Kieran McEvoy: Civility, legacy and the Stormont House Agreement: a reply to Professor Liam Kennedy
Writing on this page on Tuesday, Professor Kennedy was critical of his Queen's University colleague Kieran McEvoy's evidence about legacy to the Northern Ireland Affairs Committee. This is Professor McEvoy's response
The comedians Newman and Baddiel had a sketch in the 1990s called History Today. Two bushy eye-browed professors discussed intellectual matters, finishing with a personal needle (eg "See that pond, that's your bed that is, you are on the front cover of Bed Wetters monthly") (www.youtube.com/watch?v=9UMedd03JCA
While legacy is a serious matter, that sketch came to mind when I read Professor Liam Kennedy's recent article in the Belfast Telegraph, where he had a right go at me. Two professors fighting is rarely edifying, but perhaps it can serve to illuminate some important issues.
With colleagues, I recently gave evidence to the Northern Ireland Affairs Committee on the proposed Stormont House Agreement (SHA) legacy mechanisms. We have been providing free legal and technical advice on legacy for several years. Ignoring the more random ad hominem criticisms, Professor Kennedy raises some issues which warrant addressing.
Readers are aware of the ongoing debate on changing the definition of "victim" and "survivor". Definition of the latter is in the Victims and Survivors (Northern Ireland) Order 2006. That legislation established the Commission for Victims and Survivors and details its responsibilities.
Professor Kennedy accused me of describing this definitional debate as a "side issue". In fact, my point to the committee was that the draft legislation on the SHA has its own definitions of which family members are eligible to have their cases reviewed by SHA mechanisms. They are different pieces of legislation doing different things.
Our evidence to the committee also related to legal difficulties associated with securing historical prosecutions; we argued that the likelihood of successful prosecutions should not be exaggerated. Professor Kennedy interprets this as evidence that the "more information" that families seek will not be provided by the SHA mechanisms.
Prosecutions are different from information recovery. My explicit point to the committee was that, while prosecutions would be difficult to achieve, the primary utility of the SHA's police-led investigations and information retrieval would be to provide information through reports to families.
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We also focused on the numbers of people killed by State and non-State actors. To be clear, republican and loyalist paramilitaries were, of course, responsible for the majority of deaths and injuries during the conflict. Discussing collusion does not obviate that fact. Professor Kennedy argues that there is little to suggest that collusion was "on a major scale". Here is what we currently know.
- The Glenanne gang (involving loyalists, UDR and RUC officers) committed over 120 murders.
- The Police Ombudsman investigations into Operation Ballast involved 10 murders and six murders in Loughinisland respectively, finding collusion in both cases.
- The De Silva Review reports that, between 1985 and 1989, 85% of UDA "intelligence" originated from the security forces.
- Lord Stevens, who conducted three investigations into collusion, arrested 210 loyalists as part of his investigation - of these, 207 were informers.
- Operation Kenova is investigating over 40 murders linked to the alleged agent Stakeknife, focusing on the IRA, members of the Army, the security services and other Government agencies.
With regard to State killings, Professor Kennedy argued that "there were unlawful killings by the security forces and those responsible should be pursued by the law". One paragraph later, he adds, "of the 10% of killings, most were in situations of armed conflict and in no sense unlawful".
Between 1969 and 1974 (the most violent period of the conflict), 189 people were killed by the security forces. Professor Fionnuala Ni Aolain found that 63% of those killed were undisputedly unarmed, only 12% were confirmed as possessing a weapon. No one was prosecuted for these deaths.
Professor Kennedy also raises the issue of "punishment" violence. He and I share an implacable opposition to this barbaric practice - albeit we have deployed different strategies to challenge it.
Liam chose to express his abhorrence by running for election (on an anti-punishment violence platform) against Gerry Adams in 2005. He secured 147 votes to Mr Adams's 24,348.
I engaged directly with republicans, helping to establish community restorative justice as an alternative and as a bridge to better relations between republican communities and the PSNI. If, as we both think they should, the SHA mechanisms can address this issue, this may illuminate which was more effective in encouraging the Provisional IRA to end such attacks.
Liam gets the wrong end of the stick on the issue of apologies. As I told the committee, apologies are crucial to legacy and require a credible apologiser. I used the example of Sinn Fein's current president and vice-president to ask whether they could credibly apologise for IRA actions.
My point was not to obfuscate the relationship between Sinn Fein and the IRA. Rather, I would contend that people with an IRA background might have most credibility to apologise both to victims and within their own constituency.
Our central message to the committee was that the SHA is not perfect. Let's make it better. It's the last realistic chance that victims will get.
Liam agrees - I think - arguing that it needs to be "radically revised".
Upon reflection, we agree on quite a lot. Let's keep the legacy debate civil and informed. Maybe pugilistic profs can show the way, reconciliation in action. Hug, Liam?
Kieran McEvoy is Professor of Law and Transitional Justice at Queen's University Belfast