Written evidence from Jim Allister QC
MEP
1. SUMMARY OF
MAIN POINTS
— The recommendations of the CGP are fundamentally
flawed because the definition of "victim" which they
adopt is totally unacceptable. This pollutes the Report in its
entirety.— While many have welcomed the Secretary of State's
announcement that the recommendation to award a £12,000 payment
to the nearest relative of all those killed during the Troubles
will not be implemented I believe it would have been better if
the payment was made to innocent victims while those who died
while engaged in criminality were excluded.— The crimes
committed during the Troubles should be a matter for the criminal
justice system. The Legacy Commission proposed by the CGP would
be totally unsuited to perform the functions envisaged for it.
— The Quigley-Hamilton recommendations
should not, as the CGP suggests, be incorporated into statute.
They are an unwarranted and unnecessary sop to terrorists and
an insult to innocent victims. Secondly, they perpetuate the IRA
myth that there is a difference between terrorism and "ordinary"
crime.
— I reject any suggestion of a shared memorial
or shared day of reflection.
— There should be no question of an amnesty
for terrorists.
THE SPECIFICS
OF THE
REPORT
Chapter 2—Developing a Road Map for the
Future
2. "A reconciled society takes collective
responsibility for the past instead of attributing blame and avoiding
responsibility" (page 50).
This sentence could have come straight out of a Sinn
Fein policy document which attempts to suggest that everyone is
to blame for the Troubles and the finger should not be pointed
at those responsible—the terrorists who took up the gun
and the bomb. Only an insurrectionist and criminal minority in
Northern Ireland engaged in terrorism and violence. This statement
it is an insult to the vast majority of the Province's population
who were and are law-abiding.
3. "The past should not be allowed to
continue to shape the future in a way which is unhelpful and divisive"
(page 56).
Again the thinking behind this statement is
pro-terrorist. The implication is that one who opposes the elevation
of Sinn Fein/IRA to government because of their involvement in
violence is being "unhelpful". The innocent victims
of the Troubles should never be forgotten. Nor should the fact
that people who now hold Ministerial office made them victims.
The uncomfortable realities of the "peace process" should
not be swept under the carpet.
4. "Since NI now has a justice system
as worthy as any other society, and will soon have more local
control over it, people who claim justice from the system cannot
have their claims denied" (page 57).
To suggest that victims are more likely to have
their claims for justice met when policing and justice powers
are devolved to Stormont is quite simply ludicrous. No terrorist
inclusive executive is going to pursue those of their own who
spent 30 years killing and maiming the people of Northern
Ireland.
5. "Many people privately felt that
drawing a line in some way might be the best way forward but could
not bring this out publicly because members of their community
were still pressing for prosecutions of the "other side"
(page 58).
(a) Many in Northern Ireland have been profoundly
disturbed by the suggestion that there were those who said one
thing to the CGP behind closed doors and another to the public.
Since the Report's publication, Jarlath Burns of the Eames/Bradley
Commission has alleged that prominent Unionist politicians, who
have publicly protested about the contents of the report, were
supportive in private.1 It is appalling if some, for the sake
of public consumption and approval, have trotted out condemnation
while all the time encouraging Eames/Bradley down this path. This
truly would be duplicitous.
(b) Under no circumstances should the Committee
give any credence to this point in the Report. Those who express
one view point in private and another in public deserve nothing
but contempt.
6. "[The Group] recognises that
the very demand for justice can mitigate against the main goal
of reconciliation…. A long and determined pursuit of penal
justice could be viewed as a means of continuing the conflict
rather than enabling healing" (page 58).
(a) Innocent victims will be outraged by this
suggestion. Justice is a fundamental in any society. Indeed, this
passage of the report flies in the face of the passage quoted
in Paragraph 4 of my response. How can the Report's authors
simultaneously argue that "people who claim justice from
the system cannot have their claims denied" (page 57)
and also say that a pursuit for justice has a negative impact
upon society?
(b) Secondly, those who seek justice for their
loved ones will be grossly offended by the suggestion that their
demands are a "means of containing the conflict".
It is internationally recognised that obtaining justice for those
who suffered unjustly is a key aspect of bringing closure to the
victim and enabling healing. The fact that criminals have been
allowed to get away with their actions is often the most difficult
aspect of the entire process for victims.
