Guest Contributors

What would the Haass proposals on the Past look like if they were brought to life?

Brian Walker attempts a resurrection.
(This is a revised version). June 2014

Introduction
This essay attempts to put flesh in the bones of the Haass proposals which it should be remembered, reflected ideas put by the political parties and many others. It comes in detachable stages. One is a release of public documents to allow accounts of what happened to be written, largely for the benefit of victims. Another is an Inquiry into the Past (a term which avoids the over-ambition of “Truth Commission”). The Inquiry would have two arms, one on legal reform supported by lawyers ad legal scholars, the other, supported by historians, on the survival of the Troubles’ legacy in politics. The latter is a fairly but not impossibly ambitious approach for accepting the early verdicts of history and reducing communal contention in politics. The public nature of the Inquiry breaks open the tight circles of Stormont politics and gives a role to the range of stakeholders active in community development. Whether or not legal reform proceeds in the meantime, it deserves close public attention. It would incorporate the elephant in the room, John Larkin’s proposal for a stop on prosecutions, so-called to distinguish it from the A- word. It’s up to historians to decide whether to leave this topic to transitional justice lawyers or take it on from their own perspectives. The Inquiry’s recommendations would have no legal effect.

Objectives
What does it mean, to deal with the past? The absence of a clear answer encapsulates the problem. The failure of Hass suggests that the role of international mediation is finished. Seven years into the current phase of power sharing, the Northern Ireland parties would do better to face each other directly and set their own objectives. What might these be?

First, to reduce the zero sum approach to politics whereby progress by one side is a defeat for the other, the game still oddly favoured more by unionists than nationalists. Greater openness about past crimes and a willingness to accept responsibility for them just might improve the political climate exponentially if the implications feed into the present. We can see all too clearly what the old game goes on producing. It feeds the extremes. The main parties stand by helplessly and partly as accessories, as fringe elements of the two traditions clash in the streets. In the working class districts of Belfast it’s almost as if nothing has changed in 20, even 100 years. How much of this is explained by history both recent and further back? The answers go the heart of what’s wrong with power sharing as we know it.

But history has no simple answers and there are no simple outcomes either. “The truth” will often be more painful than comforting and more inflammatory than reconciling. But there is an assumption worth going along with, that disinterring the past dispassionately might put political relationships on a more ethical footing. Agreement to make a start might even be the greatest achievement.

Secondly, how should we deal with the legacy of political violence? Have the resources of the law run out? The complicated system of legal investigation set up after 1998 has already been found wanting and in some areas discredited. Paralysis has been the response so far to pressure from the PSNI to set up a new body to take the legacy off their hands. The present position leaves policing and politics at the mercy of sudden events such as the arrest of Gerry Adams. Should a new body scale up legal investigations or run them down? Among proposals that go forward, Larkin’s must be included in a review right up to the present of the much criticised system of legal investigation into Troubles.
Ideas will only work if the parties want them to. In terms of crude politics what do they want? Unionists want to know the full extent of what the IRA has got away with and for Sinn Fein to acknowledge it. Their frustration fastens on Sinn Fein’s demand for “no hierarchy of victims,” a neat slogan for claiming equal status for insurgents against the State with those who defended it. Sinn Fein demands more accountability for the litany of state illegality headed by police collusion over murdering Catholics and an end to British cover up. Both show signs of believing that their demands will never be met. It’s up to the British government and public opinion to put them to the test.

What use are historians?

This is not a project for the ivory tower. It offers the integrity of a scholarly approach to help solve political problems. It will produce some answers to polemical questions fairly quickly and others from historians’ own agenda which dig deeper and are longer term.

Historians can take all the loaded themes and questions the parties put to them, analyse them objectively against the evidence, set them in context and reach conclusions. That’s what academics typically do.

They should be located in what Hass calls “information retrieval” otherwise “truth recovery” This is where the legal investigators hand over the files of closed cases for release to the public. Historians use this data as source material for case studies, themes and broad narratives.

To show politicians and others what they can contribute, Arkiv members should consider producing an indicative programme of research themes and questions and a modus operandi.

Beyond the confines of violence historians can help create archives for oral history and victims, devise guidelines for memorialising and advise on how cultural traditions can flourish with cross community support.

Opening the Archives
Although the British government has vowed to hold no more inquiries under its own auspices, it has a clear duty to give full support to an initiative by the Northern Ireland parties. In the general interest, the government should open the archives of the Troubles and deposit most of them with suitable protections in the Public Record Office of Northern Ireland (PRONI), and give them a final home in a Northern Ireland Victims Centre. For everyone’s benefit it would be sensible to give historians an early bite. In Haass language, after being cleared of legal process by the Historical Investigations Unit, closed case files would be handed over to information retrieval (but locally not internationally supervised) and made available to the public archives and to researchers to turn into coherent accounts. Separate protocols would no doubt be required for Ministry of Defence and MI5 files.

Sclerosis in the criminal justice system
Among the legacy themes there is pressing business. The PSNI have been urging the parties to remove the burden of the past from their shoulders and assign it to what Haass calls the Historical Inquiries Unit. If a new system for legal investigations into the past has already been introduced by the time the Inquiry meets, it reviews it; if the system is further delayed, the Inquiry makes recommendations, informed by the lawyers’ conclusions. Had a new system been in place already, the police might have been spared the embarrassment of failing to pin responsibility for IRA actions on Gerry Adams. That failure exposed a lack of evidence, the issue now at the heart of addressing the legacy. Is the lack of evidence genuine or the result of more recent incompetence, inefficiency or cover up? : The conclusions of Professor Patricia Lundy are hard to resist: “To date (dealing with the past) has been marked by what could be interpreted as a deliberate fragmented approach by the state that is not designed to address the past in a comprehensive and holistic way. On the other hand, this might be regarded by some as an earnest attempt to navigate the potentially divisive terrain of the past in ways that do not reproduce divisions in the new post-conflict arena. Whatever the interpretation of this policy, it has created a vacuum which is filled by almost daily media reports that drip feed toxic revelations about the atrocities of the past, raising more questions than answers.”

Should the proposed HIU scale up legal investigations as Amnesty Intentional has recommended, or run them down? Scaling up would guarantee ensure that the past really would take over. The Executive parties are being nudged by the British government and the PSNI in favour of running them down and leaving all but the grossest cases to “truth telling” and the verdicts of history. The reasons are not hard to find.

The criminal justice system is tying itself in knots. Who’s next after the drama of Gerry Adams’ arrest? Compensation payments are now being paid out in respect of long delayed inquests, one of them outstanding for 33 years, and with at least another 40 inquests to come. The new police ombudsman, more activist than his hapless predecessor, has taken the PSNI to court in a test case for refusing inter alia to disclose information about informant handling connected to the Loughinisland massacre. The application could go all the way to the Supreme Court. Lady Justice Hallett may be about to rule that aspects of the administrative scheme for OTRs’ letters perverted the course of justice.

In a striking intervention Lord Chief Justice Morgan told the BBC he was looking forward to court action on the OTRs affair: “I think the fact that the courts will do that in a transparent and open way with access of the public to everything that goes on, is actually positive.”
In a sense the examples which come up to the surface show the system working but they are only the tip of the iceberg and limited correctives to earlier failures. In a speech in mid-April, the secretary of state Theresa Villiers lamented the burden placed on the criminal justice system “with inquests, cases in Strasbourg, Freedom of Information requests, Troubles related investigations and by the police and Police Ombudsman.” Yet she appeared to shun the most obvious remedy.

Putting a stop on prosecutions
Last November Attorney General John Larkin made the dramatic proposal that is the preferred solution of many in the justice system.

“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… It strikes me that the time has come to think about putting a line, set at Good Friday 1998, with respect to prosecutions, inquests and other inquiries.”

In what respect is “putting a line with respect to prosecutions” not an amnesty? The essential point to grasp is that if there is no evidence there is no case for prosecutions or for amnesty either. Secondly, the word “amnesty” is derived from the same root as “amnesia,” that is, forgetting. In contrast, opening the archives would provide more material for “remembering” than the justice system, which has produced only three murder convictions in the past eight years out of 39 cases referred to the PPP.

A stay in prosecutions, ingeniously explained, follows the logic but is a political tall order. lt would require at least the support of the consensus of those who run the policing and justice system who have mostly kept silent perhaps for reasons of propriety. They should be free to give evidence to the Inquiry.

The legal approach
Lawyers are likely to take a different and perhaps less pragmatic approach to these questions than historians, one that may be defined as the search for justice. It’s generally conceded that the standard of human rights applied by the courts during the Troubles was of a lower standard than todays. Full retrospection is not applicable but the British government – no friend of the European Court – has felt bruised by findings against them for Article 2 breaches of the European Convention, on the right to life and the duty to investigate suspicious deaths. This may partly account for the Secretary of State’s sympathy with Unionist fears of one sided justice. The same human rights approach is adopted by legal campaigners such as the Pat Finucane Centre which attracts republican cases.

