September 8 began the start of the trial of 20 people accused of carrying out the November 13, 2015, Islamist terror attacks in Paris that killed 130 people. A victims’ representative summed up the obligation of the French state to the hundreds killed, injured, or bereaved by the atrocity: “The victims need to feel that a democratic state not only supports them,” he said, “but also that it’s using all its skills, resources, time, money, judges, to do what it can in order to get some answers.”
To me, this seems a reasonable summary of the state’s obligation to victims of terror. How does this standard measure up against the United Kingdom’s recent response to historic violent extremism in Northern Ireland that murdered and maimed thousands of people during what is colloquially known as the Troubles?
In July of this year, the U.K. government released a discussion paper called, “Addressing the legacy of Northern Ireland’s past.” I’ve previously written about the discussion paper here. The proposals did something almost unique in Northern Ireland, uniting its antagonistic political parties in opposition to what amounted to amnesty for all criminal acts associated with the conflict prior to 1998 when the Good Friday Agreement was signed. Should the proposals take effect as written, this would mean that those killed or injured by terrorists of any faction in atrocities that, if not equal in scale to the massacre at the Bataclan concert hall at least comparable in cruelty, would be denied justice through the criminal courts.
What is proposed by the U.K. as a replacement for due process is a somewhat hazy “truth recovery and information retrieval process,” which imagines perpetrators voluntarily engaging with victims to explain how and why their loved ones were killed.
The manner of these deaths cannot and should not evade public description. They include a staggering number of men, women, and children targeted for nakedly sectarian reasons and murdered, usually completely defenceless, at their places of work, on their farms, emerging from church or chapel, enjoying a drink in a bar or a meal in a restaurant. These terrorist acts even include the slaughter of civilians at a Remembrance Day service, a crime so heinous that it was condemned at the time by the Kremlin.
Many of the crimes remain unsolved. It is inconceivable, given the squalid nature of the offences, that anybody would choose voluntarily to come forward and explain such sadism. There would certainly be no incentive in doing so after the proposals removed all civil and criminal redress for victims.
Like many people from Northern Ireland, I was deeply angered by the proposals. Defeating violent extremism relies on a steadfast response and the state’s iron resolve to bring perpetrators to justice however long it took and whatever the cost. Anything less gives comfort to our enemies and undermines a sacred contract between government and the people.
Only a few weeks ago, U.S. President Joe Biden underlined that commitment in response to those who killed U.S. military personnel during the chaotic retreat from Kabul. “We will not forgive. We will not forget.” In Northern Ireland, the forgetting will now have state sanction with the forgiving in the hands of the perpetrators.
Rather than simply rail against the iniquity of these proposals, I resolved to try to improve them. A meeting followed with the law firm McCue, Jury & Partner. Jason McCue and his partner Matthew Jury are two of the U.K.’s foremost human rights lawyers who specialise in advocacy for victims of terrorism. They made legal history when they acted for the families of victims of the ‘Real IRA’ Omagh bombing in 1998 which murdered 29 people, including unborn twins. In a landmark civil action brought against those responsible for the bomb, four men were found liable for the atrocity where the criminal process had failed. This is a unique legal firm that successfully sues terrorists.
Together, we have put forward a legacy counterproposal for government to address the weaknesses in the original proposals that rightly outraged victims’ groups. In summary, if the government is determined to proceed with these proposals, then they should be modified in three important respects:
1. A truly victim-centered legacy center that prioritizes harm done must be established.
2. There must be compulsion for suspected perpetrators to engage in meaningful disclosure; and
3. Civil penalties for non-compliance must exist.
Their full response paper is included here. As they say in their introduction, the government’s plans are defective in “not meeting the essentials of any progressive transitionary justice model that seeks a sustainable and enduring peace. Justice has simply been side-stepped,” and the proposed statute of limitations on civil, criminal, or coroners’ processes for terrorist crimes is “morally indefensible, open to legal challenge and inherently flawed.”
The substantive changes to the proposals recognize that the current universe of a small number of historic cases—almost all of which involve wrongdoing by the state that killed significantly fewer people (and often lawfully when terrorists were intercepted on murder missions)—is bogging down the legal process with little chance of resolution. Ninety percent of the killings in Northern Ireland were perpetrated by terrorists—60 percent by republican terrorists and 30 percent by their loyalist counterparts. Only 10 percent of killings were by state forces and the majority of these were justified. But, of course, there should not ideally be any amnesty for those remaining agents of the state who we expect to adhere to a higher standard than criminals who execute unarmed civilians. But this is what is envisaged.
The counterproposals suggest a beefed-up Truth and Reconciliation center beyond the hazy details in the original paper. This ‘Peace Centre’ is built around prioritizing the needs of victims for justice and closure above those of perpetrators. Victims would be supported through access to state archives to identify people responsible for harm. Those alleged to be responsible on the balance of probabilities would be required to participate in a disclosure—mediation—reparation process again driven by the needs of victims. Failure to participate either at all or meaningfully would subject perpetrators to fully state funded and fast-tracked civil litigation at a specially convened tribunal with the perpetrator similarly funded. Investigative priority would be given to ‘harm done’ incidents in terms of people killed or injured. This would restore the very unbalanced emphasis on a few high-profile cases, to the detriment of many other victims and survivors of mass casualty attacks whose terrorist perpetrators remain at large.
Is this a perfect solution? No. In an ideal world, in the words of the president of the United States, we should neither forgive nor forget those who use violent extremism to further their own squalid ends. Extremists would be pursued by law enforcement and the criminal courts for as long as they lived.
In this world, it seems inevitable that the U.K. government will proceed with its amnesty to break the justice logjam. We are simply trying to bend the arc of justice towards the many unremarked victims of terrorism in this country who need and deserve the full resources of the state on their side. We know the McCue-Jury proposals are currently under consideration by government. That’s a good thing. Ministers have the chance to act honorably and not merely expediently. An ethical legacy is at stake here for all concerned in designing, implementing, and legislating for the next steps. There is much talk in Northern Ireland of letting go of a past that some regard as an inconvenient impediment to the future. But while there remains no justice for so many of the 3,500 people killed in the Troubles, their families and those thousands of survivors blighted mentally and physically by 30 years of sectarian horror, any hopeful future is surely imperiled.
In the memorable words of Holocaust survivor Elie Wiesel, “If we forget, the dead will be killed a second time.”