Musings Often in Stereo

Note: The last (and easily longest, at 8900 words counting citations) of my papers, this beast was written for POL 4410: Justice in Times of Global Transition for Professor Leigh Payne. It analyzes the work of the Consultative Group on the Past, a commission in Northern Ireland, and its recommendations for ways forward after the Troubles of 1966-1998. It is missing a more healthy analysis of Northern Irish identity, something I intended to use to frame transitional justice as inherently ineffective in NI, but the Report the Group lays out is long enough and filled with both positive and negative aspects to transitional justice. Ultimately, I find that while it will do some good for society, the end result will be lacking to fix Northern Ireland’s problematic history of sectarian violence. Do look out for Professor Payne’s book The Justice Balance,  co-written with other members of her Transitional Justice Data Base team, which hopefully will come out in 2010. I used a draft copy, along with she and her associates’ draft papers, in my analysis.

Evaluating the Effectiveness of the Consultative Group on the Past on Northern Irish Transitional Justice

The Troubles were a lengthy period of political turmoil and violence in Northern Ireland that spanned from the mid-1960s to the signing of the Good Friday Agreement in 1998. Over four decades of turmoil, sectarian clashes between republican forces, represented by the Irish Republican Army, and loyalist forces, notably the Ulster Volunteer Force, waged a long conflict with motivations spreading from secession to the Republic of Ireland, religious divides, and general retaliation. All told, the conflict killed over 3,500 people. With the signing of a power sharing agreement in 1998, a coexistent peace has been part of the agenda of both the Ulster Unionists, the loyalist party, and Sinn Feìn, the political wing of the IRA. As part of this peace, there has been a movement toward the use of transitional justice techniques. The Eames-Bradley Group, also known as the Consultative Group on the Past, researched these techniques and made a lengthy list of recommendations for the continuation of the transitional justice process.

The group set out in September 2007 after an initiation by Peter Hain, the Secretary of State for Northern Ireland. It sought out views on three core areas: the legacy of the past 40 years of violence and reconciliation, the lessons to be learned, and the public’s suggestion for steps to “support Northern Ireland society in building a shared future that was not overshadowed by the events of the past.” Concerns of a Northern Irish diaspora forced the group to solicit views from the entire world, namely in Britain and the United States. All told, the group received 290 written submissions and over 2000 letters; it also took private meetings with 141 people/groups and held public meetings in seven cities including Belfast and Derryⁱ. The Group sought to take elements from the history of post-conflict justice, analyzing truth commissions and other forms of transitional justice done in Northern Ireland and abroad; including amnesties, reparations, and dealing with sectarianismⁱⁱ.

The Consultative Group on the Past has been a critical part of the transitional justice process for Northern Ireland. It is important to study their work. By analyzing their conclusions and recommendations in light of transitional justice theory and history; understanding the shortcomings in the report; and by looking into the difficulties inherent in transitional justice for the Northern Irish situation; it will be clear that while the report’s suggestions are made with excellent intentions, they are lacking in an ability to solve the conflict manifest in the Troubles.

Chapter 2: Establishing a Need for Reconciliation and Outlining the Report Ahead

Chapter 2 begins by citing the key principle of the group’s work: “The past should be dealt with in a manner which enables society to be more defined by its desire for true and lasting reconciliation, rather than by division and mistrust, seeking to promote a shared and reconciled future by all.” This principle led to key ways to analyze the conflict and the way forward. First, dealing with the past is a process, not an event, making it necessary to have evolutionary change. Second, sensitivity to victims and survivors is essential. Any methods undertaken must include an understanding that there is a huge amount of people who were victimized in the conflict, and that dealing with the past includes a society-wide effort to care for the victimized, including perpetrators. Third, recommendations should be human rights compliant, respecting the European Convention on Human Rights and other decisions that respect individual rights along with the rights of society. Fourth, relationships matter and are the foundation for reconciliation. Reconciliation involves mutual understandings about blame that doesn’t marginalize certain sects. To reconcile, relations need to be built between the different sides. Finally, consensus agreement is the ideal. Leaders have to take whatever consensus exists in a divided society and build upon that for reconciliationⁱⁱⁱ.

The Group asks a central question: How should the country deal with the past? Simply forgetting seems to not be an option, according to the Group. As memories come out, it becomes clear that burying memories only makes the wounds fester; understandings of the past impact views of the present and future. To stop from having two different moral judgments about the past, the report reasons, people need to listen to other sides and understand their viewpoints. The experience of the Group through the public meetings is that partisans can change their views on what happened and understand that the other side has both failures and dignity, leading to “mutual forgiveness and reconciliation of a shared past.” In terms of the transitional justice implications, reconciliation isn’t necessarily about reconciling two different nations but reconciling even the basic notions of truth^iv.

To reconcile the country for the future requires significant steps in forgiving the past and understanding the truth. It’s important to understand that forgiveness doesn’t involve forgetting the past; rather, in Northern Ireland, both sides must understand the truth that both sides were culpable in some forms. It’s necessary to make steps to agree on what the truth of the conflict is; this involves conversations to tell differing versions of truth. The Commission that comes out in the propositions should push for these conversations, with an end result a signed agreement between parties and paramilitary groups to never kill again on political grounds^v.