Chapter 3: The Conflict and Society
7. When discussing Republicans the report
states: "Lives were lost in the course of active service.
Many thousands spent years in prison; their families were inevitably
affected and their suffering was rarely noted outside their own
community" (page 63).
(a) The use of the term "active service"
to describe terrorists engaged in murderous criminality in
a press release issued by OFMDFM, when a member of the Victims'
Commission was discussing how her brother lost her life while
attempting to murder, has already provoked huge outrage among
innocent victims in Northern Ireland.2 Its use suggests that terrorists
were military personnel engaged in a war rather than the reality
- vile terrorists bent on murder and mayhem. I deeply regret that
the CGP has, by employing the term, sought to sanitise the murders
of Republican terror squads.
(b) Secondly, to highlight what the Report describes
as the "suffering" of the prisoners would also be deeply
offensive to those who lost loved ones at the hands of terrorists.
While innocent victims were cut down without warning, those who
were arrested and served time were, scandalously, treated differently
from "criminal" prisoners, being allowed to wear their
own clothes and freely associate with other prisoners on the wings,
and ultimately, and shamefully, released under the Belfast Agreement.
8. When talking about members of the security
forces the report states: "They were emphatic that history
should not reflect any equivalence between the actions of terrorists
and the response of the forces of law and order". (page
64).
I fully support this point which was evidently
the unanimous position of the security force personnel who gave
evidence to the CGP. Sadly the CGP has rejected this suggestion.
The shared day of reflection (page 100), suggestions about a shared
memorial (page 103), the proposed £12,000 payment to
all who lost relatives during the Troubles, etc all make it evident
that the CGP disregarded this position and refused to draw a distinction
between those who fought to uphold the rule of law and those who
opposed it.
9. (a) On pages 66 to 68 the
CGP Report deals with victims' issues. It is here that the core
of the problem with this Report can be found. Without a proper
definition of "victim" all of the recommendations relating
to that group will be flawed.
(b) I deeply regret that the Report's authors
saw fit to accept the definition contained within the 2006 Victims
and Survivors Order. I repudiate this definition as it defines
a victim or survivor as someone who is or has been physically
or psychologically injured as a result of or in consequence of
a conflict-related incident, thus puts the terrorist injured by
his own bomb on a par with the innocent victims of Enniskillen,
Claudy and La Mon. The primary blame for this definition lies
with those who introduced it and the failure of the devolved administration
to do anything to rectify it but ultimately the CGP are responsible
for accepting this flawed definition. This is to its eternal shame.
If they had really wanted to help victims they would have recommended
change to this statutory definition.
10. "In the course of the consultation
a number of people drew attention to the difficulties experienced
by those with conflict-related convictions. In particular, ex-prisoner
groups noted that applying for jobs, obtaining a mortgage and
even lesser forms of credit are problematic where the applicant
has a criminal record. Many expressed a desire to put their past,
and the actions they committed as part of paramilitary organisations,
behind them and to lead normal lives. Some wanted to give something
worthwhile back to their community. The implications of their
criminal record for conflict-related offences make it difficult
to secure a permanent occupation and so provide for their family.
"The Group is persuaded that more should
be done to allow those with conflict-related convictions to become
integrated into society by affording them equality of access to
jobs, goods and services. Many have played active and positive
roles in conflict transformation" (page 81).
(a) I have long been an opponent of terrorist
convicts being treated differently from others convicts when it
comes to employment.3 The murders, robberies and other crimes
committed by terrorist organisations - both Republican and Loyalist
- should be treated as the crimes they really are. This recommendation,
as with so many others in the report, would if implemented help
to legitimise and sanitise terrorism.
(b) The suggestion that many former prisoners
have "played active and positive roles in conflict transformation"
is grossly offensive to those who suffered at the hands of terrorists.
The Report ignores the fact that if former prisoners and their
colleagues who evaded capture had not engaged in violence we would
not have had a conflict in the first place! Secondly, the lauding
of former prisoners like Gerry Kelly and Martin McGuinness for
their supposed role in "conflict transformation" is
deeply upsetting to many who suffered during the Troubles.