Article 2 therefore might appear to be conceptually biased because it governs the obligations of the State. Paramilitary organisations recognise no such obligations. In a post- conflict society such as ours, how is this apparent imbalance to be addressed? It is partly a question of whether Sinn Fein will accept more historic responsibility for the IRA than was required of them for the purposes of negotiating the Agreements. They will not change their position easily. Evidence of discharged obligations can be found in the records of the Diplock courts which sentenced hundreds of paramilitaries to long sentences.in jail.

A discussion of these issues and a balanced account of the criminal justice system during the Troubles would require the expertise of lawyers. Action has been taken to strengthen the weak and overburdened inquests and the Police Ombudsman, but the compromised PSNI Historical Enquiries Team has not yet been replaced. This is one the Assembly under the devolution of justice and policing which took effect in 2010 and entailed an awkward change of horses in midstream.

The Inquiry
The Northern Ireland secretary of state Theresa Villiers has called for a mechanism to address the past that is “balanced, transparent and accountable”. To satisfy these criteria the Executive parties jointly with the British and Irish governments, (perhaps under the auspices of the British- Irish Council), would set up the Inquiry into the Past.

The Inquiry would have two arms, one on legal reform supported by lawyers and legal scholars, the other on the role of history in politics supported by historians. Rather than turn to American diplomats, Canadian generals and Commonwealth judges, Northern Ireland should confront its own problems, nudged forward by the two governments. The chair and deputy chair of the Inquiry might be distinguished foreigners with considerable facilitator and forensic skills, or a little more daringly, one Brit and one Irish free of baggage on Northern Ireland. Their role would to ensure a comprehensive selection of topics, and to chair debates in which they could take on a forensic role. They could issue their own final comments.

The historians would be a Northern Ireland centred group headed by a chair or editor in chief for the purposes of co-ordinating research and new interviews and collating reporting. The lawyers would be a similar body perhaps associated with Healing Through Remembering, Their work of both would be free of political interference. They would have legal advice. It is not clear if the inquiry should be non-statutory or set up by new legislation.

The starting gun to engage is provided by the British government agreeing to open state archives on the terms set out in detail in the de Silva review. (Under terms of immunity, if Gerry Adams were to offer a full account of his long relationship with IRA, it would be a significant confidence building move).

Oral evidence
Once basic good faith is established, the parties and governments would agree actively to encourage fresh evidence -gathering from former paramilitaries and state agents in private and usually anonymously. A Boston tapes fiasco would be avoided. All aspects of the inquiry would be covered by legal immunity in terms underwritten by government. No one expects quick responses even with Sinn Fein’s facilitation on their side and the British government’s on theirs but the opportunity should nonetheless be created. The results would be unpredictable and at times uncomfortable. There are no obvious incentives or sanctions to get former paramilitaries to talk, although retired police officers and soldiers might welcome the opportunity to say more about informers. In the Republic, the Bureau of military history covering the period of 1913 to 1921 began recording memories and gathering material from 1947 to 1957 and launched it into the public domain only in March 2013. The civil war period up to 1924 was omitted. Perhaps we live in a more urgently accountable age, or perhaps not.

Public hearings: “transparent”
To achieve transparency and public accountability, the Inquiry transacts its main business in formal public hearings (with an option to hold some in private). The sessions are presided over by the Inquiry chair.

“Balanced”
The Inquiry appoints widely drawn panels not only political parties but all major parties to the Troubles including representatives of victims’ groups, former members of the security forces and civil society. Their role is to offer questions and themes for historians’ research and comment on the outcomes. Historians collate the themes – no doubt often heavily loaded against the other side – and shape them into coherent topics for research and reporting… Expert witnesses could be called at the instigation of the groups of academics or the Inquiry. The academics would present their themed reports to the Inquiry and take questions and comments. After reporting back theme by the theme to the Inquiry, they would embark on their own comprehensive history.

Accepting responsibility
In closing sessions, representatives the two government and the local parties present responses to the reports and debates and offer explanations, defences or apologies, as they see fit. An objective of the Inquiry is to agree a joint Declaration on the Past on how to approach outstanding issues and govern future political behaviour. It would be naïve to expect this to have a transformative effect but it would do more than capture the moment and would provide a new benchmark for political conduct.

It is too much to expect that the political parties and governments would quickly approve a comprehensive stay on prosecutions as recommended by the NI Attorney General John Larkin, particularly in the wake of the OTRs affair, (. see below). A feasibility study should be commissioned and .discussed at the Inquiry.

“Accountable”
Public hearings would open up elemental political debate to the direct influence of neglected civil society. They would help concentrate minds on what most people probably think is most achievable: to accept due responsibility for actions that violated the rule of law and the standards of civilisation and to offer acknowledgments, apologies, defences and explanations. The Inquiry would canvas opinion on a halt to prosecutions. It should use all the instruments of modern problem solving including breakout groups and role play. The public hearings would be web streamed with a time delay, supplemented by a separate moderated Forum for public comment. Qualitative and quantitative opinion research would be commissioned on the party responses to academics’ reports. A road show would canvas local opinion in focus groups.

Conclusion
What is contemplated here opens an opportunity for a political relaunch if the Stormont parties wish to seize it, created by a collective effort to reduce the drag of the past. This was what they seemed to be groping for when they called in Haass and O’Sullivan.

Coming on top of a failure to decide on reforms to the legal inquiry system, they seemed affected by a common anxiety that some the more torrid parts of the legacy were running out of control in the streets and politics was at the mercy of sudden developments like the Adams arrest and the OTRs’ “administrative scheme.”

Sinn Fein being equal partners in e government have an equal obligation to take due responsibility for the past, but obligation does not end with them. Critical examination is required into the conditional and contractual character of unionism, part of which set up a mass movement inspired by the UVF of 1912 but which disintegrated into nihilistic sectarian terrorist gangs. A full reading of the de Silva report is an unsettling experience. It strengthens rather than reduces the need for public acknowledgment of the scope of collusion, a need underscored by the breach of promise to hold a public inquiry into the murder of Pat Finucane. The public have a right to know the extent to which the IRA was brought to the point of ceasefire by a proxy war waged by the state with proven loyalist killers as their chosen instruments. De Silva’s conclusions do not extend so far.

“My Review of the evidence relating to Patrick Finucane’s case has left me in no doubt that agents of the State were involved in carrying out serious violations of human rights up to and including murder. However, despite the different strands of involvement by elements of the State, I am satisfied that they were not linked to an over-arching State conspiracy to murder Patrick Finucane… In spite of the gravity of my findings, I must also stress that it would be a serious mistake for this Report to be used to promote or reinforce a particular narrative of any of the groups involved in the Troubles in Northern Ireland. My remit has, by its nature, involved only an examination of the actions of the British State and its agents, and loyalist terrorist organisations. I have no doubt, however that PIRA was the single greatest source of violence during this period and that a holistic account of events of the late 1980s in Northern Ireland would reveal the full calculating brutality of that terrorist group.”

We’ve learned that retired police officers receive regular reports on legal risk from the PSNI. They also say they have a good story to tell. Let them be told they are free to tell it.
The Dublin government, pressing hard for action in the North have yet to make their own offer. The conduct of the Smithwick tribunal is an encouraging precedent.

The series of near- amnesties and release schemes since 1998 have broadly favoured republicans. Whatever their merits in encouraging the IRA to stand down, their net effect has been to worsen political relations and degrade the justice system. The moment has passed when concessions with a veneer of legality can produce a political dividend. The time has come for a comprehensive approach which in Theresa Villiers’ phrase, is “transparent, balanced and accountable, as described here. To achieve it unionists have to give up hankering after a world that will never return and nationalists for a world that may never be. As any therapist will readily explain, the healthy condition is to live the present rather an imagined future or a recreated past. What if the parties funk the challenge? Even if the Stormont parties fail to agree on a holistic approach they and the governments should open the archives as soon as possible and commission the historians nonetheless. No doubt the lawyers will continue to make the case for reform.
Brian Walker
Hon Senior Research Fellow
The Constitution Unit
University College London

In this post, Brian Walker (UCL) pinpoints critical commentary from Eric Hobsbawm on dealing with the past in divided societies.

PIECE OFFERED AS GUEST CONTRIBUTION TO ARKIV  22 APRIL  2014

Although Eric Hobsbawn was a Marxist historian he could not be neatly pigeonholed. He was certainly no mere propagandist. A Jew born in Egypt and brought up in Vienna and Berlin in an era when an old order was collapsing, he immigrated to Britain where he became a great historian of the movements and forces of modern European and world history, almost up to the present day. Although instinctively critical of the twin forces of nationalism and religion, he was far from blind to their appeal. His reflections on the role of history strike deep chords with those who study the uses and abuses of history in the life and politics of Northern Ireland and Ireland as a whole. Eric Hobsbawm died in harness in October 2012 aged 95. What follows are two extracts from his work.

