Contemporary Social Science: Journal of the Academy of Social
Sciences, Vol. 6, no.1, February 2011, 89-106.
Paradoxes and Challenges of Transitional Justice at the ‘Local’ Level:
Historical Enquiries in Northern Ireland
Abstract
‘Truth’ recovery has become part of a globalized ‘formula’ which transitional
justice advocates claim is imperative to conflict transformation. Yet the value
of ‘truth’ and efficacy of international ‘truth’ recovery templates has been
negatively critiqued. Increasingly, ‘localised’ approaches to memory work are
seeking to develop innovative and context specific processes to grapple with
these potentially divisive and challenging issues. Through ‘local/global’
perspectives and ‘bottom-up’ critiques, this article explores how transitional
justice discourse has been mediated, strategically adapted and ‘localized’.
Using a case study of the Historical Enquiries Team (HET) a police-led ‘truth’
recovery process distinctive to Northern Ireland, it examines the paradoxes of
transitional justice and the challenges it can generate for states and societies
in transition. In order to do this, the article examines the purpose of the HET
as envisaged by its architects, its effectiveness as a ‘truth’ recovery
mechanism and the intense debates it has generated. The aim of the article is
to consider the controversial nature of dealing with the past and the inherent
dilemmas and difficulties of memory work post-conflict. The complications of a
police-led ‘truth’ recovery process in a divided society with a history of
contested policing and the lessons for other societies in transition are
discussed.
Key Words: Historical Enquiries Team, Transitional Justice Challenges,
Northern Ireland
Introduction
When conflicts end there are often competing and conflicting memories about
the violent events of the past. Jelin (2007:138-139) makes the point that
memory struggles are always part and parcel of the demands for ‘truth’ and
‘justice’, and in turn, ‘are part of a larger arena of transitional politics that
1
cannot be seen independently’. Increasingly, victims are looking for ways to
press their claims for ‘truth’, ‘justice’ and accountability. This raises a range of
problems and dilemmas for governments and societies in transition. The
dilemma is whether, and if so, how, to address such a legacy. A vast literature
has emerged on how best to deal with the past by adopting a variety of
mechanisms. Much of the theory and policy formulation has been in the
context of transitional justice
1
(Hayner, 2002; Kritz, 1995; Teitel, 2000). In
particular, there are claims, counter claims and intense debates about
whether truth commissions can deliver on their stated goals (see for example,
Campbell and Turner, 2008; Daly, 2008; Mendlloff 2004; Thomas, Ron and
Paris, 2008). Proponents claim that truth commissions, and other transitional
justice measures, are beneficial as a means to consolidate peace and
transition. Sceptics dispute these claims and query the value of memory and
the purpose of ‘truth’ recovery. Others point to the lack of reliable data about
the effects of transitional justice generally.
The concepts of memory and ‘truth’ are highly contested (Berliner, 2005) and
in the post-conflict struggle for memory there are likely to be multiple ‘truths’
(Hodgkin and Radstone, 2003). Jelin (2007:140) makes the point that ‘the
existence of different interpretations of the past implies that at any time and
place, it is unthinkable to find one memory, a single version and interpretation
of the past shared by a whole society whatever its scope and size’. Moreover,
memories and ‘truths’ are frequently interpreted and re-interpreted through the
often highly politicised lens of the present; memories are not neutral’ (Brewer,
2010:145). As Portelli (2006:37) notes, ‘memory is not a passive depository of
2
facts, but an active creation of meaning’. In parallel with the ‘truth’ debate,
there is a division in interpretation and claims of memory work. Some
commentators have interpreted memory work ‘post-conflict’ as adversarial
and inherently harmful and/or it is ‘war by other means’ (Whelan and Graham,
2007). Others see the potentially transformative role of memory work in
divided societies (Brewer, 2010:142:154); or its politically mediating role ‘postconflict’ (Brown 2007; Brown and Viggiani, 2010). Yet, despite recognition of
memory’s ‘fragile value’ (Radstone, 2000:3) and differing interpretations of the
role of memory and ‘truth’, there has been a remarkable ‘memory boom’ in the
late twentieth century and a proliferation of truth commissions worldwide. The
frequency with which truth commissions have been adopted, around 30
commissions spanning four continents, is testimony to their popularity
(Campbell and Turner, 2008: 374).
Given the tensions evoked by conflicting memories, efforts to find ways of
dealing with the past pose significant challenges and dilemmas for states and
societies in transition (Lundy, 2010). This may go some way to explaining why
dealing with the past is the outstanding issue of Northern Ireland’s peace
process. In contrast to other post-conflict societies it has not established a
truth commission. To date it has been marked by, what could be interpreted
as, a deliberate fragmented approach by the state that is not designed to
address the past in a comprehensive and holistic way. On the other hand, this
might be regarded by some as an earnest attempt to navigate the potentially
divisive terrain of the past in ways that do not reproduce divisions in the new
post-conflict arena. Whatever the interpretation of this policy, it has created a
3
vacuum which is filled by almost daily media reports that drip feed toxic
revelations about the atrocities of the past raising more questions than
answers. Despite strong opposition to ‘truth’ recovery within sections of the
community in Northern Ireland, the reality is, ‘truth’ recovery is taking place by
means of a plethora of unofficial and official means. The response of the
British government is that it has implemented a ‘package of measures’2 which
are the necessary steps to adequately deal with conflict-related deaths. The
HET is a key component of the ‘package’; it is a special unit of the Police
Service of Northern Ireland (PSNI), set up to re-examine all conflict related
deaths that do not involve the police as perpetrators and to answer the
unresolved questions of victims’ families’ (Lundy, 2009a). Northern Ireland
and the HET project offer an interesting case study into how a European
liberal democracy has approached dealing with the past and highlight the
inevitable difficulties when the struggle around memories and meaning is at
issue.