For the sake of victims, the Group states, there is a necessity to have an investigatory body to look into the cases of individual crimes. Instead of having a South African-style TRC, the complexities of Northern Irish culture require a private, non-judiciary system that avoids adversarial public trials. Any system needs to be based on keeping both sides open to agree to their guilt and innocence instead of placing guilt on the opposite sect. According to the report, the public side of truth telling should be based on letting each side tell their story without the fear of incrimination. There is a concern that the reticence on both sides to tell any side of the truth will get in the way of this sort of effort; however, there has been work through both sides through non-governmental organizations to get these mutual discussions going, providing hope for the future^vi.

Northern Ireland has a justice system that can handle claims from the past. The major problem with future justice is that while both sides favor continued prosecutions and abhor the idea of blanket amnesties, both sides don’t necessarily support the idea of prosecuting themselves. The private compromise seems to be to draw some sort of line in crimes to avoid how “the very demand for justice can militate against the main goal of reconciliation,” but to keep the door open for prosecutions and have an end goal to determine where the line is to be drawn for amnesties in the future^vii.

Chapter 2′s explanations do not necessarily suggest any methods for reconciliation; rather, they make the case for further ones. They note the difficulties of post-conflict justice in a complex sectarian society like Northern Ireland; these continuing conflicts are part of the justification for keeping portions of the reconciliation process out of the public eye. The methodology of truth telling in the report contains clear parallels to the South African TRC; ironically, the Group recommends against some of its basic ideas. In the South African TRC, there was a major effort on the part of Desmond Tutu to be victim-centric instead of retributive^viii; this focus is repeated in the Northern Irish investigations, which aim to focus on answers for victims instead of prosecuting their perpetrators. Furthermore, the expectations for victims and survivors are similarly lowered. The Reparations Committee of the South African TRC made it clear to victims that there should not be an expectation of much financial assistance, citing a lack of resources^ix. A similar tone runs through the feeling of a de facto Irish amnesty process. Finally, both the South African and Northern Irish processes make it clear that the end result must be a record of the conflict that is objective and amenable to both sides.

The differences between the two, however, are striking. First, there is the cited need to have a closed process in Northern Ireland, rather than the catharsis of the South African TRC. Northern Irish justice requires initial admissions of guilt that cannot come out in public; unlike in South Africa, where there was a knowledge that acts were criminal, the Northern Irish case finds sects assigning blame to the other side with no personal incrimination. Only in private discussions, the Group noted, were victims and political groups able to stand off of the posturing of victimhood. The privacy of incrimination flies in sharp contrast with the South African case, where testimony in front of the Human Rights or Amnesty Commissions involved admitting to society your level of guilt^x. Last and most striking, the Northern Irish do not give de jure amnesty, as will be exposed in Chapter 7.

Chapter 3: Creating a Cohesive Truth to Reconcile Around

Part of the Consultative Group’s work was to develop an unbiased and coherent version of the past. It opened this effort in Chapter 3 with some staggering statistics: between 1969 and 2001, violence between Republicans and Loyalists killed 3,523 people. Roughly speaking, 60% were killed by republican forces, with 30% killed by loyalists and 10% killed by British and Irish police. The violence was centered primarily around Belfast and within Northern Ireland, with some violence spreading into the Republic of Ireland, into mainland British cities like London and Birmingham, and also into continental Europe with IRA attacks on British Army troops. A majority of the deceased are believed to be civilians. An estimated 47,000 were injured in the violence, with scores more the victims of armed robbery, arson, and other crimes that led to nearly 20,000 imprisonments. The report then attempts to reconcile the different views of Northern Irish society on how the conflict has had a lasting impact. Victims and survivors, the report claims, are suffering from not only the physical impacts of their injuries, but also the loss of loved ones. To the “wider society,” there was an effort to stay out of the conflict by continuing their lives; their ideal move is to move on. Republicans and nationalists, in different ways, see themselves as victimized by the British push for Ulserization, with republicans arguing that this led them to necessary violence. Loyalists and unionists, similarly, saw the reign of terror by the IRA’s campaign as reason to fight back to defend their legal status with the United Kingdom. The security forces feel that their place was to keep the rule of law in place, while the church found itself overwhelmed with being both a consolatory and divisive institution. Clearly, all sides see themselves to some extent as victimized by the conflict. To reconcile Northern Ireland, the report states, it is necessary to let these competing views be heard^xi.

The conflict continues in many avenues in Northern Irish society. A debate surrounds the idea of victimization; the definition of who was victimized in the conflict varies on sectarian lines, with affiliated political parties forced to co-opt their related side’s victims groups. The Northern Irish government’s definition of “victim and survivor” is remarkably broad and inclusive of anyone who can display physical or psychological injury from the conflict, a caregiver of a victim, or someone widowed by the conflict. While this isn’t inclusive of the society at large, it is inclusive of victims on both sides^xii.

