Rights NI is delighted to welcome this guest post from Christopher Stanley. Christopher Stanley is Legal Officer with Rights Watch (UK) and can be reached at firstname.lastname@example.org.
One peripheral avenue of analysis arising from the furore arising from the remarks of the Attorney General last week in relation to the question of prosecutions in the conflict related legacy cases is the question of Antigone. In May this year the Attorney General hosted a colloquium in conjunction with the University of Ulster. It was called “Antigone: law against justice?” The key note speaker at the colloquium was Professor George Steiner whose magisterial work “Antigones” remains dominant in its authoritative analysis of the power of Sophocles’ protagonist.
The presence of Antigone in discussions of law and justice is a continuing source of rich engagement and the Attorney General displayed considerable insight in bringing her to the fore in contemporary Northern Ireland, as she had been before in versions of The Antigone by the late Seamus Heaney (“The Burial at Thebes”) and Tom Paulin (“The Riot Act”). She had a presence through the conflict and now assumes fresh relevance because of the question the Attorney General set “How is the world of the living to conduct itself towards the world of the dead?” which the Attorney General picked from Alfred Doblin’s novel “November 1918”.
It was therefore somewhat alarming that the opinion of the Attorney General regarding prosecutions in the conflict related death cases that constitute the legacy (and I think it important to include conflict related injury cases also) should amount to a political amnesty or legal suit immunity. In the world of Antigone she is prosecuted by Creon for defying his temporal law in preference to her own spiritual justice when she follows the demands of the burial rites following the death of her brother. Her punishment is her death but she has satisfied the demands of justice assumed by her through the laws of death, burial and mourning. She has satisfied the demand made by her brother through his death. The play establishes within orthodox jurisprudence the tension between law and justice, between positive law and natural justice, between lower and higher orders of rules.
In terms of the Attorney General’s opinion on historical prosecutions one of the demands made by the dead is justice. One of the ways that this justice for the dead can be delivered is by bringing to the doors of the court the accused for fair trial.
There is no statute of limitations on the offence of murder. There is no way that a government can avoid the obligations arising when there has been a violation of the right to life. The Rule of Law is upheld if the law is applied without fear or favour. There are arguments that can be made in Northern Ireland regarding both political amnesty and legal immunity but these do not automatically remove the rights and rites of and to justice that would be a partial salve to the ultimate human rights violation through a criminal prosecution. Neither will the demands of the dead always satisfy or assuage or measure the demands of the bereaved. The issue is one of the possibility of justice through the prosecution of a crime. Whether that justice is delivered is a separate point but due process must be seen to be done on behalf of the dead who cannot demand but whose death engages these rights and rites.
What the Attorney General’s opinion signifies is the closure of the demand for justice on behalf of the dead of the conflict in Northern Ireland. Justice cannot be so denied even if it cannot be delivered. And this is not about retribution or satisfying revenge on behalf the dead. Neither is it about forgiveness: the dead cannot forgive, the victim may choose not to forgive and be consumed by resentment. The delivery of justice through prosecution is one way of satisfying the demands of the dead.
Antigone delivers justice to her brother through defying Creon’s law; the prosecution of murder delivers justice to dead and sustains the Rule of Law. The process of prosecution, out-with the possible counter-demands of the bereaved and society as a whole, is one part in how the crimes of the conflict can be appeased, how we conduct ourselves toward the world of the dead. The issue might enrage resentment, it might stoke the abhorrence in the face of forgiveness, it might make grief political but what cannot be escaped from are the demands of justice from the world of the dead and how we satisfy that demand no matter what further suffering brings unto us, as Antigone knew. Creon, like the Attorney General is left at the end, alone.