Avoiding the Legacy of Impunity

This week for the second time in history the Irish Government has announced its intention to lodge an Inter-State application against the United Kingdom before the European Court of Human Rights in Strasbourg. The Irish government argues that the Northern Ireland Troubles (Reconciliation and Legacy) Act 2023 which was enacted in September 2023 and provides an extensive conditional amnesty is incompatible with the European Convention on Human Rights (ECHR) including procedural obligations under Article 2 ECHR, the right to life, and Article 3 ECHR, the right to be free from torture as well as inhuman and degrading treatment, which provide for a duty to investigate and, where appropriate, to prosecute those responsible for serious human rights violations.

The announcement comes after prolonged and extensive political and international efforts (see e.g. here, here and here) to urge the United Kingdom to pursue an alternative path consistent with its international human rights obligations and the will of victims groups. In this piece, we consider the background to Ireland’s decision to pursue the ultimate international judicial avenue.

Origins of the Case

Both the current and the previous Inter-State case concern the 1968-1998 Northern Ireland conflict. The first Ireland v UK case back in the 1970s’ concerned the use by the British Army of specific “five techniques” of torture (namely hooding, stress positions, white noise, sleep deprivation, deprivation of food and water) in Northern Ireland against a group of detainees who became known as the “hooded men”.

The use of torture by the security forces is one of a number of well-established patterns of human rights violations that took place at the hands of the state actors during the Northern Ireland conflict. Whilst most of the over 3,600 deaths during the 30-year conflict are attributable to (Irish) republican armed groups and (British) loyalist paramilitary groups, in the early part of the conflict there were hundreds of killings by the British Army that were not investigated at all by the then police service. This was despite the UK criminal law, not international humanitarian law, applying in principle to everyone throughout the conflict.

Another pattern of violations relates to practices of “collusion” between units of the security forces and (British) loyalist paramilitaries. This either involved supplying loyalists with weapons, targeting intelligence, or failing to investigate their activities.

2023 marked the 25th anniversary of the 1998 Good Friday Agreement (GFA), a peace accord, approved by referendum and incorporated in a binding UK-Ireland Treaty registered with the United Nations. The GFA required the incorporation of the ECHR into Northern Ireland law. It did not, however, contain a provision for a truth commission or transitional justice mechanism which left open certain questions regarding accountability for serious crimes.

The GFA has been supplemented by a number of further bilateral peace process agreements including the Stormont House Agreement, which was eventually agreed in 2014 to provide for overarching transitional justice bodies. A fully independent “Historical Investigations Unit” conducting criminal investigations into unresolved conflict-related cases was to be established to produce an information report to families in each case. A cross-border “Independent Commission for Information Retrieval” was to be set up by treaty to provide supplementary information recovery based on protected statements. Importantly, there was no provision for amnesty, a proposition soundly rejected in the British Governments own consultation on legislation to implement the Stormont House Agreement.

However, the UK dragged its feet in implementing that Agreement until the Government of former PM Boris Johnson unilaterally announced it was reneging on it. Instead, the British Government introduced legislation, whose purpose was openly articulated by Ministers as ending investigations into the military, that became law in September of this year as the Northern Ireland Troubles (Reconciliation and Legacy) Act 2023. It is a challenge to this legislation that is the subject of the second Ireland v the UK case announced this week.

What does the Northern Ireland Troubles (Reconciliation and Legacy) Act 2023 provide for?

The effects of the Northern Ireland Troubles (Reconciliation and Legacy) Act 2023 are three-fold.

First, it will shut down all the existing investigative and legal processes into legacy cases (inquests, police, independent police and Police Ombudsman investigations, even civil court proceedings). It will do so at a time these mechanisms are most delivering truth recovery for families.

Second, it will introduce the amnesty, which has evolved into a ‘conditional immunity scheme’ with a conspicuously low eligibility threshold. Immunity must be granted on the basis of a subjective test where the person seeking immunity does not have to provide new information and only has to themselves believe their account is true.

Third, it will set up a new temporary legacy body – the Independent Commission for Reconciliation and Information Retrieval (ICRIR) – to “review” certain cases.

The legislation has faced almost universal opposition. This includes victims’ groups, legal experts, every political party in Ireland north and south, and opposition parties in Britain (with Labour vowing to repeal the Act). It has also generated international alarm in the Council of Europe and UN. The UN High Commissioner for Human Rights Volker Türk noted that it “fails to comply with the State’s obligation to investigate serious human rights violations…” and “would thwart victims’ right to truth and justice, undermine the country’s rule of law, and place the United Kingdom in flagrant contravention of its international human rights obligations”.

The Act had been preceded by a UK Parliamentary Command Paper of July 2021 that had advocated for an amnesty broader in scope than that introduced by General Pinochet in Chile and a new legacy body reliant only on voluntary testimony. This policy paper evolved into the present Act.

When Ministers introduced the legislation in May 2022 they were fairly open, even boastful, that its purpose was to end investigations into the military, who would no longer have to fear a “knock on the door” or be taken in for questioning once the Act passed. This came against a backdrop of increasing hostility towards the European Convention on Human Rights which has disingenuously been presented as a threat to British sovereignty.