The report then lists the many types of victimization that come outside of this explanation. One comes from what loyalists view as an Ulsterization of blame by the United Kingdom; there is little acceptance of blame by the British government in issues of collusion between the Ministry of Defense and the Royal Ulster Constabulatory. Communities at large on both sides saw the security situation in the conflict take away their rights. The youth of Northern Ireland are marked by the scars the conflict left on their families and society. The group sees the issues of sectarianism playing a prominent part in perpetuating the issues of the conflict, citing the notion of “peace ‘walls’” blocking reconciliation. The church is given a fair amount of blame for the problems in both the past and present; it gave an initial wedge, then gave an avenue for continued division without providing a method to stitch the country together. The conflict’s impact on the economy of Northern Ireland is still felt in sectarian areas of the country, necessitating dual programs to support the poor. 4,600 people are believed to have been exiled, either by fear of arrest or reprisal from paramilitary groups. Those who were arrested for their activities in the conflict are finding it difficult to secure jobs and loans^xiii. All of these are continuing the conflict’s victimization; all of these, the Group concludes in different ways, must be addressed.

In terms of the transitional justice implications, Chapter 3 can be split into two parts. First is the establishment of the record. Establishing an objective truth is a part of transitional justice practice, particularly in models based on truth and reconciliation. South Africa emphasized this in the TRC; Rwanda, additionally, made the gacaca more based on providing a cathartic confession to the community than leaving it in a courtroom. Where Northern Ireland may avoid the inherent problems with this model is in its private nature. The model for confessions crafted by Leigh Payne suggests that truth telling is based equally in the truth itself as well as the staging, emphasizing that the “truth” of a confession can be obscured by how the teller says it. This has been tested in cases in Argentina and South Africa, both where the threat of personal incrimination comes with the public nature of the confession^xiv. Northern Ireland skirts this by offering the public catharsis of storytelling to those willing to listen to both sides and keeping the investigatory side behind closed doors. Protections from self-incrimination mixed with no pretense of full amnesty allows for the perpetrator to avoid dramatizing his or her story. The development of the public record, then, is not subject to the masking of truth.

The second section details the depth and breadth of division in society, leading to a need for reparations. Victimhood in Northern Ireland runs across the spectrum, leading into not only the parts of the country that show a physical mark from the conflict but also into the education system. The country became visibly more segregated through the conflict, with neighborhoods in Belfast experiencing a flight of residents and a deeper entrenchment of ethnic and sectarian division^xv; it is no shock, then, that resources are divided between the sects. There is also a level of societal lustration displayed by the inability for those convicted for political violence to obtain jobs and loans. While this isn’t necessarily modeled after the post-Soviet styled actions in the Czech Republic (there notably isn’t a reference to it being governmental in the report), it has had a detractive impact on the lives of foot soldiers for the related causes^xvi. The report, then, makes it clear that the process of lustration has victimized ex-convicts in Northern Ireland, and recommends that laws be changed to prevent it.

Chapter 4: Reparations as Care for “Victims and Survivors”

The Consultative Group sees one of its most pressing and difficult concerns as caring for the victims of the conflict in a way that “make[s] sure that we, as a society, do not create another generation of victims.^xvii” In other words, there is an understanding that reparations and victim care must be in the interest of reconciliation. The Group understands the difficulty with this in Northern Irish society, noting that any sort of overtures to assist victims on one side, even as a universal project, marginalizes the other. Because of this legacy, the report makes it clear that any sort of reconciliation must include respect for victims that transcends nationalism and sectarian divides^xviii. Chapter 4 addresses many of these concerns.

A major concern to victims groups is the availability of funding in a competitive environment. While some groups work together to enhance care resources, others reportedly compete with affiliated non-governmental organizations as well as statutory care mechanisms due to either sectarian or inter-sect divisions. Among all groups, there is a complaint that the funding is inadequate in size and time. The Group suggests that these victims groups have actually led to further destabilization in the community, fueling suspicions that groups on certain sides of the community receive better and more adequate funding. The report also suggests that these groups advocate viewpoints that go beyond what their group believes and mandates, turning them into “mini political parties.^xix” These issues make it so victims can be exploited if they join groups and marginalized if they seek individual care.

Victims, the report claims, have dealt with post-traumatic stress conditions in a number of detrimental ways, including resorting to drugs and alcohol, suffering from depression, and domestic abuse. Action has been taken to ameliorate these issues, but the public health concern of Post-Traumatic Stress Disorder continues to plague society. As such, the report directs the health care system to take more beneficial action to assist victims^xx.

The group hails the government’s new Commission for Victims and Survivors for Northern Ireland, or CVSNI, as a way to tackle the “shortfalls in services highlighted.^xxi” CVSNI is best placed to understand and consolidate the approaches to victim needs, as well as to coordinate the approaches taken by victims groups and to make a better-focused effort to care for caregivers and government workers. It also will create a Victims and Survivors Forum to discuss further funding, as well as to bring up concerns and suspicions with other groups’ motives. This, the Group believes, will foster greater dialogue and relationships between the two sides of the continued conflict^xxii.

The Consultative Group emphasizes in these recommendations the use of victim-centric institutional change. These issues, to some extent, fall under an expanded idea of reparations. While a reparation can simply be a check, it can also come in the form of a new care center to treat injuries caused by a conflict. It can come in the form of education about the conflict’s events, and how to avoid that conflict from happening in the future. These actions play not just a tangible role in making a victim’s life easier, but also the symbolic role that comes from recognition. Where the Consultative Group is going above and beyond is that it links these reparations to reconciliation. Instead of acting to make the reparations a form of apology, the Consultative Group’s suggestions are designed to transcend the sectarian divide to provide healing for all in society. This type of approach skirts some of the concerns of reparations, namely that they can instill animosity by making one group privileged^xxiii. In the case of Northern Ireland, it also has a pragmatic role in reducing the cost of providing separate services to more than one sector of society.

This approach is contrasted with most controversial part of their report: direct compensation for victims. The Group notes that there have been governmental approaches to compensating victims of conflict-related violence, then suggests that these have been narrow in their approach to only include those who were not members of a “proscribed” organization or had not been convicted of a crime^xxiv. Additionally, these payments were criticized when they were made in the 1970s and 80s for only addressing lost pay and a payment for “loss or injury” instead of the emotional toll of losing or caring for a loved one. While CVSNI seems well-placed to provide support in reparations involving victim care, it doesn’t have the capability to pay for other aspects that grieving families require. These families, the report declares, need to have recognition for the grief that the conflict brought upon them, regardless of what side and in what capacity. As such, the Consultative Group recommends what they call “an ex-gratia recognition payment of £12,000″ to the next of kin of anyone who died in the conflict after January 1966, paid by the UK government^xxv.

Within transitional justice theory, financial reparations have been both a positive notion and a negative idea. The positive side of reparations is clear: providing money to the marginalized is a statement against the pain they encountered, and it helps to financially account for the problems they face due to their victimhood. The internment of Japanese-Americans is an example of successful reparations: the government was able to clearly define those who were wronged by war hysteria and compensated them for their hardship. Likewise, African-Americans have had a far more difficult time receiving money for their issues because of the abstract nature of their population; there is no one left who lived through slavery^xxvi. The program brought forward by the Consultative Group seems more like the Japanese model than the slavery one, considering that a record exists of every death caused by the conflict. The reparations should theoretically be successful.

However, financial reparations inherently fall into conflict displayed through the Northern Irish case. This issue brought the widest public criticism to the report. The Group’s website had an open comment page, now since closed, that allowed for general comments on the findings. 24 of the final 40 comments, at some point, directly and negatively address the issue of compensation. None positively address it. The vast majority of negative comments call the families of IRA members some version of the word “terrorist” or “murderer,” often from a widow or family member of someone killed by paramilitants^xxvii. This displays the sensitive nature that reparations have; those who did not necessarily oppress a certain people feel no obligation to compensate them for acts they weren’t a part of. The Irish case extends this to bring in conflict that still runs in society. The anger is both that reparations must be paid, but that they must be paid to a group still seen as an adversary to those who will be paying, forcing a notion of being a perpetrator on people who don’t accept blame for their actions.

Chapter 5: Memorialization of the Conflict

In Chapter 5, the report cites a wide variety of opinions on the notion of public remembrance of the past in Northern Irish society. While many accept that the past must be remembered as a part of life in Northern Ireland, there are questions as to whether this should be a private event on a public date, physical memorialization by the government, or programs that promote storytelling. The Consultative Group chooses to take on three key areas under the premise that, despite what could be seen as a perpetuation of pain by the victims, the past must be remembered to have a viable future^xxviii.

The Group places high emphasis on the virtue of telling stories about experiences in both a private forum set up through victims groups, and community efforts. These efforts, the report states, “has led to some degree of healing and should continue.^xxix” There is higher virtue, in the eyes of the Group, to have these storytelling events be a two-way street, with the tales leading to a shared catharsis. The report also suggests that some sort of archive be set up to collect these stories, as well as to support efforts to independently validate these stories^xxx.

The Group also notes the success of Healing Through Remembering, an NGO launched in 2002 dedicated to making a community remembrance of the past^xxxi, at creating a national “Day of Private Reflection” on June 21 every year. The holiday has been praised as a way to reflect on the past, either alone or as part of a small community; it has also been criticized as being overkill to communities that commemorate events like Easter Sunday or the Remembrance Day Bombing, as well as to individuals that were not directly impacted by the violence and simply did not feel a need to remember. The Group promotes the idea of June 21 continuing as an unofficial holiday with a mix of the existing private reflection and a public commemoration of the continued commitment to peace by the government and both loyalist and republican groups^xxxii.

