Is the political and media focus on groups and individuals in the Troubles a way of avoiding the real Legacy debate we need?
By Féilim Ó hAdhmaill
The UK Government’s Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, which came into full effect in 2024, is clearly designed to protect British services personnel from having to appear before courts, for conflict related activities during the conflict in Ireland, and in particular, to protect the British establishment from embarrassing revelations emerging from any investigations in courts or inquests about state activities during the conflict. The Act ends all investigations, inquests and civil court cases relating to deaths as a result of the conflict and provides a de facto amnesty for all. The idea of an amnesty after a conflict is nothing new. Amnesties occur in most conflict situations around the world and indeed have been applied to conflict in Ireland north and south in the past. Despite this, the current legislation has fuelled further distrust of and antagonism towards the UK government rather than promoting the reconciliation which is mentioned in the title of the Act.
One major reason for this antagonism is that the bulk of investigations still to take place relate to the activities of the UK state and its agencies during the conflict, and the bulk of those in danger of appearing before the courts for conflict related offences, are British soldiers or loyalists working in collusion with state forces during the conflict. This is because whilst the full rigour of 'the law' was brought to bear on republicans during the conflict, little effort was made by the state's forces to investigate 'illegal' activities engaged in by their own forces, while acting under orders.
The 'investigators' involved in investigations into conflict related killings were, of course, not themselves 'independent' of the conflict. Indeed they were heavily influenced by their own ‘needs’ and the ‘needs’ of their friends and comrades, communities and the state. And indeed, despite the formation of a ‘new’ reformed police force, the PSNI, since the ending of the conflict, that remains the case to this day.
A new dispensation since 1998
In the new dispensation, developed as a result of the peace process, it was agreed that conflict related deaths which had not been investigated during the conflict, should be investigated, and initially the British government also agreed to a number of public inquiries as part of this process. The European Court of Human Rights ruling that Article 2, of the ECHR, 'The Right to Life', meant that deaths during the conflict needed to be properly investigated, (McKerr v UK, 2001) added to the pressure. However, since the Belfast (Good Friday) Agreement, 1998, successive British governments and state agencies have attempted to stall any investigations which might either lead to prosecutions of members of state forces for conflict related activities or might cause embarrassment for the state or its agencies over activities they engaged in during the conflict. This eventually led to the new Legacy Act (2023), which effectively ends such investigations and convictions and provides a de facto amnesty for those involved.
The idea of an amnesty linked to a truth recovery mechanism might seem a useful tool in encouraging people to reveal the truth about events that happened during the conflict. This however requires goodwill from the British establishment (and others involved in the conflict) and that has been sadly lacking in recent years. That is why many think that existing investigations and inquests should continue and be supplemented by public enquiries where necessary, to promote confidence in the legal structures and processes of the state and closure to families affected. However, should such investigations be aimed at also obtaining convictions, 30, 40, 50 or more years after the event and nearly 30 years after the signing of the Belfast Agreement; and what impact would further conflict related convictions have on efforts to promote closure and reconciliation? Are such convictions likely, after such a length of time, considering the loss of evidence, deaths of witnesses, deaths of alleged ‘perpetrators’ and continuing ‘silence’ about such incidents from those involved and their supporters? In the 30 years since the Belfast Agreement, very few convictions in relation to ‘legacy’ cases have been successful. Is another 30 years of investigations likely to bring a greater success rate?
In my own view, investigations into conflict related deaths should continue in order to bring closure to the families who have lost loved ones, provide greater understanding of the causes for the conflict and examine why it lasted so long. But such investigations should not be based on a premise of law breaking and the need to obtain convictions.
There are many problems associated with attempting to deal with the legacy of this conflict based on a criminal justice approach. They include practical difficulties of what is possible in terms of discovering new information and pursuing convictions, as well as difficulties dealing with the desire for convictions on the one hand and the desire for reconciliation on the other.
A criminal law approach however also challenges the understanding most people, including academics, have of the conflict – that it was not a ‘criminal conspiracy’ but a conflict which emerged as a result of, and was sustained by, political factors in society. Whole communities took sides in that conflict and whole communities continue to support those sides in the peace.
Besides this, the current criminal law approach only deals with one aspect, albeit an important one, of the legacy of the conflict – the investigation of deaths relating to the conflict.
Hidden legacies of the Troubles
Many more people were injured by physical violence, or had their lives changed by intimidation and discrimination. They have had little or no redress.