(c) As a future deterrent it is right that resort
to terrorism should bear a life-long disincentive. To remove from
a terrorist the price of his voluntary pursuit of terrorism, while
his victim has no life to lead, would be a further monstrous injustice.
Chapter 4 Victims and Survivors
11. "One important part of the work
of the CVSNI will be the establishment of a Victims and Survivors
Forum. Although this will initially face some resistance from
those who do not want to interface with groups traditionally hostile
or at least suspicious of each other, it will be the best place
to begin to address the process of reconciliation" (page
89).
(a) The CGP's views on the Forum are, frankly,
insulting. Innocent victims oppose being grouped with those who
made them victims. Paragraph 20 of OFMDFM's Outline Draft
Strategic Approach for Victims and Survivors states that the
Forum must "be representative of victims and survivors".
The present iniquitous statutory definition of victim means
perpetrators of terrorism will have parity with their victims.
This is obscene and innocent victims are quite correct to oppose
it. It would have been much better if the CGP had taken a stand
for innocent victims instead of expressing a hope that their position
will change over time.
(b) It is important to note that Martin McGuinness
will play a key role in the establishment of the Forum (the Commission
is required to "obtain the First and deputy First Minister's
agreement to the costs of the work programme" (Outline
Draft Strategic Approach for Victims and Survivors, Paragraph
22). McGuiness, by his own admission, was a commander in a terrorist
organisation.4 How can any innocent victim have any confidence
in such a system?
12. I cautiously welcome the Secretary of
State's announcement that the proposed £12,000 payment
to the nearest relative of all those who met their deaths during
the Troubles (pages 90—94) will be dropped. However, it
would have been much better if the Secretary of State had decided
to award the payment to innocent victims while excluding terrorists.
This would have laid down a clear marker that there is a difference
between innocent victims and terrorists.
Chapter 5 Remembering
13. "People should [not] necessarily
undertake the process of telling and listening to stories in the
presence of those whom they believe are responsible for their
hurt. Rather, those involved in storytelling should accept the
importance of all sectors of society telling their stories. How
and when this acceptance develops into active listening and understanding
is an issue for each individual to address. While it is this listening
which could ultimately help contribute to reconciliation in our
society, such a process will not be easy for those who have experienced
great suffering during the conflict.
"Individuals participating in storytelling
projects must be able to tell their story freely in a private
context, but should be able to omit information which may
put them at risk—either from prosecution or retaliation—before
their story is put in the public domain"
(page 99).
(a) This is another adoption of an IRA/Sinn
Fein proposal, propagated as their best means to rewrite history.
I reject it.
(b) The closet amnesty which it contains
is repugnant.
(c) Innocent victims want and deserve justice,
not story telling.
14. (a) Innocent victims will be deeply
offended by the proposed "shared day of reflection".
The suggestion that there is some sort of parallel between acts
of Remembrance on 11 November and celebration of an Uprising
on Easter Sunday is outrageous. Easter Sunday is a day when Republican
terrorists are commemorated while 11 November is a day when
those who died in the fight for freedom in two world wars and,
indeed, those who died to defend freedom in more recent conflicts,
are remembered.
(b) The suggestion that the First and deputy
First Ministers could jointly address the Assembly on an agreed
date (page 101) is also unacceptable. The deputy First Minister
remains unapologetic about his role in a terrorist organisation
and is therefore supremely unfitted to lead tributes to those
who suffered and died during the Troubles.5
15. The proposal that at some time in the
future a shared memorial could be created (pages 102 to 105)
is something which all fair minded people will reject. No one
could reasonably expect Michelle Williamson to be happy about
her parents who were killed in the Shankill bombing being commemorated
alongside Thomas Begley who was killed planting the bomb. I submit
that this proposal, like the entire Report, should be binned as
it draws no distinction between victim and perpetrator.
Chapter 7 Legal Processes: The Arguments
for Change
17. "On the basis of its consultation,
the Group does not believe that the present legal processes are
fully meeting society's needs. There is a tendency to re-fight
the conflict through the courts; to pursue truth through litigation;
to deal with the past without a perspective for the future.
"Public inquiries have proved protracted
and expensive with a narrow focus on a very few cases. The issue
of the promised Inquiry into the death of Patrick Finucane remains
unresolved.
