By: Aimée Jenkins
Dealing with the troubled past of Northern Ireland has proved a challenge for its people and governments for generations. From reckoning with the history of colonial rule to the terror of the Troubles and the continuation of violence today, the past of Northern Ireland is one riddled with pain and suffering that few know how to deal with. Attempts have been made over the years, ranging from the Good Friday Agreement in 1998 to the Historical Investigations Unit and the establishment of the Police Ombudsman with a variety of successes, but there appears to have never been a large-scale overhead plan and approach to handling Northern Ireland’s past. The Stormont House Agreement 2014 presented some hope but the proposed statute of limitations from Command Paper Number 498 ‘Addressing the Legacy of Northern Ireland’s Past’ seems to have removed any chance of approaching the past in a rational manner.
The Command Paper was introduced by Secretary for Northern Ireland Brandon Lewis on 14 July 2021 and, along with the creation of a New Information Recovery Body and some oral history mechanisms, proposed a sweeping statute of limitations to all crimes linked to the Troubles by both state and non- state actors. Not only does this seek to halt criminal investigations and trials, it also would mean an end to civil inquests and inquiries, such as those by the Historical Investigation Unit and the Police Ombudsman. The Paper has proved controversial already, uniting all the main political parties of Northern Ireland in opposition to it – an act so unprecedented it only enhances the absurdity of such a proposal.
Make no mistake, this is no mere statute of limitations, rather it is an amnesty in every sense of the word. While there is no legal definition of amnesty, the ICRC notes that it is understood to be an official or executive act which releases a person or identified persons from prospective or retrospective criminal investigations and charges and cancels any penalties. Wave, a prominent victim’s group in Northern Ireland, notes the proposed statute of limitations to be a de facto amnesty — a conclusion supported by the Model Bill Team in their response to the Paper. Here, they identified the use of the term ‘statute of limitations’ to be false since these are imposed generally with a time limit that will allow for the maximum number of investigations available. In addition, there is no provision for statutes of limitation in UK law for criminal offences, aside from summary offences according to the Magistrates Court Act 1980. In light of this, it is apparent that the government have designed an unconditional blanket amnesty which goes beyond the idea of amnesties as favoured by international law and instead poses itself as one of the most comprehensive and far-reaching amnesties, even worse than that designed by Pinochet’s government in Chile.
Such an amnesty has broad implications for the human rights of victims, namely the right to life under Article 2 and the prohibition of torture and inhuman or degrading treatment or punishment under Article 3 of the European Convention of Human Rights. Both these rights produce a procedural obligation on the state to conduct an effective investigation into breaches of their respective substantive limbs on the principle that such investigations are necessary to uphold the legal requirement to respect these rights. For Article 2, this obligation is implied into the text under the European Court of Human Rights (ECtHR) guidance on Article 2 whereas for Article 3, the investigation obligation was created in Assenov and Others v Bulgaria. In this, the ECtHR held that when an individual raises an arguable claim that they have been subject to a breach of Article 3, by reading Article 3 in conjunction with the general duty of states under Article 1 to ‘secure to everyone in their jurisdiction the rights and freedoms defined in…[the] Convention’, there is a requirement that there must be an effective official investigation into the breach that is capable of leading to the identification and punishment of those responsible. This was later confirmed in Labita v Italy.
As to what an effective investigation looks like, some guidance has been provided by the ECtHR. For instance, in Armani Da Silva v The United Kingdom, it was held that the investigation by the Independent Police Complaints Commission which determined that members of the London Metropolitan Police had acted wrongly in their shooting of the unarmed Mr de Menezes and prosecuted said members under the Health and Safety Act 1974, as opposed to the family member’s desire for a criminal conviction for the individual members, was an effective investigation, despite concerns over its application of the McCann self-defence test. In Hugh Jordan v The United Kingdom, it was held that a coroner’s inquest that continued for eight years after the shooting of the unarmed Pearse Jordan by members of the RUC in Belfast, and the subsequent decision taken by the Director of Public Prosecutions to not prosecute the members, was a breach of Article 2 in that it did not constitute an effective investigation.