The article is structured in three distinct parts. Part 1 situates the HET in the
broader international context and explores the globalisation of transitional
justice discourse. Along with transition justice discourse, ’bottom-up’ and
‘local/global’ perspectives provide the theoretical framework to analyse a case
study of the HET.
It discusses the contention that transitional justice
discourse can be used by ‘local’ elites for a variety of other purposes, to
conceal, or serve very different (political) agendas. It takes cognizance of the
fact that finding ways of dealing with the past is an enormous challenge; the
reality is it is likely to be imperfect, contested and involves pragmatic choices
4
and compromise. In Part 2, after a brief overview of the Northern Ireland ‘postconflict’ context, the motivation and purpose of the HET as perceived by its
framers is analysed. I endeavour to explain the rationale for the HET in terms
of the interplay of internal challenges and dilemmas and external influences.
Part 3 builds on this section and discusses victims experiences of the HET.
A number of specific cases and outcomes are considered. A fundamental
question addressed in this section is whether the HET has the capacity to
hold the state, and non-state actors, to account and restore victims’ dignity
through ‘truth’, ‘justice’ and acknowledgement. These are ‘basic’ transitional
justice principles and claimed benefits of ‘truth’ recovery more generally. In
many ways these principles, rightly or wrongly, set the standards and
benchmarks that are internationally recognised and promoted. Thus,
transitional justice is a useful framework to unpack and consider some of the
challenges states in transition face when attempting to confront the past and
the inherent dilemmas that are indicative of memory work in divided societies
generally. In order to fully understand the factors impacting on HET outcomes,
it is also necessary to consider the role of a well established NGO sector, or
intermediaries. They play a critical role in translating global ideas and are
determined to resist, challenge and push the boundaries of ‘truth’ recovery.
The article draws upon over four years’ first-hand research and unfettered
access to the HET. This included over two years of day-to-day observation,
in-depth interviews and access to documentation. Interviews were also carried
out with other stakeholders including victims’ families and NGOs; the research
remains ongoing.
5
Globalisation of Transitional Justice
The strategies used to come to terms with the past have taken a wide variety
of forms, ranging from massive criminal prosecution on the one hand, to
collective amnesia on the other. Bell (2009) points out, the term transitional
justice only came to be used in the mid-1990s and the speed with which it has
grown is striking. A vast literature has amassed, there are scores of
international conferences and seminars organised annually to debate every
conceivable aspect of the discourse and exchange ‘good practice’; there are
teams of ‘expert’ consultants, technical advisors, networks of international
NGOs, self-help ‘rule-of-law tools’, manuals and software packages,
databases, university courses and summer schools and institutions dedicated
to the study of transitional justice. Amounting to what is a global transitional
justice industry. At the same time, there is trans-national co-operation and
information exchange between the above mentioned actors and forces aided
by new technologies and use of the internet. This ‘global civil society’ is
important because it facilitates the dissemination of transitional justice
discourse and practice from the global to the ‘local’ and creates opportunities
to challenge the state ‘from above and below’ (Brysk, 2002:1-19). ‘Global civil
society’ is however a hotly contested concept; commentators have noted a
less progressive and ‘constraining side’ and question its emancipatory
potential (Bartelson, 2006). Simultaneously, transitional justice has been
enthusiastically adopted by policy makers and it is now part of the standard
‘package’ of ‘liberal’ peace-building measures and United Nations peacebuilding programmes (Lundy and McGovern, 2008a). This has led some to
6
argue, that the theoretical bases of many transitional justice policies
resonates strongly with or is embedded in ‘liberal’ peace-building strategies
(Turner, 2008; Sriram, 2007).
‘Local-Global’ Circuit of Transitional Justice
Increasingly, transitional justice is situated within the critical study of
contemporary global institutions, in this case the transitional justice industry
(see, IJTJ, Special Issue, 2009). Theorists and practitioners of transitional
justice are more aware than ever before that there cannot be a ‘formulaic’ topdown legalistic approach. This is reflected in an emerging ‘bottom-up’
perspective and multidisciplinary literature that advocates politically and
culturally appropriate ‘localized’, ‘locally-owned’ and ‘bottom-up’ transitional
justice processes (see for example, Arriaza,& Roht-Arriaza, 2008; Betts,
2005; Gready, 2005; Lundy, 2009b; Lundy & McGovern, 2008a; McEvoy &
McGregor, 2008). Given the diversity of societies in transition it is perhaps
self-evident that what works in one situation may not necessarily in another.
