With recent news that the Irish government has taken the decision to launch an inter-state case challenging the human rights compliance of the UK’s newest legislation surrounding the Troubles in Northern Ireland, how legacy cases are dealt with has faced increasing scrutiny and remains a contentious issue within our continuously transitioning, post-conflict society. Legacy cases have always been controversial in how they are conducted, largely as a result of the fragile peace process that exists in Northern Ireland to this day, however the new legislation threatens to dig up problems of the past and risk excluding the rights of victims to justice for the harm they suffered.
What is the Legacy Act?
The problematic legacy bill, enacted in law in September 2023 as the Northern Ireland Troubles (Legacy and Reconciliation) Act, was introduced in order to change how legacy cases from the Troubles are dealt with by the UK government, aimed at promoting truth recovery and “drawing a line” under the violence of the past. This entailed a significant shift in how the judicial system deals with legacy issues – criminal investigations are being replaced with enquiries carried out by the Independent Commission for Reconciliation and Information Recovery (ICRIR) and in doing the ICRIR so has the power to provide conditional prosecutorial amnesty for perpetrators of violence who cooperate with the inquiries, focusing on producing “truth telling” reports rather than judicial outcomes and prosecution of perpetrators. This effectively offers immunity to those who perpetrated violence and ignores the rights of victims and their families who continue to live without answer to the violence they faced in the Troubles era. While it is argued by the UK government that its aim was to “end the cycle of re-investigations that have failed victims”, in reality the halt of new criminal investigations and the granting of conditional amnesties focus more on protecting the perpetrators of violence and many victims and victims groups in Northern Ireland have contested this, stating that this “legally dubious and morally corrupt legislation” (Wave Trauma Centre) merely “shields perpetrators'' and provides a “state gifted impunity” (Amnesty International) to them without giving any answers to victims.
A Threat to Transitional Justice
This legislation has posed severe difficulties due to the flagrant human rights breaches that threaten to “deepen divisions” in an area where the post-conflict transition was already fragile. Transitional justice measures to address the legacy of the serious violence in Northern Ireland during the Troubles era have been few and far between in implementation and 25 years on, there are still no overarching mechanism existing to cope with the challenges that our post conflict society holds. As a result, when measures such as the Legacy Act are imposed, it threatens to put the rights of those who suffered at risk while also creating deeper divisions into the ideas of truth and reconciliation that transitioning governments are supposed to uphold, not threaten.
Comparisons have been drawn between the introduction of the ICRIR under the Legacy Act and the South African Truth and Reconciliation Commission (SATRC), as both have held similar aims and are likely to have similar consequences when it comes to the idea of maintaining justice while, in theory, promoting truth recovery and reconciliation. While within the South African context, truth and reconciliation was promoted as a part of healing and acknowledging the horrors of the past by giving an opportunity for victims to speak openly about their suffering during the trial process, such a process has not properly existed for victims in Northern Ireland since the signing of the peace agreement.
Despite the SATRC’s flaws in terms of achieving actual legal justice for victims, it provided a space to promote the process of reconciliation and the idea of truth recovery, which has been heavily lacking in Northern Ireland. By offering conditional amnesties to complying perpetrators in both contexts, gaining prosecutorial justice for victims has been challenged and neither society has fully been able to achieve proper justice, however in Northern Ireland this has been even more evident as the actual process of promoting peace and reconciliation has been heavily contested, largely due to the ongoing debates surrounding who can be considered as a victim and how the justice system has failed to deal with legacy cases in an adequate manner. While the UK government has clearly taken inspiration from the process of the SATRC, in contrast to the South African process of acknowledging the past, the idea of “drawing a line under the past'' cannot be successful in achieving justice while promoting reconciliation if the past remains contested and victims do not receive true justice and acknowledgement of the harm they suffered, which has largely been ignored by the introduction of the Legacy Act.
Opposition to the Act
The Legacy Act, while framed with aims to promote the peace process in Northern Ireland and further truth recovery and reconciliation for the Troubles era victims, it has been largely viewed as doing quite the opposite. By halting any new Troubles era cases and inquests, and offering conditional amnesties to perpetrators, the Act quite clearly has been enacted with governmental aims in mind rather than the needs and wants from actual victims, seen through the opposition faced in response from victims’ groups and Stormont officials alike.
While it is not often that there is political agreement in this country, on this issue all the main NI parties have united in opposition to the bill. The legislation has been mainly viewed by politicians as merely as benefitting perpetrators and the UK government rather than victims, including DUP assembly member Emma Little-Pengelly who has dubbed the legislation as “playing into the hands of those who want to airbrush the past”. It is clear to see that legal challenges both on a domestic and European level have been warranted in the face of the severe opposition to the Act. The legislation has been heavily criticised by nearly all it affects, as while this was marketed as an attempt to draw a line under the past by the British Government, in reality it leaves more than 1000 killings unsolved, restricts the access and right to justice for said victims and demonstrates how there is more focus on perpetrator cooperation to uncover truth than achieving justice for those who suffered. Victim support groups have also begun to lobby against it, with those such as Wave Trauma Centre opposing the act as many victims felt it was “more about protecting perpetrators rather than achieving truth, justice and acknowledgment for victims and survivors”
The Act also faced opposition from the Irish Government, as well as criticisms on an international level from the US, Europe and the UN. This criticism prompted the Irish Government to take a Strasbourg case against the UK Government in support of victims, who have declared the issue as a potential breach of the UK government's international human rights obligations towards victims to undertake investigations into certain cases concerning death and serious harm under the European Convention of Human Rights. This flagrant breach has provoked outcry from amongst the population, with many victims and survivors already taking High Court action against the government, with many more lobbying to take action at a European level, which has created a challenge on two legal fronts in opposition to the bill. The decision to challenge this legislation has been heavily backed by the Irish government’s “commitment to survivors in NI and to the families of victims to stand by them”, as stated by Taoiseach Leo Varadkar, who has voiced continuous opposition towards the bill alongside other government officials. This has been welcomed by survivors, victim’s groups and campaigners in NI who have deemed such action necessary for victims to receive actual justice.
While the UK government has argued that the legislation will offer better outcomes for victims and survivors in NI and has in turn criticised the Irish government’s lack of framework and proposals to deal with legacy cases and the consequences of an inter-state case on relations, the decision to challenge the human rights failures of the Act has been overwhelmingly supported by victims, human rights organisations and political actors alike. Described as an Act that “only benefits perpetrators of violence” that has had “no choice but to pursue the legal avenue” by spokespeople from the Pat Finucane Centre, it is evident that legal challenge at a European level seems to be the only way forward in maintaining the idea of providing justice to victims and promoting proper reconciliation and truth recovery, rather than causing further divisions in an already tenuous peace process as the Act has already begun to display.
Overall, the Legacy Act, enacted with the supposed intention to reshape the handling of legacy cases to benefit victims and ‘draw a line’ under the issue, has instead sparked widespread opposition and criticism for the blatant neglect of victims' rights and needs in a post-conflict society. While the beginning of the interstate case has ignited debates surrounding the challenges the new legislation poses, it is clear to see that there is a dire need to address the concerns of victims and political actors alike that if not dealt with, will continue to threaten the peace process and the achievement of justice, truth and reconciliation as a whole.