"The Police Service of Northern Ireland
(PSNI) has found it increasingly difficult to service the demands
of historical inquiries. While both the Historical Enquiries Team
(HET) and the Police Ombudsman's Unit are dealing with historical
cases, such investigation has become an increasing burden on both
the PSNI and the Police Ombudsman respectively. Neither the PSNI
nor the Police Ombudsman can build for the future if they are
burdened by the past" (page 124).
(a) The pursuit for truth and justice in relation
to crimes committed during the Troubles should now be an exceedingly
easy task as the political wing of the IRA now supposedly supports
the criminal justice system in Northern Ireland! One cannot be
said to support the rule of law and conceal knowledge of unsolved
crimes. So, those who now hold government office could solve multiple
crimes at a stroke. However, hundreds of IRA murders in Northern
Ireland remain unsolved and will remain so, not just because Eames/Bradley
wants to move away from the pursuit of justice but because it
is no longer politically expedient to pursue the terrorist killers
of a party of government.
(b) Any attempt to take the investigation of
crimes committed during the Troubles outside the criminal justice
system will be resolutely opposed by victims who still demand
their right to a day in court.
18. While recognizing the burden which investigating
historic cases places upon the PSNI and Police Ombudsman's Office
I am deeply concerned about the proposal to remove the investigation
of historic cases from the PSNI and give it to the proposed new
Legacy Commission. This would represent an unwelcome attempt to
take the investigation of crimes committed during the Troubles
out of the remit of the criminal justice system.
19. "At the end of its mandate the
Commission would make recommendations on how a line might be drawn
so that Northern Ireland may best move to a shared future. This
might embrace a procedure whereby historical cases, including
those against 'on the runs', would no longer be actively pursued"
(page 126).
"An amnesty now would have the advantage
of removing some of the anomalies and inconsistencies in the handling
of historical cases. It would avoid some of the expense of a new
mechanism. It would allow greater focus on information recovery.
It would take account of the fact that the chances of successful
prosecutions in historical cases are fast receding. It would avoid
problems arising from criminal case reviews. It might be one way
of encouraging society to move on.
"An amnesty may not necessarily contravene
rights under the European Convention of Human Rights (ECHR) if
there are exceptional circumstances surrounding the peaceful resolution
of a conflict. But the current jurisprudence of the European Court
of Human Rights (ECHR) and the developing practice of international
law points strongly against amnesties.
"The Group has concluded that a general
amnesty would not be appropriate in the present situation. Many
families may need to adjust their expectations of criminal justice.
But there was a strong view expressed by both politicians and
victims in the Group's consultation that the route of investigation
and prosecution should be kept open.
"The Group accepts this argument but
recommends that the proposed Commission should make recommendations
on how a line might be drawn at the end of its five-year mandate
so that Northern Ireland may best move to a shared future"
(132).
(a) Were it not for the furore provoked by the
£12,000 payment this would, undoubtedly, have been the
one proposal which would have produced an explosive reaction.
Imagine the outcry if, a decade after the war, it had been proposed
that Nazis involved in the Holocaust who fled to South America
should no longer be perused. Yet a proposal tantamount to that
has been put forward by the CGP. This is totally outrageous. It
would be utterly unacceptable anywhere else in the United Kingdom
and so it is in Northern Ireland. All criminals should be perused
by the forces of law and order until they are brought to justice.
(b) However, it would be a mistake not to recognise
that the Provisional Movement has been given a de facto amnesty
by those who have deemed them fit for government.
(c) I do not share the CGP's view that an amnesty
may not contravene rights under the European Convention of Human
Rights. Article 13 clearly states that "Everyone whose
rights and freedoms as set forth in this Convention are violated
shall have an effective remedy before a national authority".
The most basic and fundamental human right is the right to life
("Everyone's right to life shall be protected by law. No
one shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for
which this penalty is provided by law", ECHR Article 2).6
Terrorists in Northern Ireland deprived over 3,000 people
of this right.7 It is scandalous that the CGP should seek to deny
them justice.