Activists point out that transitional justice will achieve greater legitimacy and is
more likely to be sustainable if adapted to local cultural contexts. However, as
argued later, the term ‘local’ seems to be rarely applied unfavourably and
there is a danger in over-romanticising the concept (Lundy, 2009b). Mazlish
(2005:95) puts it more succinctly, ‘there is a myth of the virtuous local that
causes us to overlook its attendant evils’.
7
There is one further perspective relevant to this article that moves us beyond
the stark and mutually exclusive binary oppositions of ‘local’ and global that
tend to dominate transitional justice literature. As studies of globalisation
make clear, global processes, resources and discourses are processed
locally, with these local mediations returning back, so that globalization itself
is reproduced and disseminated in ‘glocal’ or translocal ways (Brewer, 2010;
Conway, 2008; Merry, 2006; Mazlish, 2005). That is to say, the global and the
local intertwine in interesting and complicated ways. As the ‘local’ engages
with international discourses, institutions and actors, transitional justice takes
on different dimensions and produces unexpected outcomes. A number of
studies have explored how global ideas get grounded or ‘domesticated’ in
specific ‘local’ contexts (Conway, 2008; Merry, 2006; Goodale, 2007).
According to Merry (2006:38-39), local intermediaries play a crucial role.
Merry suggests that as ideas from trans-national sources travel to
communities they are typically vernacularized, or adapted to local institutions
and meanings. Goodale (2007:30) raises an important caveat which has a
bearing upon this article. He makes a distinction ‘between vernacularization
where meaningful translation is occurring, and where local political actors
overlay other distinctive political projects with the legitimizing mantle of rights,
but to which they may have only a fleeting and expedient commitment’.
The Paradoxes of Transitional Justice
Numerous commentators have argued that transitional justice can be used by
elites for a variety of purposes and to serve or conceal other very different
political agendas. These commentators contend that transitional justice
8
discourse may be co-opted by governments for their instrumental political
value (Hamber, 2003), to manage or obfuscate ‘the truth’ (Rolston and
Scraton, 2005), as window dressing (Stanley, 2008), to validate hegemonic
narratives (Hegarty, 2003), legitimise tarnished institutions (Wilson, 2001);
and, as Subotic (2009) claims, gain the approval of prestigious international
organisations, pre-empt genuine justice processes and shield impunity. The
thrust of these arguments is that political agendas have been placed ahead of
providing for the ‘basics’ of transitional justice – to establish the ‘truth’ and so
on.
Thus,
transitional
justice
concepts
and
mechanisms
may
be
simultaneously enabling and constraining (Theidon, 2009:297).
There is more than echo here of debates concerning the role and purpose of
public inquiries in Ireland and the UK (Rolston and Scraton, 2005; Hegarty
2003; Gilligan and Pratt, 2004). Sceptics argue that public inquiries are
convenient mechanisms in the construction of official memory and a veneer of
democratic process (Rolston and Scraton, 2005). Yet, it has also been argued
that public inquiries can escape their origins, be effective information
gatherers, reach unexpected conclusions and hold powerful institutions and
governments to account (Brown, 2004:26-45). I would suggest that this at
least holds out the possibility that it remains possible to hold powerful
interests to account and to influence outcomes from ‘the bottom-up’. The
recently published Saville Report into the killing of thirteen civilians by the
British Army Parachute Regiment in Derry during a civil rights march in 1972
appears to have surprised many in Northern Ireland and beyond by its
unequivocal acknowledgement of innocence and almost unprecedented
9
finding of guilt. As one critic of public inquiries reflected,
‘the importance of
the report should not be underestimated’, and while acknowledging its
shortcomings, he concluded, ‘this is as good as it ever gets’ (Rolston, 2010).
The Northern Ireland Context:
Internal Challenges and External
Influences
In Northern Ireland, over 3, 500 people have been killed, and there were
widespread and systematic violations of human rights by state and non-state
actors and allegations of collusion between state agencies and Loyalist
paramilitaries. The Good Friday Agreement signed in 1998, signalled the end
of over 30 years of armed conflict. Not only was the idea of a comprehensive
‘truth’ recovery mechanism absent from the multi-party talks leading up to the
Agreement, avoiding talk of the dealing with past was the defining leitmotif of
the Irish peace progress more generally. In the intervening years the ‘victims’
agenda and the ‘truth’ and justice debate became one of the most contentious
issues and key ‘sites of struggle’ within civil society and wider political arena.
That is to say, the meta-conflict – a conflict about the conflict – was played
out. The HET is a ‘truth’ recovery process which is part of a package of
measures designed to find ways to deal with the difficulties of addressing a
contested past. It was set up in 2005 and was formally launched in January
2006. It is a ‘separate’ unit of the Police Service of Northern Ireland (PSNI).
The key stated objectives are ‘to build public confidence in the wider PSNI’, ‘to
answer as far as possible the unresolved questions of victims’ and provide a
10
‘measure of resolution’ to those families (Lundy, 2009a). The Northern Ireland
Office (NIO) allocated the project £34 million over a six year period until
2010/11. It is envisaged that there will be further funding until 2013, exceeding
the original timescale by two to three years (and perhaps beyond). The task of
reviewing over 3,000 cases, of which 2,002 were never solved, spanning
three decades is irrefutably a massive endeavour. However, the scale of
conflict-related deaths in Northern Ireland is less severe than that experienced
in other conflicts. This means that unlike many other transitional societies it is
feasible to review all conflict-related cases.