Brian Walker      

 From Eric Hobsbawm: On History

From chapter 1: Inside and outside history

History is the raw material for nationalist or ethnic or fundamentalist ideologies as poppies are the raw material for heroin addiction. I used to think that the profession of historian   unlike that say of nuclear physics could at least do no harm. Now I know it can. Our studies can turn into bomb factories like the workshops in which the IRA had learned to transform chemical fertilizer into an explosive. This state of affairs affects historians in two ways. We have a responsibility to historical facts in general and for criticising the politico-ideological abuse of history in particular.

Few of the ideologies of intolerance are based on simple lies or fictions. The most usual ideological abuse of history is based on anachronism rather than lies.  Myths and invention are essential to the politics of identity. They are historians’ concerns because the people who formulate such myths are educated people, school teachers, professors (not many I hope) journalists and radio and television producers. Make no mistake about it. History is not ancestral memory or collective tradition. It is what people learned from priests schoolteachers… and the compilers of articles, and broadcasters. It is very important for historians to stand aside from the passions of identity politics – even if we feel them also.  After all we are human beings too.

Now we have mythological or nationalist history being criticised from within… About half a century after most of Ireland won its independence, Irish history both in the Republic and in the North is passing through a period of great brilliance because it has succeeded in liberating itself. This is still a matter which has political implications and risks. The history that is written today breaks with the old tradition which stretches from the Fenians to the IRA still fighting in the name of the old myths with guns and bombs. But the fact that a new generation has grown up which can stand back from the passions of the great traumatic and formative moments of their countries’ history is a sign of hope for historians.

 

Professor Eric Hobsbawm accepts the Medlicott Medal at the Annual Dinner of the

Historical Association in Cambridge, April 1999

“Just how is history dangerous”? I think it is in two ways. One is in inspiring political movements and states whose very essence is history, that is to say an ideological construct based on a misinterpretation of the past. Nationalism is the chief example of this. Certain kinds of religious fundamentalism though not all -may also have this component, for instance those who try to reconstruct some supposed golden age of the past when all was well with the world because the Law of the Koran was literally applied.

I don’t have to explain why nationalism is dangerous. We can all see the consequences of breaking up Yugoslavia into mutually hostile nationalisms daily on TV screens. But I will. Just mention, by the by, that history is not a significant element in the other major danger of the twentieth century, namely the aspiration to world or continental domination—whether by some state like Nazi Germany, or by the triumph of a world revolutionary ideology as in the early days of the Soviets, or by both at the same time, as perhaps in the case of the last surviving ideological empire, the USA today.

The other way is by selling this concept to the mass of the people, without whose support political ideas remain ineffective, at least in the twentieth and presumably the twenty-first century. Consider the differences between Cornish and Irish nationalism The Cornish political nationalism that has been emerging in the past 20 years—up to and including the attempt to resuscitate a language last spoken in the eighteenth century—is at present so politically insignificant that we are tempted to treat it as a joke. It has no electorate. So far as I am aware it has not even got to the stage of Scottish and Welsh nationalism between the wars, which had formed nationalist parties, though they had hardly any voters. It may get beyond this phase, although there are small nationalisms which have never got beyond it.

On the other hand Irish nationalism, with the aim of political self-rule in Ireland, has been a basic political fact about the island since the Third Reform Act demonstrated that virtually all Catholic Irish constituencies would vote for nationalist candidates; and it still is. By the way, this doesn’t mean that all the beliefs of nationalist ideologists are equally shared by their supporters. The restoration of Irish as the spoken language of Ireland remains as much a dream as the restoration of Cornish as the spoken language of Cornwall will prove to be. In practice it was abandoned by the government of the Irish Republic in 1948.

But the idea that nationalist convictions of the political kind are, as it were, inborn and instinctive—for instance the belief that what all Basques want is to secede from Spain and France and the creation of a sovereign territory that belongs exclusively to a Basque “nation”—has no historical basis. It cannot be derived from the feeling, which may well be wired into all social animals, that we all distinguish between an in-group to which we belong, and the others—between “us” and “them”. It has to be acquired.

This is where the historians come in and those who teach history or use historical material in the mass media. For it is through the printed word and the image that ideas and ideologies are spread from the minorities among whom they arise to the mass of people, even though the most powerful medium for fixing them in their mind may be in combination with music—as in hymns and national anthems. And, in a world which, for the first time in history will be predominantly literate in a few more decades, the school, and especially the primary school, will be the main medium by or through which, as the Jesuits recognised during the Counter-Reformation, the basic ideas of most people will be acquired before they start looking at the internet.

..ends

In this post, Dr Rebecca Graff-McRae, explores the gender(ed) politics of the Haass/O’Sullivan negotiation and consultation process, and considers how the gender ignorance is indicative of wider party political and non-governmental efforts to come to terms with the past . Dr Graff-McRae is a Social Sciences and Humanities Research Council of Canada Postdoctoral Fellow at the University of Alberta, Canada. 

The Gendered Politics of Memory and the Past

“Not only does the future not necessarily flow from the past, the past could be other than it was” (Neta Crawford)[i].

In all the (voluminous) discussion surrounding the “Past Process” in Northern Ireland, gender has been a non-issue. This is nothing new from a feminist analysis of the conflict and its aftermath. These truths we hold self-evident: that the Troubles and their legacy were and are gendered; that the conflict affected women and men in different ways and to a differing extent; and that the memory of the past reflects this divergence. Even as the issue of gender has been marginalized in the discourse surrounding “the Past”, the gendered division of memory has been reinforced. In its call for submissions to the All-Party Talks, the Haass-O’Sullivan process was – on the surface –  open and inclusive, permitting anyone with an interest in parading, flags, or the past to participate and be heard. Drs Haass and O’Sullivan met with several community-based women’s groups; and among the submissions from political parties, victims’ groups, community organizations, and individual families, the panel also received proposals from the Northern Ireland Women’s European Platform (NIWEP). However, this initial level playing-field obscures the obstacles to a gender-aware discussion of the past. The ignorance of gender as a significant factor is evident in the submissions themselves, in the lack of gender-specific recommendations in the Draft 7 document, and in the wider cultural and political discourse surrounding the debate on the past.

Of all the submissions available in the public domain, only three contain any reference to gender or women’s issues: NIWEP, Relatives For Justice (RFJ), and United Protestant Voice – the latter only in reference to a breakdown of Troubles-related deaths by gender. International human rights organizations such as Amnesty International and Rights Watch (UK) failed to mention either “gender” or “women”, as did all the political parties. Surprizingly, even secular, non-aligned intiatives centered on issues of memory and trauma – specifically Healing Through Remembering and the Initiative for Conflict-Related Trauma – also made no attempt to address gender in their proposals.

NIWEP’S and RFJ’s documents outline a detailed awareness of the gendered dimension of the conflict and its legacy : NIWEP’s proposal highlights the legal framework of UNSCR 1325 and suggest numerous dimensions through which women could participate in the past process; RFJ also name-checks Resolution 1325 and points out (following Catherine O’Rourke, see below) that previous mechanisms for addressing the past had offered “no recognition of the need to address endemic gender inequalities, gender specific harms and no recognition of the unequal participation of women in post conflict structures” (RFJ 2013: 11). None of these recommendations, even the statutory obligation under UNSCR 1325 to ensure women’s equal participation in post-conflict processes and institutions, have been incorporated into the Draft 7 proposals. Indeed, in the 39 substantive pages of text, there is one lonely mention of gender: in the context of the proposed Commission on Identity, Culture, and Tradition, alluding to gender as one of several “other” identities that could be taken into consideration in regard to symbols and emblems (Draft 7, 2013: 17). As such, this soft recommendation barely comes close to the equality obligations outlined under 1325, or indeed Section 75 of the Good Friday Agreement.

Catherine O’Rourke[ii], in her detailed feminist analysis of the 2009 Report of the Consultative Group on the Past (CGP or Eames-Bradley) illustrates that there is little scope for gender awareness, acknowledgement, or inclusion in the structures and processes put forward. O’Rourke establishes that the Report excludes women and gender on several levels: first, in the consultative process (only two members of the Group were female); second, in its failure to address the socio-economic and domestic impacts of the Troubles – which affected women disproportionately; third, in its failure to acknowledge the non-physical forms of violence inflicted upon women during the conflict; fourth, in its selective attention to specific women – Jean McConville, Rosemary Nelson, and Mairead Farrell – whose complex identities and politics “would necessitate de-linking ‘women’ from their traditional gender moorings in conflict settings”. Finally, O’Rourke exposes the CGP’s unwillingness to recognize “women’s political exclusion as an injustice of the past and an unjust legacy of the conflict” (2012: 51). These gaps in the Eames-Bradley Report thus obscure and enclose the question of what constitutes “the past” – and crucially, who is permitted to define it.