Memorialization is also discussed in depth by the Group. Supporters of memorials note that memorials stand in for graves and more morbid locales as a place for those who suffered loss to congregate and remember their loved ones. Furthermore, a memorial that serves all instead of smaller communities and localities can help to bridge the gap of sectarianism, something that has plagued other memorials in the past^xxxiii. The Group brings up the idea of building physical memorials, such as a monument or garden of peace, as well as a living memorial that could take the form of a museum or as part of other healing methods; namely, the report suggests “a hospital [or] trauma center^xxxiv“. The Group’s opinion of these ideas, however, is pessimistic; citing resistance to memorials in the first place as well as the lack of consensus on what this would memorialize, the decision is to defer this to a future commission^xxxv.

Further questions exist as to whether or not memorials, including holidays, are able to effectively convey these messages. Memorials largely play to people who seek them out; unless there is some other attraction to the place like its artistic and architectural merit, the wider public tends to ignore their significance, as is the case in the Memory Spiral in Argentina, now used as a commons area at the University de la Plata^xxxvi. This appears to be the case with the Day of Private Reflection; Healing Through Remembering notes, according to the report, that the holiday is still lacking in popularity among the wider community, serving more the victim’s community than anyone else^xxxvii. Storytelling programs appear to be an under-appreciated part of the transitional justice canon; searches of JSTOR and other Internet databases bring up no literature on it. This, coupled with little by way of anecdotal evidence, makes it difficult to analyze in light of transitional justice. On its base, storytelling programs that emphasize mutual catharsis without incrimination appears to be a positive development; the question is whether or not these stories would be tales of mutual victimhood or types of confessions. If the tales are of victimhood, there seems to be less likelihood of a disingenuous confession; while there would be some embellishment, it wouldn’t be to the extent of a character like South Africa’s Paul Van Vuuren, who used the media to go over the top in showing penance^xxxviii. The victim-centrism of the report suggests that the tales would be less confessional than stories of how the conflict changed lives.

Chapter 6: Investigations Into the Violence — Retributive or Reconciliatory?

Chapter 6 details a lengthy list of avenues for legal recourse from conflict-related violence. Specifically, it cites the work of the Historical Enquiries Team, or HET; the investigation by Northern Ireland’s Police Ombudsman; public inquiries in the past; inquests by the coroner’s service; and reviews of convictions by the Criminal Cases Review Commission^xxxix.

The HET was established in 2005 to review all 3,268 deaths related to the conflict between 1969 and 1998. It does this through contacting families to determine what they need to know about their loved one’s death, then giving each crime a thorough review to find any new evidence. It has since taken on post-1998 cases to allay concerns of police partiality. As of January 2009, the team has completed 471 cases out of 1370 it has reopened; chronologically, it has only investigated up to 1976 due to the early toll of the conflict. HET’s work has not resulted in many prosecutions, due in part to victim disinterest and an amnesty provision in the Good Friday Agreement that limits convictions longer than two years for conflict-related crimes. The Group suggests that there be a new commission to continue the HET’s work after its mandate ends in 2011^xl. Coupled with the HET, the Police Act of 1998 established a Police Ombudsman to rule on cases of police misconduct. Much of the work of the Ombudsman has been to review cases during the conflict. It has reviewed 122 such cases, not all of which resulted in death, and has referred 55 cases to the HET for further investigation. It has complained of not having adequate resources to complete its work, saying in a 2008 report that, “The Office cannot continue to cope from the strain of meeting these challenges without additional resources… at present, the Office is one of the few means available [to provide resolution for victims of the conflict]^xli.”

Multiple inquiries have been taken by the UK government to look into violence during the conflict. In January of 1998, then-Prime Minister Tony Blair announced the Saville Inquiry into the events of Bloody Sunday, the massacre in Derry on January 30, 1972. The inquiry was scheduled to make its report in fall 2009^xlii, but has since been pushed back indefinitely, with members of the government openly suggesting it will never take place^xliii. There has also been the Cory Inquiry, which has looked into allegations of police collusion through the conflict; the inquiry has prompted follow-up investigations into three different murders, with one currently waiting in limbo. The Irish government, meanwhile, has established investigations into collusion between its agents and republican forces in the murders of two chiefs of the Royal Ulster Constabulatory in 1989, as well as an inquiry into the Dublin and Monaghan bombings in 1974. These inquiries have been criticized for staggering costs; the Bloody Sunday Inquiry alone has cost over £185 million. Additionally, these inquests have involved a diversion of investigatory resources from the Northern Irish police, as well as exacting a heavy toll to protect evidence and inquiry workers. The inquiries have also been criticized by victims groups for the traumatic nature of testimony^xliv.

The coroners service in Northern Ireland has also been called to investigate deaths from the Troubles. The European Convention on Human Rights dictates that some sort of investigation must be carried out where a death is believed to have been caused by force; a decision by the European Court on Human Rights in R v. West Somerset Coroner, in turn, led to a massive rethinking of the coroner service’s role in investigations. While there is not a requirement to investigate crimes before 2000, when the UK became signatory to the Convention through the Human Rights Act of 1998, the Attorney General has the power to launch a coroner’s inquest in any case deemed suspicious or unresolved^xlv.