Internal Challenges
Dealing with the past in conflicted societies presents huge problems. The next
two sections examine how Northern Ireland has responded to the inherent
dilemmas of memory work in a divided society. It considers at least five local
challenges, and the interplay of external influences, which create pressures
and opportunities for the state and society. First, civil society, in collaboration
with international NGOs and actors, initiated a plethora of ‘bottom-up’ ‘truth’
recovery projects, campaigns and measures that consciously, or not, adopted
global transitional justice discourses and processes (Bell, 2003; HTR, 2006a;
Kelly, 2005). At the same time, the use of international legal mechanisms by
victims, NGOs and legal representatives were adopted to seek legal redress
in the European Court of Human Rights (ECHR Judgements, 2001). Taken
together, such processes constitute a substantive civil society response to the
imperatives of ‘post-conflict’ ‘truth’ recovery. Second, and importantly, the
proliferation of initiatives ‘from below’ was used as a ‘tool’ to apply pressure
11
on the authorities to address the legacy of historic cases and to campaign for
further public inquiries. In Northern Ireland, there is fierce opposition to public
inquiries on the grounds of cost and their state-centricity (Campbell and
Turner, 2008:382-384). Certainly the strongest criticisms have come from
within the Unionist community and former members of the security forces and
their families who believe they have been the brunt of investigations into the
past; and feel let down by a government that does not appreciate the
sacrifices they have made holding the line during the conflict (Lundy,
2010:126). I would suggest that, the demand, and potential, for further public
inquiries is a significant factor in the motivation and rationale for the HET. It is
clear from internal HET documents, that the demands for further public
inquiries was categorised as high risk and therefore to be averted (HET, Risk
Registers, 2006-2008). As Hugh Orde (2009:7) has stated, ‘the economic
arguments for the HET are very powerful, compared to the incredibly
expensive legal public inquiry approach, which does not represent very good
value for money in my terms’. Third, equally contentious is the demands on
the PSNI to service historic investigations that are said to divert scarce
resources and compromises ability to effectively police the present (NIAC,
2008; Orde, 2009:3). Fourth, policing was high on the political agenda, and for
a time, perceived lack of progress appeared to threaten and destabilise the
devolved administration and powering-sharing executive. The nature of the
Northern Ireland State has been contested and the perceived role of the
police in buttressing it created a legitimacy crisis for the Royal Ulster
Constabulary (RUC), renamed PSNI. The RUC has been the focus of
allegations of human rights abuses and collusion with loyalist paramilitary
12
groups during the conflict. Lack of trust and acceptance of the police has
therefore been greatest among the Catholic/ Nationalist community. Sinn Fein
did not agree to join the Northern Ireland Policing Board until January 2007
(the Policing Board was established in 2001); the inability of the police to face
up to its past was undoubtedly a contributing factor in the stalemate. It was
therefore an imperative that the police and the state were actively seen to be
addressing the legacy of historic conflict-related deaths and victims demands
for information. From a pragmatic point of view, as Hugh Orde (2009: 3)
noted, ‘if we didn’t face up to the challenge, we would continually be revisiting
old cases… this would lead to the resurfacing of old accusations and old
suspicions, and detract from the reforms made in policing’ He concluded, ‘a
refusal to act could do more damage than any possible political instability
created by opening up old cases’ (Orde, 2009:5). The controversial nature of
policing and historic lack of trust within sections of the community presented
the state and PSNI with particular challenges in building public confidence in a
police led ‘truth’ recovery process. In response, an effort was made to
address the thorny issue of independence. The HET report directly to the
Chief Constable, and a team of retired officers from police forces outside
Northern Ireland was employed to work alongside retired policed officers from
Northern Ireland. This indicated an apparent willingness to find a model that
would meet the needs of communities and contribute to confronting the past
from a police perspective. That, and the promise of ‘maximum permissible
disclosure’, was enough for a number of NGOs working within Nationalist
communities, but not exclusively, to tactically engage in the HET process and
13
some families followed. In many ways this was a significant breakthrough for
the PSNI.
The issue of independence must also be understood in the context of external
influences and the British state’s obligations arising from the European Court
of Human Rights (ECHR) (as discussed shortly). In reality, the HET is
structurally intertwined with PSNI, and former RUC, this has led to criticism of
staffing arrangements, the role of gatekeepers, influence of ‘RUC corporate
memory’ and ‘cross-contamination’ of organisational linkages (Lundy, 2009a).
From its inception HET independence has been controversial and it has not
managed to gain cross-community support. One of the largest NGOs
representing mostly victims of State violence in Northern Ireland, Relatives for
Justice (RFJ), has consistently refused to engage in the process. The issue of
independence is likely to be further challenged in view of the new Chief
Constable’s announcement of a policy ‘shift’ that all HET cases which have
evidential opportunities, and/or potential of arrests, or prosecution, will be
completely transferred to ‘mainstream’ PSNI (that is Crime Operations, C2).
