Why is a Historical Clarification Commission needed?
1 The last time that the Northern Ireland Life and Times Survey published results about attitudes to truth recovery was in 2004. The responses were revealing: only small minorities trusted the British and Irish governments, the churches, victims’ groups, the Northern Ireland Assembly or judges to administer a truth recovery process. A Historical Clarification Commission would be different – it would be staffed primarily by professionally trained historians with input from political scientists, sociologists, journalists and legal scholars.
2 It is the gaping hole in all previous attempts to address the issue. For example, the Eames-Bradley Report’s 190 pages of text – purportedly a ‘Consultative Group on the Past’ – never used the word ‘historian’.
3 Historians should lead, if only because their first and primary training and responsibility is to research and uncover the past for its own sake. That is the basis of their professional training and they are much cheaper than lawyers. While it would be the task of the relevant public authorities –the UK and Irish Governments – to appoint personnel, the Commission would entail the payment of academic and journalistic salaries rather than retaining teams of barristers and solicitors.
4 Its objectives are scholarly truth-telling based upon material from state archives and the involvement of civil society through oral history projects. It will be conducted according to the highest possible standards of historical research and any questioning of its credibility will need to provide more robust arguments than the kind of ‘whataboutery’ and relativizing of the past that has marred Northern Ireland’s transition from conflict to peace for so long.
Would it not be too state-focused?
5 It could be argued that ‘opening the archives’ is a very one-sided process. There are two possible criticisms. Firstly, would it not mean that only the state(s) would be open to investigation and criticism and that everyone else would escape scrutiny? Secondly, and conversely, would it not mean the production of an ‘official’ history which would prevent serious criticism of the state(s). We do not think either criticism is valid.
6 What is proposed is acceleration of a process which already happens, the release of state papers. There is much in the archives about the IRA and other paramilitary organisations as well as material on attacks and atrocities. Normally much of this is held back for reasons of security. A Historical Clarification Commission would need to have access to as much of this material as is consistent with national (Irish and British) security. Indeed, openness on the part of the two Governments to what the Commission has access may encourage paramilitaries on both sides to be more open too.
7 As Professor Henry Patterson has argued, much of what has been written about the period of the Troubles has made little use of what archive material there is now available. It is hard to see how a Historical Clarification Commission’s engagement with new and extant material would be tantamount to an ‘official history’. Whether it is decided to produce a general report or a series of reports, some published history should be seen as essential to this project. This would be an authoritative account of the Northern Irish conflict, based on the available empirical evidence and will present a robust and as comprehensive as possible consideration of the Troubles.
Why would the parties be interested in a Historical Clarification Commission?
8 The Historical Clarification Commission could square the circle regarding the demands of the main political parties – as long as they are willing to compromise. For Sinn Féin it can provide an independent, international body. It would meet the SDLP’s demand for a ‘robust’ mechanism to deal with the past. It would not become a shrine to terror or a rewriting of the past that unionism fears; and it would meet Alliance’s and NI21’s (together with the other party’s) aims of allowing society to work through the past and move forward in an integrated and integral fashion.
9. An Archive relating to the conflict could be created that would bring together all relevant documentary material and testimonies. The initiative would be tied to a clear historical narrative in the form of a published record (the Commission Report) and thus could ease unionist fears about ‘rewriting of history’.
Why would it be attractive to victims groups?
10 The Commission Report and Archive would help to highlight victims’ experiences and throw light on unresolved crimes and killings. It could emphasise the dignity inherent in victims’ stories and would not require them to reconcile themselves to the stories of perpetrators.
11 Of course, victims’ groups would not be completely happy with this proposal; but it would have the benefit of avoiding the kind of amnesty proposals suggested by others.
12 While victims groups may hope for public prosecutions, the fact highlighted by Attorney General Larkin and Chief Constable Baggott is that securing successful prosecutions is unlikely. Victims groups may not be entirely satisfied with a Historical Commission. However, it does not involve a thorough-going amnesty and it does not advocate that victims should be forgotten.
What might a process of historical clarification look like?
13 There would be three major elements, archival research, oral testimony and public engagement.
14 We believe that the two main products arising from a Historical Clarification Commission will be a documentary history based on evidence from the public record and an archival depository that will house records and testimonies. Accessibility should be taken into account in any decision as regards the location of this archival depository.