It is also worth noting that the conflict led to a massive upsurge in the prison population, and to communities supporting those imprisoned. Some estimates suggest up to 30,000 were imprisoned, at one time or another, for conflict related reasons. Today, those ex-prisoners who went through the 'criminal justice process' during the conflict (and often their families as well), remain second class citizens in a society where prison records often bar them from equal rights to citizenship.
Another group affected by the conflict are those ‘on the runs’ who continue to live in the shadows and possibly in far off lands, never able to return to their families. Thus, their lives and the lives of their families also continue to be affected by the legacy of conflict.
Many, but by no means all, of these people live in communities where their loss is recognised and supported, though it may not necessarily be recognised or supported by the state or wider society.
Therefore, dealing with the legacy of a conflict requires dealing with all aspects of that legacy, not just one.
If one aim of a peace process is to promote reconciliation in society, how can reconciliation emerge when such large numbers of people continue to feel unacknowledged loss or are excluded from rights enjoyed by others in the new dispensation?
Conflicting victims agendas
In relation to the legacy of the deaths of loved ones in the conflict, one of the difficulties of dealing with this is that those who lost loved ones in the conflict want different things from the process. Some want to forget, some want professional support with dealing with the trauma of loss, some want to get information about why and how their loved ones lost their lives, some want acknowledgement from the state or other armed groups (and/or the 'perpetrator/s) that what happened to their loved one was 'wrong', some want compensation, and some want retribution and punishment.
Whilst some of these ‘wants’ may fit into a comprehensive reconciliation process, it seems clear that some may not, particularly those linked to a need for retribution, and punishment for ‘perpetrators’.
One difficulty is that what one section of society may view as ‘perpetrators’, others often regard as ‘defenders’, ‘protectors’, even ‘heroes’. An attack on one of them is often viewed as an attack on the community from which they come. There are different narratives of the conflict and indeed of what was ‘just’ and ‘unjust’. This in itself causes difficulties with a process of reconciliation.
There is also the problem that there is no simple black and white split between ‘perpetrators’ and ‘victims’. Many people became ‘perpetrators’ in the conflict precisely because they were first ‘victims’, or witnessed the impact of the conflict on ‘victims’ in their communities. Indeed, one particular study of former politically motivated prisoners, carried out for the Community Relations Council in the north in the early 2000s, (Shirlow et al, 2005) suggested that a majority of those surveyed for the research had suffered loss of a close friend or relative, intimidation, discrimination or other forms of conflict related ‘loss’.
Likewise, the British Legion, which offers support to UK service personnel injured in conflicts can give testimony to the numbers of British soldiers and RUC personnel adversely affected by the conflict.
Those who engaged in the conflict, on whichever side, can themselves often be viewed as ‘victims’ by their families and supporters.
Former combatants, perpetrators or community leaders?
In line with this it is also interesting to know that in most of the areas most deeply affected by the conflict, those who are consistently elected to represent those communities tend to be representatives of political parties, such as Sinn Féin, who supported armed groups during the conflict. Indeed many ex-prisoners, including former hunger strikers, have been elected by nationalist communities, as they have been viewed as leaders in their communities during the conflict and now during the peace. Likewise, in unionist areas, a history of involvement in the British armed services, including the RUC, has often been beneficial to those seeking election.
This is not unusual. Those who take leadership roles during an emergency situation such as an armed conflict are often viewed as community leaders during the peace. This happened after the conflict of the 1916-23 period in Ireland, with people voting for Fianna Fáil and Cumann na nGaedheal/Fine Gael TDs precisely because of their roles in the conflict. The same happened with the election of Unionist MPs in the new Northern Ireland after 1921.
We live in a society where there are different narratives and sides relating to the conflict, with no agreement about what was 'legitimate' or what was not during the conflict. This in turn causes problems for those attempting to use a criminal justice approach based on pursuing criminal convictions, as a way of to addressing legacy issues. What to one person may be a ‘crime’ to another is a political action or a form of ‘armed struggle’, or a means of defeating ‘terrorism’.
Indeed, the whole narrative of political violence being associated with ‘crime’ and ‘criminal behaviour’ was challenged by the deaths of twelve republicans on hunger strike during the conflict; and the election of two of these hunger strikers, while on hunger strike, to Westminster (Bobby Sands) and Leinster House (Kieran Docherty).
Different narratives of the conflict may continue to exist, yet only one narrative is reflected in current criminal justice approaches.