NGOs and others are likely to raise concerns about how the PSNI can justify
investigating sensitive issues that may touch upon the police themselves.This
begs the question, why the change in policy? 3 Fifth, a dilemma for states
emerging out of conflict is how to deal with the problem of divided memories
in ways that do not simply reproduce and/or reinforce further division. This is
particularly pertinent in Northern Ireland where there is a differentiation of
views between the two main communities on the desirability of a ‘truth’
recovery process. Generally speaking, the Protestant/Unionist community is
suspicious of ‘truth’ recovery and perceive it as part of a ‘republican agenda’
14
or ‘Trojan Horse’ and a way to ‘bash the state’ and discredit the past actions
of the security forces (Lundy and McGovern, 2008b; Lundy, 2010: 125-126).
The Northern Ireland Affairs Committee (NIAC, 2009)4 concluded that there is
insufficient ‘cross-community consensus’ at present for a proposal by the
Consultative Group on the Past (CGP) for a Legacy Commission.5
In view of the contested nature of memory and disputed interpretations of the
past in Northern Ireland it is perhaps unsurprising that the CGP proposal to
establish a Legacy Commission (truth commission) generated considerable
controversy and at times hostility (Reuters, 2009). According to this
perspective, it would ‘do more harm than good’ and open up further divisions.
In this context, a ‘truth’ recovery process like the HET which individualises
cases and focuses on micro analysis, as opposed to the ‘bigger picture’
issues or macro-level ‘truths’, would circumnavigate the most contentious and
controversial aspects of ‘truth’ recovery. Thus, the case-by-case model has
great strengths; it is particularly important if strategically the objective is to
avoid a deeper analysis of why things happened the way they did. On the
other hand, it could be argued that this is the greatest weakness of the
fragmented/ ‘package of measures’ approach, that is, it avoids addressing the
meta-conflict. The greatest dilemma for the state may not be how to deal with
the past without contributing to divided memories. But, instead, may be
around
managing
the
political
difficulties
of
dealing
with
powerful
constituencies demanding mechanisms for dealing with the past and
protecting the interests of the state and its institutions.
15
External Influences
During the mid-1990s a globalizing transitional justice discourse influence is
manifest in a number of ways in Northern Ireland. Apart from the examples
already given above, as far back as 1993, it included a considerable volume
of international visitors with expertise in transitional justice in other societies
such as Frank La Rue (Guatemala), Alex Boraine (South Africa), Pracillia
Hayer, Paul Seils (Guatemala), RMHI Project staff (Guatemala) just to
mention a few. Importantly this resulted in the development of networks and
collaboration; there were reciprocal visits to transitional societies and scores
of international seminars and conferences held in Northern Ireland during the
late 1990s and earlier 2000s on ‘truth’ recovery and other aspects of
transitional justice. Brian Conway (2008:197) notes the impact of such global
influences during the mid-1990s on the Bloody Sunday campaign which
occasioned a shift towards a ‘truth-telling’, human rights and justice story-line.
An external factor of considerable influence is that the UK government has
also certain commitments and obligations arising from the European
Convention on Human Rights and Fundamental Freedoms and its
implementation domestically through the Human Rights Act 1998. The UK
government has been found in breach of Article 2, the right to life, in a number
of cases in Northern Ireland. In 2002, in response, the UK Government
presented the ECHR with a ‘package of measures’, to address the issues
raised by the ECHR. A key component of the ‘package of measures’ was the
16
Serious Crimes Review Team (now Historical Enquires Team). As I have
argued elsewhere, the ECHR cases have been a key ‘driver’ in the motivation
for setting up the HET (Lundy, 2009a:133-138). The ECHR Article-2
judgements also set the benchmarks for an acceptable past-focused
retrospective process. The standards and principles that the British
Government is obliged to comply with include – independence, promptness,
accessibility to the family, and sufficient public scrutiny. In addition, and, as
already discussed, transitional justice has come to dominate debates on ‘truth’
recovery mechanism. In many ways transitional justice has provided an
internationally recognised formula and yardstick for judging governments’
response to victims’ needs and accountability after conflict. These internal
pressures and external influences combined help explain the increasing
pragmatic use of transitional justice discourse by the Northern Ireland State
and official institutions which emerged in the mid-2000s.
The influence of a global transitional justice discourse is evident in the
statements and activities of key officials as mentioned above. The adaptation
of the discourse by the PSNI is evident in Hugh Orde’s lecture at Church
House, Westminster in 2009. In this lecture he recounted the motivation and
rationale of the HET; he quoted extensively from the leading transitional
justice scholar Louis Bickford on the ‘two overlapping paradigms for
confronting past memory and transitional justice’ and ‘creating a ‘never again’
mentality’. ‘As it turned out’, he said, ‘the HET set up by the PSNI was to be
the first major new societal step towards addressing these issues.’ In an effort
to explicitly link the HET with other efforts of dealing with the past in different
17
parts of globe, he referred to the Balkans, Colombia, Uganda, Rwanda and
South Africa (2009:1-3).This appears to be an attempt to link the PSNI/HET,
and reinforce the parallels, with international transitional justice and ‘truth’
recovery efforts. While the HET is bold, imaginative and innovative in the
world of policing and in transitional justice terms and it should be assessed in
the context of the challenges facing a society struggling to find ways to deal
with a conflicted past. It is also important to carefully scrutinise what the HET
may conceal, as well as what it may, or may not deliver in terms of ‘truth’
(Lundy, 2009a, 2010).
