Mythic rights and conflict-related prisoner 're-integration'.

Author:Shirlow, Peter


The re-integration of conflict-related prisoners (CRPs) remains frictional in Northern Ireland. That friction is not merely allied to the perpetuation of vetting legislation but sits at the heart of sectionalised readings and antagonisms that frame(d) the conflict. The capacity to vet CRPs as job applicants remains a contradiction within a process of peace building that promised new political structures, approaches, enhanced citizenship and inclusion. Full citizenship for CRPs remains anchored in discursive ethics around exclusion, prohibition and the spectacle of ex-prisoner marginalisation. Readings concerning the rights of victims and CRPs fall largely between narratives of apologia and humiliation and the processes that concern stigmatisation and counter-stigmatisation (Shirlow 2018).

Apologia revolves around the language of non-admission of guilt by non-state actors who argue that the legitimacy of violent acts was conditioned by state abuse, discrimination and erroneous governance (Downey 1993). Humiliation proponents demand that re-integration must be allied to acts of repentance, regret and a rejection of the legitimacy of former acts of violence by CRPs. Neither has conceded to the 'other's' position and has maintained the performance of allegation, accusation and contention (Foucault 1979). The ability to achieve an equalisation of power, the supposed aim of peace building, between competing moral discourses is negated by the 'need' to maintain adversarial approaches (Ellwanger 2012). Within that contest over rights, those who wish to stigmatically shame ex-prisoners assert that they 'somehow have more human rights or [are] protected more from the Good Friday Agreement (GFA) than the very victims they created' (Northern Ireland Assembly 2013: 147). (1)

Such a position is an empowering fiction, given that the GFA does not protect or even define the rights of CRPs. Knowledge of the implicit and explicit meaning of such claims is achieved when we consider that this statement does not actually define what CRP rights are, which is hardly surprising, given that they do not in fact exist. Such claims are symbolic of the power and inherent persuasiveness of an 'aura of factuality' (Geertz 1973: 9) through the desire to make unsubstantiated assertions that shape conflict-centred division. The GFA has no legal authority or capacity to protect CRPs from vetting laws or any other legally sanctioned modes of exclusion. That fact and the desire to ensure that vetting laws are maintained evidences such claims as misleading. That is not to argue that the harm caused to victims and their loved ones should not be investigated, remembered or considered as both violating and injurious (Miers 1989).

We challenge the reductionist tendencies over terminology that undermines peace building and reconciliation in Northern Ireland through two objectives. First, we map out the difference between 'hard' and 'soft' laws. Hard law is understood as a legally binding obligation that is precise or given precision and which gives the state certain obligations. Soft laws, in contrast, are quasi-legal instruments that are not legally binding (such as the GFA), and which operate as non-binding agreements, communications or guidance. Second, we highlight how the maintenance of criminalisation has shifted from a security/moral concern to a purely moral call for shaming, the rejection of the value of ex-prisoner's re-integration and, in some instances, a refutation of their peace-making efforts.

Hard and soft laws and CRP's 'rights'

Contested rights and the mobilisation of that term to argue that a certain group's entitlements triumph over or tread upon those of another group remains a dominant feature of dispute and conflict assertion in Northern Ireland. That is only to be expected perhaps in a society that has been affected by civil strife and political violence (Shirlow 2012). Re-integration programmes and policies have not removed modes of exclusion that were formed in the 1970s regarding employment and other vetting legislation. CRPs remain rooted in their classification as criminals and have not gained any rights post-GFA. (2) Understanding that legal rights are hard-edged and definable can potentially bring a level of reasoning to highly emotive and, at times, traumatic and publicly endorsed sets of unjustified claims. It also permits an examination of the rights that CRPs do not have. As Jenkins (1997) reminds us, when we examine the division between soft and hard laws, our 'concepts must also be grounded in the observable realities' (p. 392). Arguing over whether ex-prisoners should enjoy normal rights and privileges is to be expected, given that opinions are divided over re-integration, but to perform that dispute over rights that do not exist is discursive folly. It is not enough to merely dismiss faulty claims as oblique, given that they define unempirically led exchanges that reproduce wider cultural and political fracture. Moreover, presenting a flawed argument that CRPs have greater rights than victims is traumatic for those who sense that their being harmed is inconsequential and that the perpetrators of their suffering are advantaged in law. Such misrepresentation does not provide the 'space for more thorough transformations of relations, ideals, and aims' or 'an unlocking of the deeply entrenched communal division' (Todd 2009: 350).

