Haass/O’Sullivan after Downey

Near the start of his (in)famous treatise on political expediency, Machiavelli advises would-be rulers to cultivate prudence: ‘When trouble is sensed well in advance’, he writes, ‘it can be easily remedied … As the doctors say of a wasting disease, to start with it is easy to cure but difficult to diagnose; after a time, unless it has been diagnosed and treated at the outset, it becomes easy to diagnose and difficult to cure’. It seems that in the controversy over the procedures to deal with those suspected of terrorist offences (On-the-Runs (OTRs)), David Cameron apparently was caught unawares by the revelations contained in Mr Justice Sweeney’s staying of a case against Mr John Downey. It is easy to diagnose the trouble but, in Northern Ireland at least, the cure seems difficult

The ‘letters of comfort’ (there is doubt about whether they constitute effective amnesties) given to the 200+ OTRs – 187 was the initial figure, which has been revised upwards by the BBC – raise questions about the integrity of the Haass/O’Sullivan process for dealing with the past. Three related matters from the ruling by Sweeney J are worth highlighting (for a fuller discussion see the guest post by Dr Fergal Davis).

The first is a matter of fairness. It is the point made to the House of Commons by former Secretary of State for Northern Ireland Peter Hain when withdrawing the Northern Ireland Offences Bill which Sweeney J cites (paragraph 71, page 21). Hain states that: ‘Closure on the past cannot be one-sided. That was, and is, non-negotiable’. He goes on:

“The process would have made people accountable for their past actions through the special tribunal before being released on licence. Sinn Fein has now said that any republican potentially covered by the legislation should have nothing to do with it. But if no one went through the process, victims who would have suffered the pain of having to come to terms with the legislation would have done so for nothing. That is unacceptable, and I am therefore withdrawing the Bill.”

It is important to note here both the process and those to whom the process was intended to deliver justice or closure. As it turns out, there was a process. It was not an open judicial process but a secret administrative process. As it turns out, the victims for whom so much consideration was supposed to be given have suffered for nothing.

The second is a matter of trust. It is the point which Jonathan Powell makes with reference to his book on the peace process, Great Hatred, Little Room: Making Peace in Northern Ireland (2008) which is also referred to by Sweeney J (paragraph 79, page 23) in relation to the coherence and consistency of the process:

“In the book I make clear my view that the most challenging part of the peace process in Northern Ireland, as in most other peace processes, is its implementation. Agreements are necessary precisely because the two sides do not trust each other and agreements by themselves do not establish trust.

It is only when the two sides actually implement what they have promised to do that the trust begins to be created as part of a process of peace building. If either side reneges on its undertakings or fails to implement what it has promised to do, trust can be fatally undermined” (emphasis added by Sweeney J).

It is difficult to reconcile this notion of trust with the manner in which the Government then put in place the ‘administrative’ alternative when it failed to get legislative approval for, and political consensus on, the Northern Ireland Offences Bill. The diagnosis was easy to make – we have got to keep Sinn Fein happy – but this meant reneging on public understandings with the other parties (including the public at large). The consequence now is to find an appropriate cure for the lack of trust which this particular deal has created.

The third is a matter of impartiality. As Mr McGinty (paragraph 82, page 26) in a witness statement for the prosecution service in Northern Ireland observed:

“The prosecuting authorities accepted the administrative scheme with some reluctance. In part this was because the actual and perceived impartiality of the prosecution authority was of crucial importance to the maintenance of public confidence and the administrative scheme would only benefit one side of a divided community”.

Though the judge chose not to highlight this passage, it is also central to understanding the fallout from the OTR ‘error’.  This is how the process has been judged in Northern Ireland – and not only by loyalists seeking to interrupt the enquiries of the Historical Enquiries Team (HET). It does benefit ‘one side’ and if the justification is that the process was about addressing an anomaly (this was about tidying up inconsistencies brought about by the early release of prisoners) then it has created an even bigger anomaly for, together, these inter-related matters of fairness, trust and impartiality have consequences for the institutional structure proposed by Haass/O’Sullivan. The importance their draft agreement places upon a civic vision of reconciliation and sharing seems questionable now. As many commentators pointed out in the wake of the Downey case, the motivation was to secure the comfort of a few, out of civic society’s range of vision. The behind-closed-doors calculations of politicians in this way reveal the very political nature of trauma: that is, a sense of betrayal by those in power. Jenny Edkins, for example, has argued that this breach of trust imposes and reinforces feelings of powerlessness by victims of violence: “What we call trauma takes place when the very powers that we are convinced will protect us and give us security become our tormentors.”

