In the third part of our series on the legacy imbalance scandal, DR CILLIAN MCGRATTAN writes that legislation on the past marginalises the values of those in all communities who opposed republican and loyalist violence (full links to rest of series at bottom of article):
Richard Haass and Meghan O’Sullivan were asked by the then first minister Peter Robinson and deputy first minister Martin McGuinness to help resolve ongoing political disputes, including how to handle the legacy of the Troubles.
An impression of uncertainty was left by the two Americans following their swift departure at the end of 2013, and it created a policy vacuum.
This was unfortunate because proposals they had drawn up for legacy and other symbolic issues such as flags and parading emphasised the importance of adhering to the principles of “rigorous equality of opportunity and equality before the law”.
Further, they stated that “mutual respect, and application of the rule of law must be the governing principles for Northern Ireland, not just now but permanently”.
The emphasis placed then on getting Northern Ireland’s political parties to agree to the document mirrored the Belfast Agreement process of 1998 but crucially it removed the need for the US academics to give an account of their ideas and proposals.
These remained just principles.
The Ulster Unionist Party refused to give its support.
That lack of clarity and the forestalling of such clarification were unfortunate: it coloured later proposals (in the Stormont House Agreement of 2014) and gave way to numerous contradictions within the draft legislation on legacy currently undergoing public consultation.
Critically, that absence of direction facilitated a skewering of what “application of the rule of law” might be.
The thrust of the current proposals, in my reading, involves a substitution of the traditional law and order apparatus of due process and forensic, testable evidence with an approach to justice and truth recovery based on the ideas and ideology of an academic discipline known as ‘transitional justice’.
Drawing from the experience of Latin American states moving from authoritarianism to democracy, that ideology identifies illegitimate practices (for instance, torture or disappearances) and prescribes a new juridical regime upon which societies can build.
The implications for Northern Ireland are clear: the state response to ‘terror’ (a term treated with irony and condescension in transitional justice scholarship) during the conflict is thereby discredited.
The agents of the state must be held retrospectively to account in this narrative.
The concern of critics however is that only they will be held to account.
The likely outcome of this approach is also clear: it inverts the historically informed perspective that the possibilities for democratic change were frustrated and the opportunities for reconciliation were undermined by republican and loyalist terrorists — whose campaigns were rejected by the vast majority of the population.
In short the thrust of this draft legislation, in my view, marginalises the integrity and values of those in all communities who opposed the republican and loyalist armed campaigns.
My reading of the legislation is that the director of the policing historical investigations unit (HIU) will, by the very terms under which she or he will be required to operate, be likely to feed a narrative of a ‘dirty war’ created by systemic police malfeasance.
For example, if the director forms the view that it is appropriate to “conduct both ... [a] criminal investigation, and ... [b] police misconduct investigation” he is required to make the arrangements to do so.
This could seem to be almost an invitation to place flaws in a police investigation into a bombing in the same light as the atrocity itself.
This is akin to the controversies over the spreading of the blame for the Omagh bombing to the investigative failures as well as those who planted the device.
This is a gateway to moral relativism.
It is likewise, entirely consistent that the evidence base available to the reconciliation and truth recovery reports will be effectively delimited to documentation coming from the HIU.
Why is this a serious matter?
It is serious because it confines our understanding of the past exclusively to a struggle between state, loyalists and republicans.
That would be a perversion of the historical truth.
And it is entirely consistent that democratic participation in that work or oversight of it will be restricted to academic funding bodies, together with appointees by the main political parties and the two governments (ironically, in the case of the Irish Republic since it has continued to distance itself from any historic responsibility for the republicans’ campaign).
It is also of a piece with the emphasis on storytelling – within both the Oral History Archive and the Independent Commission for Information Retrieval.
Breaking from the established and internationally recognised practice of holding clarification commissions, the current proposals seek to privilege testimony over source criticism.
In other words, this means taking at face value what people say, over and above scrutiny of the evidence.
It hardly need be said that such an approach suits former paramilitaries, who are polished at standing up in a suit and telling their story, over a traumatised victim who has no experience in publicly sharing their grief, and may not even have felt the need or desire to do so.
Commissions such as that led by Jean Mattéoli in France on Jewish spoliation during the Nazi occupation discredited convenient myths about the exceptional character of the Vichy regime.
Ostensible truth-telling that is in fact sometimes fake may impede justice and thwart reconciliation.
In contrast, the revelation of historical facts and how they relate to other facts may create conditions for building a more fair social order.
That kind of alternative, evidence-based approach of clarification might still be possible in our approach to legacy.
It may be possible, for instance, to clarify or even de-couple the education and reconciliatory impulses described in the legislation from the more retributive, blame-gaming and ‘dirty-war-narrative’ promoting aspects.
I fear that such a historically inaccurate and politically loaded understanding of the past will hasten an even more Balkanised Northern Ireland than we have.
Dealing with the past will have its own legacy.
We need to avoid giving official affirmation to a pro terrorist and anti state view of the past which does little to foster reconciliation in the present or future.
The scandal of sleepwalking into a future where the basic educational message of ‘never again’ is lost might then yet be avoided.
• Dr Cillian McGrattan is a lecturer in politics at the University of Ulster
MORE ON LEGACY SCANDAL SERIES BELOW: