Northern Ireland legacy proposals run risk of disappointing victims of the Troubles
Plans to deal with the past encourage people involved in the conflict to tell their stories, writes Professor Tom Hadden
Despite public statements by the Attorney General and some others, it is clear that there is widespread opposition to any formal amnesty and that anything of the kind is not a practical possibility in Northern Ireland.
But I am concerned that the Draft Bill on which the British Government has been consulting since May contains nothing that would provide an incentive for those involved in the conflict to come forward, tell about their part in what happened, and offer an apology to those who have suffered as a result.
There is a human rights obligation to investigate State-caused deaths and a right to justice for victims. The Belfast Guidelines on Amnesty and Accountability, however, make it clear there are other equally important human rights objectives, notably those of truth for the wider public and other forms of accountability than prosecution and punishment.
Even if the broad outlines of the Draft Bill and the Stormont House Agreement of 2014 which it seeks to implement must be accepted, there are some ways in which this lack of provision might be addressed.
One would be explicit provision for perpetrators and their commanders to receive less than the standard two-year prison sentence or a community service order in return for acknowledgement and apology for their crimes. Many lawyers believe that the heavy concentration in the Draft Bill on procedures for criminal prosecution and disciplinary sanctions over contested deaths is likely to generate continued legal disputes about proof of guilt and whether there is sufficient evidence to justify convictions.
The actual result may be disappointment and anger on the part of families and survivors and continued antagonism on all sides rather than reconciliation. Supporters of the security forces will be angry that those accused have been put through long periods of suspicion and anxiety in a largely futile process for attempting to do their duty or obey superior orders. On the other side the families of victims will continue to suspect an Establishment cover-up.
In 2005 Government proposals in the Northern Ireland (Offences) Bill would have allowed perpetrators on all sides to make formal acknowledgement of their crimes before a judicial tribunal without further sanction. This was dropped following widespread political opposition here and at Westminster. A similar recommendation for a process of acknowledgement and apology was included in the Haass/O'Sullivan proposals in 2014. But nothing of the kind is included in the Draft Bill.
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Under the Northern Ireland (Sentences) Act 1998, implementing the Good Friday Agreement, those convicted of murder would face a maximum effective sentence of two years. For most other offences judges might impose minimal sentences in recognition of guilty pleas and explicit apology. But this is an uncertain outcome that is unlikely to encourage those who wish to acknowledge and apologise for their part in the conflict to do so.
A specific provision in the Bill to permit and encourage judges and disciplinary bodies to reduce prison sentences or impose appropriate forms of community service would help to encourage this form of reconciliatory admission.
Another would be explicit provision for State and paramilitary bodies to make public acknowledgement and apology on behalf of their members or volunteers before a formal reconciliation panel. Many national truth and reconciliation commissions, as in South Africa, have made provision for statements of this kind. There is nothing equivalent in the Draft Bill, despite the reference in the Stormont House Agreement to such acknowledgement by the British and Irish Governments and the expectation that others might follow suit.
In addition some of the work of the Implementation and Reconciliation Group (IRG) could be postponed for at least five years while the procedures for investigating deaths by the Historical Investigations Unit and confidential information for families by the Independent Commission on Information Retrieval worked through and final reports submitted.
Statements of governmental acknowledgement made in the aftermath of the Saville Inquiry and also statements by paramilitary bodies have been widely regarded as helpful. Provision would be needed to encourage the IRG to receive statements of this kind in advance of any potential five-year delay and to ensure that they would be granted immunity from use in formal criminal or disciplinary proceedings.
Detailed statements from leaders in security bodies or leading paramilitary positions, such as the 'on the runs', who have in practice been immune from prosecution, could help to replace repeated denials of any illegal or improper conduct with something more truthful and helpful.
This would be particularly important in respect of collusion and undercover operations. It is often unclear whether various forms of collusion are criminal or how they are to be dealt with in disciplinary proceedings. Many undercover operations that might otherwise be unlawful can be rendered lawful by executive decisions by politicians or superior police officers. Explanation and acceptance of responsibility for these decisions and their impact on the wider conflict in advance of the completion of the rest of the programme would set a good example to all others involved in the process.
A third significant change would be for the Implementation and Reconciliation Group to be led by persons appointed by the two Governments and international experts rather than dominated by political appointees. The provisions in the Bill, as in the Stormont House Agreement, for the IRG to be dominated by representatives of the political parties is equally questionable. Leadership by the two Governments and international experts was crucial in negotiating the Good Friday/Belfast Agreement and in the associated bodies for decommissioning and the Disappeared.
Allowing the work of reconciliation to be dominated by political appointees (three DUP, two Sinn Fein and one each from SDLP, UUP and Alliance) and for reports on thematic issues to be postponed until the investigation of deaths and informing families of the results are completed runs counter to this experience. It is right for appointees of the main parties to be involved in the IRG. This does not mean they should control its operations. The current stand-off over the formation of an Executive makes this particularly relevant.
The composition of the IRG should be settled by the two Governments and should have a majority of independent members. This would prevent the academic work on patterns and themes from being blocked by political appointees or delayed or restricted until final reports have been submitted by the other bodies. It would also permit more direct consideration of the need for reconciliation with those who still suffer the effects of injuries as well as deaths during the conflict.
The process of promoting reconciliation in the aftermath of the conflict is not an exclusively political matter. In fact, one of the primary objectives is to promote reconciliation and shared understanding between the main political parties as well as between the two main communities and others.
The terms of the Stormont House Agreement and the Draft Bill to implement them are based on too limited an understanding of all that is required to deal with the legacy of the past.
Tom Hadden is an Emeritus Professor at the Queen's School of Law, a former member of the NI Human Rights Commission, and a co-signatory of the Belfast Guidelines on Amnesty and Accountability