Like its predecessor Eames-Bradley, the Haass-O’Sullivan proposal is guilty of, at best, ignoring the  gendered nature of the past, and at worst, reinforcing the exclusion and erasure of gender as a “factor” in the legacy of the conflict. Draft 7 offers no substantive recognition of the gendered nature of the conflict, memories of the conflict, or the post-conflict institutions. The All-Party talks were, in their Executive nature, narrowly “inclusive” – after the submissions had been received and considered, the five parties of the Executive retained the loudest voices. As formal, Executive-level talks, complete with high-stakes negotiations and to-the-wire deadlines, the process reproduced the formula of Sunningdale, Good Friday, St Andrews, et al. – a past process that prioritizes and privileges the formality of power-political strategizing over community-based, inclusive compromise. Despite its initial openness, the talks recreated conservative “old-boys” diplomacy. The work that had been painstakingly carved out by community organizations on the ground was discounted; for instance, the Women and Peacebuilding Project (associated with the Women’s Resource and Development Agency and National Women’s Council of Ireland) held two events in October and November 2013 (as the All-Party talks were underway) directly engaging with women’s diverse experiences in dealing with the past. The outcomes of the discussion were, in fact, submitted to the Haass/O’Sullivan team, but made no mark. Thus it appears that the only progress on the past that could be validated was a signed agreement. This made it difficult for issues of gender (among others) to influence the agenda in any substantial way.

Even the rightly criticized “themes” or “Assessments of Patterns”  (Draft 7, 2013: 31-4) offer no concession to a gendered perspective: While the document recommends that “Suggested themes should be issues that: Offer meaningful insight into the political and strategic context of events during the conflict; Involve serious human rights violations; or Have left a legacy that is particularly important for the work of reconciliation”(Draft 7, 2103: 33), the suggested themes deal exclusively with para/military or security concerns, and are carefully balanced between apparent republican and unionist/loyalist concerns. An opportunity to “offer meaningful insight” by including an analysis of the gendered impacts of the conflict was lost in order to prop up the conventional interpretation of the conflict, its participants, and its victims. The framework of the Haass/O’Sullivan document, and its obstacles, appear always already set in stone, as each of the Executive parties drew their line in the sand.

The biggest challenge to a fully gender-conscious process was the wider cultural and political discourse in which the talks took place: when the Belfast Telegraph profiled co-chair Meghan O’Sullivan, the headlines were striking: Chris Kilpatrick’s “Glamorous Dr Meghan O’Sullivan not afraid to get hands, or heels, dirty as she clambers into Twaddell protest caravan”[iii]; or Liam Clarke’s “Meghan O’Sullivan: Richard Haass’ right-hand woman keen to work at coalface”[iv] both implied that a Harvard Professor of International Relations, with field experience in deadly combat zones, might be more concerned about her appearance than her skill as a mediator. Clarke declared that, “Looks can be deceptive, but Richard Haass’ 43-year-old glamorous, slightly-built sidekick has been providing advice in warzones that dwarf Northern Ireland’s Troubles for years”. Kilpatrick similarly depicted the talks co-chair: “Dressed in black, the glamorous American was careful where she placed her shiny black heels as she made her way through the muddy camp, the gates bedecked with Union and Ulster flags.” Such an attitude does a disservice to the women of Northern Ireland, and delegitimizes their calls to be included in the past process – to have their experiences acknowledged to make meaningful decisions about both the past and the present.


[i]     Crawford, Neta ( 2003). “Feminist Futures: Science Fiction and the Art of Possibilities,” in Jutta Weldes, ed., To Seek Out New Worlds: Science Fiction and World Politics (New York: Palgrave). p. 199.

[ii]    O’Rourke, Catherine (2012). “Dealing with the Past in a Post-conflict Society: Does the Participation of Women Matter? Insights from Northern Ireland”. William and Mary Journal of Women and the Law, 19 (1). pp. 35-68.

In the wake of the On-The-Runs revelations, Dr Fergal Davis, Senior Lecturer in Law at the University of New South Wales and member of the Australian Research Council Laureate Fellowship (Anti-Terror Laws and the Democratic Challenge Project in the Gilbert + Tobin Centre of Public Law), offers his insights on the political and legal ramifications of the events.

On-The-Runs: Politics and Peace

The Queen v John Anthony Downey (2014):

The judgment of Mr Justice Sweeney in R v Downey is available here. Although it was delivered on 21 February 2014 it was not released for publication until 25 February when the Crown informed the court that it was not intending to appeal. In this post [#] will denote a reference to a specific paragraph in that judgment.

I’ve been trying to figure out what I should say about Downey. The case is significant but it needs to be understood on its own terms before any wider points about the peace process can be drawn from it. My goal here is not to provide a technical ‘legal’ analysis but rather to set out the terms of the judgment (and some its consequences) for those who are interested. The immediate risk of the institutions of the Belfast Agreement collapsing appears to have been averted but there is plenty still to digest.

On 20 July 1982 a ‘Control Improvised Device which contained about 20-25 pounds of commercial high explosive with wire nails as shrapnel… was detonated’.[2] Four of members of the Household Cavalry Guard were murdered. 31 others were injured and seven horses were destroyed. John Anthony Downey was suspected of involvement in that attack – he denies the charges.

Pages 6 to 40 of the judgment Sweeney J set out the historical background to the case – including the situation of the On The Runs (OTRs) in the post Agreement era. Downey is classed as an OTR because he was resident in the Republic of Ireland.

On 21 November 1989 the then Attorney General (Sir Patrick Mayhew QC MP – later to be Northern Ireland Secretary from 1992-1997) held a meeting to discuss the possibility of seeking Downey’s extradition from Ireland to the UK to face charges relating to the Hyde Park bombing. It was felt that there was a case to answer: although it was acknowledged that in the ‘in the post-Guildford and Woolwich climate’ it might be difficult to persuade a jury to convict.[22] In the end the meeting determined that it would not be appropriate to seek an extradition. However, ‘the Law Officers agreed that “a marker should be put down to ensure that the case was properly reviewed before any decision was taken to prosecute Downey if he should enter the jurisdiction voluntarily…”.’[22]

Downey was arrested at Gatwick Airport on 19 May 2013 while he was in transit on his way to Greece for a holiday. When he was arrested he told police:

I am surprised that this had come up as I have travelled in and out of the UK on a number of occasions to see family and I have travelled to Canada from Dublin. When I went to Canada I contacted the UK government to check it would be OK as I didn’t want any problems. They said it would be fine. [141]

Downey applied for a stay of prosecution on four grounds:

(1)    A fair trial was impossible given the delay in prosecution.

(2)    ‘It would be unfair for the defendant to be tried in the light of the expectation created by governmental statements that prosecutions would not be pursued in respect of those who would otherwise qualify for early release…under the scheme provided (in accordance with the Good Friday Agreement) by the Northern Ireland (Sentences) Act 1998 (“the 1998 Act”)’.[3(2)]

(3)    It would be unfair to pursue a prosecution because an ‘administrative scheme’ was operating for OTRs which was intended to ‘advance the peace process’.[3(3)]

(4)    Cumulatively these grounds taken to together would act as a bar on prosecution.

The court rejected the first ground. The fourth ground is premised on the failure of the other grounds – in the end it did not merit consideration. The really interesting bit lies in grounds 2 and 3.

The OTRs were not eligible under the terms of the prisoner release scheme which had resulted from the Agreement. In 2006 the UK government introduced The Northern Ireland (Offences) Bill aiming to ‘make special provision about certain offences committed, or alleged to have been committed, before 10 April 1998 in connection with terrorism and the affairs of Northern Ireland’. That legislation did not pass. As a result OTRs remained in something of a legal black hole and a non-legislative, administrative scheme, was adopted.

Under the administrative scheme the Northern Ireland Office (NIO) issued letters of assurance to OTRs on behalf of the UK government. In his judgment in Downey Sweeney J sets out in detail negotiations between Sinn Féin and the Northern Ireland Office regarding these letters.

In essence the second ground of the case argued that the government statements, public and private, amounted to a promise. They generated an expectation in the defendant that he would not be prosecuted and he was entitled to rely on that expectation. The court rejected that argument. The assurances did not, in and of themselves, mean that a prosecution would offend the court’s sense of justice.[161]

The third ground is related to the second. Sweeney J held that in determining this ground he had to balance the public interest in prosecuting serious crime with ‘the competing public interests in ensuring that executive conduct does not undermine public confidence in the criminal justice system…’.[162] Formulating the test in this way allowed the court to place a significant emphasis on an error by the PSNI.

