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


It follows that most of those who still support the prosecution of soldiers involved in disputed shootings do so because the criminal justice system was so flawed during the most violent years of the conflict. Former generals, MPs and ministers can harrumph all they want about the injustice of reopening cases that were closed back in the 1970s, but I’m afraid these republicans and nationalists have a point, at least in law. While the conflict raged, ministers repeatedly maintained it was not a war, but a straightforward “law and order” issue. British counter-insurgency strategy was about establishing the “rule of law” which — as Mrs Thatcher kept telling us — “must apply to everyone”. The uncomfortable truth is that for soldiers, a different law applied to them for many years.

Moreover, Article 2 of the European Convention on Human Rights obliges Britain to conduct “effective” investigations into killings by “state actors”, meaning the investigation must be “capable of leading to the punishment of those responsible” though not necessarily requiring punishment. So far, those substandard RMP investigations that have come before the courts have been adjudged not to have met our Article 2 legal obligations.

There is, however, a growing chasm between the desire for prosecutions by republicans and nationalists against soldiers, and by unionists against the IRA — and the realistic prospect of securing convictions against either. Prosecutions are already very rare and getting rarer by the year because witnesses are dead and dying and documents and forensics lost or tainted. This mismatch has led to an explosion of legacy-linked civil litigation in Belfast, because when aggrieved parties don’t get criminal justice — or, alternatively, when they regard themselves as being unjustly prosecuted — they turn to the civil courts.

The result is that Northern Ireland’s civil justice system is approaching meltdown. The courts are now awash with hundreds of writs, seeking judicial review of DPP decisions not to prosecute, or to prosecute, decisions over the backlog of conflict related inquests, disclosure of intelligence, public interest immunity certificates, damages for unlawful injury and challenges to the issue of non-jury certificates. This is unsustainable: without a legacy agreement there will be no end to it and the civil justice system will eventually collapse.

This should tell us something — that the demand for legal accountability is not pre-eminently the product of cynical, mischievous, subversive, Brit-hating republicans and nationalists. It’s human nature to keep on demanding answers to questions which the state has either avoided answering or answered incompetently.

Last month the inquest opened into ten people shot dead by the 1st Battalion of the Parachute Regiment in Ballymurphy in August 1971 in the three days following the introduction of internment without trial. An 11th man died later. At the time, the army said the ten were either members of the IRA or killed in crossfire. Credible eye-witness accounts of soldiers firing at unarmed people and the nature of the victims suggest the army’s version is implausible. The dead included a mother of eight searching the streets for her children, and a priest who was shot while carrying a white flag and administering the last rites to a dying man who was also unarmed. Six months later, 1 Para shot dead 13 innocent people in Londonderry on “Bloody Sunday”. A 14th died four months later.
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Pat
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

nobby
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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