Since the war began in 1970, only four British soldiers have been convicted of the offence of murder. All four were subsequently re-admitted to the army.
In Derry alone, the British army was responsible for the deaths of 35 civilians. Not one soldier was made answerable before a court of law. Not one was subject to any proper criminal investigation until after the Good Friday Agreement was signed and pressure began to mount for truth and justice
Joe McCann, a leading member of the Official IRA, was murdered in a Belfast street by two British paratroopers as he ran from them, unarmed, in 1972. Recent court decisions, including in his case, mean that statements given voluntarily to members of the military police, immediately after the event, cannot be used as evidence in a criminal trial.
In May, at the conclusion of the inquest into the 10 civilians shot dead by paratroopers in Ballymurphy in the summer of 1971, the judge in charge of the inquest stated that this policy of investigation by the military police was designed deliberately by the authorities so their statements could not be used. (That judge was Siobhan Keegan, the new head of the judiciary of Northern Ireland, as of 2 September.)
Like Bloody Sunday in Derry in January 1972, there was no police investigation into the killings in Ballymurphy or of Joe McCann.
Currently, there are two former soldiers and one former alleged member of the IRA currently awaiting trials for murder or attempted murder. Given the many thousands of unresolved murders, this is not that many cases, you might think.
Which might lead you to ask: why is the present British government proposing to bring in legislation this coming year to prevent any future prosecutions for Troubles-related offences committed before the signing of the Good Friday Agreement in 1998?
Worse than Pinochet
This is what the government says it will do: ‘Introduce a statute of limitations to apply equally to all Troubles-related incidents, bringing an immediate end to the divisive cycle of criminal
investigations and prosecutions, which is not working for anyone and has kept Northern Ireland hamstrung by its past.’ That is from the executive summary to ‘command paper 498’, issued this July.
This is an amnesty in all but name. It applies not just to British soldiers but also to IRA volunteers and members of loyalist paramilitary organisations.
It is also broader than the amnesty implemented by Pinochet in Chile, following his military coup in 1973. This has been highlighted in a recent report* published by Queens University and the Committee for the Administration of Justice (CAJ), a Belfast-based organisation.
So, without precedent almost anywhere else in the world, 23 years after the end of the conflict, the British government decides, unilaterally, to implement an amnesty.
What makes this amnesty almost unique in post-conflict situations is that it is not linked to any requirement for combatants to explain what they did and why they killed the people they did. This was fundamental, for instance, to the South African peace settlement.
“This amnesty is broader than the one Pinochet granted after his coup in Chile”
The government’s proposal has been met with howls of anguish and outrage by people in Northern Ireland. It is one of the few things that both the Democratic Unionist party (DUP) and Sinn Féin (SF) agree on.
What many people outside of Ireland may not be aware of is that there already exists an agreement, signed up to by all the relevant parties (the UK and Irish governments and the political parties in the North) for dealing with these contentious issues of truth and justice.
It is known as the Stormont House Agreement** and was agreed in 2014.
This agreement was not perfect but it was based on widespread endorsement by victims’ groups as well as the main political parties and the Irish government.
What is interesting is why the British government has decided to bring upon itself all the condemnation, not just of people in Northern Ireland, but of people in the USA and Europe, as well as the Republic of Ireland.
Most suggest the power of the veterans’ organisations and the right wing of the Tory party.
Yet, even with a proper investigative process, the chances of successful prosecutions against soldiers is slim. The director of public prosecutions decided recently, in light of the collapse of the McCann trial, to withdraw charges against ‘Soldier F’ (David James Cleary), the only soldier charged with anything as a consequence of the Bloody Sunday massacre in Derry in 1972.
There are only two outstanding prosecutions of soldiers. One is of Dennis Hutchings, for the attempted murder of John Patrick Cunningham in 1974. A soldier is also about to be charged with regard to the death of Aidan McAnespie in 1988.
There is a simple answer for what the government is doing. It is about protecting the intelligence services, particularly MI5, MI6, and various units within the British army.
Shut it all down
In command paper 498, the government speaks about ‘an immediate end to the divisive cycle of criminal investigations’.
In reality, the amnesty goes further.
The government is proposing an end to all criminal and civil investigations.
This means an end to inquests as a mechanism for truth disclosure, as happened with the Ballymurphy murders.
The new policy also prohibits any further referrals to the police ombudsman as well as an end to civil claims.
Put simply, once the command paper becomes legislation, there will be no available means for relatives or justice organisations in Ireland to pursue investigations into contentious deaths or the role of the intelligence services in these deaths. (It is still unclear whether the proposals apply to incidents like the Birmingham and Guildford bombings in England.)
The British government has form on this already.
In 2001, following an investigation by the Canadian judge Peter Cory, the Blair government promised an independent public inquiry into the death of Pat Finucane. Finucane was a Belfast lawyer who had established a formidable reputation for defending IRA volunteers and had successfully pursued cases against the British government in the European Court of Human Rights.
However, since then, the government has attempted to wriggle out of this commitment even though the UK’s supreme court has ruled that there has not been a proper investigation into the death of Pat Finucane as required under Article 2 of the European Convention on Human Rights.
The last inquiry into Finucane’s death, carried out by the late Desmond de Silva revealed an extraordinary level of involvement by the security forces not just in Finucane’s death but also in directing loyalist organisations towards people they wished to see removed. De Silva also criticised MI5 for spreading disinformation about Pat Finucane that contributed to his death while not accusing the agency of being directly involved in the murder.***
One example of involvement was directing loyalist paramilitaries towards a totally uninvolved family in West Belfast for assassination in order to protect a key IRA agent who had a similar sounding name.
Despite the supreme court ruling, the British government continues to rule out an inquiry. This is about protecting the intelligence services from proper public scrutiny of their role in Ireland’s dirty war.
Currently, the director of public prosecutions in Northern Ireland is assessing over 30 files of evidence in relation to Freddie Scappaticci, a British army agent inside the IRA. Whether these files contain evidence against members of the intelligence services is currently unknown, but clearly no prosecutions will take place if the legislation is passed.
In the past, we often heard talk about ‘joined-up’ government – government policies having a degree of coherence and mutual relationship.
Boris Johnson’s government is actually a very joined-up government when it comes to protecting the secret agencies of the state from accountability. Legislation to end investigations by lawful authorities in Northern Ireland is complemented by proposals from the UK home office to amend the Official Secrets Act. This would make it a criminal offence for journalists or others to disclose information which is ‘sensitive’ or ‘unauthorised’. This comes on the heels of the Overseas Operations Act which effectively grants British soldiers immunity for war crimes committed in Afghanistan and Iraq. (The Act allows criminal prosecutions for war crimes, but these are extremely unlikely; it bans civil cases completely.)
The British government has now given an extraordinary degree of protection and immunity to its military and intelligence services which pose a real threat to democracy and the rule of law.