Additionally, the UK government’s Criminal Cases Review Commission, or CCRC, which reviews cases to determine if there has been malfeasance in the court system that can be rectified by an appeal, has had a part in reviewing cases revolving around the conflict. Between 1997 and 2008, the CCRC heard 175 cases from Northern Ireland, closing 141. 24 cases have been heard by the Court of Appeals, with 22 resulting in a reduced sentence. Within these cases, allegations of misconduct ranging from unlawfully admitted evidence, mishandling of informants, and the non-disclosure of evidence have led to serious questions about the government’s handling of the criminal side of the Troubles; not surprisingly, an estimated 300 additional cases will be brought forward to the CCRC after reviews by the HET, Ombudsman, and other inquiries and inquests are completed^xlvi.

These actions fall into a questionable area of transitional justice: retributive justice that seems oriented against action that punishes perpetrators of violence. These types of criminal investigations would appear to happen in cases that would result in a trial; the work of the HET displays this most clearly by working with police resources to finish a criminal investigation. However, this information is not intended for trial — trials, if anything, are told to not be expected due to the resources and the belief that further criminal proceedings will get in the way of reconciliation. Instead, the investigations serve to provide a historical record for the sake of the victims. In the case of the HET, the families of victims are given the final reports to provide a sort of closure, while the work of the Police Ombudsman and the CCRC act to rectify injustices carried out by the police force and court system. The difficulties of the Good Friday Agreement’s amnesty provisions^xlvii and the apparent want for closure instead of recrimination underscore this orientation away from retribution. In this regard, it almost seems right to classify these as restorative actions. The actions all work toward establishing a victim-sensitive type of closure by exposing the truth about criminal acts without forcing continued legal action on society; there is no real retribution involved.

The report also lists three secondary parts of criminal investigation that, to a large extent, deal in the trade of amnesty. Within the Good Friday Agreement’s amnesty provisions, those who were arrested and sentenced for conflict-related crimes and agreed to disavow terrorist activities were granted release from prison after two years from the Agreement’s signing date. These people are under what could best be described as probation; if found to be committing acts related to political violence, they are immediately sent back to prison by fiat of the Secretary of State^xlviii. Further amnesty has been granted to what the British and Irish government call “on the runs;” if it can be determined that an at-large former member of either paramilitary or security forces under investigations of a crime is no longer a risk to commit acts of terrorism, he or she is eligible, after review, for the Agreement’s amnesty provisions^xlix. Finally, the Independent Commission for the Location of Victims’ Remains, or ICLVR, was enacted in 1999 with the blessing of the Irish and British governments to coordinate efforts to find the remains of victims of violence by the IRA and other affiliate groups. To inspire honest confessions, the Commission is backed by an act by the British government making it illegal to use evidence from the ICLVR’s deliberations in a criminal trial. It has led to the recovery of five bodies out of the fourteen investigated^l.

Chapters 7 and 8: Recommendations For Change

Section 4, “The Way Forward,” outlines the Consultative Group’s recommendations for the Northern Irish government and society to undergo to continue the work of transitional justice. Chapter 7 deals with how to reform the justice sector, primarily through the establishment of a Legacy Commission. Chapter 8 deals with the responsibilities of the Legacy Commission in restorative justice.

The Group has found that while the preexisting structures have done some work in providing justice for victims, many problems still exist stemming from an unreasonable work load given to the police to investigate not only present crimes, but also crimes from the conflict. The length and breadth of the inquiries has increased through the years, and these inquiries have been far too costly to continue. Most importantly, the criminal justice system has been focused primarily on fighting the battles of the past through investigations without regard for a reconciled future. This necessitates a non-police approach^li.

This new approach, the Legacy Commission, would establish a Reviews and Investigation unit to take over the work of the HET and Ombudsman. This unit would conduct investigations both into individual crimes, as well as themes of the conflict like police collusion and paramilitary activity. It would take over the inquiry process, including a review of the of-yet unquestioned Patrick Finucane murder, and make the process private to facilitate more open discussions with lessened threat of self-incrimination. The Commission would last for five years; at that time, decisions would be made on how to end discussions of a past and orient them towards the future. This would entail an end to historical inquiries and investigations, with a potential for no prosecutions for “on the runs.^lii