The Historical Enquiries Team
Notwithstanding the unlikely scenario of designing the ‘perfect’ process, a
fundamental and valid question is, does the HET have the capacity to hold the
state, and non-state actors, to account and restore victims’ dignity through
‘justice’, ‘truth’ and acknowledgement? The aim of this section is to look in
turn at what the HET has accomplished in relation to each of the following
separately: ‘justice’, ‘truth’, acknowledgement and accountability. These are
‘basic’ transitional justice principles and claimed benefits of ‘truth’ recovery
generally. Transitional justice discourse and concepts are clearly employed by
the PSNI (Orde, 2009); and ‘truth’ recovery discourse is an indispensable part
of the HET lexicon (Lundy, 2009a: 161-162). What follows is an exploration of
what appears to be a disjuncture between transitional justice claims ‘from
above’ and experiences from ‘below’.
18
The question of ‘justice’ is highly emotive and achieving it presents
overwhelming challenges for societies in transition. It often raises dilemmas
about the acceptability of some form of amnesty and the likely unpalatable
trade-offs (Lundy, 2010:116-118). The HET has stated that prosecutions are
likely in a very small number of cases, if at all. Various other sources have
cast doubt on the viability of prosecutions; indicating that witnesses are likely
to be old or dead, exhibits where they exist could be contaminated and would
not meet current evidential standards, paperwork may be incomplete, missing
or destroyed and there have been ineffective investigations in some cases
(HTR, 2006b; Lundy, 2009a:129-131; 2010:119). If ‘justice’ is measured
narrowly, and in terms of prosecutions, the HET has had limited success.
Most of the arrests and reports to the Public Prosecution Service (PPS) have
actually emanated form the Police Ombudsman’s Operation Ballast Report
into collusion and misuse of informants.6 Since HET took on the case files two
years ago, its investigations have led to 20 people being either charged or
reported to the PPS for a total of 23 offences including murder and attempted
murder. One other case involving the death of a fifteen year old by a British
solider in 1972 was forwarded to the PPS but no prosecution followed on the
grounds of ‘public interest’. This family were initially highly and publicly critical
of the HET review and the final report. With the assistance of a local lawyer,
the family raised the case with the Lord Chief Justice, in October 2009 the
Coroner decided to reopen an inquest into the death. This indicates that HET
reports can have a knock on effect if families are persistent and determined to
seek avenues to ‘justice’.
19
From a pragmatic conflict transformation perspective, it might be considered
politically expedient that prosecutions do not occur which might destabilise the
peace process. A senior loyalist, William (Plum) Smith, recently strongly
criticised historic investigations. He claimed that an unwritten ‘amnesty’ (for
state and non-state actors) was part of the Good Friday Agreement and that
‘the PSNI and Historical Enquiries Team are breaking the deal in continuing
investigations into the past’. As a result, he argued, ‘there are fears that
continuing investigations and pursuit of prosecutions into events that predate
that agreement could destabilise the loyalist community’. This prompted
another leading loyalist, Jackie McDonald, to say, ‘we need to draw a line in
the past’ (Belfast Telegraph, March 22, 2010; Brewer, 2010:169-171
discusses some of the problems Loyalists have with truth recovery; Lundy &
McGovern, 2008b). This opens up a whole range of dilemmas and challenges
for the state that go to the heart of transitional justice and how to deal with the
past (Lundy, 2010).
However, ‘justice’ can be defined and understood in alternative ways.
According to transitional justice principles alternative forms of ‘justice’ to fulfil
victims’ needs include ‘truth’ recovery processes. Many families accept that
prosecutions are unlikely; what they want is the ‘truth’ and acknowledgement.
The benefits attributed to transitional justice, and an official ‘truth’ recovery
process, include their ability to help victims and establish an authoritative
record of the past. The HET in many respects is an alternative way, that is, it
is tasked with answering families’ unresolved questions wherever possible. In
significant ways the HET departs from traditional policing with regards to the
type of questions it receives; they range from allegations of collusion, to
20
requests for the minutia of detail about the incident – who was with their loved
one when they died, was a priest or minister present, what were their last
words, can I have the clothes back s/he wore that day, did they suffer and so
on. While some victims’ know very little about the circumstances of the death
of their loved one, others have carried out their own research and collected
information over the years. These families have accumulated considerable
knowledge about the event, often with the help of NGO and/or community
processes. Such ‘bottom-up’ initiatives can help raise awareness and are
useful for campaigning purposes but they lack official standing. What families
often seek is the ‘truth’ to be recognised by means of an ‘official stamp’. In this
regard some victims families are satisfied with HET reports. Here is how one
individual put it,
Yes, it was worth going through with it. Because it has answered all
them questions that I had, that was eating away at me for years
and I had nowhere to go with them…. I have a record for my family
in years to come of what happened… official acknowledgement.
And there’s no doubt, absolutely no doubt that my family were
totally innocent. So that’s something I have (Interview with family
member of victim, July 28, 2008).
