A legacy of broken promises on the legacy of “the troubles”

Northern Ireland is in the news just now because of the continuing negotiations between the minority Conservative government and the Democratic Unionist Party (DUP). From a human rights point of view that is problematic in a number of ways, ranging from the extreme social conservatism of the DUP to potential damage to the peace process through having the representatives of one side of the community here in alliance with the UK Government, a.k.a. “honest broker.” However, there is one area where the obstacle to a human rights based solution is the UK Government itself, albeit supported by the DUP.

This area is called “dealing with the past,” or, more commonly nowadays, “legacy” matters. Whatever you call it, this is a question of dealing with the fall-out from “the troubles,” which is the euphemism for a violent political conflict that, proportionate to Northern Ireland’s population, killed almost twice as many as the number of civilians who died in the UK during World War 2. Twenty years after the peace agreement, there is still no comprehensive way of dealing with the needs for justice and compensation for those bereaved or maimed as a result of the conflict.

Human rights activists see this as, firstly, a continuing breach of the UK Government’s obligation under the European Convention of Human Rights to properly investigate killings and torture and, secondly, as a violation of the victims’ right to truth. This is not, therefore, a matter of living in the past or rewriting history – it is question of applying the rule of law. Specifically, in the case of killings carried out by state agents, it is the pursuit of a major aim of human rights activists across the world – combating impunity.

There are up to 2,000 cases involving death during the conflict that have not been satisfactorily resolved. In the late nineties, CAJ and others took a sample of cases to the European Court of Human Rights. In the 2001 judgements on the McKerr group of cases the court found that the UK state had an obligation to carry out effective and independent investigations under Article 2 (Right to Life) of the European Convention. These cases are still unresolved, still under scrutiny by the Committee of Ministers of the Council of Europe and still the UK Government is making excuses for inaction. There has been a “package of measures” in place, including the police Historical Enquiry Team which was disbanded after Her Majesty’s Inspectorate of Constabulary found it was biased in favour of British soldiers.

There were two attempts at devising a comprehensive mechanism for dealing with the past; the last Labour Government refused to implement the first, the Coalition government refused to implement the second. Finally, the parties and the two governments made the Stormont House Agreement at the end of 2014. In rather general terms, this Agreement suggested four interlocking institutions to investigate deaths, develop an oral history archive, provide a secure mechanism for truth recovery and provide a thematic history of the conflict. 

Over the last two and a half years, negotiations have continued on how to implement the Agreement. CAJ and a number of academics even produced a Model Bill that could implement it in a human rights compliant way. When the UK Government demanded an extraordinarily wide “national security” veto on what information could be given to families, we proposed formulations that would recognise the need to keep people safe and protect legitimate and contemporary security methods. It appears that these have been rejected and we expect a draft Bill to go out for consultation over the summer which will contain unacceptable power for Ministers to determine what information will enter the public domain.

Meanwhile, Government Ministers, prominent Tories and some of the press have conducted an extraordinary campaign of vilification against the current mechanisms, including police investigations and inquests, claiming imbalance against state actors and against both private lawyers and law officers. This campaign, reminiscent of a climate created before the murder of human rights lawyer Pat Finucane in 1989, in an act of collusion between security forces and loyalist gunmen, is documented in a Human Rights First report.

A recent report of the Defence Select Committee, hurriedly completed before the dissolution of Parliament, has gone so far as to call for a “statute of limitations” – effectively an amnesty – for all British soldiers. As well as being illegal under international law, such a provision would show contempt for the rule of law and put the UK in the unsavoury company of dictatorships round the world which have indulged in “self-amnesties” to cover up their crimes.

So, we await a consultation process on a draft Bill to implement the Stormont House Agreement over the summer, although reference to the subject in the Queen’s Speec was vague and watered down from previous commitments. Meanwhile the United Nations Human Rights Committee is pursuing the issue of “accountability for conflict-related violations in Northern Ireland” in its urgent “follow-up procedure” to the 7th Periodic Report on the UK under the International Covenant on Civil and Political Rights (ICCPR). In response to its request, CAJ has just written a submission detailing events since 2015 which will shortly be available.

The legacy of the troubles haunts the people of Northern Ireland. If this government is not to see its legacy sullied round the world in human rights terms, it needs to issue sensible draft legislation as a matter of urgency and move quickly to enact implementation of the Stormont House Agreement.

Brian Gormally is Director of the Northern Ireland based Committee on the Administration of Justice