15 The deposition of documentation by the (two) Governments would mean that copies would be retained but selectively released on the grounds of confidentiality and personal safety. These are issues that institutions such as the Public Record Office of Northern Ireland (PRONI) deal with on a daily basis and are not insurmountable. What will/can be deposited is a political decision for the two Governments. The process of release should be open to periodic review.
16 Highly sensitive files (which might risk the security of individuals) should not be released. However, the relevant material – as the Keith Jeffery and Christopher Andrews precedents confirm – might be made available for review. Reports on sensitive intelligence matters should feed in to the overall process.
17 Again, institutions such as PRONI deploy a range of auditing procedures and similar methods should be used in working with oral testimonies – transcription, for example, will need to be accurately rendered; anonymity will need to be guaranteed and protected where it is needed; and a review, evaluation and approval process will need to be set out. Such a checklist of good practice is standard for public archives and university research ethics procedures and the compilation and administration of a Troubles archive would not differ substantially from common protocols. We believe that this procedure might help to navigate the kind of legal problems associated with dealing with testimony that blighted the good intent of the Boston College oral history project.
18 The Historical Clarification Commission can produce recommendations as to the ways in which history is worked through, commemorated and taught in Northern Ireland. This would not preclude television and radio documentaries and a broad pedagogic programme to be included in the national curriculum. The archive will bring together not only primary but also secondary historical evidence to enable researchers to complete this task; that archive will then become a site of engagement by historians, teachers, the media and the public. This could also draw in local history projects which could engage on the principles already established by the Northern Ireland Community Relations Council.
How is a Historical Clarification Commission different from a truth commission?
19 Typically truth commissions run in one of two ways, neither of which is applicable to Northern Ireland, in our view:
a. Firstly, a truth and retribution process is established to punish offenders for killings and violence. Examples of this model are the processes followed by several Latin American countries during the 1980s. These tend to be predicated on a courtroom-style process that would be difficult to pursue in Northern Ireland given the reluctance of any of the paramilitary groupings to comply willingly to present – see Judge Smithwick’s criticism of IRA participation in his inquiry into collusion in the Irish Republic.
b. Secondly, a truth and reconciliation commission works to grant amnesty to perpetrators in return for information about crimes. The example here is South Africa, its Truth and Reconciliation Commission arising out of the Convention for a Democratic South Africa which predated that state’s transition.
20 By contrast, a Historical Clarification Commission would work to robust, ethical and professional standards; its ‘truth’ would be that of empirically minded social scientists and historians. While truth recovery posits antagonists against each other with the inevitable outcome being linked closely to who can tell the best story or deploy the most effective lawyers, historical clarification provides for the best means of taking the past out of contemporary politics.
21 Rather than the legally salient ‘truths’ that are highlighted (or displaced) from truth recovery processes such as in the South African experience, countries as diverse as Germany (Enquete Commission), Spain (Salamanca archive); Guatemala (Comisión para el Esclarecimiento Histórico (Historical Clarification Commission)) or post-Communist Eastern Europe – all of which have been absent from discussions in the media – historical clarification represents a best practice model for dealing with the past in Northern Ireland.
Why would a Historical Clarification Commission be more efficient than alternative proposals?
22 There have been few concrete details as to who would staff immunity and truth recovery processes: implicit in these suggestions is the need for legal teams to advise clients and adjudicate on truths. In the immediate fallout from the Smithwick Tribunal, Liam Clarke asked the valid question of whether that was how the Troubles would be ‘settle[d] – largely behind closed doors among lawyers, with only the state accountable’ (Tribunal findings could set dangerous and costly precedent’, Belfast Telegraph, 5 December, p.31). Arkiv proposes an alternative based in the uncovering, interrogation and publication of evidence according to an open process of historical clarification.
This post returns to the intervention by the Attorney General, John Larkin, into the debate about the past and the Haass Talks. The purpose is to put that intervention and that debate into the context of the Belfast Agreement. We argue that the very difficult and delicate balancing act between pragmatism and ethics which the Haass Talks needs to deliver is best achieved through a Historical Clarification Tradition (a detailed ‘catechism’ of the why, what and how of that Commission – as readers of this site have requested – will be the subject of a future post).