Of course, Machiavelli may be harnessed to a ‘dirty hands’-type explanations. In other words, politics inevitably involves murky compromises and the narrative of the OTRs may be (as Hain repeats) a choice between a general peace and a particular justice for victims. These are the types of choices that we, as individuals tend not to like making, hence we entrust our politicians or state officials to take them on our behalf. As Henry Kissinger was fond of saying, sometimes the state must sin so that the people remain virtuous – problems arise only when the ‘sin’ becomes public knowledge. Then the people become virtuously hypocritical (an accusation which has actually been made about the response to the revelation in the Downey case). This explanation, however, falls short and ignores the key issue Machiavelli pinpointed as regards the role of Fortune in politics: “Fortune is changeable”, and “men prosper so long as fortune and policy are in accord, and when there is a clash they fail’. The lesson seems to be that policy agendas may fall out of sync with other political realities and this now appears to be the case in part with one principle proposed by Haass/O’Sullivan: the idea of thematic explanation in order to ‘provide a vehicle for facilitating acknowledgements by perpetrators of violence, as they permit a broader level of accountability than do individual cases’. This comes up against the reality of the OTR case.  Accountability is a slippery concept: judicial accountability is not the same as political accountability, and the kind of accountability desired by victims may not coincide with either.

Arkiv has argued that it is important to emphasise historical accountability in relation to publicly available primary material. We suggest that the idea ought to be revisited by politicians in a more serious fashion in order to bring the Haass/O’Sullivan agenda back into sync with political reality post-Downey. A few straws in the wind from very different sources with very different agendas do intimate the possibility of a revised emphasis, if only to recapture fairness, trust and impartiality.

The first is Basil McCrea, leader of NI21:

“Victims should be told the truth – they will not get justice because those [who] carried out the acts will not confess and evidence from other sources is either not available or unreliable. Some suggest that a “truth commission” or some form of immunity from prosecution would provide more information about the fate of loved ones to victims and survivors. Such a suggestion is unworkable, unethical and runs against natural justice.  It would give perpetrators the opportunity to tell their side of the story without cross examination or challenge. It suggests a moral equivalence between the victim and the perpetrator. This is wrong. There is no equivalence (moral or otherwise) between innocent bystanders and those that were actively involved in “the conflict”.

He concludes:

“The concept of an official archive to deliver information to victims in a sensitive manner requires further consideration but “limited immunity for prosecution”, letters of comfort, and any number of side deals are counter productive and undermine the political process. The time for “constructive ambiguity” is gone”.

Newton Emerson quotes Mark Durkan of the SDLP making a similar point at Westminster last week: “He said the grubby deals that have blighted the peace process in a way must be undone”. Emerson himself is emphatic on the issue: “The outraged reaction from almost all quarters showed this will not be acceptable while any bereaved relative remains alive. The reaction to the Downey case proves it. These grubby deals are not the way we will deal with the past. They are part of the past”.

Anthony McIntyre has also commented on two ideas of justice:

“We can regard it as justice of retribution or justice of revelation. I think we have to emphasise it as justice of revelation. That would mean going along the lines advocated by the Northern Ireland attorney general John Larkin, who advocated the opening up of papers and documentation so that we can get this revelation that has been so drastically lacking in the past.”

References

Jenny Edkins, Trauma and the Memory of Politics. Cambridge: Cambridge University Press, 2003.

Newton Emerson, ‘Grubby deals expose the ambiguities of the peace process’, Sunday Times, 2 March 2014, p.27.

Basil McCrea ‘Draw a line under the past and move on’ http://blogs.qub.ac.uk/compromiseafterconflict/

Anthony McIntyre http://voiceofrussia.com/uk/news/2014_03_03/Bloody-Sunday-Politicians-using-past-for-political-advantage-in-present-6800/