
      quite a normal part of the transition from conflict. Between January 1979 and
      December 2010, an average of 12 amnesty laws were enacted each year around the
      world.

      2.
      LEGALITY
      UNDER INTERNATIONAL LAW

      It is true that ‘self’ amnesties (such as those
      given by General Pinochet to himself and his supporters in Chile) are no longer
      lawful under international law. However, amnesties which are conditional and
      which linked to other processes, such as truth recovery (as in South Africa) or
      apologiesacknowledgement of what has occurred can be perfectly lawful. It is
      true that there is a duty to prosecute offenders when they have been guilty of
      ‘genocide, war crimes in international conflicts and crimes against humanity’.
      While these terms are sometimes bandied around rhetorically in politics in
      Northern Ireland, they are terms which have quite a precise legal meaning and,
      long story short, these categories most likely do not apply in Northern
      Ireland.

      3.
      LEGALITY
      UNDER THE ECHR

      Lesley is right of course to raise the relevance of
      the European Convention of Human Rights. The ECHR creates a duty on
      states to carry out an effective investigation when state actors have
      been involved in human rights abuses, it does not impose a duty to prosecute
      in all circumstances.

      The issue of derogation from the ECHR –
      (derogations occur when the life of the nation is threatened and thus the
      current threat of violence in NI would not really justify such a dramatic move)
      –is therefore irrelevant.

      Mechanisms which removed the duty to prosecute if
      they were explicitly linked to other objectives (e.g. truth recovery, closure
      for victims, reconciliation etc) could, in my view, be perfectly lawful under
      the ECHR if designed carefully enough.

      4.
      ECHR
      COMPLIANT ‘NON-PROSECUTIONS ALREADY USED IN THE NI TRANSITION

      Indeed, as readers will already be aware, such
      mechanisms have already been utilised in terms of the legislation introduced
      with regard to the discovering of the bodies of the disappeared, the guarantee
      of immunity for those who gave evidence to the Bloody Sunday Tribunal, the
      decommissioning legislation – all of which were ECHR compliant.

      5.
      PROPERLY
      DESIGNED AMNESTIES CAN BE LEGAL, ISSUE IS POLITICAL

      In short designing a lawful amnesty in
      Northern Ireland linked to truth recovery and reconciliation is certainly feasible
      from a legal perspective. The real difficulty in the local context with regard
      to amnesties are political rather than legal. Given that reality, perhaps it
      makes more sense to speak in terms of looking more closely at the duty to
      prosecute and in what circumstances the duty to prosecute remains in the public
      interest.

      6.
      PRACTICAL AND LEGAL DIFFICULTIES WITH HISTORICAL PROSECUTIONS

      As was illustrated by the recent
      collapse of the Loyalist Supergrass trial, prosecutions for historical cases
      remain notoriously difficult to achieve. Eye witness evidence is unreliable,
      forensic evidence may not exist or be contaminated, defendants will often
      remain silent and of course trials and investigations are extremely expensive
      and may ultimately fail. If in the case where is successfully prosecuted, if
      the offence occurred before 1998, the maximum they will serve is two years.
      If a person is held on remand, they may be convicted, and still walk free from
      court on the same day as the family members of the victims. In such a case, the
      trial becomes almost entirely symbolic. Certainly adversarial trials are not a
      place where defendants are likely to share the kind of truths that victims
      often crave. Some may argue that such symbolic punishment is important enough,
      but a broader question then becomes whether it is in the public interest.

      7.
      PROSECUTIONS AND THE MEANING OF PUBLIC INTEREST

      Decision on whether a prosecution is in the public interest rest with
      the Public Prosecution Service, currently headed by Mr Barra McGrory. The decision
      to proceed with a prosecution requires that the PPS be satisfied of two
      elements, (a) the evidence test – that there is a reasonable chance of a
      conviction and, once this test is satisfied, (b) that a prosecution in the
      public interest.