The Attorney General’s Intervention
The Attorney General, John Larkin made recently a pragmatic case for some form of amnesty, though he was reluctant to give it that name. ‘More than 15 years have passed since the Belfast Agreement, there have been very few prosecutions, and every competent criminal lawyer will tell you the prospects of conviction diminish, perhaps exponentially, with each passing year, so we are in a position now where I think we have to take stock’. In response to the Attorney General’s intervention, the PSNI Chief Constable Matt Baggott made a slightly different pragmatic argument, this time according to resources: ‘We welcome the debate and will study carefully what the attorney general has said’. He pointed to well documented evidence ‘that the cost of policing the past has a massive impact on how we deal with the present and the future’. The proposition was one of balance between duty and potential but the implication of his remarks was clear enough: ‘Whilst we are committed to meeting our current legislative responsibilities, dealing with legacy issues continues to place significant pressure on our organisation and financial resources.’ It was Raymond White, a former Assistant Chief Constable and Head of Special Branch and CID, who stated most directly the pragmatic case, integrating both aspects of it. He thought that drawing a line is an issue that needs to be faced up to. ‘Families, including police families, are quite rightly emotional about the fact that nobody has been made amenable’. However, he thought that Larkin’s intervention ‘provides one of those cathartic moments when people are actually being faced with an element of reality they may have preferred to avoid.’ And the reality most families of the victims will have to face up to is the unpalatable reality that ‘successful prosecutions are becoming increasingly unlikely’.
The pragmatic case is clearly at odds with the moral sensitivity of victims groups for whom justice is not a pragmatic consideration at all but an absolute one. For example, the response by the widow of RUC constable, John Proctor, to the conviction of his killer 32 years after the murder put that case succinctly: ‘the process to seek justice, although difficult, has helped to bring truth – the facts and a level of understanding of what took place.’ And this opportunity should be universal: ‘This is what processes like this (through the work of the Historical Enquiries Team) allow families to do.’ Understandably, there was no sympathy for Mr Larkin’s intervention. This is the real and difficult world of politics in which the Haass talks are engaged. The challenge is to find some way to address the ethical virtue of fiat justitia ruat caelum (let justice be done, though the heavens may fall)- the understandable and absolute demand of victims’ families; and the pragmatic requirements of not only the criminal justice system but also of the political order. For example, the Northern Ireland Retired Police Officers Association (NIRPOA) told Dr Haass that some of the truths its members might be forced to reveal ‘may not be considered to be helpful to the political or “peace” process’.
So the main parties to the talks have to confront a common dilemma. On the one hand, there is strong moral pressure on them to deliver on the demands of victims’ families to deliver justice, regardless of the political consequences; on the other hand, there is a strong political incentive for them to take a pragmatic view of what is not only possible but also desirable, regardless of ethical matters. On that point, the respected journalist Suzanne Breen wrote recently that ‘an end to Troubles investigations benefits two groups here: the paramilitary top brass on both sides and the state, particularly the intelligence services’. She thought that too many revelations about the past ‘would bring the entire political system crumbling down’. In other words, the last thing to expect of the Haass Talks is fiat justitia, et pereat mundus (let justice be done, though the world may perish), if by ‘world’ we mean the institutions of the Belfast Agreement. Some of those who wish to stand on absolute principle may indeed wish the Agreement to fall but that is certainly not the general position. Breen has a good track record and her assessment should be taken seriously. However, to qualify the cynicism of her judgement maybe it is worth putting the Agreement itself into perspective (for otherwise the Haass Talks would not be happening). And it is interesting to note that, in the wake of the almost universal political rejection of Mr Larkin’s suggestions, that there has been gathering support. These include the former Irish minister Liz O’Donnell, the lawyer John McBurney, Dennis Bradley and a range of academics.
The wisdom drawn upon here is not that of modern academic conflict resolution theory but of a much older tradition of practical conflict management common in the Austro-Hungarian Empire. Acknowledging that it was impossible to achieve a truly harmonious relationship between its component ethnic parts, there developed in the Viennese Chancellery what was known as a ‘policy of simmering’. The resentments and grievances between national groups had to be acknowledged as a fact of life. The major imperative was to ensure that these divisions would not be so volatile as to promote and sustain civil unrest. In short, if the politics of communal rage was unavoidable that rage should only simmer and not boil over. Those who thought politics could do more than this were considered to be dangerous idealists and likely to provoke disaster. Given the fate of the Austro-Hungarian Empire this may be taken as an illustrative failing of cynical realism, a realism whose very cynicism became its own undoing. Nevertheless, the sceptical and potentially constructive reasonableness of ‘a policy of simmering’ should not be too lightly dismissed.