Consequences of attempting a criminal justice approach
If we accept, that what took place during the conflict was a political armed conflict/minor war between different groups with different narratives of the conflict, it seems highly inappropriate to use the criminal justice system to 'deal' with 'perpetrators' involved in that ‘war’; especially since the criminal justice definitions of 'crime' that we are using have been created by only one side in that conflict. Indeed, that law-making side used its law-making powers to construct a narrative of that conflict as an upsurge in ‘criminal behaviour’ and law breaking rather than a political conflict with political causes. What that means is that every action by, say, republican combatants, as combatants, was illegal, whilst every action by state forces was legal, except when they were breaking their own rules of engagement. The IRA, is still branded as a ‘terrorist’ organisation in law, while the B Specials, RUC, UDR and British Army are regarded as having been legitimate armed forces.
It may seem ironic therefore that despite having created this particular narrative in the first place, that the conflict was in fact a criminal conspiracy against a legitimate political order, and having created these ‘crimes’ through its own law making apparatus in order to reflect that narrative, the UK Government is now attempting to sidestep those same laws.
This seems to show that laws made to criminalise republicans during the conflict were not meant to apply to all – just to serve the political aims of the UK governments of the time.
Republicans of course never accepted that their ‘armed struggle’ was a ‘crime’ and indeed neither did most loyalists. Those working for the UK state, politically and militarily, obviously did not regard their operations as ‘crimes’ either, whether they contravened UK legislation or not. The need to win the conflict took precedence.
In my view, agreeing to a criminal justice approach based on current UK law, reinforces and reproduces one particular narrative of the conflict, even though that particular narrative doesn't seem to have been accepted in negotiations during the peace process, or the Belfast (Good Friday) Agreement (1998), and subsequent agreements, which have generally recognised the existence of different narratives, and have supported reforms and new political structures in recognition of these.
A criminal justice approach to legacy issues therefore, in my view, obscures our understanding of the conflict, why it took place, why it continued for so long and why it ended.
Reconciliation is the first casualty of ‘legacy’ legislation
However, the most pressing reason why I think that a criminal justice approach to legacy issues is inappropriate, concerns the issue of reconciliation among people on these islands and I assume reconciliation is the ultimate end goal for most of us.
Reconciliation requires many things, including an acknowledgement of loss, a sense of regret for that loss, and a desire to create a society into the future based on equal citizenship and equal access to justice. It also requires a sense of security and well -being into the future.
Pursuing individuals (who in the main would be former British service personnel) for involvement in events 30, 40, 50 years ago, and nearly 30 years after what was supposed to be a peace agreement, does little to promote notions of reconciliation among those individuals, their families and the communities that support them. It is clear that, politically, it would be unacceptable to both the British public and their politicians; and since they make the decisions on such matters, not people in the north, in practical terms this looks like a non-starter.
A criminal justice approach also does not promote notions of reconciliation amongst those who are pursuing such individuals, where the blame for the conflict becomes personalised and focused on particular individuals rather than the agencies, relationships or structures in society which led to the conflict in the first place.
The adversarial nature of such an approach promotes a sense of distrust and insecurity among both groups in the process, making reconciliation more difficult. It criminalises and individualises blame for the conflict and actions in the conflict, rather than looking at why conflict occurred in the first place.
Finally, on a practical level, a criminal justice approach to legacy issues in the conflict, will do little to provide information to many of those who suffered loss and want either information or admission, about the why and how, rather than necessarily the punishment of individuals deemed to be responsible sense. The withholding of such information will further obscure our understanding of why the conflict took place, the motivations of the main actors and why it went on for so long. It thus will do little to inform us about how to avoid such conflicts in the future, here and elsewhere.
‘Closure’ requires corporate disclosure – on all sides
For reconciliation to occur we need closure for people, and that also may require knowledge about what different agencies actually did during the conflict. Our understandings of the conflict may also be helped by such information.
In my view that requires corporate not individual responsibility, since the bulk of actions were the result of corporate rather than individual decision making. One problem with the current approach is that the criminal justice system is focused on the individual. From a practical point of view, it is unlikely that individuals will put themselves at risk, of either prosecution or opprobrium, by revealing the necessary information required. That is why I think that corporate disclosure is necessary.
Féilim Ó hAdhmaill is a Lecturer in University College Cork where he teaches Conflict Transformation and Peace Building, as well as Social Policy. He is also a former republican prisoner and political activist. ©
