Truth Beyond the ‘Trigger Puller’: Moral Accountability, Transitional (In)Justice and the Limitations of Legal Truth

Kevin Hearty

doi:10.1093/ijtj/ijab024

Abstract

Abstract This article critically examines how existing truth recovery processes have, and how proposed truth recovery processes might, address the issue of shoot-to-kill in Northern Ireland. In contrast to ongoing legacy case prosecutions of British Army veterans, it argues that truth recovery processes should adopt a maximalist conceptualization of truth and responsibility. This, it is argued, necessitates differentiating between legal truth and structural truth, and between legal, political and moral responsibility. It is further submitted that such an approach would reflect the importance of identifying and understanding patterns (looking at similar cases collectively) and context (looking at the socio-political-legal backdrop to them) when establishing the ‘broad circumstances’ around disputed killings. This approach would allow truth recovery to advance beyond low-level ‘trigger pullers’ to ensure ‘moral accountability’ for the complicity of other actors within the state apparatus.

Highlights

Truth is one of the key concepts found within transitional justice (TJ) literature, yet at the same time it defies any agreed definition.[1]
Echoing calls for TJ to move – or perhaps better put, keep moving – ‘beyond legalism,’[19] this article argues that truth recovery must capture legal responsibility, moral responsibility and political responsibility, and produce structural truth as well as legal truth
As Nı Aolain points out, judges created a legal landscape where it was permissible to use force in a ‘fleeing felon’ context even if the fleeing person was merely suspected of belonging to a non-state armed group rather than being armed or committing another offence; where soldiers must be judged on the mistaken facts they believed even if these mistakes were not objectively reasonable; and, not insignificantly, where any calculation of reasonableness should be limited to the immediate circumstances evident on the ground rather than taking into account operational pre-planning.[80]

Summary

INTRODUCTION

Truth is one of the key concepts found within transitional justice (TJ) literature, yet at the same time it defies any agreed definition.[1]. The prosecution of aging perpetrators for historic offences is a deeply contested practice common in many transitioning sites,[10] the moves towards a statute of limitations were long pre-dated by campaigns for truth and justice by victims of state violence in the North of Ireland.[11] This is especially true in cases of ‘shoot-to-kill’; those. Anthony Jennings (London: Pluto, 1988); Fionnuala Ni Aolain, The Politics of Force: Conflict Management and State Violence in Northern Ireland (Belfast: Blackstaff, 2000); Bill Rolston and Mairead Gilmartin, Unfinished Business: State Killings and the Quest for Truth (Belfast: Beyond the Pale, 2000); Brice Dickson, ‘Counterinsurgency and Human Rights in Northern Ireland,’ in The British Approach to Counterinsurgency: From Malay and Northern Ireland to Iraq and Afghanistan, ed. Rothberg and Thompson, supra n 3. Klinker and Davis, supra n 3 at 4

Hearty

CONCLUSION