Long arm of law in North puts justice on long finger

William Faulkner, Nobel laureate for literature and novelist of the United States Deep South’s suffocating constrictions, could have been describing Northern Ireland when he wrote: “The past is never dead. It’s not even past.”

All major parties including the two governing coalition parties, DUP and Sinn Féin, which operate together in a mutual-detestation, non-aggression pact, say they accept the need to deal with the ongoing trauma to survivors and victims arising from past killings by paramilitaries of all hues and by State forces, but the North’s politics remain in the shadow of unresolved killings and conspiracy.

Assent is given by all to the proposition that victims have a right to truth and to justice and that festering grievance can only impede personal and community healing. There is a recognition by wider civic society that if Northern Ireland is to tackle the ever-deepening social and economic challenges (exacerbated by Brexit) “The Past” will have to be confronted.

A recent BBC Spotlight programme featured three harrowing and tragic cases where, even four decades on, there is not even agreement on the basic facts, where key evidence from State actors has not yet been handed over or it has been subject to obstruction and even concealed.

The Police Service of Northern Ireland (PSNI) and Northern Ireland Court Service (NICS) say they do not have the resources to investigate historic crimes. There are more than 50 outstanding controversial cases involving 98 deaths including some of the most controversial of the Troubles such as Ballymurphy (1971), Kingsmill (1976) and Loughgall (1987).

The Lord Chief Justice of Northern Ireland, Sir Declan Morgan, has proposed a path-finding mechanism whereby all outstanding legacy inquests, currently being dealt with at the glacial rate of about two a year, could be cleared up within five years if the relatively modest sum of £10 million was provided.

However, First Minister Arlene Foster has vetoed a bid to put the request for funding to the Northern Ireland Executive and is in a stand-off with her Deputy, Martin McGuinness. Foster has asserted that she will not facilitate any process to rewrite the past history of conflict, given that the great majority of legacy inquests involve killings by State actors.

Some contributors to the debate assert that, broadly, up to 85 per centof all killings in the North were by paramilitaries (60 per cent republican, 25 per cent loyalist) and they see a disconnect, an imbalance in accountability, if the legacy inquests relate mostly to alleged State killings. They say that State actors kept records and maintained a paper trail, whereas paramilitaries do not and that, if the latter are called to account, they will resort to anecdote and unreliable recollection.

These are understandable concerns which makes some reluctant to engage in the “dealing with the past” debate. The result is that some of those who claim “legitimate victimhood” are marginalised and their voices are not heard.

Over the last two decades, in relation to societies in transition from war to peace, the juridical concept of transitional justice has created the notion of a “theatrical space” where the normative role of political negotiation can be superseded by the law.

In a notably incisive and innovative contribution, Dr Catherine Turner, a native of Northern Ireland and a lecturer at Durham University Law School, draws on international experiences in places like South Africa and Rwanda, as well as the North itself, to explore the way in which law itself can at times be complicit in perpetuating conflict and at other times, because it is political, can be inherently divisive.

Law, principally human rights and criminal law, can in an adversarial system can be too narrow a basis for examining the past. In this way law can perpetuate division rather than overcome it, and fall short of desirable ends like contributing to reconciliation, better understanding of the past and the lessening of sectarianism.

For Turner, transitional justice creates binary opposites that are too rigid and distinct in positing the move from a state of war (violence) to a state of peace (law). To this extent, the success of political violence could lie in the extent to which it succeeds in securing post hoc legitimation through law. For her, law is not necessarily an impartial and objective arbiter of justice.

Turner asserts the validity of the need to pursue a deeper political solution and that division about the past cannot be resolved by legal adjudication and must be the subject of ongoing democratic political mechanisms of negotiation to resolve tensions peacefully.

When politicians with the democratic mandate that Foster and McGuinness have arrive at stalemate, the North’s already fragile political process is further discredited. My belief is that movement on Sir Declan’s proposal would create virtuous circles which could break down attitudes to the past which at present divide on predictable unionist/nationalist lines.

More than that, it could generate a chain reaction of disclosure, transparency and accountability beneficial to all and in unimagined ways create the goodwill needed to move the North forward on all fronts. At present, State and paramilitary actors are effectively giving each other cover to block the truth of the past emerging.

The bitter reality is that some of the victims’ families I talk to are becoming ever more despairing and even embittered as the years roll by and they believe that those who killed their loved ones, whether in or out of uniform, are just waiting for them to die.

Violence, Law and the Impossibility of Transitional Justice by Catherine Turner is published by Routledge. Claire Hanna is SDLP MLA for South Belfast. She holds a master’s degree in law from Queen’s University Belfast