Truth or justice, or both?

The push and pull of truth and justice in Northern Ireland have left our handling of the past at a virtual standstill.

Since 1998 and the Good Friday Agreement, even with its strict limits on maximum jail time for Troubles-related crimes, most of the question marks about our recent history remain just that.

Moreover, what has gone before is still NI’s biggest blockage into the future.

The Historical Enquiries Team was axed late last year and most of the disappointment was in principle, with the organisation itself viewed with diminished confidence.

To state the obvious: truth involves candid admissions, most importantly from people who, increasingly long ago, did things that have caused pain to this day and will continue to do so for many years to come.

Justice involves to a large degree those same people going through the courts, making admissions or being found guilty and, for the most part, going to prison.

The tussle between these two ideas takes place where people might want to talk about the things they know or have done, but don’t want to be locked up for it.

These conflicting pressures are the most significant forces in our attempt to deal with the past. Together they leave many feeling like they work very hard, only for social progress to be glacially slow.

But is there a way around this?

The Stormont House Agreement

Last week, the Committee for the Administration of Justice (CAJ), Amnesty International, and our two universities hosted a conference at UU, Dealing with the Past in Northern Ireland: Implementing the Stormont House Agreement.

Without rehearsing the arguments about the SHA – though it is hard to see why direct rule would not follow it on matters of the past – its structure in this area is nothing new but interesting nonetheless.

It proposes a set of new institutions with complementary roles, namely:

• The Historical Investigations Unit (HIU) ‘an independent body to take forward investigations into outstanding Troubles-related deaths’
• An Independent Commission on Information Retrieval (ICIR) ‘to enable victims and survivors to seek and privately receive information about the deaths of their next of kin’
• An Oral History Archive ‘ to provide a central place to share experiences and narratives related to the Troubles’
• An Implementation and Reconciliation Group ‘to oversee themes, archives, and information recovery’

The idea is that these organisations together will provide the best possible mechanism for dealing with the past.

However, the SHA deals only in outlines. The conference sought to identify how the finer details might and must work if these organisations are to achieve their goals.

The HIU would effectively be the replacement for the HET. A panel discussed its role and identified a number of necessary conditions for it to work: independence (specifically, its investigators should not contain former UK security force members or gardai); prompt timescales for investigations; thoroughness (beyond the obvious, this means that findings of fundamental facts relating to incidents is not sufficient, context must also be established) effectiveness; and victim participation.

It should also be its own policing power as well as having access to as much raw information – i.e. not redacted – as possible, with security concerns about publicity being applied to the reports it issues rather than the evidence it considers.

The ICIR would be a place where victims – a term yet to be fully defined – could voluntarily seek information about the deaths of loved ones, without the aim of prosecutions.

At first this sounds close to an amnesty, but the ICIR as discussed would not come with any guarantee of general protection for those culpable in violence. Instead, statements given to the ICIR would not be disclosed to other justice agencies and would be inadmissible as evidence in criminal or civil courts.

That would not however block any such legal action or affect any the status of evidence outside the statements given to ICIR.

This, together with its victim-focused voluntary nature, would allow ICIR to work as a truth mechanism without getting in the way of the HIU’s pursuit of justice – abandoning which would be disastrous.

So, this careful construction might be able to walk a fine line, along which truth and justice are not in constant squabble.

However, the unfortunate reality is that expectations for success for either and both of these bodies should be tempered.

The fact that so much of our past is still shrouded tells its own story about what we should expect.

Indeed, Professor Kieran McEvoy from QUB told the conference: “People have been oversold prosecutions.

“Even with the best will in the world and all the resources coming forward, there would not be a huge number of successful prosecutions from the HIU – that is my opinion as a lawyer.”

He called for realistic expectations but also said that, done correctly, the agreed SHA institutions could make progress.

“You build institutions where, if there is a moral impulse – and that’s what we are talking about – where people want to voluntarily come forward, you have institutions robust enough to deal with this.”

The oral history archive would provide a place for people, most notably victims, to discuss their experiences and for this to be a matter of record.

The idea is that it would be an empowering device, in contrast to the agonising delegation of reliance on investigative bodies – seeking either truth or justice – providing a platform for anyone with something to say.

None of this promises, or would ever provide, a full and honest disclosure about every terrible thing that happened in the Troubles, and all the tangled reasons for it within the inner workings of Republican and loyalist paramilitary groups, and the security forces.

However, it could be the best way to progress two apparently contradictory aims.

Slow going – but going still

Progress in Northern Ireland might be slow but, for most of us, it is undeniable. The past three decades have been an upward curve. Going back ten years, 20 and 30 for snapshots is illustrative:

1985 - violence.

1995 - an IRA ceasefire in place and, amidst much scepticism, some recidivism, and the official continuation of loyalist paramilitary activity, initial steps were made on the path to peace.

2005 - decommissioning, less than two years to Stormont elections.

And here we are, 2015, and Welfare Reform could collapse the Assembly this week. It would be a blow for progress, but hardly a fatal one.

Public opinion on the work of the Assembly might not be positive but the institutions have (so far) survived a recession and, if the House does come down, at least it won’t be for sectarian reasons.

There are some who have not felt the benefits of peace, outwith the large number of victims for whom truth and justice mean the most, and they will have to be brought along and allowed to feel the real worth of developments of the last 30 years.

If that can be done, then easily the most important factor in our future is dealing with the past.

Truth and justice do not walk hand in hand. But perhaps there is a chance we can get some of both.