When he transited via Gatwick in 2013 Downey was relying on a 20 July 2007 letter from Mr Mark Sweeney of the NIO. That letter confirmed that ‘The Police Service of Northern Ireland are not aware of any interest in you from any other police force in the United Kingdom’.[123] The PSNI had confirmed to the NIO that Downey was not of interest to any UK police force – that was an error. Downey was, in fact, still wanted by the Metropolitan Police in relation to the Hyde Park bombing.[173(19)]

Sweeney J appears to attach great weight to that ‘catastrophic error’ by the PSNI. In balancing the competing public interests he concluded that

in the very particular circumstances of this case it seems to me that [the interest in prosecuting serious crime] is very significantly outweighed in the balancing exercise by the overlapping public interests in ensuring that executive misconduct does not undermine public confidence in the criminal justice system and bring it into disrepute.[175]

The judgment makes it clear that the administrative scheme did not operate to create an executive amnesty. It created a situation in which an OTR would be entitled to rely on the assurance in the letter ‘unless new evidence came to light’.[173(8)]  It is also clear that the case of Downey rests substantially on the PSNI error. In the absence of that error it is not obvious that the court would have upheld the third ground and the case might have failed.

So there was no general amnesty and this case does not create one. There remain two points to consider: one specific to Downey; and one more general.

In this specific case the public interest in securing prosecutions does not seem to balance easily against public confidence in the criminal justice system. One might argue that such confidence would be strengthened by prosecuting despite the government assurances – such prosecution might demonstrate the independence of the Crown prosecution Service from government interference.

It could be argued that the failure of Parliament to legislate in 2006 demonstrates that the government had no authority for creating a de facto amnesty and that their letters of assurance should be narrowly construed and easily set aside. Such a ruling would likely have resulted in a crisis in the peace process but Sweeney J stated that ‘I should not take into account any effect that my ruling might have on the continuing peace process’.[168]

On a more general level the judgement as set out by Sweeney J reveals a lot about the political machinations operating behind the formal legal façade in the Northern Irish peace process.

It is clear from the judgment that the NIO was administering a scheme which was not included in the Agreement and was not legislated for. This might not have been an amnesty scheme but as Hain put it: ‘it was intended that the assurance be just that, reliable assurances as to the position of the applicants…’.[173(10)] or as Hain put it after the judgment in Downey, ‘allowing John Downey to walk free was part of our Northern Ireland peace deal’.

The PSNI error was appalling but the court’s reliance upon that error in Downey cannot hide some wider facts.  In making these assurances, the UK government engaged in backroom deals – away from the usual democratic oversights.  No amount of claiming this was to advance ‘our peace deal’ can excuse that.
—————————-

In this guest contribution to Arkiv, Professor Foster questions the paradoxical language of the Haass/O’Sullivan Draft 7. It is a language, he believes, at once bureaucratically neutral and historically tendentious, together constituting a moral enormity. He challenges the very notion at the heart of the Draft – that Northern Ireland is ‘in crisis’ – and so its proposed remedy – yet more institutions of monitoring and control – identifying instead the positive potential of generational and social change.

                                                Haass and the Past

 

One

The last section of the Haass December 31st draft Agreement (DA7, 19-39) is entitled “Contending with the Past”. In one sense it is a happy ambiguity, suggesting that we have to learn to ‘cope’ with the past but that we must also deal with it, interrogate it and vie with it.

But in another less happy sense, it suggests that the past is our enemy and must be vanquished. One way of doing that is to corral it, section it off by simultaneously erasing it morally (refusing its claims for redress on us) and archiving it so that we can get on with our lives without it.

Yet what follows the sections’ title pursues or acknowledges very little of this complex engagement.  As with DA7’s approach to culture, identity, tradition, protest, and commemoration, another broad rich concept – this time the past – is reduced to, and, it transpires, has been inspired wholly by, some quite particular phenomena: namely, terrible deeds committed between 1969 and 1998.

Again, the use of synecdoche (these deeds amount to Northern Ireland’s past) allows the authors to imagine they are dealing with Northern Ireland’s past when in truth they are dealing only with what they cannot bring themselves to name as “crime”, “criminality”, “injustice”, “heinousness”, “atrocity”. (Presumably because “We” – the putative speakers of the document – didn’t, on a head-count, allow them to.)

It was Oscar Wilde who said that history is the record of crime, and to be fair one has only to peruse Lost Lives to see (heart-breakingly) the amount of real and emotional territory the culprits and perpetrators and their aiders and abettors covered in those thirty years. During those decades many people went into emotional and geographical lockdown; the public culture did indeed shrink until it threatened to become co-terminous with violence, the fear and the sick lure of violence.

To be fairer still, whoever is talking in the last section of the proposed Agreement is eloquent on the necessity of the means of meeting “the social and health needs of victims and survivors”. The medical recommendations, the compassion asked for, the “mechanisms” proposed – all these are to the good. Well done, Haass and O’Sullivan and whichever parties lobbied for these inclusions.

And surely it was a small triumph for Haass and O’Sullivan to get Sinn Fein to agree to the following proposition: “This is not to suggest that blame for the violence is equally shared across society. It is not. A minority sought to advance agendas through means outside the law, while the overwhelming majority adhered to it”.

But the triumph is lessened by what immediately follows: “The burden of the past rests most heavily on those, whether paramilitary or state actors, who acted outside the rule of law”. Here is the fatal parity of disesteem.  A parity enounced in the teeth of what we all know to have been the case: a vicious campaign of violence and terror waged against the state and for all intents and purposes against the civilian population.

It is the rhetoric of parity that requires such a menacing euphemism as “state actors”. This sounds like a locution from the Eastern side of the Iron Curtain. It isn’t an Americanism and on their own soil, Haass and O’Sullivan would, I imagine, never resort to such an alien ideological phrase in place of “police officers”, “soldiers”, “security forces” or “intelligence personnel”.

Euphemism abounds in DA7 and is the rhetorical tool of unexamined and merely implied moral equivalence.  Blame is not possible if agreement is to be achieved; moral neutrality is a prerequisite, it is implied, for reconciliation.  This is the quandary at the heart of the search for reconciliation. And so, on the question of ultimate answerability for the sickening violence, on the question of the violent instigation of that violence – DA7 must be tongue-tied.

Two

The dominant euphemistic concept in the third part of DA7 is “context”. Just as the apparently forceful recognition that there were wrongdoers is neutralised by regarding occasional (perhaps even widespread) reactive wrongdoing by the security forces as equivalent to the proactive wrongdoing of a sustained campaign of appalling violence by an illegal army, so the understandable expression of frustration and disappointment that “those involved have not publicly taken responsibility for their actions” is neutralised by the call for “context” to understand why some “acted outside the rule of law” (23).

However, the proposed Agreement does not endorse the NI Attorney-General’s recent call for an end to Troubles prosecutions for crimes committed before 1998. The Historical Enquiries Team and the Police Ombudsman of Northern Ireland would be merged in a new Historical Investigative Unit: 26-29. (Whether this administrative streamlining is another exercise in moral equivocality is moot.) The HIU can pass files to the Public Prosecution Service.  It is fairly easy to understand why agreement from the two main parties was achievable on this, since one is exercised by paramilitary wrongdoing, the other by police wrongdoing and both seek justice (or revenge).

Nevertheless, a diminishing optimism about the efficacy of HIU with the passage of time turns the attention of DA7 to a fall-back mechanism: the Independent Commission for Information Retrieval (30-35). Here beginneth the judicial and moral retreat that characterises the last 9 pages of DA7.

The ICIR will gather as much information as possible (for victims and for the record) about individual Troubles incidents and episodes. These are called “cases” but their investigation will have no legal repercussions: it is simply a question of “Fyi”. Indeed, its main task will apparently be “to understand context and contribute to public awareness of history” (32).  The moral content of events will be hollowed out and replaced with interpretation and facts.

This, it is fondly proposed, is in the interest of victims. Many victims and their families “wish to know the larger context of the events that affected them – the policies, strategies, and broad goals of those who committed violence – in order to better understand the reasons behind their suffering” (32). I don’t believe this for a second.  Victims and relatives of victims of illegal, atrocious, lethal acts want justice, not context, I’m quite sure. A pox on context, I expect many would feel, though I’m open to correction on this.

In any case, the ICIR will have a “theme unit” (33) or “themes unit” (34) which will elicit patterns and themes in Troubles episodes and events. The short list of sample “themes or hypotheses” (33) is itself a careful exercise in parity. Indeed, whereas the RUC and the UK and the UDR are mentioned, the IRA is not (not here, not anywhere).  The ICIR will be bountifully staffed by lawyers, historians and other academics.

(The assumption that in Northern Ireland historians and academics are neutral and objective when it comes to the ‘Ulster Question’ is of course fairly naïve. Indeed, all through, DA7 implies that Northern Ireland consists of decent, hardworking, reasonable, objective, fair people bedevilled by a minority of spoilers who can be immobilised and neutralised by committees, commissions, bodies, units, offices, reports. The repeated assumption and proviso that much of this bureaucracy will be “free from political interference” (36) is almost touching.)