Other victims’ families expressed the view that the HET review had not
provided acknowledgement and did not answer their questions.
It’s mechanical, clinical exercise… they’ve done the paper, forensic
trail etc but they’ve couched everything they have said in very
careful language… It’s more or less regurgitating what we told
21
them. So no there’s nothing we didn’t already know. So it hasn’t
furthered our quest for the ‘truth’ (Interview with family member of
victim, July 13, 2010).
Even though their questions were not answered, some families still thought it
was worth doing.
It’s a desk top exercise. It’s good because it puts things
chronologically; but I could have done that myself. But it has not
answered my questions. Factually information has been useful but
that is as far as it went (Interview with family member of victim,
June, 10, 2010).
Transitional justice advocates claim that by acknowledging suffering and
wrongdoing and allowing victims to tell their story it will help restore dignity
and assist the healing process. Stanley (2005: 583) makes the point that the
healing function is dependent upon recognition. The HET describes itself as
family focused and its credibility rests on its ability to provide families with
answers to their questions. The process has however been criticised for the
ways in which the process impedes or delimits the recovery of ‘truth’ (Lundy,
2009a: 155-162). In particular, at the time of the research, the importance of
framing questions the ‘right way’ was identified as significantly impacting on
the quality of reports and answers provided. Some families did not fully
understand that the process hinged on asking the ‘right question’. Moreover, it
does not augur well in terms of the promise of ‘maximum disclosure’ that the
former Chief Constable initiated legal proceedings against the Coroner’s
access to the police investigation into controversial shooting in 1992
22
(McCaffrey, 2008:13). In May 2010, his replacement Chief Constable Matt
Baggott initiated a judicial review challenging the power of the Coroner and
related to public interest immunity applications for the Stalker and Sampson
reports in nine legacy cases (CC v Coroner, 27.5.10).
Accountability is a key principle of transitional justice. The rationale for
seeking to establish an authoritative record is to reveal the extent and nature
of violations and establish responsibility. This will in turn inform the population
about the events of the past and challenge denial. While it is difficult to trace
certain activities via a paper trail given the clandestine nature of much of the
activities
of
paramilitary
groups
and
various
agents
involved
in
counterinsurgency violence; one might expect that in a Western liberal
democracy the actions of the state in suspected unlawful killings should be
open to scrutiny. From the state’s perspective tracing ‘persons of interest’
after more than three decades presents considerable logistical problems, and,
importantly, as touched upon above, it raises a number of dilemmas in the
context of post-conflict transition. Over a period of more than two and a half
years the HET were unable to trace British soldiers through Ministry of
Defence (MOD) channels; at the time of the research, tracing efforts resulted
in only one positive identification and contact (Lundy, 2009a: 151-155). While
direct responsibility rests with the MoD, the inability of the HET to identify,
engage and interview security force personnel cast doubt on its capacity to
fulfil its objectives. The tracing issue was compounded in 2007 when NGOs
challenged the HET about cases processed under what is known as the ‘Tea
and Sandwiches Agreement’.7 This resulted in over 150 cases being ‘recalled’
23
by the HET and/or reconsidered (Lundy, 2009a, 151-155; 2010: 128-129).
Importantly, as a result of criticism, and pressure from NGOs, the HET has
introduced a new tracing system. A number of army ‘persons of interest’ have
been identified, traced and interviewed. These interviews appear to be
dependent upon voluntary cooperation and are therefore not conducted under
caution. The HET does not have the power to subpoena and arrest unless
there is a fresh evidential opportunity identified.
In these circumstances,
which are compounded by the ‘reality’ of inherited empty files; a voluntary
process could be viewed as ‘creative’ and highly unusual in the world of
traditional policing. Significantly, it opens up a ‘space’ and possibility in
seeking answers to families’ unresolved questions in cases where prosecution
appear unlikely. A number of the ‘recalled’ cases have now been re-examined
and there is a positive response from some families and NGOs (see, William
McGreanery,
2010
and
other
cases
available
at
http://www.patfinucanecentre.org/). It is too early to say whether there will be
voluntary co-operation and a positive outcome in the remainder of the
‘recalled’ cases. This example illustrates the important role of NGOs in
challenging and pushing the boundaries ‘from below’. Research has shown
that the HET process and the quality and depth of HET reports improved
when NGOs or other representatives with experience in casework assisted
families (Lundy, 2009a). It also shows that the HET listened and took steps to
improve the process and created an alternative route to ‘overcome’ the
challenge of getting answers to unresolved questions. This approach may
satisfy the needs of some victims’ families’ but it is likely to be unpalatable to
others. Such ‘informal’ processes are likely to attract criticism, particularly
24
from the legal profession and sections of the human rights ‘community’ that
would, amongst other things, seek to question or challenge versions of
events. The highly legalised approach to the past has however come under
scrutiny and critique (McEvoy, 2007). This again signifies the contested
nature of dealing with the legacy of the past and transitional justice generally.
