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The pall is lifting on Northern Ireland’s Legacy stitch-up.

Proposals to cover up the past breach elementary human rights and received wisdom built up over a generation.

By Christopher Stanley.

Through the pall of a pandemic Patrick Corrigan,  Northern Ireland Programme Director for Amnesty International UK, wrote in the Belfast Telegraph (19 April 2020), on the current crisis wrought by the coronavirus/Covid-19 pandemic and the importance of learning lessons from it.

He noted, eloquently and compellingly, that we could emerge from it into a society where politics and society cohere around human rights.  He concluded:

Such a human-rights-based approach to government can help us forge a better, shared Northern Ireland and build upon the strong bonds of social solidarity so evident in our current crisis. When we finally emerge from the curse of coronavirus – and we will – what a legacy that would be.

(Belfast Telegraph)

Human Rights lie at the heart of the Good Friday Agreement 1998. They are embodied in its letter and spirit.

Patrick Corrigan wrote about the commitment to a Bill of Rights for Northern Ireland which was contained in the GFA and is now being revisited under the British government’s New Decade, New Approach document which guides the devolved administration at Stormont.

Human Rights must be the core of the out-workings of the Legacy of the Conflict in Northern Ireland. The current pandemic will alter the landscape of our jurisdiction when it is finally defeated. It will change our attitudes and perceptions, needs and priorities. It may open a possibility where the violent Legacy of Past in Northern Ireland, which haunts the present and determines the future, can at last be sutured after years of contested narratives of truth about what happened here between 1969 and 1998.For what many of those – relatives of the victims and the survivors and their families – want is truth. Many also want justice and accountability but at the fore is to know why a death or an injury happened.

It is not about retribution or reparation. It is about being able to move forward with the past  – bear in mind these dead.  

Before the pandemic crisis, the British government published its latest approach to the Legacy of the Conflict. The proposals are a dramatic departure from a) the Stormont House Agreement 2014 (SHA) and b) the attitude towards the Legacy that was taken by the most recent Secretary of State for Northern Ireland (Smith). The position of the British government now is to conflate a specific narrative (an interpretation of the Conflict) with a swift Draconian measure to finally sever the present from the past and to protect one particular group of perpetrators/victims – the agents of the state. At present these agents are British Army Veterans but they will inevitably eventually include all members of the British Security Forces, including those from paramilitary organisations used as agents or informers. This political positioning will cause resentment and resistance in Northern Ireland. The intention is to introduce:

A new independent body [that] will conduct swift, final examinations of all the unresolved deaths. Only those cases where there is new compelling evidence and a realistic prospect of a prosecution will be investigated. Once cases have been considered there will be a legal bar on any future investigation occurring. This will end the cycle of reinvestigations for the families of victims and veterans alike.This new approach seeks to put victims first with information recovery and reconciliation as the overarching goal – with a way forward that delivers for all those affected by the legacy of the Troubles and enables all sides of the community to continue to reconcile and prosper.

In these two short paragraphs, the British government lays bear an intent which has been clearly seen in some sections of the Tory party since the GFA and which has been articulated by some of the inhabitants of Hillsborough Castle (Patterson, Villiers,  Bradley). The end will be swift and final. There is a hierarchy of victims. Veterans (agents of the state and British Security Forces deployed or recruited (as agents or informers) during the Conflict) become victims if they face arrest and prosecution. Therefore they will be granted immunity. The evidential threshold is high;’‘compelling evidence” and “realistic prospect of prosecution”. After years of being consulted, the people of Northern Ireland were faced before the present lockdown with a stark reminder of the way Westminster/Whitehalll saw Northern Ireland as ’good soldier’ and ‘bad terrorist’ – all other contested narratives being ‘pernicious’. In Northern Ireland there was a robust civil society reaction of disapproval.

 For example, Relatives for Justice (RFJ) said:

These measures will further deepen divisions in society and will certainly not aid any measure of reconciliation – they will aggravate existing hurts and wounds and will be seen as further evidence of a systemic cover-up of British State crimes. This will be challenged on every level by families including in the domestic and European Courts.

For example, the Committee on the Administration of Justice (CAJ) and  a group of academics from Queen’s University Belfast (QUB) analysed the British government’s new proposals against a three-point test:

a. The extent to which it is consistent with binding domestic and international human rights obligations, in particular Article 2 of the European Convention on Human Rights regarding the right to an effective investigation into conflict-related deaths.
b. The extent to which it is compatible with the Good Friday Agreement (GFA), the cornerstone of the Northern Ireland peace process.
c. The extent to which it is compatible with the Stormont House Agreement. Although the design of that (SHA) is complex, it was arrived at after months of tortuous negotiations between the two governments and the five largest political parties, and it remains the closest we have come to a workable consensus on dealing with the legacy of the past since the GFA of 1998.

On each test the proposals of the British government is setting itself up to fail. Just as the English politicians and their Whitehall civil servants knew they would. In the words of RFJ:

Throughout the statement the British government abuses terms and phraseology associated with our transitional process of building peace and reconciliation to cloak its evident malign intent…The statement is disingenuous and insulting to families who have been denied justice since the killings of their loved ones. In particular, the British government has spent the past two decades trying to evade and wriggle out of its legal obligations under Article 2 of the European Convention of Human Rights when faced with its failings to properly and independently investigate killings it carried out during the conflict, including those in which there was State collusion … It is clear in this statement that the British Government is trying to get away scot free from its role in the conflict. This will be resisted and challenged”.In an almost casual but brutal volte face, the British government strode away under the pall of Covid-10 lockdown from the hard-fought proposals made by SHA. At last as that pall clears the position of the British government is now clear as we have time to think, as Patrick Corrigan did. The current crisis should not serve to diminish or obscure the need for cross-community refusal to let these proposals slide into legislative intent as we emerge from darkness into light. 