Naturally, the ICIR will issue a Report (hopefully within three years). Contribution to the ICIR is rewarded with immunity from any prosecution which would seek to use anything so contributed as evidence in a court of law.

But in the long march towards context, this is not all. As a subsidiary or a parallel development (it isn’t clear), it is proposed that “an archive for conflict-related oral histories, documents and other relevant materials” (we may call this ACROH, I suppose) be established by the Northern Ireland Executive (36) which will preserve as many first-hand accounts of the Troubles as can be captured or generated by “trained facilitators” and overseen “by a body of professionals with training in history, library science, information services, and related disciplines”. Its contents would have no legal standing.

The horizon stretches ahead. After the ACROH takes its bow, we are warned that “New institutions or practices may need to be built to meet needs as yet unmet”. Perhaps “We” did not tell Haass and O’Sullivan that Northern Ireland groans under the weight of institutions and their multiple synonyms (committees, quangos,  subcommittees, departments, etc. etc.) until the province is fast becoming a ‘meta-society’ wherein reality is being virtually replicated and monitoring exceeds that which is being monitored. As DA7 approaches its end the mischievous ghost of Gogol and even Myles na gCopaleen can be heard tittering.

Nothing hindering, “We” therefore “pledge to establish an Implementation and Reconciliation Group” (38). The IRG will, on cue, monitor all the bodies conjured into being by DA7. It can also relay topics to the ICIR. And – what the heck – let it set up an Historical Timeline Group too, to produce “a timeline of events from 1968-1998” (38).

What is staggering in all of this is less the obvious ignorance of Haass and O’Sullivan on the extant historical literature and archives on the Troubles (they are diplomats and facilitators, not researchers) than the seeming failure of the parties and interlocutors to inform their American facilitators of these. It is frightening to conclude that those taking part in these negotiations to influence the course of legal, social, and political events in Northern Ireland either knew nothing about this, or chose for their own ends not to educate their facilitators.

All of the bodies proposed in DA7 are proposed apparently in blithe ignorance of the existence of the International Centre of Excellence for the Study of Peace and Conflict (INCORE, Univ. Ulster); the CAIN archive (Conflict and Politics in Northern Ireland, UU); ARK (Accounts of the Conflict Project, UU); PRONI (Public Record Office of Northern Ireland); Linenhall Library’s immense holdings in Troubles politics; the Institute for the Study of Conflict Transformation and Social Justice (Queen’s Univ. Belfast); the Institute of Irish Studies (QUB); and the chronology of the Troubles maintained over decades by Fortnight magazine. This is not to mention the Troubles archive of Boston College.

Three

 

The way forward in the eyes of this writer is not more lab-produced, customised committees and institutes and forums. Nor is it the idea that what ails Northern Ireland can best be cured by this means. These bodies we have in plenty. Bodies, moreover, which by mandate cannot exercise discrimination but must forever be in lockstep with parity and equivalence. To do so is to deny the essential moral dimension of what happened during those thirty disgraceful years. And to do that is to empty life then, and life now, of meaning.  For morality is not simply a set of criteria for disapproval or approval, but a lens through which we measure the goodness of life and try to achieve balance and ultimate coherence. Without it, all is mere negotiation, power-play, block-building, bargaining, manoeuvring.

Yet moral culpability is still an inescapable demand in the aftermath of those disgraceful years. I suspect that what victims and the families and friends of victims want more even than legal restitution or redress is moral restitution or redress. They wish to rectify a disabling moral imbalance in their lives and sense of the world.

I know that at least one pro-Union lawyer has chosen to agree with the Attorney-General that a prosecutorial dateline (1998) should be drawn under the criminal past.   But should, during the recovery of the past by means of such bodies envisaged in DA7, criminal culpability come to light, it is difficult for me to see how immunity could strengthen our moral vision of humanity or advance our necessary sense of justice.

DA7 appears to agree but fails to convince because the gesture is morally bereft. If I thought that in the deafening absence of public “acknowledgement” (as DA7 has it), where the rest of us might say admission, confession, remorse or contrition, there were manifold examples of these privately, I’d be a more contented inhabitant of Northern Ireland.  But even so, because we constitute a community, a civic body (whatever our politics), privity does no moral work of redress or restitution.

Naturally many seek legal redress in the absence of the right “acknowledgement” that would help redress the moral imbalance of their lives.  For those who committed terrible acts and have gone scot free, surely their worry that new methods and technologies of detection will yet snare them is the least we can visit on them in return for the hurt, grief and despair they caused, the lives they destroyed.

For the same reason of moral absence, the “civic vision” DA7 says we need (19) is impossible. “Vision” is too grand a wrong word anyway, chosen presumably to avoid the shareable values of civic awareness and civic responsibility (to accompany civic rights). We are big in Northern Ireland on rights rather than responsibilities, but they are individual and group rights, not civic rights which carry civic responsibility.

Indeed, the proposed Agreement is dominated, implicitly and explicitly, by political groups, despite its laudable awareness of the need for the treatment of troubled individuals. We see this at such a moment as this: “Some see [the Troubles’] protagonists in stark black and white – hero or villain, freedom fighter or terrorist. Still others might reject such labels entirely” (22). The thrust of DA7 is to align itself with the “others” who reject such labels; instead, DA7 sees merely contending, contextualisable and more or less equivalent groups as well as individual victims.  Individuality seems restricted to the victims; there is no real apprehension of perpetrators as answerable individuals.

Moreover, parity of esteem is still at work. To reject the label “freedom fighter” might offend several hundred ex-terrorists, but to reject the label “terrorist” is an incommensurable act: it is to offend countless thousands and to leave intact and unchallenged what is apparently rejected: the terrorist. The net underlying assumption of DA7 is surely that “terrorists” is not a helpful term in understanding Northern Ireland between 1969 and 1998.

In fact, there is a real and complex middle-ground of reality between this faux polarity (hero/freedom fighter, villain/terrorist) occupied by individuals and I believe that an implicit sense of this is growing in Northern Ireland. If DA7 is Newspeak when it comes to the denial of morality, it is Oldspeak when it comes to understanding today’s Northern Irish society.

I read DA7 and I realise how old hat the implied personas of republicans and illiberal unionists are. They still occupy back-streets in deprived neighbourhoods of the mind yet claim to be us. Where in DA7 are the educated, professional, academic, Protestant middle class or the educated, professional, academic, and growing Catholic middle class? I don’t hear these in the voice of the first-person plural “We” who purport to write the manifesto that is DA7.

While the wheels of justice grind on, quietly on the whole, so too does the work of reconciliation , and one hopes that the first need not obviate the second. We can’t and mustn’t annul the past yet must at the same time lean hopefully into the future. Instead of more committees and boards and reports, let’s encourage the three E’s – Education, Empathy and Experience.

Formal education must be secular co-education (of Catholic and Protestant); there is no acceptable alternative in Northern Ireland to integrated primary, secondary and tertiary education, if with an optimistic future we are to vie with our troubled past. One integrated school is worth a library of reports and a building complex of commissions and units.  Yet secular co-education, far from meaning an amoral curriculum, can teach morality for itself alone and not as an expression of religious belief.

The persistence of the decades of disgrace, politically irrational as we now know, was made possible by the absence of empathy, individually and collectively. Without empathy we can achieve neither reconciliation among (non-violent) political opponents nor the mutuality that underpins civic awareness and common purpose.

With luck, the Roots of Empathy movement being introduced into several Northern Irish primary schools will do far more good than a hundred committees and perhaps spawn its own adult version.

As for experience, the educated youth of Northern Ireland, like the educated youth of all the advanced societies, are having it in spades. I sense a healthy disengagement of many young people from the old party-politics and a discovery of a world larger and more various than Northern Ireland and often incompatible. They are seeing other societies, literally and electronically, and bringing back their tales. The net conclusion? – things don’t have to be the way they are in Northern Ireland. New perspectives. Larger and longer perspectives. Must these not be a form of education and encourage empathy?

Rather than more bureaucracy to deal with the past (we already have enough, including the sort of mechanisms  DA7 proposes), we need finely-timed, vigorous, informed, discriminating opinion. The Belfast Agreement must be re-animated by forceful and eloquent leadership, first among the parties, then among us all as fellow citizens. The people must be carried and invigorated by sentiment and fair argument, not pacified and passivated by what are already Chinese boxes of officialdom.

Above all we need time, a moratorium on new bureaucratic structures. Who told Haass and O’Sullivan that “We are standing at a cross-roads in Northern Ireland”? Northern Ireland is not on the edge of the abyss, nor even in crisis. There are times when politicians (and diplomats) should back off and this is one of them. Outside Stormont and certain troubled neighbourhoods of Belfast, good things are rolling out. The Haass-O’Sullivan proposed Agreement should be courteously rejected, if alone to repudiate the notion that we are on the brink.