The remit of the HET is to review individual cases. That is to say, it
focuses on micro-‘truths’ and does not address the macro or ‘bigger
picture issues. This section of the article considers why micro ‘truth’ is so
important to the HET/ PSNI; and why the Northern Ireland Office (NIO)
considers it necessary to fund it. It could be argued that individualising
cases has a number of drawbacks not least that it avoids a systematic
analysis of how and why things happened the way they did. Here is how
one individual put it:
To give an example, there is a series of cases in Belfast where
the
allegation
is that
people
were
killed
by Military
Reconnaissance Force in drive by shooting… this was
undercover army units. It is no good in those cases to be
looking at an individual case because you just discover that
Johnny died… But if you don’t look at it from above you might
not be able to understand and get a sense that there were
widespread, credible allegations that this was actually a policy.
(Interview with NGO representative, December, 2007)
Individualising cases or micro analysis avoids institutional responsibility.
Priscilla Hayer points out that macro analysis carried out by truth
25
commissions means ‘there is generally no other body in a position to
review the record of and deficiencies of the judicial system, for example.
Indeed, the following quote echoes these sentiments,
The other problem with the [HET] remit is… how do you look
at actions or inactions of the Director of Public Prosecutions?
Again, if you deal with things on a case by case basis, how do
you understand why the DPP refused to prosecute soldiers
and police? How do you understand NIO actions or MoD
actions and how much that fuelled the conflict? How does that
fit into the investigation of an individual case? (Interview with
NGO representative, December, 2007).
I would argue that the HET does not have the capacity to deal
comprehensively with such thematic issues or macro-analysis (Lundy,
2010:128-130). Neither did its architects have this in mind.
In conclusion, this article explored how a European liberal democracy has
approached dealing with the legacy of the past in one post-conflict society,
Northern Ireland. It considered the challenges of finding ways to grapple with
the complexities of the past and what this poses for states and societies in
transition. Central to this discussion was the ways in which transitional justice
has been mediated, strategically adapted and ‘localized’ and the paradoxes.
In particular, the state’s instrumental or strategic privileging of micro-level over
macro-level ‘truth’ recovery was explored.
It was argued that, the HET
individualised approach is innovative and bold; and up to a point offers some
26
families ‘a measure of resolution’. Answering victims’ unresolved questions is
something
which
is
frequently
missing
from
truth
commissions.
Notwithstanding, the structural limitations discussed, it was contended that the
HET is a ‘minimalist’ approach to the recovery of ‘truth’ post-conflict. As a
result fundamental questions that are important to victims in both Nationalist
and Unionist communities about why things were allowed to happen are left
unanswered. A key lesson from the HET is that these deeper questions
cannot be buried and an individualised process would work best in parallel
with a more holistic and far-reaching mechanism that addresses ‘macrotruths’. The socially positive role of this type of process might be to mediate
inevitable conflict in an honest and respective way. A further socially
functional role of a ‘macro-level’ approach could be myth-busting and to
delimit lies. Not everyone agrees that Northern Ireland as a society is ‘ready’,
or indeed willing, to delve into the depths of the past; that it could ‘do more
harm than good’ or would amount to ‘war by other means’. This does not
mean that states and societies should simply draw a line under the past
because it is too difficult. As this article has shown, memory work ‘postconflict’ it is always going to be difficult, contested, messy and imperfect. The
reality in Northern Ireland is ‘truth’ is seeping out anyway and in a manner that
is potentially destabilising.
27
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Endnotes
The research for this article was facilitated by the award of a Research
Fellowship by the Leverhulme Trust.
1
In 2004 Kofi Annan defined transitional justice as comprising the full range of processes and
mechanisms associated with a society’s attempts to come to terms with a legacy of largescale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.
Central elements of this ‘formula’ include prosecutions, reparations, truth-seeking, institutional
reform and vetting, or a combination thereof.
2 The ‘package of measures’ include establishment of the Police Ombudsman’s Office;
“calling in” of other police forces to investigate deaths; the establishment of the Serious Crime
Review Team [now Historical Enquiries Team]; the option for families to judicial review of
decisions not to prosecute; new practices relating to verdicts of coroner’s juries at inquests &
disclosure at inquests; measures following reviews of the coroners’ system; legal aid
requests; and the Inquiries Act.
3 According to a number of sources interviewed, the explanation given by the PSNI was that a
series of complex cases (Operation Ballast) required further resources and the HET did not
have the skills required; complex investigations would be better placed within C2.
4
The Northern Ireland Affairs Select Committee is a select committee of the House of
Commons in the Parliament of the UK. The NIAC has been criticized by some as being a
‘cold house’ for those who do not share a particular Unionist perspective on the past.
5
In January 2009 the British government appointed a Consultative Group on the Past (CGP)
to consult widely and recommend how best Northern Ireland could deal with its past. The core
recommendation was the establishment of a Legacy Commission or truth commission.
6 Police Ombudsman Public Statement and Report on Operation Ballast – RUC/PSNI
Collusion with the UVF in North Belfast, 2007 available at
http://www.patfinucanecentre.org/collusion/ballast.html.
7
This refers to cases involving army personnel suspected of being involved in unlawful
killings of civilians not being interviewed at the time by the police but instead it was agreed
that this should be undertaken by the Royal Military Police (RMP). This resulted in some 157
RMP cases being ‘recalled’ by the HET and/or reconsidered
38