Priorities in dealing with the past: peace, truth, justice and reconciliation

Tom Hadden*

The decision by Judge Colton in Dillon and Others on February 28th that the part of the Legacy Bill offering a conditional amnesty for those who admit to criminal conduct during the Troubles is a breach of the European Convention of Human Rights has been welcomed by many.

But it has also undermined the British Government’s original policy to replace criminal prosecutions with truth recovery by the Independent Commission for Reconciliation and Information Recovery (ICRIR)

The Court of Appeal judgment on September 20th agrees with Judge Colton on most points but adds some additional concerns and requirements on the effective independence of the ICRIR – notably that it does not provide for sufficient involvement by relatives or their legal representatives in its work or a power to overrule non-disclosure by government on issues of national security under a certificate of public interest.

The new Labour programme

The Labour manifesto called for a commitment to the principles of the Good Friday Agreement, which provided for the release of all prisoners in a partial recognition of the legitimacy of the struggle; and also for a renewal of the Stormont House Agreement which included an attempt to move forward on some cases but envisaged a cutting off point of around five years.

It is further seeks to retain the ICRIR in an amended role. The ICRIR has already carried out formal consultations on some of its work. But the dropping of a potential conditional amnesty for past soldiers, police and paramilitaries removes an important incentive for them to come forward and tell their stories. And it remains true, as stressed in every serious assessment since the Healing Through Remembering report in 2002, that the chances of successful prosecutions in most cases is increasingly doubtful due to lack of admissible evidence or the death or forgetfulness of potential witnesses.

Another ICRIR task could be, as designated persons, to arrange for academic studies on specific issues. One of these might include an objective historical account of the overall impact of the Troubles, pointing out while the IRA in its legitimate fight for proper recognition of the rights of nationalists to a form of self-determination overstepped the mark in its armed struggle, the security forces in protecting us from a more serious civil war also overstepped the mark in some of its open and covert operations. Much of this was addressed under the Good Friday Agreement provisions for internal power-sharing, police reform, prisoner release and human rights protection. But legacy issues remain to be resolved.

So there is still time to make the case for a more nuanced legal and policy position on amnesties. One of the key considerations is that in situations where ‘those most responsible’ for human rights abuses on both sides, state and opposition forces alike, have already been effectively exempted from legal accountability or brought into government in a peace settlement, any prosecutions are likely to be directed only against foot-soldiers carrying out orders from their superiors. Another is that in places like Northern Ireland where victims and survivors on both sides of the conflict tend to focus only on truth and justice for their side – unionists for the prosecution of terrorists and nationalists for prosecution of state forces – it is questionable whether this actually promotes reconciliation rather than continuing communal self-justification and victimhood.

All these issues were better handled by the South African Constitutions Court in 1996 in the AZAPO challenge to the amnesty provisions for the Truth and Reconciliation Commission there. Judge Mahomed for the Court set out clearly the impracticality of finding the truth for all victims without some form of conditional amnesty, thus enabling previously warring communities to live together under a new constitutional order. When asked why the TRC did not include justice in its title, Desmond Tutu is reported to have said ‘Justice is too difficult’.

... the impracticality of finding the truth for all victims without some form of conditional amnesty

Part of Judge Mahomed’s decision:

 Every decent human being must feel grave discomfort in living with a consequence which might allow the perpetrators of evil acts to walk the streets of this land with impunity, protected in their freedom by an amnesty immune from constitutional attack. … Much of what transpired in this shameful period is shrouded in secrecy and not easily capable of objective demonstration and proof. Loved ones have disappeared, sometimes mysteriously and most of them no longer survive to tell their tales. … The wicked and the innocent have often both been victims. Secrecy and authoritarianism have concealed the truth in little crevices of obscurity in our history. Records are not easily accessible, witnesses are often unknown, dead, unavailable or unwilling. All that often effectively remains is the truth of wounded memories of loved ones sharing instinctive suspicions, deep and traumatising to the survivors but otherwise incapable of translating themselves into objective and corroborative evidence which could survive the rigours of the law.