The report continues to discuss ways forward in certain areas. In justice, the Group argues that while investigations and prosecutions should continue as victims demand it, it should be approached with an eye on the scarcity of resources. This scarcity, coupled with the dimming reality of prosecution for crimes in the Troubles, leads one to argue for shifting the focus toward information recovery than criminal investigation^liii. The Group contends that the Commission should have a relatively vast ability to subpoena evidence without having an actual trial. It also should be able to hold its proceedings in private, rather than the public forum that has tended to act as a sounding board for tensions. This, the Group realizes, must come within the framework of judicial rights^liv. Evidence found out within the Commission that may be self-incriminating must be reviewed in light of the person’s involvement in the situation; if a person testifies before the Commission, he or she is not necessarily given an amnesty, but is protected from the testimony being used against themselves. Furthermore, the Commission must work independently of the police force to avoid the risk of conflicting interest, primarily in questions of police collusion with loyalist forces. This would also delete duplication in investigations between the HET and Ombudsman, as well as freeing up resources to focus on present day crimes^lv. The costs of the recommendations through the report are high; the investigative wing of the Commission likely will require a purse of £170 million, with the bursary for social needs at £100 million and the recognition payments totaling around £40 million^lvi. The notion of amnesty is brought up as a method of moving forward; it would allow for the focus to be on recovering information, rather than investigating crimes, and would be a cost-efficient way to convince society to move into the future. The problem with this type of thinking is that amnesties are forbidden by various charters that the UK and Ireland are signatory to. As such, a general amnesty cannot happen, with an expectation on the sides of victims that prosecutions will be a possibility but will not necessarily be sought^lvii.

Chapter 8 then discusses what types of actions the Legacy Commission will carry out. It spells out its mandate as having the historical focus outlined in Chapter 7, along with a need to address community issues rising from the conflict, such as sectarianism, to create a reconciled future. This would happen through programs coordinated with CVSNI through a Reconciliation Forum. Cases would be taken by the Legacy Commission and would go through Review and Investigation. If prosecution occurs, it would go to trial in the Northern Irish courts; if not, it would either go to the Informational Recovery unit given family support, or it would go to the Thematic Examination unit to analyze what the case says about society^lviii.

The Legacy Commission would be headed by an international commissioner with the responsibility to oversee and direct thematic examination. The Review and Investigation unit would be commissioned by someone with experience in policing and criminal justice, while the Information Recovery and Thematic Examination unit would be headed by a trusted member of the community that could be viewed as completely impartial. The Commission would have a mandate of five years, and would be supported by both the British and Irish governments; the Group suggests that both governments give some sort of legislative sanction to the group that includes a funding mechanism. At the end of five years, the group believes many of the issues brought forth in the conflict will have been examined; at that time, the Commission should hold a remembrance ceremony^lix.

The Legacy Commission will largely be tasked with overseeing reparational work in Northern Ireland. This work will be directed toward ending sectarianism, working with youth and the education system to get a balanced understanding of the past as part of curriculum, improving health care services to better deal with trauma, spreading economic benefits to underprivileged areas, and repatriating exiles. This would be done through a Reconciliation Forum between the Legacy Commission’s Chair, CVSNI, and the Community Relations Council of Northern Ireland; the Northern Ireland Human Rights Council, the Equality Commission, and the Office of the First Minister would also be invited. This forum would analyze what actions are being done in reparational work and would direct resources with a focus on addressing the issues of the community at large; this differs from the past focus on individual victims^lx.

The Chair’s primary responsibility would be to address the sectarian divide through challenging society’s institutions to break down “peace walls” that continue to divide society and the distribution of resources. It would also work to promote the Day of Private Reflection, renaming it a Day of Reflection and Reconciliation that would include speeches by the First Minister. Finally, it would control the £100 million bursary of reconciliation funds and direct it through the Reconciliation Forum’s discussion and guidance^lxi.

The Review and Investigation Unit would essentially take over the work of the HET and Police Ombudsman in all forms; it would have the right to re-open cases the two bodies had closed, but would work to continue the chronological order of cases and forward cases that needed review to the Director of Public Prosecution. Its primary goals would be information recovery instead of an orientation toward prosecutions; this information would be both to provide closure to families and to assist the Thematic Examination unit’s work^lxii. The Thematic Examination Unit would examine cases linked either by the perpetrators or an overriding theme, i.e. police collusion or specific areas of paramilitary activity. The work would not be public during its run to promote honesty and truth-telling; furthermore, statements to the Commission would not be admissible as self-criminating evidence^lxiii.

Overview: Can The Report Act as a Guide For Transitional Justice?

Overall, the Consultative Group’s report prescribes a wide variety of restorative-based justice mechanisms that may or may not help certain parts of Northern Irish culture to deal with its wounds from the Troubles. There are two clear issues, however. First, the report skews heavily toward an imbalance away from retributive justice. Second, it is questionable as to whether even the most effective methods of transitional justice can mend the sectarian divides that the Troubles represented.

The report’s recommendations are, to a vast extent, based on the need to bring sects together; this, in the minds of the Consultative Group, appears to be achieved through eschewing methods of retributive justice in favor of more holistic, restorative approaches. The Group does this through three ways: first, it orients methods that would otherwise be used to build a case for retributive justice toward the establishment of the historical record, ending up with a methodology that takes on the look of a private truth commission; second, it gives a heightened level of credence to traditional restorative justice approaches like memorializing holidays and the use of societal and direct reparations; third, it grants a level of de facto amnesty by its downplaying of the role of prosecutions and its suggestions to “draw a line” in the future. These suggestions are a response to an overarching theme: the Group sees a fundamental distrust on both sides of the sectarian debate that the decisions will be biased toward their opponents. By taking a stance that benefits both sides of Northern Irish society, the Group would say, this conflict would be avoided.