Take the Northern Ireland case and follow this line of reasoning. Ending the major campaigns of violence in the early 1990s was the first step to holding out the prospect of keeping the communal pot from boiling over. If the heat could be slowly reduced in relations between unionists and nationalists then it becomes possible to envisage power-sharing being stable since lowering the temperature of communal politics is the necessary condition for workable institutions. Since there had been no consensual Garden of Eden from which politics in Northern Ireland had fallen there is no consensual promised land to which it can return. For all the grandiloquent language that had accompanied it, the Belfast Agreement – in this view at least – was only a contract to facilitate communal politics of a moderated, non-murderous, sort and the blessing of the new would inevitably be mixed with a reformulation of the old. Things would get better but some other things might get worse. If this is a reasonably accurate understanding of the 1998 deal then it has implications for the politics of dealing with the past. In short, one can use the past, as one can use political tactics, either to turn up the heat on the pot of communal tensions or to turn it down. There may be no absolute consistency in how they behave day to day but that is the choice facing the parties strategically. And because they can give the lead to popular opinion it will set the tone for the future. It will not be easy to accommodate all constituencies and at a time when politics is held in low esteem it is important to defend the politics of delicate compromises (insofar as the parties are sincerely looking for agreement).
From the perspective of a policy of simmering, once the illusion of a perfect ‘solution’ to any problem is discarded, the real business begins. According to the philosopher John Gray, we are faced with a Hobbesian choice about ‘better and worse compromises, and some that are thoroughly bad’. His conclusion may be uncomfortable but it has a ring of truth. If these choices are condemned by ‘morality’, he thought, it is so much the worse for ‘morality’ (Gray 2000: 134). The sceptic appreciates such honesty but it should also be acknowledged that if the public is morally outraged by any compromise then no accommodation is likely to be possible or to last. And we have been here before, of course. The proposals of the Consultative Group on the Past fell because mainly because the £12,000 ‘recognition payment’ to all victims in Northern Ireland did provoke a general sense of moral outrage. That is the Haass challenge in a nutshell. Addressing both ethical and pragmatic requirements is like squaring the circle.
Very briefly – and to repeat, we will develop our ideas in detail in a future post – it is our contention that a Historical Clarification Commission provides the best opportunity to square that circle, not only in terms of the balance between pragmatism (resources and practicality) and ethics (justice and truth) but also balancing the demands of the political parties.
1 An Archive relating to the conflict could be created that would bring together all relevant documentary material and testimonies. For Sinn Féin it can provide an independent, international body; though that would not be the UN. It would meet the SDLP’s demand for a ‘robust’ mechanism to deal with the past. The initiative would be tied to a clear historical narrative in the form of a published record (the Commission Report), easing unionist fears of the ‘rewriting of history’ and a retrospective justification of terror (whether loyalist or republican).
2 The Commission Report and Archive would help to highlight victims’ experiences and throw light on unresolved crimes and killings. It would emphasise the dignity inherent in victims’ stories and not require victims to reconcile themselves to the self-justifications of perpetrators. Nor would it require them to compromise themselves to drawing a line under the past and ‘moving on’. The mere fact of giving evidence would not prohibit victims from seeking legal redress in the future.
3 It would also satisfy concerns about the charge on the public purse. It would be less expensive than judicial proceedings, the Legacy Commission proposed by the Consultative Group on the Past; it would be more modest, and we suggest more appropriate, than a full blown Truth and Reconciliation Committee.
4 A Historical Clarification Commission could produce a number of outcomes: An archive of testimony and documentary evidence; a Report; and a programme of outreach and pedagogy. Its processes of getting to the truth about what happened in Northern Ireland would be based on the careful sifting, weighing-up and contextualization of evidence to reach a balanced, robust judgment.
In addressing the ‘future of the past’ one can refer to the distinction made by the American political scientist Michaele Ferguson
- Sameness: In this kind of sharing, we have something in common with one another when we are alike in some way: each individual who shares does so in the same way.
- Commons: We have something in common when we share a thing that cannot be individually possessed (2012, p.41).
The idea of a Historical Clarification Commission will help to identify the understandings that are commonly shared as they are found in the public record and limit the divisive values we inherit from communal versions of the past.
Ferguson, M.L. (2012) Sharing Democracy, Oxford: Oxford University Press.
Gray, J (2000) Two Faces of Liberalism, London: Polity Press.