Years ago Pryor did a wonderful cartoon of the Reverend Ian Paisley with a black, cavernous mouth out of which bats were flying.
Years later, the bats are still flying. Despite the IRA’s shown renunciation of violence, he wants more. He wants full retribution and reparation. He wants the IRA to repay all stolen money and turn in every perpetrator of every act of violence and theft to the police.
Northern Ireland is one of many countries formerly traumatised by internal conflict now emerging into peace. True, it had fewer victims, but its experience has similarities with that of South Africa, the Balkans, Rwanda, East Timor and Cambodia.
Invariably, some people – mainly victims — want to treat the acts of violence in the same way as crimes are treated in civil society whereas others – mainly perpetrators — want them to be treated as acts of soldiers in war.
There are difficulties with both paths, as Victorian barrister Alex Richards QC argued at the Australian Women Lawyers conference in Sydney last weekend.
Her work on the Rwandan genocide and the post-referendum East Timor violence shows that the Paisley idea of full trial and punishment on a civil-society level is impractical – so impractical, indeed, that if you try to catch, try and punish all perpetrators, you end up punishing virtually none.
The stark Rwandan figures prove the point. Developed countries provide about $110 million a year for the International Criminal Tribunal for Rwanda. To date it has convicted just 26 people. A further 28 trials are in train. But the number of suspected war criminals runs beyond tens of thousands. Between 800,000 and a million people were killed over three months in the 1994 genocide. Countless lesser acts of violence, theft and destruction of property were perpetrated. Ninety-nine point nine percent will go not only unpunished, but unacknowledged and not atoned for.
After such events, including events on a lesser scale such as in Northern Ireland, Richards says, “Resentment and the desire for revenge permeate a nation’s thinking and responses and its collective ability to negotiate a future path whether social or economic. Suppressed anger and upset have the potential to spark future unrest and political disorder for decades after.”
You get higher rates of mental illness, child abuse, domestic violence and anxiety levels. Destroyed buildings and infrastructure serve as a reminder. Given this, a process where only 26 people are convicted is worse than useless.
Equally, wholesale amnesties will not help the society heal, aside from sending the wrong message that human rights breaches will go unpunished. In East Timor, Indonesian forces were responsible for 250,000 deaths over 20 years – about a quarter of the population. Most of those responsible are in Indonesia. Three hundred or so suspects are now likely to get amnesty, a process agreed to by East Timor President Xanana Gusmao.
Richards says that the recent unrest in Eat Timor shows “the depth of the trauma experienced by its people and how near the surface fear and distrust lie”.
She prefers a middle course: prosecution for the architects, and lesser perpetrators going to a truth and reconciliation commission.
The distinction seems to have a lot of merit and fits normal notions of criminal justice: deterrence, retribution, prevention and rehabilitation. Both wholesale amnesty and blanket prosecution seem to defeat those aims.
Someone who intentionally kills after being swept up in an insurgency or civil war generally has lower culpability than someone who intentionally kills in a stable society. That does not apply to the architects of insurgency who act with deliberation and choice. We need international deterrence against potential future architects of the resort to violence. And we need retribution against people who instigate wholesale violence. Moreover, we cannot get reconciliation and restoration of normality unless people, particularly victims, get a sense of justice.
They will not get that if you attempt to prosecute and punish every crime however long ago, for you will fail. Better to trade punishment for truth, contrition and apology.
The other danger with wholesale prosecution is the possibility of trials tainted by revenge and false evidence, which then spark another cycle of violence.
I remember covering a trial in Belfast Crown Court for the Belfast Telegraph in the early 1980s. A witness – in those days dubbed a “supergrass” – was spilling the beans on a former IRA colleague in return for immunity, witness protection and perhaps money.
Two things struck me at the time: the evidence was rehearsed and the groundwork for the next cycle of violence was being laid.
“You’re a dead man, McConnell,” they hissed from the back of the court. “There’s nowhere on earth you can go. We’ll hunt you down.”
The judge threatened to clear the court.
About 100, mostly IRA operatives, were convicted on the evidence of “supergrasses” between 1980 and 1985. Nearly all the convictions were later overturned.
In these dysfunctional societies, the violence can only be overcome by the gradual achievement of equality of economic and social opportunity, the end of discrimination, and democracy and respect for the rule of law.
In the meantime it is hypocrisy and illogical to treat violence perpetrated in dysfunctional, discriminatory societies for a “cause”, however inexcusable and misguided, on par with violence perpetrated in civil society. That path does not lead to peace, reconciliation and normality.