That truth, which the victims of repression seek so desperately to know is, in the circumstances, much more likely to be forthcoming if those responsible for such monstrous misdeeds are encouraged to disclose the whole truth with the incentive that they will not receive the punishment which they undoubtedly deserve if they do. [Without that incentive there is nothing to encourage such persons to make the disclosures and to reveal the truth which persons in the positions of the applicants so desperately desire.]

The legal position on amnesties

In his detailed and thorough judgement Judge Colton correctly identifies the trend in human rights courts, initially in Latin America and more recently in Strasbourg, to regard any form of amnesty as a breach of the rights of victims to truth and justice.

In the Inter-American Court of Human Rights there have been numerous cases in which previously awarded amnesties have been overruled to permit renewed prosecutions on the ground that the Inter-American Convention imposes a duty on states to investigate and where possible prosecute those responsible. There have been only a few dissenting judgments arguing for a more flexible position that reflects the particular circumstances in which an amnesty has been granted; in most cases the amnesties have been offered on a one-sided basis.

In Strasbourg the focus has also been more on abuses by state forces or agents. The initial decisions on the secondary duty to carry out an independent inquiry on alleged violations of Articles 2 and 3 of the European Convention were carefully formulated to cover only a duty to carry out an investigation ‘capable of leading to prosecution’ without imposing a duty to prosecute. In the later leading case on amnesties of Margus v Croatia (2014) the Grand Chamber ruled that an amnesty granted to Margus, a Croatian soldier, in respect of international crimes could not be upheld, adding that even if it were to be accepted that amnesties are possible where there are particular circumstances, such as a reconciliation process and/or a form of compensation to the victims, the amnesty granted to Margus would still not be acceptable since there was nothing to indicate that any such circumstances were obtained in his case.

De facto amnesties

There is an additional line of authority under the European Convention on Human Rights in respect of a failure to prosecute those responsible for Article 2 & 3 violations where there has been no formal amnesty. The cases range from interminable but inconclusive investigations in Turkey, or more general time bars on proceedings to those in which a file has been submitted to the prosecution authorities but a decision has been made not to prosecute. These might be collectively termed as ‘de facto amnesties’.

In a leading Grand Chamber decision in cases of this kind, Mocanu v Romania (2015), the reference to particular circumstances that might justify an amnesty was revised to refer to such criteria as ‘the only way out of violent dictatorships and interminable conflicts’, a phrase specifically commented on by Judge Colton. The case arose out of events in Romania in 1990 with a primary focus on a time-bar to prosecution of its own forces for the brutal suppression of popular anti-government protests, including allegations of torture.

The particular circumstances in Northern Ireland

The question here is whether any set of exemptions such as those referred to in the Margus case should be accepted in respect of reconciliation and compensation policies in Northern Ireland. If so, it might be decided in appeals against the Colton judgement in the UK Supreme Court or in Strasbourg that despite the general movement towards ruling out amnesties of any kind there remains some flexibility in cases where the objective is to achieve reconciliation and victims are to be compensated. The related issue of the commitment under the Brexit withdrawal agreement to ‘no diminution of rights’ for people in Northern Ireland and the odd argument that people in Northern Ireland can rely on the EU Charter of Fundamental Rights [which never applied in the United Kingdom?], could likewise be sidestepped by reliance on a better understanding of peace settlements under the ECHR in a friendly settlement of the interstate case initiated by Ireland against the United Kingdom.

The underlying issue is whether exemptions of this kind can be shown to apply in Northern Ireland where the armed conflict has been largely overtaken by political provisions for internal self-determination by leaders of the previously dominant unionist community, representatives of constitutional nationalism and of the previously outlawed nationalist paramilitaries and of the people in between. This is very different from cases of ending a violent dictatorship though the peace settlement was clearly directed at ending a situation of unending armed conflict.