      In 1951 Sir Hartley
      Shawcross QC MP, the then Attorney General, made the following statement to
      Parliament in relation to prosecutorial discretion. “It has never been the
      rule in this country…that suspected criminal offences must automatically be
      subject of prosecution”

      Issues which the PPS may
      consider in determining not to proceed with a prosecution in the public interest
      include; the severity of the likely penalty (bearing in mind the two year
      maximum time served for pre-Good Friday offences); the age of the defendant at the
      time ; where the defendant has ‘put right the loss or
      harm that was caused’ and a range of other non-exhaustive considerations.

      Although one suspects that the PPS would
      require a specific set of guidelines to deal with conflict related cases if
      there was a broader political agreement that it was in the public interest to stay
      prosecutions because other processes were being established (e.g. a truth
      recovery mechanism) the broad point remains – Prosecutors already have a
      discretion not to proceed if it is deemed in the public interest.

      I hope this is helpful

      Kieran McEvoy

      • Kieran – thanks again for chopping through the woods for us on this issue and allowing us to see what is possible.
        You’ve made clear that “designing a lawful amnesty in Northern Ireland linked to truth recovery and reconciliation is certainly feasible from a legal perspective”.
        That means there is solid ground on which to build.
        Below in reply to Lesley’s original post I posed the question: Amnesty for what?
        In other words what is given in return for amnesty or in a situation, in which to use your description, a decision is taken to “stay prosecutions”.
        This is one of the huge missing pieces in the past jigsaw – that we still don’t know what levels of participation can be expected from all sides and within what mechanism if a truth or information recovery process is established.
        We need to know, and we need, I argue, that international team to explore this in off-stage conversations with all the relevant parties.
        The sooner that happens the better.
        You also make clear that the difficulties on amnesty are “political rather than legal”.
        I think the international team would take the hard decisions out of the hands of politicians; give us an independent opinion on amnesty/non-prosecution but in the context of what will be given in return in terms of releasing and sharing information and answering questions.
        Thanks again for your contribution and for sharing your expertise.

      • Kieran, thanks for this. And in particular thanks for the clarity that what we are really about here is the will to do something. That will for something a new future detached from the past does require a new politics but is also will need a cross-society will to make it come about. Without a will across the sectors and dimensions of this society then a detaching from the past is simply not possible. Amnesty is a means of detaching from the past. It allows some to be set free from the consequences of what they have done and it enables others to grasp something they believe they need to move on – that is when it is clearly, as you have suggested, attached to a truth recovery process of some sort. In the work of the Group on the Past we discovered a tenacious holding out for the traditional justice process among some groups and that meant that we had to consider the notion of immunity. In our proposed process the family of the person killed decided whether or not the case should go into the place where someone could come forward, claim immunity and offer truth. It is undoubtedly a limited idea but I mention it simply to say that within the scope of the idea of amnesty there are degrees and forms as it is attached to a wider society and political process which allows a society to detach from its troubled past and make for a better future.
        I still wonder what the traditional legalists think. I would argue therefore that we need to engage more groups from across society in the discussion. How we detach from the past, what future we want to make and what we will do for that future will only be transformative when as many from across society as possible choose it. And the choice is made in the knowledge that there are consequences with any mechanism that is chosen and there are consequences if no mechanism is chosen to enable detachment and new beginnings. For some any such talk is deeply disturbing. Their loved one has no such opportunity for a new start. Their loved one didn’t even get to live the life that was rightfully theirs. So this is simply to say that no process is perfect and no process feels good all of the time. A process is chosen to resist the pull of the past and to make the step into the future. It takes courage and imagination and not least when we haven’t yet agreed what happened. Maybe at best we can agree that with violence let lose and with grief, suffering and loss overflowing the place we love collapsed in on itself and lived in a kind of madness to which we became accustomed. Whatever we do there will be consequences. The question is what do we want and what are we prepared to courageously and sometimes with sadness and regret do to achieve it. There is pain in this for everyone and no one can imagine this will be easy. But there is a prize to be won as well as a price to pay. So thanks Kieran and I look forward to hearing from others who are within our legal system.

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