The context of this is that in the absence of the implementation of the Stormont House Agreement, a series of ad hoc criminal, investigative and judicial mechanisms began to overcome years of obstruction and limitation to deliver significant information recovery and historical clarification for families of victims. These mechanisms were not provided for in the GFA, but were the product of a series of cases to the European Court of Human Rights (the McKerr group of cases or cases concerning the actions of the security forces in Northern Ireland.) These cases found the UK had committed procedural violations of Article 2 ECHR (the right to life) in relation to cases involving both direct killings by the security forces and security force collusion with loyalist paramilitary groups.

As a result of these rulings of the Strasbourg Court in the early 2000’s, which are still under supervision by the Council of Europe (CoE) Committee of Ministers (CM), the UK authorities agreed a “package of measures” of changes to existing judicial and investigative bodies, to deliver ECHR-compatible investigations into conflict-related cases.

It is notable that in June 2023, the CoE CM in overseeing implementation of judgments of the European Court of Human Rights emphasised explicitly that “it is crucial that the [Northern Ireland Troubles Reconciliation and Legacy] legislation, if progressed and ultimately adopted, is in full compliance with the European Convention and will enable effective investigations into all outstanding cases.” Given the scope of amnesty provided within the Legacy Act, and the limited independence and capacity of the new legacy body, it almost certainly fails to satisfy this requirement let alone the more comprehensive requirements of Article 2 and 3 of the Convention.

These current mechanisms include independent police investigations by external forces; a legacy role for the independent Police Ombudsman into serious violations by the Police; and the judicial inquest system (a form of truth trial without civil or criminal liability). There is also the potential for civil litigation in the domestic courts. The “package of measures” has unearthed uncomfortable truths for the UK Government, with civil cases and Police Ombudsman reports revealing patterns of collusion and even findings of another torture technique (waterboarding).

Whilst the UK Parliamentary Command paper stated, without supporting evidence, that the “vast majority” of killings by the security forces were lawful, the findings of judicial inquests are largely determining to the contrary. This includes the Ballymurphy massacre of 1971, where 10 civilians were killed by the British Army. This preceded the similar killings of civil rights demonstrators on Bloody Sunday in 1972.

The GFA-led incorporation of the ECHR into domestic law which supported victims’ families, their lawyers and NGOs in challenging deficient investigations as well as efforts to delay disclosure of evidence or deprive investigations of the resources required to be effective.

Anti-Rights Backlash

A backlash has evolved from sections of the UK political, media and security establishment, and particularly the ascendant wing of the Conservative party to application of the rule of law in such cases. This has seen the European Convention on Human Rights (ECHR) deliberately scapegoated for many contemporary political challenges.

This has involved attacks on human rights defenders and specifically lawyers and prosecutors. Such attacks not only strike at the very heart of the rules-based international order, but have a chilling effect on democracy, stifling civic engagement and creating an environment increasingly hostile to moderate voices.

Some political figures raised concerns about a “pernicious counter narrative” and the “re-writing of history” being produced essentially by independent official mechanisms. There were calls for an amnesty and even a tabloid campaign, signed up to by former Prime Minister Boris Johnson, a “Veterans Pledge” to end the pursuit of the military in Northern Ireland. The policy and legislation were based on a contention that there had been a “witchhunt” against soldiers, who would face prosecution and prison. This was despite only a handful of prosecutions (mostly against non-state actors) resulting from legacy investigations and to date only one sole conviction of a soldier for a killing (resulting in a suspended sentence and no jail time). In reality the current mechanisms are largely focused on information recovery and historical clarification, not prosecutions.

Procedure and prospects for the Inter-State Case

The overwhelming majority of cases taken to the European Court of Human Rights are taken by individuals, groups of people or NGOs. Inter-state cases are very rare indeed, and resorting to an Inter-State case is exceptional. For the Irish Government to opt for this course of action must be understood as being a matter of absolute last resort, and one not pursued lightly.

Most of the fourteen current Inter-State cases concern situations of crisis or conflict. It is a mechanism typically utilised in the most serious situations of egregious breaches of the ECHR though the threshold to utilise the Inter-State procedure is significantly lower than that. Under Article 33 of the European Convention on Human Rights “any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party.” It is notable that given the nature of the Article 2 and Article 3 concerns the Northern Ireland Troubles (Reconciliation and Legacy) Act 2023 gives rise to, any Council of Europe Member State could have taken an inter-state case against the UK.

One can expect significant interest in the progress of the case from victims’ groups, civil society organisations, national human rights and equality bodies north and south, as well as independent international human rights mechanisms such as the CoE Commissioner for Human Rights or others who may seek to participate in proceedings as third party interveners under Article 36 § 2 of the Convention.

Conclusion

The Irish government has been clinically consistent about the need to avoid legislating for impunity and has sought over considerable time to try to dissuade the British Government from taking this approach, one which is almost universally opposed by victims, advocates, national human rights institutions and political parties. This has both been through direct bilateral engagement, through the mechanisms of the GFA, and alongside many other states, through the Council of Europe Committee of Ministers.

It is deeply regrettable that the UK authorities have reneged on its own Stormont House commitments and ignored these additional repeated concerns of the Council of Europe and UN, victims and NGOs.

Unlike the GFA, which does not provide for a dispute resolution mechanism, the Irish government did have an enforcement option however in taking such an inter-state case to Strasbourg. Having exhausted all other routes of persuasion, this is the path it had to take to uphold the integrity of the rule of law, to satisfy its own obligations under the ECHR, and to stand firmly behind victims and their families as they seek to vindicate their rights.