The tensions, occasional confrontations and more isolated acts of violence related to the past conflict in Northern Ireland clearly continue and the legal proceedings on legacy cases are certainly interminable. One objective of the already established ICRIR is to put an end to interminable litigation on past cases raised on behalf of victims on both sides which are unlikely to result in satisfactory outcomes, other than perhaps a little more truth, a few successful and many more unsuccessful or blocked prosecutions of low-level foot-soldiers in both state and paramilitary organisations. There are no serious proceedings against those in commanding or policy roles during the conflict either in state forces or in paramilitary bodies. Whether that would be a just outcome when so many more senior commanders have been effectively protected from prosecution is questionable. The criteria referred to in Margus v Croatia are certainly more relevant than those referring to ending violent dictatorships.

Many of those working on peace settlements and processes, like Desmond Tutu, the South African Constitutional Court and those who produced the Belfast Guidelines on Amnesties and Accountability in 2013, have stressed that there is often a choice to be made between peace, truth, justice and reconciliation and that they cannot always all be achieved at once.

*Tom Hadden is a former member of the NI Human Rights Commission and co-author of the Belfast Guidelines on Amnesty and Accountability.

Comments

Thank you for the article which is spot-on.

The difference between the investigations in Northern Ireland and many other historic conflict investigations, such as following World War II, is that the issue is not the identity of the person, for example the Nazi state agent involved, but the circumstances in which they fired and whether they had an honest belief. After 50 years with the loss of weapons, forensic evidence, files, the death of witnesses et cetera this is an impossibility to prove beyond reasonable doubt in most cases.

Dennis Hutchings is a good example as I’m sure he was about to be acquitted as it emerged in court just before he died that one soldier had fired three ordinary rounds (that would be Dennis) and the other soldier two tracer surrounds, which contain strontium. So the state could always have known who shot in that case by testing the field dressings and clothing of the deceased but that was not done.

It took the prosecution 45 years to disclose this key fact. In my view that sums up just how poor this process is at actually addressing even the known facts of incidents.

For labour to go down the road they have set out, we are just going back 10 years. More time has slipped by and there is less chance of anything other than anger and annoyance by all those involved in a process that is not fit for purpose.

South Africa got it right and many of us felt 25 years ago that Blair missed an opportunity to do the same. 

You’re doing a great job I hope the Secretary Of State Northern Island is on your mail list.

Philip Barden

(*Editorial Note: Yes, Hilary Benn is on our mailing list.)

This is an important, if long overdue, article by Tom Hadden.  I would however dispute his statement that the IRA 'overstepped the mark' by murdering 2000 people.

That aside, he addresses the various ECHR judgments that refer to amnesties revealing just how thin that body's reasoning is. It is based on a sentence here or one there, and is at times contradictory.

I have long argued as convenor of the Malone House legacy group that Strasbourg needs to convene a conference to assess what should be done to research, analyse and consider the ECHR approach to Article 2, the interminable reinvestigation of state killings only, and amnesties.

Currently we have to rely on quite possibly the work of interns who may have no expertise beyond one country.

We asked our representatives at the Committee of Ministers to propose such a symposium but have heard of no progress.

It may well be as Tom Hadden suggests that something may be cooked up in a friendly settlement of Dublin's inter state case against the UK.

Given London rolling over on a Finucane inquiry and Hilary Benn proposing to remove big chunks of the Legacy Act including its rather pointless conditional amnesty I fear nothing useful will happen.

Dublin is too well got at Strasbourg especially over legacy and the UK to relinquish any ground even if it advances reconciliation by diminishing lawfare.

Jeff Dudgeon

I disagree with Tom Hadden on a lot of points. Once again we have a proposal from academics drafting up papers which are not needed. When will people, particularly those who aren’t victims learn that victims are quite able to do studies and put those studies into proposals and drafts? There are those with good intentions and there are those who think they know the answers. Both of these groups haven't been or aren’t victims.

They have been doing this for years and think it’s the "best thing since sliced bread", aka The Legacy Bill brought into law, which has been rejected by the most important people - the victims and our political parties. But this doesn’t stop another theory/ suggestion coming out. I disagree that victims have a two sided divided approach in that Tom is putting forward that unionists victims are focused on the murders of the IRA.

