Fintan O’Toole: Justice is not available for victims of the Troubles

The victims of violence during the Troubles deserve both justice and truth. If justice means the prosecution and punishment of the perpetrators, they won’t get it.

To face facts: there has not been a single conviction of a member of the security forces as a result of a “legacy” investigation. The record of such investigations in relation to members of paramilitaries is not much better.

Justice, in the conventional sense, is not available. And until we are honest about that bitter reality, most of the bereaved have little chance of getting the truth either.

The findings of the inquest into the killings of 10 civilians by the British army in the Ballymurphy area of west Belfast in August 1971 were announced on Tuesday. They confirm what has long been obvious enough: that those people were innocent.

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Joe McCann, the Official IRA man shot dead in 1972 by members of the same Parachute Regiment, was not innocent in the same sense, but he was shot while unarmed and attempting to evade arrest. The trial of two soldiers accused of killing him collapsed on May 4th because effectively all the evidence against them was ruled inadmissible. There is little reason to believe that prosecutions of those who fired the shots in Ballymurphy in 1971 would have a different outcome.

Who wants to look the Ballymurphy families, or all the other bereaved people, in the eye and say: nobody will be prosecuted for killing your loved ones? But there comes a point where the refusal to do so is both cruel and dishonest. It deepens the pain by sustaining expectations that cannot be fulfilled. And it gets in the way of the urgent task of telling as much of the truth about the Troubles as can possibly be recovered.

Very large numbers of people – in the state forces, and in republican and loyalist paramilitaries – have got away with murder, and with maiming, mutilation, torture, kidnapping and the infliction of lifelong trauma.

In 2018 the Legacy Investigation Branch of the Police Service of Northern Ireland (PSNI) had 1,186 unsolved Troubles murders on its books. Add to that the 16,209 bombings, 36,923 shootings and 47,541 people injured in Northern Ireland. Then add the hideous massacres in Britain and the Republic – Dublin, Monaghan, Birmingham, Guildford and others.

We’re dealing with – or mostly, not dealing with – somewhere far north of 50,000 crimes of extreme violence. Even if all the police forces on these islands did nothing else but try to solve these crimes, the chances of them producing enough evidence to get convictions in more than a handful of cases would be very slim.

Four convictions

Between 2012 and 2020, the very considerable investigative resources devoted to “legacy” investigations resulted in a mere 17 cases going forward for prosecution and just four convictions.

It is also worth bearing in mind that anyone convicted of a Troubles-related offence committed during 1973-1998 will, under the Belfast Agreement, serve a maximum of two years in prison – however awful the crime. All that effort has led to a total, at most, of eight years served behind bars.

This is an awful situation, not just for those who lost loved ones, but for those who are living every hour of every day with the physical and mental pain of their own injuries.

It is also politically toxic. When only a tiny fraction of the crimes are prosecuted, those prosecutions take on a random quality: why this murder and not that? Is there a hierarchy of victims?

It is clear that the legislation will end attempts at prosecutions for Troubles-related crimes committed before 1998

The memory of murder becomes cynically selective. Many Conservatives and much of the Tory press want amnesty for British soldiers who shot unarmed civilians, but not for paramilitaries who did exactly the same thing. Sinn Féin denounces the failure to prosecute those soldiers, but glorifies mass killers from the IRA. Respectable unionists denounce Sinn Féin’s ambivalence but give political credibility to the loyalist paramilitaries who engaged in sectarian slaughter.

Everybody knows this. The Committee on the Administration of Justice has counted 11 distinct proposals for dealing with “the legacy of the past”. Most recently, in January 2020, the British government committed itself to introducing legislation to deal with the legacy aspects of the Stormont House Agreement within 100 days. Those days came and went – as have all the other efforts at a comprehensive approach to the problem.

On Tuesday, just as the Ballymurphy families were waiting for the verdict from the inquest, Queen Elizabeth was delivering the queen’s speech at Westminster, setting out her government’s legislative agenda. It will include legislation to “address the legacy of the Troubles in Northern Ireland”.

There has been deep suspicion about this move, much of it fully justified by the lack of consultation and the leaks just before last week’s elections in Britain that the plan includes an amnesty for British soldiers accused of crimes during the Troubles.

This bad process should not, however, lead to an out-of-hand rejection of the proposals. Something has to change – let’s see if the draft legislation, when it emerges, can finally create a system that places the needs of victims and their families at its centre.

Conditional amnesty

It is clear that the legislation will end attempts at prosecutions for Troubles-related crimes committed before 1998. The focus will instead be on “information recovery and reconciliation”.

This sounds, at least in principle, like a response to the very detailed proposal put forward last year by John Green and Pádraig Yeates, in consultation with victims, combatants from all sides and people in political and academic life.

It suggests the creation of two implementation bodies, one aimed at “truth recovery”, the other at “justice facilitation”. The first, staffed by independent professional civilian investigators, would gather and verify information from all available sources, including perpetrators. The second, using practices developed in restorative justice programmes, would help victims and bereaved families to access and deal with this information in a way that is most dignified and sensitive to their trauma.

A key difference may be on the question of amnesty. It seems likely that the British government wants to give blanket amnesties. But crucial to the civic proposal is that amnesties should be conditional: you get one if you co-operate honestly and fully with the process of truth recovery.

It can be argued that there is no real difference between a decision to stop actively trying to prosecute perpetrators and a general amnesty. But there is a huge disparity in principle. It matters that the pressure is not to forget about what happened but to remember it. Amnesty does the first; truth recovery the second.

This is where the Irish Government and the political parties in Northern Ireland should concentrate their concerns. Telling victims that there is some future in which they will get conventional justice in court is easy but dishonest.

Offering them a serious process of care and a stringent path towards whatever truth can still be found is not the best possible outcome. But it is the best that can be achieved and therefore the least that must be done.