Monday, May 1, 2017

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Proposals On Past Open Path To Truth

Writing in EamonnMallie.com Winston Irvine argues for a non-prosecutorial approach to the North's past conflict.

How we think about the future in Northern Ireland is inevitably informed by the past and the processes and mechanisms we develop to deal with the legacy of the Troubles.

This should not be about drawing a line under the past – it is both unfair and inappropriate that we should ask people to draw a line under their suffering and pain – but rather about drawing a clear line between the past and our present and future.  This process is complex and convoluted and is one that a series of agreements – including the most recent Stormont House Agreement – have failed to come to terms with and there remains no clearly articulated and logical approach.

The recent report published by the House of Commons Defence Select Committee (Investigations into fatalities in Northern Ireland involving British military personnel) makes an important and valuable contribution to the argument.

A starting point is the assertion (noted in Select Defence Committee report) by Professor Kieran McEvoy and Dr Louise Mallinder (Truth, Amnesty and Prosecutions: Models For Dealing with the Past, 2013) that “the duty to investigate does not amount to a duty to prosecute.”

Here, they are distinguishing between the requirement for ‘independent’, ‘effective’ and ‘transparent’ investigations of incidents involving fatalities under Article 2 of the European Convention on Human Rights and the need to prosecute based on the outcome of any investigation. In other words it is possible to have a legally compliant investigation without prosecution.  This is of significant importance in how we think about legacy and the past as it provides a context through which victims, survivors and their families have the best possible opportunity to retrieve information about what happened by allowing for thorough investigation without the fear of prosecution.  In this way it provides a context through which we can begin to draw a clear line between the past and our present and future.

The Defence Committee report, which it should be noted had a focus on military personnel involved in the Troubles, recommends initially an “enactment of a statute of limitations,”  covering all Troubles-related incidents, up to the signing of the 1998 Belfast Agreement, which involved members of the Armed Forces” (p. 17).  However, it also states that a future government may also wish to consider “whether the statute of limitations should also cover all Troubles-related incidents” (p. 18), that is be extended to include all state and non-state actors.  Such a statute of limitations provides a framework through which the fear of prosecution can be removed, allowing for thorough and transparent investigation.

It is inevitable and understandable that for many victims and survivors from all backgrounds, such a statute of limitations may be both difficult and unpalatable. However, it remains the best possible context through which legacy issues can be resolved.

It provides the space through which we can develop a comprehensive and bespoke approach to supporting victims, survivors and their families rather than one that is piecemeal and divisive. Too many complex, and sometimes contradictory institutions only serve to prolong suffering.

This approach should include properly resourced provisions so that all survivors and bereaved families can avail of the best possible services in terms of health and wellbeing, education and employment. It also paves the way for effective information and truth retrieval.  Loved ones will have a much greater chance of finding out those details and answers they are desperate to hear.  We all have a duty to ensure that the past is not a burden and liability for future generations who bear no responsibility for the conflict and should not continue to suffer from its consequences and legacy.

If we are to move forward together as a society, then a statute of limitations for state and non-state actors covering all conflict related cases offers the most effective way of providing information and truth for bereaved families and moving Northern Ireland toward a more stable, tolerant and peaceful future.

6 comments :

Christy Walsh said...

It is not perfect but it might be the best fit or closest many families might come to getting at the truth. It should minimize (wont stop) lengthy and costly legal actions blocking disclosure to victims of sensitive/controversial material in the possession of the State.

Would naming and shaming replace prosecutions or would there still be a hierarchy, or political bias, of who can be identified and who cannot? How often can the "In the interests of national security" card be played as a means to continue to conceal/withhold the truth and controversial material?

larry hughes said...

I just wonder if all the digging wont only deepen the pain for families finding out the gory details of the dirty nasty little conflict. Prosecutions should not be pursued because that will only lead to anger and a potential for sporadic violent incidents in the future. Details of just how ugly and evil the conflict and intelligence war actually was could have a positive impact in that it may scare the living daylights out of anyone daft enough of thinking about kick starting it all off again.

AM said...

I think Winston Irvine is right in the above piece. If the war is over then there is no cause to continue taking prisoners. The argument presented here is more authentic than the one put forward by Jeffrey Donaldson who wants prosecutions to continue but not for British state forces.

My own view - justice in this situation is best served through revelation rather than retribution. How many successful prosecutions are likely to be secured? Prosecutions serve to deliver very little in terms of retribution but will curb revelation while in place.

As a means of addressing the past prosecutions should be abandoned. That does not preclude the cops from being part of an investigative process. It would mean they would be part of a multi-agency approach that would deliver results much broader wider than the narrow scenes of crime answers that basically tell nothing. They identify the specific finger print on the gun but not the general hand directing the finger.

larry hughes said...

Maybe the call for prosecutions would cease if politicians were investigated down the years for incitement and facilitation.

Steve R said...

Nice idea, unfortunately the past is very, very dirty in the wee 6 and further afield. There are too many well-heeled people now, who would fight tooth and nail against any sort of spotlight on their past.

Niall said...

The problem with resolving ‘legacy issues', irrespective of what process is put in place, be it either one of retribution and prosecution or simply one of informative and revelatory, is having all stakeholders willfully and wholeheartedly participate.
There may be a chance of ‘only possible’ participation of non-state combatants that Winkie refers too, but certainly the British will not entertain full compliance in any process at all. The opposite is simply ridiculous to suggest.
The British cannot fully co-operate with any legacy process for the simple reason that it would completely undermine the historical narrative of the conflict to the point that the already muddied waters would become completely opaque and stagnant. ‘opening a can of worms’ would be a gross understatement.
All those family members who seek closure are being continually mislead and unfortunately for them they will continue to be so. It should be made very clear to them that currently, the British government will not participate no matter what.
The onus should not be on the process but to fully lay the blame for lack of process at Downing Streets door. Both victim’s sides should currently focus on this for they will probably find that through revelation that their paths will cross. Absolution for certain stakeholders is simply a distraction and only makes the formation of a process much more unachievable.
The greater cruelty of the current impasse is to continually have the families believe that they will at some point receive closure. No current suggested process will resolve that for the British will not currently fully comply with any proposed legacy resolution.

Until Britain publicly declares that it will, there will be no closure for the victim’s families, only further hurt.

Personally, I cant see this ever being satisfactorily resolved. Also, any republican who participates in any process....good luck!