History written by gunmen who glory in their bloody deeds
Political editor Liam Clarke fast-forwards to 2020 to see how the Attorney General's stay on troubles-era prosecutions might pan out
Published 21/11/2013 | 10:00
How would John Larkin's proposals work if the politicians decided to run with them?
Imagine it is 2020 and the Northern Ireland Act of Completion 2017 has been in force for three years. There is now no legal provision for the prosecution of offences committed during the Northern Ireland conflict between 1968 and April 1998.
On the other hand, there is provision for unprecedented access of information on these same offences held in state archives, including intelligence reports.
The effect was dramatic. Many paramilitary testimonies, which were given to Boston College's Belfast archive were voluntarily released. The participants – former IRA and UVF members – had given the interviews on condition that nothing would be disclosed during their lifetimes. But, once the threat of prosecution and the taint of informing was removed, many requested that their accounts be released to historians.
Accusations in the archive have been rejected as lies by Gerry Adams, who continues to deny claims that he was an IRA member. As a result, some former IRA members who disagreed with him politically have come forward to denounce him.
Allegations have also been made that loyalist paramilitaries co-operated with senior unionist politicians in the 1970s; this has been firmly denied – by the politicians.
There are complaints that this process has facilitated malicious claims and the settling of old scores and, sometimes, the accusations have been shown to be inaccurate. However, the legislation prevents any legal redress beyond a correction of the error.
Lord Robinson, the former first minister, is among those who has attempted to sue over accusations made against him, but the courts have held that no remedy is available beyond a formal recognition that the accusation is unproven.
In some cases, victims have complained that perpetrators have justified – even gloried in – their past misdeeds. A number of loyalist and republican memoirs have appeared which have justified murders, or made accusations against the dead, which relatives deny.
In other cases, veteran broadcaster Sir Stephen Nolan has screened moments of tearful reconciliation between repentant perpetrators and those who suffered at their hands.
Victims and researchers have successfully applied for disclosure of information held by the state about pre-1998 attacks. The story of who did what to whom in the Troubles has become largely an open book, but disquiet has grown about the lack of redress. Concern has been expressed that people implicated in attacks cannot be removed from sensitive jobs.
In one case, it was revealed that Man X, then a police agent who is now a social worker, had taken part in three murders. Intelligence papers released after an appeal to a panel of international jurists showed that his handlers knew of his involvement from another agent in the same gang, but continued to use him as an information source.
They record that he had prevented bomb attacks on politically sensitive targets, including a figure involved in the peace process and had handed in bombs to be deactivated.
MI5, which set the intelligence priorities and paid the budget for high-grade agents, had told Special Branch that maintaining this agent was vital to national security and so he should be warned, but not charged.
After this warning, he acted as a driver in the murder of Mrs Y, whose husband was the intended target. He said that he had no choice, because he had not been told it was a murder mission until he was already in the car.
Mrs Y's orphaned children attempted to sue the Home Office for collusion in their mother's murder. The case failed on the grounds that there is a statutory bar on all legal action under the same legislation which permitted the early release of state papers.
This was held by Amnesty International and other human rights bodies to be in breach of the norms of international human rights law. A case was taken to the European Court of Human Rights at Strasbourg, where it was claimed that the state had failed in its duty to protect Mrs Y's right to life, or to carry out a proper investigation into her murder.
It failed, but the judgment suggested that the Act of Completion could not protect the state from action if crimes of genocide, rather than individual killings, were involved.
The Act of Completion was challenged in the International Criminal Court, because a refusal to investigate serious crime contravened the UK's obligations under the Treaty of Rome.
The action was struck out on the grounds that the treaty could not be applied to events before 2002, when it was ratified by the UK.
John Larkin, now a professor of law at Harvard, has written a book on the legislation he helped to initiate shortly before ending his term as Northern Ireland Attorney General.
In the book, he says the legislation has helped a society come to terms with "the bitter warts and all the truth" about its troubled past.
Critics point to the rise in self-harming among people facing allegations about their Troubles-era role and of revenge attacks, or internet hate campaigns, against some of them.
One reviewer wrote "as a society, we might have been better off not knowing so much about our recent past".