The issue with this logic is that it vastly skews the balance of justice necessary for transitional justice to be fully effective. The work of the University of Wisconsin’s Transitional Justice Data Base has shown that in cases where only singular approaches, i.e. a truth commission without trials, a trial without amnesty provisions, or a blanket amnesty without an investigation into the past, have been thus far ineffective in the promotion of democratic stability and human rights; instead, approaches that blend trials with amnesties and those mechanisms coupled with a truth commission have, historically speaking, had a net positive effect on human rights^lxiv. This can be extended to say that having exclusively restorative methods or exclusively retributive methods of transitional justice would not bring as positive effect as balancing the two.

The work of the Consultative Group, then, can be criticized in two ways. First, the report does not fulfill the needs of the justice balance; specifically, the methods through which transitional justice has historically worked are not in place. While it can be argued that the work of the Legacy Commission carries out many of the responsibilities of a truth commission insomuch as it develops a uniform record of the truth of the conflict, it leaves out many aspects of the truth commission approach. It leaves this record in the back room instead of in public, leaving the level of societal incrimination in the background in favor of individualized victim’s justice. The report can also be argued to provide some levels of amnesty through its insistence on downplaying expectations of prosecutions, as well as the realization that some forms of amnesty already exist through the Good Friday Agreement. However, it explicitly states that a de jure amnesty is illegal through the European Convention on Human Rights; because of this, those who testify to the Commission may not be held accountable to their testimony in court, but are still under risk of prosecution if other evidence is available. That said, the downplaying by the report of trials, which the Group believes can “militate against the main goal of reconciliation,” makes it clear that this aspect of the justice balance will not be filled.

Second, the report’s lack of clear avenues for victim retribution skew the balance of justice toward an unhealthily restorative approach. The recommendations for societal reparations, storytelling, and an established record of the past for victims are all fine and good, but they avoid the real societal healing that comes from the punishment that both sides deserve. This justice comes at a cost of societal stability in the beginning, to be sure, but the data does suggest that using trials within the larger picture of transitional justice establishes a culture that puts impunity on those who aim to continue the conflict through violence. In the case of Northern Ireland, the arguments against society’s instability are even weaker; Northern Ireland, as part of the United Kingdom, is a well-functioning democracy, and though its power sharing does impact the democratic process, it doesn’t impact it to the point where politicized trials will dramatically harm the effectiveness of the political process. There still is a functioning legal system that can handle the trauma of a Troubles-related criminal trial. There are leaders on all sides; loyalist, republican, police, and government officials that all could be brought to justice through a prosecution of their crimes. It is a critical mistake by the Consultative Group to push against this part of Northern Irish healing. Retributive justice is necessary to fix the harm that the past has done on sects of Northern Irish society, but it appears unlikely to be put into practice.

There is another concern that deals with the notion of restorative justice’s viability in Northern Ireland; namely, can something be “restored” or “reconciled” to a place it has never been? The history of Northern Ireland is one that has experienced sectarianism in some fashion since the British arrival in the 1600s. The Troubles were not an independent event, but a long and bloody part of a history of conflict between British Protestants and Irish Catholics; furthermore, this is a conflict still entrenched in society. Transitional justice is limited in its capacity to deal with a case like Northern Ireland because it is more complicated than a simple era of authoritarian rule that ended with the promise of peace and equality. South Africa is a possible analogue to parts of the Northern Irish situation, as its transition involved bringing together a white society that had always made itself superior to the black society it colonized; the British experience in Ireland, which saw the whole of Ireland annexed until the Home Rule Act of 1914 and eventually led out of the British Empire in 1922, has heavy twinges of the colonizing force. However, the end of apartheid and the release of Nelson Mandela came with the Afrikaners admitting some culpability and guilt for the pain that segregation had caused. This sort of admission of societal guilt is lacking in Northern Irish society; the Good Friday Agreement has acted as a loose ceasefire agreement that has created power sharing, but has done little to mend the damage that sectarianism that has spread over four centuries has caused. The Consultative Group on the Past appears to not recognize this contradiction in its report, constantly emphasizing the need for reconciliation; instead, approaches in Northern Ireland must be focused on either conciliation that attacks the root causes of sectarianism or a co-existence that tolerates the other side’s right to exist. Given that two soldiers and a police officer were shot in a pair of IRA-related incidents this past March^lxv, along with an attempted bombing of a police station in June followed by a car bomb planted to kill a police chief in Belfast in October^lxvi, a level of skepticism may be wise that such a conciliation or tolerance is imminent, or even possible.

Conclusions

The Consultative Group on the Past’s report outlines a number of methods for transitional justice for Northern Ireland. These methods are victim-centric and tend toward restorative means of repairing the damage of the Troubles, along with the establishment of a clear record of violence. However, the imbalance away from retributive approaches, namely trials to result from the investigations prescribed, along with the inherent difficulty with truly reconciling Northern Ireland’s constantly warring sects, shows that the Consultative Group’s report, if even put into practice, will still be lacking in its ability to bring transitional justice to the Northern Irish people.