23 September 2010
One of the reasons I am interested in jurisprudence is that you can easily follow the different interpretative theories and their effects. It is possible for different investigations of the same event (or “case”) to have varied results, sometimes even contradictory. Admittedly, this (as it usually happens) can be attributed to the differences between the investigation methods or the quantity and quality of the material available (including the human one – e.g. witnesses). But it is also the theories or the emphasis placed, within these, on one interpretative locus or another that can significantly influence the result of the analysis or process. Justice is a field that provides one the best exemplifications of the famous Nietzsche’s saying that “there are no facts, only interpretations”. Although many may dispute the first half of the maxim, when it comes to justice, because many legal cases are based on events that are difficult to neglect or catalogue only as “interpretative material”.
In the UK we recently had a notorious example of such a variation (taken to opposition) between the results of two investigations. It concerns the publication of a new report following the investigation of the killing of 13 protestants on the 30th January 1972 in Londonderry in Northern Ireland, event that came to be known as “the bloody Sunday”.
On the last Sunday of January 1972 a group of young people protest in support of the civil rights on the streets of Londonderry. The protest was peaceful (as the majority of the protests are on the island). None of the protestants was armed nor did they try to use force in any way. For reasons difficult to imagine, the army decided to annihilate the protest in a violent way – and they shot, without warning, and killed 13 of the demonstrators and injured 14, of which one died later in hospital.
“I could see [the paratrooper’s] feet as he came up to Jim Wray. Jim Wray kind of moved his shoulders. He couldn’t have moved his legs because of the wounds. Then the [soldier] went bang-bang twice in the back. They said they only found one bullet hole but I saw his coat rising twice. They walked past Willie McKinney, they walked past me up to Jim Wray, shot him and walked on past him” (Bloody Sunday inquiry: Still waiting for justice after all these years, The Guardian, 12 June 2010). This is the testimony of one of the demonstrators who survived the massacre – Joe Mahon, now 53 years old. Liam, the younger brother of Jim Wray who was mentioned in the previous testimony, has this to say about the soldier who killed his brother: “In his own neighbourhood, that boy probably wouldn’t treat a stray animal the same way. But he doesn’t feel what he did on Bloody Sunday was wrong because he was brought up in the system to see my brother as an enemy, somebody who had to be taught a lesson.” (Ibid.)
The Para troops are known to be the toughest military unit in Northern Ireland. The protestants were considered “hooligans”, a destabilizing element in town and the army had to get rid of them by killing their leaders. One of the demonstrators, Gerry McKinney, a father of eight children, made the sign of the cross and put his hands in the air when he saw the soldiers approaching. They still shot him.
The first reaction of the justice system
Immediately after the event an investigation began, chaired by Lord Widgery – hence the “Widgery inquiry”. The results of this were unreservedly in favour of the army and against the families of the 14 victims. The investigation was described by many as a travesty or a whitewash. The conclusion was that the army fired their guns as a reaction to the attacks from the protestants and that the soldiers involved, who testified during the investigation, told the truth.
Four decades and 200 million pounds later
The reaction from the civil society was huge; the massacre had been too blatant to be covered up this way. Following the public pressure, a new investigation began during Blair’s government chaired by Lord Saville – hence the “Saville inquiry”. This would last for 12 years and cost over 195 million pounds – therefore becoming, officially, the longest and most expensive investigative process in the history of Great Britain. The results – the complete opposite of the previous investigations’ results – were published on the 15th June 2010.
The conclusions of the Saville report are that: the army fired first (and not the protestants); many of the ones killed were shot while they were trying to escape or help the injured; none of the demonstrators posed a threat, none of them acted in such a way as to justify the use of force; many of the soldiers who were interviewed gave false testimonies regarding their actions. The entire report is extremely critical towards the army.
The consequences of the investigation
The publication of the Saville report had three types of effects: two that were immediate and one long-term effect – possible, but unlikely. The two immediate effects were the prime minister’s speech and the feeling of immense relief from the families of the 1972 victims. Soon after the publication of the report, the summary of which was announced by the new Prime Minister David Cameron, he said he was shocked by the results of the investigation. In a special Parliament meeting, Cameron said: the conclusions of this report are absolutely clear. There is no doubt, there is nothing equivocal, there are no ambiguities. What happened on Bloody Sunday was both unjustified and unjustifiable. It was wrong. (Bloody Sunday: PM David Cameron’s full statement, BBC 15 June 2010). The Chief of the Army, Sir David Richards joined the wholeheartedly supported the Prime Minister’s message and apologised publicly to the families of the victims. (Bloody Sunday report: Army chief admits serious failings, The Guardian, 16 June 2010).
Thousands of people gathered in the central square of Londonderry to watch on a mega-screen the Prime Minister’s intervention in Parliament. When he announced the main results of the investigation a huge cry broke out in the Irish square. For the families of the victims the message – though it comes late – is cathartic. After four decades the parents, husbands and wives, children, brothers and sisters of those shot dead in January 1972 because they were peacefully demonstrating to support the civil rights, finally receive the recognition they deserve – a public delivery of the truth about what happened. This is all they have been wishing for so many years – the only type of valid justice and, at the same time, a source of peace.
As for justice in legal, institutional terms, few have any hope for this. This is the unlikely effect which I mentioned earlier. Unlikely, not in the logical sense – on the contrary, the fundamental question that emerges from the Saville investigation’s result is whether the soldiers involved in the attack should be sentenced. The fact is, however, unlikely first of all due to the practical difficulties of a criminal prosecution of certain people 38 years after committing the crime and, secondly, due to the political aspect of the situation. Things have changed a lot in Northern Ireland in the last four decades, but a certain sensitivity in the relationship with the rest of Great Britain still remains and no court on the island would risk destabilising this. The conclusions of the investigation do not include recommendations for a possible trial, but they don’t give immunity to the soldiers involved either. Therefore, in theory, a prosecution is still possible. Though highly unlikely…
What about the interpretations – who and how do they decide which ones to choose? There are some, surely, who, for various reasons (be they social, political or personal) would rather believe the results of the first investigation over the second one, recently completed. And from a strictly legal perspective, the experts have a choice of three or four theories of punishment (e.g. retributive, reformist, dissuasive etc.) and the choice of one or the other will decide the path that will be taken to try and “solve” the case. The theory chosen will influence, for example, the legal test used to demonstrate the crime – namely, whether it is necessary to prove the presence of intent (mens rea) to commit a criminal act or not. This, in turn, will have a decisive effect on the moral aspect of that particular type of legal process.
Surely, you will say that all these are purely theoretical reasons when we talk about a criminal case. All that matters here are the provisions of the Criminal Code and any specific laws. Let’s not forget, however, that in a legal system such as the British one, what prevails is the opinion (and history) of the judges which leaves more room for interpretation than the European legal system.
The real reason why these considerations stay “pure” and abstract is the degree of improbability of any sentencing in the “bloody Sunday” case.