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The Troubles cast a shadow over Brexit
December 2018 / January 2019

Left to themelves, IRA leaders, many of them now Sinn Fein politicians, might very well embrace an all-encompassing amnesty. But Sinn Fein are hostage to their very substantial electorate, who have made it clear they will not tolerate the idea of soldiers not being brought to book. The DUP, on the other hand, loves the idea of the IRA being brought to book but can’t stomach the notion of this happening to any more soldiers.

So, when it comes to legacy, opposition to the wider amnesty, albeit for opposite reasons, is one of only two things that Sinn Fein and the DUP do agree on. They also agree that any “legacy” mechanism should put victims and survivors first. But of course what constitutes a “victim” soon runs headlong into the vicissitudes of tribal antipathy, paranoia and bloody-mindedness because it requires the relative of a soldier shot in the back by a republican to accept that that self-same republican was as much of a victim if he or she was later shot dead — armed or unarmed — by a soldier. Conversely, it requires the relative of an IRA bomber shot in the back by a soldier to agree that that soldier was as much of a victim if he or she was later shot dead by the IRA. Since republicans are responsible for the lion’s share of killings, they have most to gain by accepting this definition of “victim”, so most of them do. Since Unionists have most to lose, by and large they don’t. 

The government’s solution to reconcile the entire labyrinth of competing “embuggerment” factors is a complex web of criminal and non-criminal organisations and an ever-lengthening list of acronyms.

The criminal route would see an Historical Investigations Unit (HIU) with police powers continuing to investigate unsolved killings and sending reports to the DPP; where no prosecutions were possible, the non-criminal route would kick in with a written HIU report for the victims or their relatives. There would also be “information recovery” by an “Independent Commission for Information Retrieval” (ICIR) open to relatives who want to find out what happened to their loved ones. Information would be retrieved from paramilitaries, government and the security forces through trusted interlocutors; “truth and reconciliation” would be fostered by an Oral History Archive (OHA) compiled from public record material and those who want to tell their stories; reconciliation initiatives would be promoted through the creation of an Implementation and Reconciliation Group (IRG).

However, although Northern Ireland’s political parties agreed to this legacy structure in 2014 after 12 weeks of talks, four years on there is still no earthly prospect of it functioning, because politicians in Belfast are simply incapable of agreeing how to implement it. Yet year after year the government continues to give them a veto over legacy even though Westminster is sovereign.

This veto means that absent an Article 2-compliant “legacy” process — agreed by the parties — the law must continue to take its course. Some conservative and unionist politicians mutter that having authorised the prosecution of Dennis Hutchings and Soldiers A and C, the then Northern Ireland DPP, Barra McGrory QC, was playing politics. That would only be true had McGrory not prosecuted when advised by the police there was a case to answer. Instead, he has had no choice but to dispassionately apply the rule of law.

Even if — miracle of miracles — the parties did reach agreement, the chances of the legacy bureaucratic behemoth functioning with frictionless borders are almost zero. However rare prosecutions by the HIU may be, as long as armed groups, including the security forces, remain at risk of prosecution, they’re as likely to unburden themselves to the ICIR as turkeys voting for Christmas.

How, then, to decriminalise legacy while keeping intact a robust legal process that delivers legal accountability without collapsing the civil justice system which is wh
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December 20th, 2018
8:12 PM
We can rely on Gareth Peirce and her indefatigable Fifth Column to put right everything that is wrong, no matter what the cost.

December 6th, 2018
11:12 PM
In reply to nobby, who states 'you cannot compare a soldier who made a mistake in the heat of the moment......' my father was shot dead in cold blood by members of the MRF, a unit of the British Army who drove around Belfast in plain clothes in unmarked cars 'executing' civilians. Eventually this unit were disbanded as they were deemed to be 'out of control'. Obviously we expect these soldiers to be tried for the murder of our Dad. And why not? Wouldn't you want to see justice done if you were in our position?

John Ware
December 6th, 2018
7:12 PM
Nobby: The (regular) army killed 160 civilians, and 121 republican terrorists (Table 18, p 1561, Lost Lives). Most of those civilians were shot in the early and most violent phase of the conflict, and many may well have died in cross fire (including, I suspect, some of the 11 shot in Ballymurphy at the start of internment in August 1971). I trust you noticed my comment that ".....whatever crimes soldiers may have committed, people will struggle to see the remotest moral equivalence between the British Army and the IRA." John Ware

December 6th, 2018
10:12 AM
on the whole I agree with the solution to the legacy of unsolved killings put forward in this article.However there are a few points I would make.Firstly the author gives the impression that a large majority of the British Armys victims were civilians.In fact the army killed 149 terrorists and 152 civilians,roughly 50-50.Secondly you cannot compare a soldier who makes a mistake in the heat of the moment with a terrorist who carries out a pre planned cold bloded murder.Look at the Kingsmill massacre where the IRA stopped a minibus carrying workers home from a building site,seperated the protestants from the Catholic,whose name they knew,and then shot the Protestants.Nobody has ever been prosecuted for that either.I would be interested to know what proportion of Terrorist murders were successfully prosecuted,I suspect it is not as high as this article gives the impression of.Finally how can it be just to prosecute an old soldier who made one terrible mistake 40 years ago when the likes of Gerry Adams and Martin Mcguiness were/are allowed to pose as respectable elder statesmen.

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