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.
Historical Clarification
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.
Final Thought
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.
References
Ferguson, M.L. (2012) Sharing Democracy, Oxford: Oxford University Press.
Gray, J (2000) Two Faces of Liberalism, London: Polity Press.
Arkiv 