Sam McBride: A Troubles amnesty involves an implicit moral judgement, and will have historical implications

When war ends in complete defeat for one side, the aftermath is straightforward: To the victor, the spoils.

Saturday, 17th July 2021, 8:33 am

Often the spoils of war are material; The Treaty of Versailles compelled defeated Germany to pay astronomical reparations for the First World War, an unwise humiliation of an opponent which hastened the rise of the Nazi party.

But more lasting than plunder is the historical record of what happened, and here the winner also holds sway. While being tried at Nuremberg in 1946 for crimes against humanity, Hermann Göring wrote on his indictment: “The victor will always be the judge, and the vanquished the accused.”

Even though Nazi barbarity was so shocking and its scale so overwhelming that it now seems beyond dispute, even a compromise end to that war rather than crushing defeat for Hitler’s regime would have made those crimes less stark, not least because some of the evidence would not have fallen into Allied hands.

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The revulsion at the grotesque inhumanity of Hitler’s lieutenants means that to this day no former Nazi still alive can sleep entirely soundly in their bed.

Last year a German court convicted a 93-year-old former concentration camp guard of 5,230 counts of accessory to murder – even though he was only 17 at the time.

But in Northern Ireland the Troubles (which although not a war involved violent conflict over territory) did not end in comprehensive defeat for one side. At one level, the IRA lost – their campaign was to drive the British out and bring about Irish reunification. Neither goal was even close when the Troubles ended 23 years ago.

But neither was it anything like unconditional surrender by the IRA. They could have fought on for years – probably for decades – in an attempt to grind down British resolve.

Thus Britain encouraged the IRA towards what at first was a ceasefire, then decommissioning and then the final move to say they were going out of business. It did so by tempting them with political carrots which republicans could present as victories to persuade footsoldiers this was war by other means.

There was logic to this; it lessened the seepage of old IRA members to dissident republican groups, maintaining an overwhelmingly united movement behind Gerry Adams and Martin McGuinness.

But the sense that the Troubles ended in stalemate has created other problems, and one of those became clearer this week.

For years, there has been a creeping amnesty for the killers who kept violence going for three decades. The 1998 Belfast Agreement involved the release of terrorist prisoners and a stipulation that anyone convicted in the future would only serve two years in jail.

More decisions made justice harder for victims to achieve – Royal pardons, ‘letters of comfort’ to IRA members on the run, a decision not to forensically test decommissioned paramilitary weapons and a mini-amnesty for those bringing forward information about victims killed and secretly buried by the IRA (although that was endorsed by families desperate to retrieve remains).

This week the creeping ended and the government leapt ahead to announce its intention to alter the law so that no one who killed or committed any other serious crime as part of the Troubles can be prosecuted, regardless of new evidence.

But even that extraordinary policy change is not the whole story: The government also plans to prevent inquests into Troubles killings and stop anyone using civil courts to challenge the state or individuals over how they acted – a route used to extract information or compensation from government, and also used against terrorists such as the Omagh bombers.

The government command paper setting out this attempt to block justice for victims described it positively as “providing greater certainty for all those directly affected by the Troubles and to enable all communities in Northern Ireland to move forward” which “involves looking holistically at all forms of investigations” because they “can create obstacles to achieving wider reconciliation”.

On Wednesday, former Ulster Unionist leader Mike Nesbitt recalled how Kathleen Proctor heard the gunshots that killed her husband John from the hospital where she had just given birth to their second son. More than three decades later, in 2013, his killer was finally jailed after fresh DNA techniques linked him to a cigarette butt at the scene.

Mr Nesbitt said: “Victims and survivors are not stupid; they are realistic. They know the chances of being the next Proctor family could be a million to one – they could be five million to one. But isn’t there all the difference in the world between them clinging to that hope...and us as politicians snuffing out that hope?”

However, beyond the inevitable pain of victims at the government’s attempt to prevent anyone seeking justice for the murders of their loved ones there lies a strategic problem for the UK state.

The fact that this amnesty has been rushed through in open response to the prosecution of British soldiers for alleged Troubles crimes is a propaganda gift to republicans.

It implies that both sides were as bad as each other and that this only happened because, as Michelle O’Neill put it, the government feels it must “cover up the truth and put its forces beyond the law”.

In fact, Sinn Fein is no doubt secretly delighted. Among its ranks are many ex-members of the IRA, which was responsible for more killings than any other organisation, and 15 years ago the party pushed Tony Blair to table a bill giving an amnesty to its on the run members, only to U-turn when the SDLP embarrassed republicans by pointing out that it would mean soldiers would also be covered.

Remarkably, Boris Johnson’s government has not only given the moral high ground to those who blew up cars in city centres, but has allowed Sinn Féin to present itself as the defenders of the interests of victims of the IRA who now yearn for a justice Sinn Féin does not really want them to get.

In a rare public statement this week MI5 Director General Ken McCallum observed: “From my years working there I know Northern Ireland is always complex – and often poorly understood from a distance.”

But while Northern Ireland is complex, no one involved in this decision can miss the significance of what they are doing.

Reflecting a government briefing, Wednesday’s Daily Mail front page headline proclaimed “At last, justice for our troops” and described it as “a victory for the Daily Mail”.

As a populist leader not known for tough decisions, Mr Johnson has thrown a bone to his backbenchers infuriated at ex-soldiers facing prosecution while IRA leaders face no such threat.

As Patrick Maguire of The Times, one of the shrewdest London observers of Northern Ireland politics, noted wryly: “The official policy of the Conservative and Unionist Party is now not to prosecute the Provisional IRA.”

But there will be other less obvious consequences to such a move. Without fearing prosecution, killers will be free to act with impunity – slandering their victims by making spurious claims about their guilt, glorying in what they did, and swaggering now that they are untouchable.

Implicit in the government’s plan is an inescapable moral judgement: that the value to society of “drawing a line under the Troubles” and moving on as the prime minister described it is of more worth than either the possibility of justice for a handful of victims, or the faint hope that justice might some day come, even if they die without seeing it.

The gravity of that moral calculation – and the fact that it is overwhelmingly opposed in Northern Ireland, which is the alleged beneficiary – is such that despite this government’s overwhelming majority, this could become an unlikely issue where previously loyal Tory MPs question whether this is right and whether it is wise.

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