Despite language concerning the punishment and prosecution of perpetrators in the guidance, the ECtHR has sought to make it clear that the obligation of an effective investigation is not an obligation to a result. Instead, it is an obligation of holding an investigation which has the means to come to a decision of whether the force used in the killing of a person, or whether such force against a person constitutes torture or degrading and inhuman treatment, was justified and in identifying, at least if not punishing, those responsible. This is further clarified in Giuliani and Gaggio v Italy in which the court held that there is no right to a prosecution or conviction under Articles 2 and 3; furthermore, it established that if an investigation ends without a concrete determination or with limited results, then this is not a failing of the investigation.
In discussing the ways that perpetrators of past abuses have been held to account in the Command Paper, there is an abject focus on the use of prosecutions and the wielding of the criminal court as a sword, setting out to destroy the lives of perpetrators — namely veterans of the British Army, who are now mostly elderly men who have gone on to live their lives away from the Troubles. Yet this is not the only method by which accountability and truth recovery has occurred in Northern Ireland and is, in fact, not even the main method. Very few prosecutions have occurred in Northern Ireland, even in recent years, with many failing to even reach the courtroom due to procedural and evidential issues, as was demonstrated in the dismissal of the case against Soldier F just this year. As previously mentioned, other methods such as the Police Ombudsman and the Historical Investigations Unit have been successful in delivering at least personal results for the families of victims. This is namely in the form of individual reports produced with the weight of police powers of sequestering evidence and statements to form more meaningful reports with more weight to them than could ever be afforded by those produced by the proposed Information Recovery Body which can only demand information on a voluntary basis. The recovery methods made by the former two bodies are not methods made with prosecution and conviction in mind, yet they still comply with the Article 2 and 3 obligations since they are effective. To replace these with an Information Recovery Body and remove any chance of criminal or civil convictions goes against this obligation and would be in breach of the investigative obligation.
In addition, the ECtHR have also ruled on the investigative obligation in light of amnesties and in discovering new evidence many years after the event of the breach. In respect of amnesties, the court held in Marguš v Croatia that granting an amnesty in respect of the killing or ill-treatment of civilians runs contrary to the obligation as it will necessarily hamper the investigation of any such acts and lead to the impunity of any who could be considered responsible. In light of this ruling, it is beyond clear that the attempt by the Westminster Government to stop such investigations is in breach of the jurisprudence of the ECtHR and in breach of Articles 2 and 3. In respect of investigations in light of new evidence, information or allegations, Brecknell v the United Kingdom held that when any of these three things are plausible or credible and relevant to the identification and prosecution or punishment of the perpetrator, the state is still held under the obligation according to the criteria above that it must be effective even if it will not lead to a prosecution. To thus halt any effective investigations into past abuses during the Troubles is again in breach of Article 2 and 3 as the obligation to investigate is a continuing obligation throughout time and a state cannot free itself from this.
The denial of investigations into abuses also has consequences for those members of the groups that were not involved in the abuses by various members of their organisations, or at least not personally involved in the abuses by the organisations as a whole. This has particularly arisen in the context of the British Army. Despite claims by Boris Johnston that the proposed amnesty is designed to protect veterans of Northern Ireland from future prosecutions, the DUP and some former members have taken offence to the notion that they would be involved in such prosecutions at all. Ian Simpson of the Northern Ireland Veteran’s Association told the BBC that ‘Today, the veterans and innocent victims have been betrayed to the uttermost…People who held the line in Northern Ireland…have been put on a pedestal with terrorists, people who went out on a daily basis to murder and to maim.’ DUP MLA Mervyn Storey also stated to the BBC that it was ‘morally reprehensible’ that the proposals could place ‘equivalence between the soldier and the police officer and those who planted the bomb or pulled the trigger’. The future breaches of Article 2 and 3 by the proposed amnesty will affect all involved in the Troubles, whether as victims or combatants, by denying them the right to the truth of their experience.