Disarmament, demobilisation and re-integration (DDR) generally speaks to post-conflict stabilisation and peace building. It aims to reduce violence and improve the security situation and promotes a process through which demobilised members of state and nonstate forces are provided with alternative means of economic and social inclusion. Those processes can also be tied to dialogue and reconciliatory efforts that support interdependence and relational change between adversarial groups. DDR mechanisms can lay a firm basis for reconciliation through a process that 'should be time bound with all previous punitive and related security mechanisms removed so as to shift into a post-conflict environment' (Integrated Disarmament, Demobilization and Re-integration Training Group 2006: 6). In Northern Ireland, 20years after the GFA, such 'punitive and related security mechanisms' remain. These mechanisms of conflict-related law endure through labour market vetting which acts as a form of field through which habitus is framed by concepts and practices. It is influenced by actor-based applications, opinions and the overall divisions/replication regarding the legitimacy of violence (Bourdieu 1977; Bourdieu &C Wacquant 1992). Vetting is understood as a mechanism through which the language, rhetoric and emotions of violence are conveyed into the sphere of contestation over the practices of CRP re-integration (Koesten and Rowland 2004).

As an exclusionary code, the hard laws of vetting maintain an impediment to opportunities for CRPs to engage as competent members of society. The status of conditional citizenship means that a permanent legal condition based on the consequences of a criminal status remains. The formation of vetting laws was linked to removing access to work from those with convictions in order to reduce the capacity of infiltration into sites in which there was access to records and resources that would be of benefit to those involved in non-state violence. That was generally linked to cases where paramilitaries had been placed in organisations such as banks or human resource positions to secure employee and customer details that usually related to members of the security forces and the prison service or the layout of security sites. It was also part of the overall fabric of criminalising conflict-related offenders and reducing their capacity to be represented as holding a prisoner of war status (Shirlow & McEvoy 2008). Such vetting laws first arose in 1976 and remain within The Fair Employment and Treatment (Northern Ireland) Order (1998; FETO)-namely, Section 2 (4) which states that

In this Order any reference to a person's political opinion does not include an opinion which consists of or includes approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland, including the use of violence for the purpose of putting the public or any section of the public in fear. The wording of the last phrase is a direct link to the definition of'terrorism' contained in a series of enactments relating to emergency provisions in Northern Ireland. The effect of that article is that no person holding a conflict-related conviction enjoys fair employment and equality of rights in relation to job applications and employment. This has been proven, post-GFA, in the courts, most notably in the judgement McConkey and another v The Simon Community (Northern Ireland) (2009) UKHL 24 (3) and the court's decision that Article 2(4) of FETO (1998) specifically limits the protection against discrimination of fair employment that the order provides.

The appellants John McConkey and Jervis Marks were sentenced for offences linked to murder and conspiracy to do so. Both had applied to the Simon Community, a charity for the homeless, and each was offered employment. This offer was revoked when their conflict-related convictions were disclosed during mandatory vetting. The appellants subsequently complained to the Fair Employment Tribunal that the refusal to employ them was discrimination as they no longer held a political opinion 'approving of, or accepting, the use of violence for political ends connected with the affairs of Northern Ireland'. The Tribunal, Court of Appeal and the Lords of Appeal each rejected this claim but agreed that neither appellant held opinions supportive of violence. In each case, it was asserted that under FETO legislation, it was unlawful for an employer to discriminate against a person by refusing him or her employment...

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