©John Wilson foster

A comprehensive and inclusive strategy for examining the role of history in our society and politics    

By Brian Walker 

Hon Senior Fellow the Constitution Unit UCL, formerly BBC NI Political Editor and Current Affairs Commissioning Editor BBC Radio 

Preamble

Haass has come and gone. What can academics do to keep the agenda alive?

In the Haass talks, the political parties were in a cleft stick. They seem to have thought that academics might be able to fire magic bullets to help get them out of all sorts of jams.  Yet they wanted to control the process in case the academics got it wrong and sold their particular pass.  They therefore threw in wish lists of themes (very incomplete as it happens), to try to make sure their own babies weren’t buried.  But they finally recognised that some objectivity was necessary and that they might have to concede independence within agreed terms of reference if an academic project was ever to get off the ground.

While at this early stage there  appears to be some tension between academic freedom and the anxiety of political parties to have their cases fully recognised, I doubt in the end that this will present too much of a problem. However acute their own differences, the parties will accept on reflection that reputable academics will not touch the political dirigisme of the Haass document with a bargepole. The terms for an historical inquiry cannot be prescribed by those who are part of the subject. The academics can always walk away regretfully; they can even carry out some of the mooted exercise on their own.  The politicians should rely on the fact that the integrity of contemporary historical research is well established. Terms of reference can be agreed by all which leave the results depending on the evidence. No issue however vexed will be left unexamined. The terms for access to archives can be tackled by an appeal to best practice and by invoking the two governments’ necessary and contingent approval for a major inquiry.  While what is needed is a more complex structure than the traditional government inquiry, the precedent created for the operational independence of inquiries is well established and useful here.

I can understand why Arkiv grabs at the life raft of the Historical Timelines Group to keep the whole project afloat. However I do not see it as a strong enough vehicle for achieving clarification on its own. The latest and best evidence of paramilitary activity and counter terrorism contained within fresh archive research and information retrieval is bound to influence the broader historical themes and narratives.  Multi-disciplinary panels of academics and journalists should be closely involved in information retrieval and the residue of completed historical cases review, in order to draw out important conclusions which the documentary archives may not fully cover. A major investigative exercise is needed.

It is hardly unknown for historians to investigate live issues and I would earnestly hope that they would join journalists and legal investigators in this essential task.

A strategy is needed now.  For this epochal public project a multidisciplinary and inclusive approach is fundamental.  Below I suggest a more complex architecture for a modus operandi and terms of reference which approximate to what might eventually transpire. I do this because experience shows that it’s better to be pro-active than reactive. When you think about it, who else is better qualified to create it, if necessary with the help of friendly academic administrators and retired senior civil servants?  Serving officials would refine it. Professional reputation is a strong card to play. In their awkward fashion, the parties know this.

Strategy

1. It has to be faced:   this is a project with a political purpose on behalf of the whole community and will therefore be regarded differently from a conventional programme of historical research. In the zero sum game of Northern Ireland politics, it is all too easy to be misunderstood, wilfully or otherwise. The project must range comprehensively.  Addressing the full range of topics is a formidable task requiring a variety of different skills. Different teams with a different mix of skills will tackle different topics. But it should be axiomatic that all evidence is shared, while fully acknowledging that conclusions may differ on the same evidence. Scholars with a sense of common purpose should instigate their own scoping exercise for the topic categories covered in the Haass document, as the basis for cooperation with a working group set up by the Northern Ireland Executive and others. The group should guard its objectivity jealously. Too narrow a brief risks being misrepresented as avoiding uncomfortable topics. To command widespread public confidence, a comprehensive project is essential.

2. The group should resist the temptation to issue a political critique of the Haass agenda at this early stage and so risk getting drawn into piecemeal and distracting controversy. The group members might remind their interlocutors that while eager to supply correctives to myth and memory, academics do not write to order to achieve political goals. Those are the business of all good politicians and citizens.

3. At their broadest, the terms of reference for any such project would be to describe the course of the Troubles, its background and legacy, draw out lessons for preventing recurrence and for building a more permanently stable government and society. This is somewhat but not unmanageably wider than the Haass agenda.  Remarkably perhaps, such a holistic approach has not yet been attempted and is long overdue. While it would be undertaken under difficult conditions in which the issues are still very much live, a community of scholars and investigators exists which is well able for the task. The Haass document recognises this and indeed makes several appeals for help. This puts scholars in a strong position to assert their independence while at the same time aiming to satisfy the legitimate wishes of the commissioning politicians.  In order to maximise buy-in and access to archives, the commissioning role should include the British and Irish governments.

4. The Haass document deals with different issues whose common factor is the relationship between the main traditions in Northern Ireland and how they might better co-exist and interact. The present constitutional legal and political framework is a natural starting point for exploring the outworking of the traditions. But like any other elements in the story, the GFA and the St Andrew’s Agreement are open for review.

5. Haass envisages five new institutions. How might scholars contribute?

  • A Historical Investigations Unit (HIU)
  • An Independent Commission for Information Retrieval (ICIR)
  • A Commission on Identity, Culture, and Tradition.
  • An archive for conflict-related oral histories, documents, and other relevant materials from individuals of all backgrounds, from Northern Ireland and beyond.
  • A new regime for parades, select commemoration and protests.

6.  Independent Commission for Information Retrieval (ICIR)

Research would concentrate initially on the open archives of Northern Ireland and British and Irish governments and their police forces, armies and security services. The overarching aim is eventually to create a narrative and analysis of the Troubles, what happened, why and wherever possible, “who, whom.”  But the whole emphasis – perhaps even the main focus – should not be on terrorism and counter terrorism.  Understanding the Troubles requires broader treatment than focusing on the activity of the Troubles alone.

No less than an up to date history of Northern Ireland is required, set in its own context and its British and Irish contexts and with added sociological and psychological explorations of the impact of the era on society and people’s lives.

For research into paramilitary activity and counter-terrorism, the ICIR is likely to be the main focus of endeavour.  The ICIR should be the driver and organising mechanism for fresh field work in which our researchers would participate while others deal with victims and survivors under separate protocols. All information should be shared.

6.1 In the best traditions of investigation, research should extend from the archives to personal testimony. Researchers should gather volunteered material but also take bold initiatives in approaching survivors, either directly or through trusted third parties, for their response to evidence from closed cases and other sources, armed with a code of protection for anonymity.  Where necessary Interim conclusions should be published based of archive research alone.  In some cases publication might loosen the tongues of reluctant witnesses or perpetrators. Interim conclusions may also be reached on whether new informants will opt to use the ICIR to avoid the investigative arm of the HIU.

6.2 The Haass parties were clearly eager to leave no stone unturned in identifying themes and patterns and placing them under quite elaborate forms of monitoring and supervision. While ICIR research would be subject to legal conditions and suggestions for developing themes would be welcome, it should be made clear that researchers should operate independently of political control, in keeping with best practice. They may be relied upon to explore fully the themes exposed by their research.

7.   The Historical Investigations Unit would be a statutory body of investigators and the legally qualified to complete the review of historic cases and conduct further investigation with a view to prosecutions. As Haas states, “there will be a strict separation, enshrined in the enabling legislation for ICIR, among the personnel, resources, premises, and records of ICIR, the HIU, and any other criminal justice institution”. But material from closed files should be made available to inform the close narrative of Troubles.  Hesitation over researching this area is puzzling. The records will be more replete with highly prejudicial accounts of paramilitary activity than with questionable police conduct in interrogations.  Material can also be gathered from families to whom the HET has already reported.

Before cases are closed however, there is a public interest in knowing how case review has been conducted beyond what is known already from cursory statements by the Chief Constable, the Attorney General and the Director of Public Prosecutions, all of whom should be approached for fuller analyses. Topics include:

  • the claim that the chances of fresh prosecutions are limited;
  • the conclusion that State actors received favourable treatment by the HET and the Police Ombudsman, the former having been endorsed by Her Majesty’s Inspectorate of Constabulary;
  • the likely extent of further criminal cases review of convictions obtained on a lower standard of evidence prior to the Human Rights Act 1998.

Evidence should also be drawn from other records in the criminal justice system, as well as the British and Irish security services and armies.  A full exploration of this territory is essential.

8. A Commission on Identity, Culture, and Tradition

A new regime for parades, select commemoration and protests 

An archive for conflict-related oral histories, documents, and other relevant materials from individuals of all backgrounds, from Northern Ireland and beyond   

The commission’s researchers should develop proposals for background and discussion papers on symbolism, traditions and identity to inform public debate and policy and to report publicly on the responses.  Inter alia these would embrace the issues of flags and parades. The exercises would inform a review of the teaching of heritage, history and aspects of culture in schools and make recommendations for strengthening social cohesion.  In consultation with local bodies, academics would construct dialectics and dialogues on contentious issues to show how they might be better tackled.

9. Support should also be given for a public archive of oral history and private documents but (contrary to Haass) curated to include “inflammatory” material for limited access and avoiding any suggestion of whitewash and exaggerated political correctness.