Chigara writes that national amnesties that aim to erase criminal and civil liability ‘attempt to edit life’s irreversible and uneditable record. Their very declaration is itself a recognition that crimes against humanity have occurred but that no one should be investigated or prosecuted.’ While contrary to Chigara’s thinking, amnesties can do good in remembering and recovering the truth of the past. We need only look to the successes of the South African Truth and Reconciliation Commission in which perpetrators received an amnesty for full disclosure of their crimes to the world. Yet the distinction between the Command Paper’s proposed amnesty and the South African amnesties is the conditions attached. For the post-Apartheid regime, the conditional amnesties were a pragmatic way forward to deal with and recover the truth of the horrors of the regime. For Northern Ireland, however, the proposed amnesty is an attempt to simply pull the shutters down on the past and throw away the key. The breaches of Articles 2 and 3 show that it is not a meaningful attempt to deal with the past — rather, it is simply an easy way to deal with the Northern Ireland Question for the Westminster Government. It does not consider the rights of victims and their families to effective investigations and their soft law right to the truth. All it is, is a way of putting a stop to the messy business of dealing with the past of Northern Ireland and removing the Westminster Government from ever having to reckon truly with its own involvement.
 Northern Ireland Office, Addressing the Legacy of Northern Ireland’s Past (Cmd 498, 2021).  Julian O’Neill, ‘Plan to End all NI Troubles Prosecutions Confirmed’ (BBC, 14 July 2021) <https://www.bbc.com/news/uk-northern-ireland-57829037> accessed 25 October 2021.  Chris Andrews, ‘MLAs Back Motion to Oppose Troubles Legacy Plans’ (BBC 20 July 2021) <https://www.bbc.com/news/uk-northern-ireland-57892882> accessed 25 October 2021.  ICRC, ‘Amnesties and IHL: Purpose and Scope’ (ICRC, 4 October 2017) <https://www.icrc.org/en/document/amnesties-and-ihl-purpose-and-scope> accessed 27 October 2021.  Toby Melville, ‘Troubles Legacy: Ending All Prosecutions would be Wrong’ (BBC, 5 July 2021) <https://www.bbc.com/news/uk-northern-ireland-57714049> accessed 25 October 2021.  Anna Bryson, Brian Gormally, Daniel Holder, Louise Mallinder, Kieran McEvoy, Gemma McKeown,’Addressing the Legacy of Northern Ireland’s Past: The Model Bill Team’s Response to the NIO Proposals’ (QUB, CAJ, 2021).  Magistrates Court Act 1980.  European Convention on Human Rights, Article 2.  European Convention on Human Rights, Article 3.  Assenov and Others v Bulgaria App no 90/1997/874/1086 (ECHR, 28 October 1998).  European Convention on Human Rights, Article 1.  Labita v Italy App no 26772/95 (ECHR, 6 April 2000).  Armani Da Silva v The United Kingdom App no 5878/08 (ECHR, 30 March 2016).  Hugh Jordan v The United Kingdom App no 24746/94 (ECHR, 4 May 2001).  Tahsin Acar v Turkey App no 26307/95 (ECHR, 8 April 2004).  Giuliani and Gaggio v Italy App no 23458/02 (ECHR, 24 March 2011).  https://www.bbc.com/news/uk-northern-ireland-57829037 (n 2).  https://www.bbc.com/news/uk-northern-ireland-57714049 (n 5).  Rory Carroll, ‘Northern Ireland Prosecutors Drop Troubles- era Cases against Ex- Soldiers’ (The Guardian, 2 July 2021) <https://www.theguardian.com/uk-news/2021/jul/02/prosecution-of-soldiers-over-northern-ireland-troubles-deaths-halted> accessed 27 October 2021.  https://www.policeombudsman.org/Investigation-Reports/Historical-Reports.  https://victimsandthepast.org/dealing-with-the-past/historical-investigations-unit/.  Marguš v Croatia App no 4455/10 (ECHR, 27 May 2014).  Brecknell v The United Kingdom App no 32457/04 (ECHR, 27 November 2007).  https://www.bbc.com/news/uk-northern-ireland-57829037 (n 2).  https://www.bbc.com/news/uk-northern-ireland-57892882 (n 3).  Ben Chigara, Amnesty in International Law: The Legality under International law of National Amnesty Laws (Pearson Eduction Ltd. 2002) 5.  Louise Mallinder, Amnesty, Human Rights and Political Transitions (Hart Publishing Ltd. 2008) 163.