Chapter 8 The Legacy Commission
20. I could not support the Legacy Commission
as outlined by the CGP. It seems to me that the body will be totally
unsuited to perform the role envisaged for it (ie to help reconciliation,
review and investigate historic cases, conduct a process of information
recovery and examine linked or thematic cases) because :
(a) the Commission will be jointly appointed
by the London and Dublin Governments. Dublin should have no role
in this process because it should have no jurisdiction in Northern
Ireland and, indeed played an active role in harbouring Republican
terrorists during the Troubles and
(b) the Report suggests that the approval of the
First and deputy First Ministers should be sought before the Commissioners
are appointed (page 136). The farce surrounding the appointment
of the Victims' Commissioner(s) should have made this obvious.
21. "During its consultations the
Group met with some representatives of some of the Omagh families
and, as with other victims and survivors of the conflict, were
moved by their suffering and their efforts to secure justice.
The families the Group met did not want the Group to bring the
Omagh case within its process and the Group respects this. The
Group has taken the Agreement (Belfast) as the end limit for its
definition of a historical case, although that would not prevent
cases falling after that date, which are closely linked to historical
cases, being dealt with by the new Commission" (page
155).
I fully support the campaign of the Omagh families
to obtain justice for their loved ones. However, I believe that
other victims are also entitled to this. This section makes it
clear that the CGP do not envisage the new Commission being able
to deliver this. The Commission is obviously, therefore, proposing
to continue the process which will see us move from an effort
to obtain justice for victims to a selective information recovery
process.
22. On the Runs
"This is a sensitive issue on which
the Group has sought to find a way forward. But it is difficult
to devise a scheme which both preserves the spirit of the previous
solution and avoids the criticisms levelled against the Northern
Ireland Offences Bill. If a privileged procedure is accorded to
one group of people accused of crimes relating to the conflict,
it would be difficult to deny that procedure to others accused
of conflict-related crimes.
"The case for a special solution is
also weakened by the fact that prima facie evidence of criminality
exists in respect of relatively few people classified as 'on the
run'. In the case of 'on the runs', the Group therefore proposes
that, if there was sufficient evidence, a case should be referred
to the DPPNI on whether to proceed to trial in the normal way.
"However, the Group envisages, as outlined
in Chapter 7, that the proposed new Commission should make recommendations
on how a line might be drawn at the end of its five-year mandate;
and that this might embrace a procedure for dealing with historical
cases in respect of 'on the runs'" (Page 157).
Again, it is difficult to see these proposals
as anything other than an attempt to whitewash terrorists and
allow them to get away with their crimes. Any amnesty for OTRs,
under whatever guise, is totally unacceptable.
CONCLUSION
23. It is my belief that the CGP has shown
itself to be a miserable failure. Its recommendations have done
nothing to heal the hurt of innocent victims. Indeed they have
only served to open up raw wounds. The outcry which greeted the
Report's publication demonstrated that its recommendations patently
do not command support among innocent victims.
24. While the proposed £12,000 payment
provoked the most vocal opposition, when one looks at its other
provisions it is evident that they are based upon the same flawed
premise that there should be no distinction between the terrorist
and the innocent victim.
25. It is therefore my belief that the Report
should be binned in its entirety.
NOTES1 Unionists
"dishonest" on report, BBC 1.2.09 http://news.bbc.co.uk/1/hi/northern_ireland/7863686.stm
2 "Volunteer" row rocks Victims'
Commission, News Letter 30.1.08
http://www.newsletter.co.uk/news/39Volunteer39-row-rocks-Victims39-Commission.3723610.jp
3 Allister slams OFMDFM silence, press
release 14.6.07
http://www.jimallister.co.uk/default.asp?blogID=669
4 Profile: Martin McGuinness, BBC 29.4.01 http://news.bbc.co.uk/1/hi/northern_ireland/1303355.stm
5 McGuinness: "I would have killed",
BBC 23.2.08 http://news.bbc.co.uk/1/hi/northern_ireland/7260541.stm
6 European Convention of Human Rights,
http://conventions.coe.int/treaty/en/Treaties/Html/005.htm
7 McKittrick, David, Seamus Kelters, Brian Feeney,
Chris Thornton and David McVea. Lost Lives page 1534 Mainstream
Publishing, Edinburgh, 2004.
10 April 2009
| 