We only have look at the murders carried out by Protestant paramilitaries on their own community. The victims focus is on truth and justice no matter who was responsible. My experience in dealing with victims from the nationalist community is identical to the focus of Protestant victims.

There is not or ever has been any legitimacy in the IRA campaign of sectarian murders or indiscriminate murders by bombs. The same is said for the UVF/UDA murders. There needs to be an approach that is determined by victims and their families not determined by politicians, academics,  foreign interventions or those who were the perpetrators.

The approach determined by the victims cannot be a one size fits all, but that is up to people like me who have had family members murdered.  We live with the pain and the injustice every day and we want a resolution more than anything, but a resolution that’s acceptable to us not ones who have made victims a business sector.

Raymond McCord, Victims campaigner North Belfast.

I strongly disagree with Tom Hadden's assertion that the prisoner scheme was instituted "in partial recognition of the legitimacy of the struggle". No such claim was even implicit (in the Belfast Good Friday Agreement). Instead the scheme recognised that terrorist crime by its nature was amenable to political resolution, unlike " ordinary decent crime". It was a crucial incentive to win peace and encourage a transition to " exclusively peaceful means".

I might agree that it undermined the rule of law towards politically motivated crimes; and that immunity in exchange for validated  detailed information is a  logical and indeed acceptable conclusion of the GFA.  Even dissent by some victims groups and self-righteous  competition between local political parties should not stand in its way.

Legally based arguments about this must continue. Otherwise, is an amended Legacy Act remotely viable?

In the wider context it is worth bearing in mind that, upholding the rule of law is said to be Starmer's own essential basis for Labour's  emerging policies. He must be pressed to decide where he stands personally  in the present state of ferment over the Legacy Act.

Tom's review of the  state of  international legal trends over amnesties seems to apply to states in even more political and constitutional confusion than ours, and therefore of doubtful value, pace Cotton (do you want to amplify Cotton reference?).

It’s surely obvious that some form of conditional amnesty is needed for even the hope of disclosure. As you've pointed out, the years have been strewn with de facto amnesties : why stop now?

A crucial point is that reliable evidence is not available for convictions. And omerta on all sides, even substantially from state servants, prevails.

Two pieces of research that would be valuable to achieve greater public confidence are:

1.      An analysis of why such evidence isn’t available,  rather than merely relying on case by case simple declarations by the PPS .

2.      An analysis of convictions and terms spent in jail during  the Troubles. This should undermine claims from both sides that the other ‘got away with it’.

In any ( long overdue) discussion about restoring elements of legal process, the Model Bill team's option published by the CAJ can be invoked to provide for up to zero penalty in the rare event of a successful prosecution. Is this really the outcome opponents of even an amended Legacy Act want out of a restoration of the SHA? But would it really incentivise disclosure?

In short if Starmer were to create a firm platform for the rule of law, a proper discussion on the options for disclosure  can be opened up . Its parameters would then be essentially political.

I disagree with you over Finucane. UKG were right to keep their promise. A PI can test where lie the limits of national security in the circumstances which are well known and the questions so obvious.

Regards,

Brian Walker

Tom Hadden’s concise (admirably so) opinion piece on legacy issues is an excellent addition to the discussion and debate. Whilst I have reservations about his summary of the Good Friday Agreement and the legitimising of the republican cause I still feel this is an article which is a must read for those of us interested in legacy issues and in particular for our politicians who are charged with overseeing such matters. Over the last six years I have changed my mind about the role of the courts system and hearings; I accept that  the courts and coroners should continue and must be fully resourced

In accepting  the continuation of the courts system as part of dealing with legacy issues I acknowledge (and hope others will too) that it can only deal with a miniscule number of cases in comparison to the vast problem that encompasses legacy issues. With over 3,500 death and 50,000 people injured, legacy issues cannot simply be seen through the prism of justice. The Commission for Victims and Survivors indicates 25% of the population  of NI are affected.  Many of those who approached me when I was in Glasnevin Cemetery commemorating the Decade of the Centenaries brought up legacy issues as the most important obstacle to reconciling the communities in Northern Ireland. The role of the courts has always been important to society and community in any democratic state, but the irony is not lost on many  that those often calling loudest for coroners’ inquiries have supporters and members who do not recognise the court system in Northern Ireland. Similarly it is perhaps unacceptable to some that the court system will convict or seek to convict those who were youths, 18/19 year olds, carrying out the commands of their elders whilst those who issued the instructions will never see court. Of course there are those who feel the courts will only deal with state forces. Others quite simply say why stick with a system that has failed society for over 50 years?