Instead, as Patrick Corrigan makes clear, a human-rights-based approach to government can help forge a better shared Northern Ireland and build upon the strong bonds of social solidarity – recognising the importance of acknowledging the truth about the violent past and clearing a space to examine that path and to expose the truth in order to afford reconciliation to all victims. Recall: there is no hierarchy of victims in current Northern Ireland law. For example crucially ‘The Victims and Survivors (Northern Ireland) Order 2006’ states as follows:

Interpretation: ‘victim and survivor’ 3 (1) In this Order references to “victim and survivor” are references to an individual appearing to be any of the following— (a) someone who is or has been physically or psychologically injured as a result of or in consequence of a conflict-related incident; (b) someone who provides a substantial amount of care on a regular basis for an individual mentioned in paragraph (a); or (c) someone who has been bereaved as a result of or in consequence of a conflict-related incident.

The British government, the English Conservative Party, the Mandarins of Whitehall, and constituent spads, apparatchiks, spin doctors, ‘experts’ and Establishment coves stuck to their guns in appeasing the government’s supporters. The government is now overtly protecting its state agents (in this case soldiers), those agents who carried out the will of the state in Northern Ireland during this Conflict (Operation Banner) in the same way as it is overtly protecting its state agents in other more recent military adventures – in Iraq (Operation Telic) and Afghanistan (Operation Herick). They are applying, at best, the principle that it is best to focus on the future, not the past.

But as William Faulkner noted: “The past is never dead. It’s not even past”. 

Those in Whitehall cannot see the murals in Derry. Those in Westminster cannot see the inter-face in Belfast. These officials and politicians, with their fear of constitutional crisis over devolution, with their fear of the Brexit fall-out and its implications for trade and borders, with their fear of openness and accountability, reject rights – either as a Bill of Rights for Northern Ireland or by way of the existing Human Rights Act 1998. 

This rejection and refusal include denying access to the right of a post-conflict society to its history and to its truth: a right to truth, now being identified as core to society in a transition from violence to peace, from conflict to unity.

After lockdown-release life will become even more precious. Those “strong bonds of social solidarity” identified by Patrick Corrigan in Northern Ireland,  will be squandered. It is not about retribution and reparation. It is not necessarily about prosecution and punishment save in terms of fulfilling the demands of the Rule of Law. It is not about abstractions, it is about real questions, real violence, real victims.

Real questions in Northern Ireland mean (for example):

What role did Dennis Hutchings play in the death of J. P Cunningham?

What role did Robert Nairac play in the deaths at Kingsmills?

What role did Gordon Kerr play in the death of Patrick Finucane?

What was the role of Martin McGuinness in the bomb at Claudy?

What was the role of Balcombe Street PIRA ASU in the Guildford Pub Bombings?

We have had 22 years of initiatives to establish a process of investigation into all Conflict-related deaths and injuries (without a hierarchy of victims) that is human rights compliant.

These include Healing through Remembering by Eames-Bradley, Haass-O’Sullivan, the SHA, Amnesty International, even the Northern Ireland Office’s ‘Addressing the Legacy of Northern Ireland’s Past’.  Not surprisingly these initiatives combined constitute progress. The most recent proposals are removed from recognised and accepted human rights standards and norms – as committed to under the GFA: 

2. The tragedies of the past have left a deep and profoundly regrettable legacy of suffering. We must never forget those who have died or been injured and their families. But we can best honour them through a fresh start, in which we firmly dedicate ourselves to the achievement of reconciliation, tolerance, and mutual trust, and to the protection and vindication of the human rights of all.

The SHA was imperfect, specifically regarding its key proposal for a Historical Investigations Unit (HIU).

The imperfection here was again about state implacability: that disclosure of all material which would touch upon matters of National Security would be controlled (filtered) by the British government. Therefore, not only would disclosure be controlled by the state, but the HIU would not be independent – a key element of human rights violation investigations.

In addition, there is the issue of re-investigation, the role of the PSNI and the relationship between the HIU and the British Security Forces and collusion.

Nevertheless, the HIU was presented as being a mechanism compliant with the positive procedural investigatory obligations required when Article 2 (the right to life) of the ECHR has been breached (and by extension those requirements following a breach of Article 3 (the prohibition against torture and inhuman and degrading treatment)). 

The HIU would publish a statement setting out the manner in which it would carry out its investigatory function. This statement would set out … how its investigations would comply with its Article 2 obligations under the Human Rights Act and its other human rights obligations.

These concerns were to be worked through – hence the extensive Consultation to the Northern Ireland Office, “Addressing the Legacy of Northern Ireland’s Past”, which ran from May to September 2018 resulting in the publication of the ‘Analysis of Consultation Responses’ in July 2019.

Now they have been shot through and the effort to secure consensus and to continue to work toward a human rights compliant mechanism of investigation which was acceptable across the political/sectarian divide and acceptable to all victims of the Conflict and to wider civil society – and in accordance with international expectations – has been severed. 

One might suspect that behind the ‘protection of old soldiers’ rhetoric is the alarm of the current political administration regarding the continued exposure of the extent of collusion during the Conflict.

Collusion, as noted, was part of the policy and practice of the counter-insurgency response of the British government. Collusion, as noted, undermines the Rule of Law because it is an expression of the tolerance of impunity toward human rights violations including extensive extra-judicial killing. As Mark McGovern notes:

All of which only serves to reinforce, again, the need for a comprehensive process truly capable of getting beyond the denials and cover-ups of the counterinsurgency role of collusion in the North’s ‘dirty war’.

And the pall is lifting.

Christopher Stanley is litigant consultant with KRW Law LLP, Solicitors, Belfast