To tell the truth about a murder in a way that gives it public recognition reasserts the worth of victims and their relatives, writes Nigel Biggar
A truth commission for the North is back on the table. Hugh Orde, the Chief Constable, and Desmond Rea, the chairman of the Policing Board, put it there in February. In June the Northern Secretary, Paul Murphy, launched a consultative process that looks set to issue in a major conference next year.
Why now? The Chief Constable claims that his force cannot cope with the mounting demand to reopen some 1,800 unsolved cases of murder committed during the Troubles. He is funded, he tells us, to police the present, not to reinvestigate history.
But resources are not the main issue. No matter how much public money was poured into disinterring unsolved cases, only a fraction would surrender the truth to conventional police investigation.
Renewed interest in a commission is driven mainly by concern that rising discontent over past crimes is infecting present peacemaking. Certain crimes - those against nationalists and suspected of involving agents of British government - are receiving privileged attention. If Bloody Sunday and Pat Finucane, so the complaint goes, then why not the other 1,800?
One answer is that there is an "asymmetry of responsibility" - that government personnel must be held to a higher standard of accountability than others, not least because the development of peaceful politics depends on the growth of trust in the institutions of law and order. That is true. But there is another asymmetry that needs to be factored in here: unlike South Africa, the vast majority of killings in Northern Ireland were committed by paramilitaries, not by the state. Between 1969 and 1998, republican paramilitaries were responsible for 55.7 per cent of Troubles-related deaths, and loyalists for 27.4 per cent. The British army, the UDR and the RUC were together responsible for only 10.7 per cent. If peace between nationalists and unionists is to grow beyond surly coexistence, then one side's victims of injustice must not be deemed less important than the other's. Both must be accorded the equal dignity of equal attention. But if renewed police investigation would in most cases be futile, might the attention of a truth commission be more fruitful?
It could be. Elsewhere truth commissions have brought to light more truth about past crimes than would have been possible by normal judicial procedures, either because perpetrators were induced to reveal all by the promise of amnesty, or because the evidence of witnesses was not restricted as tightly as in a law court. This is partly why Kader Asmal - sometime law lecturer at Trinity College and then cabinet minister in Mandela's government - came to prefer a truth commission to Nuremberg-style trials for South Africa.
But what good can the truth do?
It can dignify. To tell the truth about a murder in a way that gives it public recognition reasserts the worth of victims and their relatives. In publicising the truth, a community affirms that what happened, and those to whom it happened, matter. This is the beginning of the vindication of the victims, which is no small part of justice.
Further, the public exposure of the truth in all its intractable awkwardness can disturb the partisan histories with which hostile sides stoke their simple hatreds. Thereby it can raise questions about whether the enemy's story might deserve more credit and one's own less. Here in this salutary moment of self-doubt the grip of the past can be made to loosen. As one 81-year-old Afrikaner lady, a lifelong supporter of the National Party, commented on the revelations of the Truth and Reconciliation Commission (TRC): "I did not know that my people could have done such things."
For some, the damning flaw in truth commissions is that they buy truth at the price of justice by rewarding perpetrators' confessions with amnesty rather than punishment. But human justice ever comes only in fragments; and punishment is neither its sum nor its heart. Besides, to have to own responsibility for a heinous crime under the public gaze is hardly to get off scot-free.
Two further problems, however, would attend a truth commission in Northern Ireland. First, whereas in South Africa the TRC was part of a final political settlement, a truth commission in the North would not be. The struggle for the unification of Ireland in a single, non-British political jurisdiction persists. So whatever truths a commission were to dig up would quickly be converted into political weapons. Immediately the truth would fuel, not heal. But this is already the case and will remain so with or without a truth commission. Determined ideologues cannot be stopped from exploiting history to their own advantage. Other more honest souls, however, have been known to let history tell them what they did not wish to hear. In time, then, a truth commission could be expected to loosen the ideological logjam.
A second problem, however, remains outstanding: Should we induce perpetrators, whether paramilitaries or agents of the state, to own their deeds by promising amnesty? We probably could. Agents of British governments who have acted illegally are liable to prosecution, conviction, and sentence according to normal procedures. The same goes for crimes committed before April 1998 by those who are not members of paramilitary groups on ceasefire, as well as for crimes committed afterwards by anyone. Even members of subscribing groups remain liable to a penalty of up to two years in prison for crimes pre-dating 1998. Each of these classes of law-breaker, therefore, would have some interest in amnesty. So we could offer it. But should we? In South Africa, amnesty was granted conditionally to those who, when the civil war ended, wanted to build new lives. In Northern Ireland, however, many of those responsible for the 1,800 unsolved murders continue to engage in paramilitary activity, whether keeping the war-engine ticking over or playing local gangster. It is one thing to grant amnesty to those who, while not necessarily repudiating their violent past, clearly want to leave it behind. It is quite another to grant it to those for whom the past is still something of a home.
Nigel Biggar, Professor of Theology at Trinity College Dublin, is editor of Burying the Past: Making Peace and Doing Justice after Civil Conflict (Washington, DC: Georgetown University Press, 2003)