10. It is essential that the inquiry extends to the activities the British and Irish governments who were responsible for policy throughout the Troubles. Scoping assistance could usefully be sought from those with relevant experience: for UK sources such as Christopher Andrew (MI5), Keith Jeffrey (MI6), Peter Hennessy (contemporary British government), Paul Bew (Saville inquiry etc.); for Irish sources you need no suggestions from me, likewise for  paramilitary research and counter terrorism when the work of Richard English and investigative journalists such as Peter Taylor, John Ware, David McKittrick,  Ed Moloney, Barney Rowan and Eamonn Mallie is so well known.

11. While the timing may be awkward due to the possible imminence of the Iraq Inquiry report, it would be useful to seek guidance from Sir John Chilcot, ex PUS of the NIO and Clare Salters, a senior NIO civil servant who is a deputy secretary to the Iraq Inquiry. The Iraq terms of reference are also worth noting mutatis mutandis as being “unprecedentedly wide” (although running into difficulties).[1]

The terms of reference of the de Silva inquiry may offer an important precedent for access to security files[2].

12.   Structure of the project

The Assembly, with the full support of the British and Irish governments, would set the project up, decide on archive access, agree terms of reference and pass any necessary legislation. It is appropriate that the overall accountability for the entire project should rest with the Implementation and Reconciliation Group, which is to be dominated by politicians. But public confidence is best achieved if the project is conducted independently by multi-disciplinary teams of professionals who enjoy open access to archives and work for the cooperation of all categories of survivor.

Close supervision and prescription by parties representing different traditions albeit members of the same Executive, would amount to a gross conflict of interest.

 

13.   A commission of scholars and investigators should be created:

  • To devise its own structure, roles and business plan.
  • To select a small project leadership team representing the range of skills
  • To scope the entire project, agree work plans and professionally monitor progress
  • To create multidisciplinary panels to participate in archive research and information retrieval and then to produce outputs
  • To help create a commission on identity culture and tradition for contributing to public debate including different perspectives on flags and parades
  • To submit criteria for a new public archive and learning centre in association with PRONI and National Museums of Northern Ireland.

14.  The commission should otherwise consist of professional panel leaders, with the addition of a moral philosopher.

The configuration and skills of teams requires careful thought, illustratively as follows:

Information retrieval work to be carried out by public servants, historians, journalists and legal scholars.

HIU extraction to consist mainly of a team of legal scholars nd investigative journalists.

 Impact on society by a team of sociologists and political scientists.

Creating a timeline, identifying themes and patterns and writing narratives and analyses which are the main output to be carried out by a team mainly of historians with some journalists and legal scholars.

15.  A “Commission on Identity, Culture, and Tradition” becomes a mixed group with a majority of historians and political scientists. Its roles are to prepare position papers for debate and schools education; open a public archive; and run an interactive website for the whole project.

16. Formats and presentation

It should be agreed that all output writers should have access to all evidence and research.

Consideration is needed of whether to produce separate long signed essays either freestanding or in dialogue with each other, or collective anonymised outputs, albeit with open discussion of differences and without necessarily reaching agreed conclusions. In most case I favour the former but exceptions should be allowed.  In addition analyses presented in dialogue form could become useful tools for the efforts of politicians and others to resolve differences. There is an important role here for a live and interactive website.

17. Arkiv may want to concentrate on a more limited role for itself in a wider project. I would nevertheless urge it to consider a wider strategic approach for the reasons stated. Of course none of the bodies may come into being in the form described in Haass but their essential elements deserve to survive. The NI Executive and the two governments will no doubt consider a number of bids. The more strategic you can be about designing the overall shape of the project and inclusive about its membership, the better.

Brian Walker

The Constitution Unit,

University College London

Notes

[1] Iraq Inquiry. Chair Sir John Chilcot former perm sec NIO. ). Conducted a review of Royal and VIP security, an inquiry into the IRA break-in at the PSNI Special Branch HQ (2002), and the Review of the Intelligence on Weapons of Mass Destruction by a Committee of Privy Counsellors, chaired by Lord Butler (2004). He was Staff Counsellor to the Security and Intelligence Agencies (1999-2004) and to the National Criminal Intelligence Service (2002-06). He was Chair of the Advisory Committee at the Centre for Contemporary British History and a member of the Institute of Historical Research Advisory Council (2001-09). 

Clare Salters, Deputy Secretary, was seconded from the Northern Ireland Office to the Inquiry from July 2009 to September 2012. As Head of Constitutional Policy & Liaison, she was part of the team that restored devolution and devolved policing and justice in Northern Ireland. Her previous roles include work on human rights and equality, police reform, public inquiries and serving as Private Secretary to the Head of the Northern Ireland Civil Service. She has also worked in the Department for Culture Media and Sport and the Northern Ireland Department for Health and Social Services.

“The inquiry will consider the period from the summer of 2001 to the end of July 2009, embracing the run-up to the conflict in Iraq, the military action and its aftermath.  We will therefore be considering the UK’s involvement in Iraq, including the way decisions were made and actions taken, to establish, as accurately as possible, what happened and to identify the lessons that can be learned. Those lessons will help ensure that, if we face similar situations in future, the government of the day is best equipped to respond to those situations in the most effective manner in the best interests of the country.”

When he announced in the House of Commons the setting-up of the Inquiry, Gordon Brown said, “Its scope is unprecedented.”

[2] Terms of reference for the de Silva inquiry; “The Review will have full access to the Stevens archive and all Government papers, including any Ministry of Defence, Security Service, Home Office, Cabinet Office, or Northern Ireland Office files that you believe are relevant.”

Recent Posts

A short note on history after Boston College

When the controversy over handing the Boston College tapes became public in the summer of 2012 Professor Eunan Ó Halpin of Trinity College offered a robust defence of victims’ rights. In questions of murder, disappearance, torture and human rights abuses, justice, he argued, must take precedence over academic research.

 

However, since then the process of academic research has been called into question by the role the tapes have played in the recent arrest of Sinn Fein President, Gerry Adams, by the Police Service of Northern Ireland (PSNI). Professor Paul Bew, for example, mentioned on the Today programme (5 May 2014) that something of a ‘freeze’ will probably be felt  by oral historians and political journalists in Northern Ireland – and elsewhere – as a result of recent events.

 

On his release from police custody, Mr Adams stated that ‘[t]he allegation of conspiracy in the killing of Mrs McConville is based almost exclusively on hearsay from unnamed alleged Boston College interviewees but mainly from Dolours Price and Brendan Hughes’.

 

Both Mr Adams and his colleague Gerry Kelly reaffirmed Sinn Féin’s commitment to the peace process and supporting the PSNI; also, on the same Today programme, Mr Kelly reaffirmed Sinn Féin’s commitment to the Haass/O’Sullivan proposals for dealing with the past.

 

At one level, Mr Adams is correct: oral testimony remains hearsay unless it is placed in a context of other evidence. As Orlando Figes points out in his account of private life in Stalin’s Russia: ‘Like all memory, the testimony given in an interview is unreliable, but, unlike a book, it can be cross-examined and tested against other evidence to disentangle true memories from received or imagined ones’.

 

Mr Adams suggested that the only way for society to go is forward. As such, the Adams/Boston College tapes saga ought not to spell an end to the process of an historical reckoning or working through the past.

 

The challenge to the role of historical enquiry in the light of the Adams/Boston College events is perhaps not as critical as it may first appear. Arkiv has suggested that the issue of public history is not only to do with production but also consumption. In other words, there can be a tendency towards looking to aspects of the past to confirm our views in the present. As Eric Hobsbawm (cited in an earlier post by Brian Walker) pointed out ‘[m]yths and invention are essential to the politics of identity’. As Hobsbawm goes on to argue, a key task of the production of historiography is to engage with and weigh up these myths against the available evidence. Arkiv have also pointed out that a major flaw in the Haass/O’Sullivan proposals was to ignore the dynamic between the two approaches and, instead, to conflate them under a ‘thematic’ umbrella.

 

In the absence of an informed process of historical clarification the risk of hearsay dominating the agenda is always likely to be the case. Refocusing on the historical experience of victimhood, as Professor Ó Halpin suggested, is one route away from that possibility – always in the context of the evidence of political agency at the time. These are not mere ‘legacy issues’. Legacy issues imply some residual fragments inconveniencing the present, not matters of historical value.

 

According to the German philosopher Walter Benjamin: ‘The true method of making things present is to represent them in our space, not to represent ourselves in their space … we don’t displace our being into theirs; they step into our life’.

 

In other words, ‘moving forward’ consists not in writing contemporary politics back into the past but in developing an evidence-based representation of the past in and for the present. That task has not been diminished by recent events. Its value, we would argue, has been enhanced.

 

 

 

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  2. Dealing with the Shadows of the Past Leave a reply
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  4. Historical Fallacies – Part Two Leave a reply
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