Irish Government draws a line in favor of truth and justice with interstate case

The Irish Government’s courageous decision to bring an interstate case in the European Court of Human Rights (ECHR) against the British government over the Northern Ireland Troubles (Legacy and Reconciliation) Law - enacted this past September - has been castigated by British officials.

On the Ulster Good Morning radio show, Lord Jonathan Caine - who shepherded the law through the House of Lords - said the Irish government’s decision was profoundly regrettable and warned it may have “consequences” on bilateral relations between the two nations. Northern Ireland Secretary of State Chris Heaton-Harris called the decision “disappointing” and “misguided.” He said it was “hard to reconcile” when compared to Ireland’s record on dealing with legacy matters.

These complaints about the decision make this an appropriate time to consider the British government’s consistent argument in support of the law and see how it measures up. Two reasons were repeatedly presented for why the law was necessary: to protect military veterans from investigation and prosecution, and to provide information to survivors and victims’ families.

After the proposed law was made public in 2021, British Prime Minister Boris Johnson told Parliament that the legacy bill would allow Northern Ireland “to draw a line under the Troubles.” He called it the solution to the problem of “vexatious prosecutions” of members of the armed services and said it would “enable the people of Northern Ireland to move forward.”

This bogus theme marked the ominous start of the bill’s journey into law. Government officials responsible for the law cynically argued Northern Ireland’s inability to resolve the legacy of the Troubles and to secure truth and accountability for victims and families of those killed, made the law necessary. This lament about failing to deliver positive outcomes for those who suffered during the Troubles ignored the government’s refusal to implement the 2014 Stormont House Agreement.

Northern Ireland’s Secretary of State when the legislation was introduced - Brandon Lewis - said the law’s Independent Commission for Reconciliation and Information Recovery (ICRIR) would obtain answers for victims and survivors about those who caused them harm. To accomplish this, he said, the government will collect information from perpetrators by granting them immunity (amnesty) from prosecution in exchange for their account of bad acts or involvement in criminality given to the best of their knowledge and belief. 

Additionally, Lewis noted, the ICRIR process will mean that military veterans and members of the security services will no longer be subjected to investigations and the adversarial court system for their conduct.

Despite refutation of the claim about vexatious prosecutions by victims’ rights groups and human rights advocates, this is exactly the line Prime Minister Johnson sought to draw.

In urging the bill’s passage, Heaton-Harris agreed with Lewis about the new information recovery process. He told Parliament that the ICRIR will deliver better outcomes for members of the armed services and for victims, survivors, and families.

The first part of his statement is accurate. The second part, however, is not true and was never meant to be.

When the law was enacted, British Prime Minister Rishi Sunak voiced approval with the law’s approach by saying it was “better than what went on before.”

Better for whom is a fair question to ask? Better for members of the security forces who committed crimes and were involved in murders. They can receive amnesty for providing information that is already in the public domain and nothing more.

But the law is not better for victims’ families. As will be explained herein, the law extinguishes their right to seek justice and hold perpetrators accountable. Nor does the law’s newly created information recovery process assure they will receive answers to their questions about a loved one’s death. In short, the law will not deliver better outcomes to them. Sadly, that was never the law’s purpose.

The law has already put an end to civil actions filed by families after May 17, 2022, seeking information about and damages for an unlawful Troubles killing. Coroner’s Inquests aimed at shedding light on Troubles-related deaths will shut down on May 1, 2024. So too will Police Ombudsman’s Office investigations. Many of the investigations being handled by Ombudsman Marie Anderson involve collusion.

The ICRIR will begin work on May 1, 2024. Troubles-related murders being investigated by the Northern Ireland Police Service Legacy Branch will be transferred to the ICRIR on that date, resulting in approximately 1,000 criminal investigations moving into the ICRIR review process. 

The Ombudsman expects to complete reports on up to 70 of the approximately 450 Troubles-complaints the office is handling by the deadline. Letters have already been sent to hundreds of victims’ families advising them that no additional work will be done on their matters because they cannot be concluded within the statutory timeframe. In those matters, families will have to file a new complaint with the ICRIR.

More than 40 inquests are pending at present. Coroners have been assigned to 20 of them; 16 have begun and FOUR are under active case management. It is uncertain, however, that a verdict will be rendered in each of those cases on time.

In a recent update provided at the Royal Courts of Justice in Belfast, Justice Michael Humphreys - the presiding Coroner - said the pressure to complete already running inquests before the cut-off point means there are no resources available to allocate to the other cases. Inquests that are not completed by May 1, 2024, will be subject to the ICRIR process. Unlike an inquest, the ICRIR review procedure will not take place in a public setting in the presence of the family and their attorney.

Victims’ families have used these justice mechanisms to get answers, receive acknowledgment, and learn the truth about the murder of a loved one. (For example, the Miami Showband civil suit, the Ballymurphy Coroner’s Inquest, the Ombudsman Reports in Operation Greenwich and Operation Achille, and the Soldier F Bloody Sunday Prosecution.) This is the real reason why the British government is shutting each of them down.

Making civil suits, Coroner’s Inquests, Ombudsman investigations, and police criminal investigations unavailable for victims’ families to pursue will deny them the truth and justice outcomes they seek. Some have filed actions against the law in the Belfast High Court. They must, however, exhaust all domestic remedies before they are eligible to petition the ECHR. This can take years.

By filing an Interstate Case, the Irish government can go directly to the ECHR. As Kieran McEvoy, Chair of the Senator George Mitchell Institute at Queen’s University, has pointed out, Ireland did this before in the influential Irish State Case, ­Ireland v the United Kingdom, which challenged the use of the “five techniques” of interrogation - i.e., “enhanced interrogation” - on 14 detainees arrested during internment in Northern Ireland. The fact that they are doing so again underscores the significance of the rule of law issue involved in this case. The Irish government believes the Northern Ireland Troubles (Legacy and Reconciliation) Law violates the European Convention on Human Rights and says it is contrary to a victims-centered approach to dealing with legacy matters.

The Irish government has recognized the legal basis for taking this action and understands the moral basis for doing so. Their political courage in taking this step has been praised by victims’ rights groups, Irish American civic organizations, and members of US Congress. It has also received just applause in an Irish Echo editorial (Dec. 27, 2023) entitled “A Forced but Righteous Case.” (Emphasis added.)

The decision shows the Irish government can draw a line too. Unlike the line drawn by British officials, this one is in favor of truth and justice!

This article was submitted to the IrishCentral contributors network by a member of the global Irish community. To become an IrishCentral contributor click here.