Justice Colton and the Limitations of ‘Reconciliation’

Brian Walker recently commented on Mr Justice Colton’s intervention in the legacy debate – namely his judgment on 28 February in the High Court on a batch of cases seeking judicial review of the 2023 Legacy Act. Brian argued that that 200-page judgment ought to be understood with reference to ‘the basic purpose of the whole enterprise … the key word is “reconciliation”’.

This is undoubtedly correct, but assessing peace and justice according to reconciliation is, I suggest, seriously tendentious regardless of the intent.

At a legal and policy level the judgment itself was strange and veers dangerously close to – if not straight into – judicial interference in the political process. Because just as Justice Colton is entitled to his opinions, so too is Parliament entitled to have policy objectives and to put those in statute.

However, Justice Colton’s harnessing of reconciliation to support his arguments places his judgment somewhere in-between the Law and Parliament. As I suggest, it can be read as a kind of assessment of government objectives based on a putative principle. Excluding mentions of the 2023 legislation and passing references to bodies with the word in their name (the ‘Implementation and Reconciliation Group’, for instance), ‘reconciliation’ appears over 50 times in the ruling.

The word is used with clear ethical intent:

I accept that the provision of information as to the circumstances in which victims of the Troubles died or were seriously injured is clearly important and valuable. It is arguable that the provision of such information could contribute to reconciliation. However, there is no evidence that the granting of immunity under the 2023 Act will in any way contribute to reconciliation in Northern Ireland, indeed, the evidence is to the contrary.

It is because of the importance of reconciliation, he states, that victims need to be moved to the centre of the legacy process because at the minute they ‘have no role or say’ in the dispensing of conditional immunity, which remains under the direction of the Independent Commission for Reconciliation and Information Recovery. Thus, victims ‘may be confronted with a situation where an applicant for immunity does so at the last minute, in circumstances where a recommendation for prosecution is imminent or inevitable’.

Justice Colton’s valorizing of victims is, of course, laudable – and victims have had a very limited input into the legacy process since 1998. But, in seeking, perhaps, to rebalance things, his resort to reconciliation begs the question because it seems to suggest that reconciliation can be identified by how victims are treated. In other words, reconciliation is the ideal where victims are thoroughly involved in decision-making. In the absence of that reconciliation cannot be said to pertain – hence, his difficulty with amnesty.

The common ground

Perhaps, to give Justice Colton his due, the problem is with the idea of reconciliation itself and its prevalence in debates about dealing with the past. It’s a useful word for politics – it’s difficult to argue against someone calling for reconciliation and its very ambiguity means that the user doesn’t have to commit to anything they might need to answer for at a later point.

In part that ambiguity is because reconciliation can act as both a noun and a verb. In the former use, reconciliation is an end-state or goal: Here reconciliation forecloses the past, which is something that is concluded by the recognition or acknowledgement of a hurt or grievance. In the latter case, reconciliation is a doable activity: it involves working through a dispute and is more a process than a destination.

Reconciliation is also a useful word in a religiously saturated place such as Northern Ireland. Despite this, there seems to be little actual theological content to the way the word is used. Instead, the ideal seems to be a putative common ground upon which some kind of shared understandings and peaceful coexistence can be based.

It’s debatable whether much common ground exists given the seeming incompatibilities of the unionist and nationalist ideologies. As the Ireland’s Future group has recently demonstrated, reconciliation is anathema to a certain kind of Irish nationalism which still sees unionists (if they are seen at all) as deluded, mystified Irish people: There is no need for reconciliation prior to a border poll, they aver because ‘Reunification is a reconciliation project’.

The reheated irredentism, nonetheless, points to the slipperiness of reconciliation, which, as a transitive verb (demanding an object for the action), can also denote a repeating end-state: We can reconcile ourselves to our past.

For Ireland’s Future, such intellectual exercises are unnecessary: Unionists must reconcile themselves to the inevitability of unification. Here reconciliation means defeat – a giving up of cherished and core aspects of one’s history and identity and an acceptance of a new reality.

Here reconciliation becomes an adjective – a reconciled reality. Transposed to the legacy debate it must mean requiring victims to give up their grief and sense of innocence to reconcile themselves to their perpetrators’ self-exculpations. Justice Colton, again, steers dangerously close to ill-defined moralizing because the pressure to accept that scenario would be immense – as Adorno once remarked, ‘in the house of the hangman one should not speak of the noose, otherwise one might seem to harbor resentment’.

It is difficult to see how this defeatism is not also the intent of the faddish notions of ‘narrative hospitality’ (taken from the French philosopher Paul Ricoeur with zero acknowledgement of his notion of ‘critical history’) and is much favoured by President Michael D. Higgins. For a victim to acknowledge the perpetrator’s world view, in that scenario, she must forego her own innocence and recognize the self-justifications that she was in some way a legitimate target. To do otherwise would be to take away the rationales offered by the loyalists and republicans for their violence. Their ideologies would be revealed as death cults, which, presumably, would not be acceptable to their adherents.

Rapprochement

Reconciliation, then, might be the wrong word. It seems it is an impediment to what is presumably desired – a recognition of the violence of the past and the consignment of that violence to history.

Justice Colton is evidently a close reader and he cites the Belfast/Good Friday Agreement (B/GFA) on this point. But, in emphasizing reconciliation he ignores its linking with rapprochement in the original text: The Declaration of Support, for instance, speaks of ‘reconciliation and rapprochement within the framework of democratic and agreed arrangements’.

Although rapprochement originates from the French verb rapprocher (to bring together), it is commonly used as a noun in English and the B/GFA clearly intends the institutions to function to bring together the otherwise incompatible parties.

For all the criticisms directed at the NIO and the 2023 Act, their intent seems of a piece with the B/GFA – to create a process whereby a coming-together can occur. It is for that reason that Justice Colton has got things the wrong way around – it’s not the putative construct that is used as the measure, the measure is used to create that construct.

If reconciliation is no longer a helpful way of gauging construction then perhaps it’s time to recalibrate using rapprochement.

Cillian McGrattan, March 2024


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