I think  Tom Hadden’s conclusion that “peace, truth, justice and reconciliation  cannot always all be achieved at once” is something that we should all concentrate on. Participants in this debate mostly wish for Northern Ireland to be a normal functioning society; there are very few perfect societies in the world. Undoubtedly Northern Ireland is currently dysfunctional and many of those living on the street will tell you that relations between the communities are strained and stressed as badly as ever.

The TRP is ultimately about reconciliation and for it to prosper some cases a conditional amnesty should be considered. Once we can see the success (or failure) of applying  conditional amnesties I believe they could  provide a way forward. There have been many truth and reconciliation processes in many countries and again none of them were perfect but I always think of Kadar Asmal who told me that is not only the outcome that matters  but the process itself is equally important. At the TRP conference in Queens in April 2023 there were representatives from Colombia and Chile who made this point very forcefully. Conditional amnesty is not an easy concept but if they are overseen with strict and clear interpretation I believe they can show how sides can be reconciled and be exemplars for society. Hopefully there would be a snowballing effect as for example happened in Colombia.

Sadly many  seeking reconciliation have themselves passed away or have lost mental capacity, or quite simply given up. There is no quick fix to this huge problem but it is incumbent on both Governments to put aside recent differences and to concentrate on the “greater good”. By all means allow the courts and coroners to continue but provide a parallel process.

As time is so pressing we need to build trust in the ICRIR rather than go back to the drawing board. The could be done by:-

1.      Appointment of a joint Chair nominated by the Irish Government

2.      Enabling legislation that allowed the Commission to operate on an All Island  basis.

3.      The introduction of “conditional amnesties”.

4.      Implementation of the Stormont House Agreement with its’ promise of an open book policy from the UK Government, including scrapping the excuse of “National Security” considerations.

5.      Both Governments  agreeing to open their records and lead by example.

These are quintessentially the desires of most people on both sides of the Border and enabling them would isolate and expose those who wish to perpetuate the Legacy of the Troubles for their own political ends.

Doing nothing is not an option. Whether the future of Northern Ireland is in a United Ireland United Kingdom or their own state, legacy issues need to be addressed as without some resolution of the problem there will be little if any trust between the communities.

John Green

I think two specific issues would help progress- or define - legacy issues.

There's plenty of critical analysis. But it doesn't add up.  Prescriptions are needed now.

1.      A critique of the expressed views of Declan Morgan. Here was the Chief Justice who part reformed the legal process by instituting meaningful inquests with more to come. Why did he then accept the UK government’s decision to end them in favour of the ICRIR, which he now chairs? He supports the survival of the  ICRIR. Why? 

2.      A redesign of the Legacy Act that is acceptable to all or most parties, including victims. Both need legal expertise and political judgement. I would reach out to Brice Dickson, law prof and ICRIR member, and to Kieran McEvoy on drafting a Bill that could be  generally acceptable.

3.      John Larkin  KC, former NI Attorney General  in a Policy Exchange lecture a couple of years ago recommended " taking the law out of it" - which was rejected by the Government and the parties to  update his views.

 By the way, Larkin also recommends radical reform of the ECHR  and its Court in favour of recommendations to national governments instead of rulings. If these were not acceptable to the Council of Europe, withdrawal could be the result. Which would mean a renegotiation of the GFA.

To sum up, I think a more focused, expert debate is now needed to try to reach an acceptable reform of the Legacy Act, if possible with the consent of most of the stakeholders.

Brian Walker