The Right to Truth in Northern Ireland: Power, Justice and Accountability

by Michael Phoenix

4 June 2017

On 23 December 2014 the Stormont House Agreement was published, marking the conclusion of 11 weeks of talks between the Northern Ireland Executive and the governments of the UK and the Republic of Ireland. The talks had aimed to resolve long-standing problems in Northern Ireland, including its so-called legacy issues.

These refer to the continued impunity surrounding human rights violations committed during the The Troubles, the conflict which erupted in Northern Ireland in the late 1960’s. In particular, they refer to the estimated 200,000 family members left bereaved by the 3,600 killings which took place during the period, and their attempts to seek justice.

The Stormont House Agreement laid the groundwork for the creation of the Historical Investigations Unit (HIU), a would-be independent body tasked with taking forward investigations into Troubles-related deaths. It would take over the work of two separate bodies: the legacy branch of the Office of the Police Ombudsman for Northern Ireland and the Historical Enquiries Team. The legacy branch of the Office of the Police Ombudsman is currently tasked with investigating allegations of police involvement in killings during The Troubles. The Historical Enquiries Team was a stand-alone unit within the Police Service of Northern Ireland (PSNI) created to investigate unsolved murders from the period. It was closed in September 2014 as a result of Department of Justice budget-cuts, partly due to financial penalties imposed by the UK Government on the NI Executive for its failure to implement heavily criticised welfare reforms.

Following the Stormont House Agreement, the HIU was to be “victim centred” (section 31) and endowed with “full policing powers” (section 36). Importantly, it was to be empowered by the UK Government’s commitment to “make full disclosure” of all documents and information relating to the body’s investigations (section 37). This would enable it to comprehensively consider outstanding cases before submitting them to the Director of Public Prosecutions (PPS) for review and potential prosecution. Its formation envisaged bringing the UK in line with jurisprudence surrounding Article 2 of the European Convention for Human Rights, which protects the right to life. Article 2 has been steadily expanded as a result of determined judicial activism at the European Court of Human Rights (ECHR),whose jurisdiction the UK remains under for the time being. As a result, a positive obligation rests on states to ensure independent, effective, prompt and transparent investigations into killings committed by state actors, or in circumstances suggesting state collusion.

However, more than two years on from the Stormont House Agreement and in spite of renewed talks aimed at hastening its implementation, the HIU has yet to come into existence. As a result, the UK Government continues to violate international human rights law, killings remain uninvestigated, and victims without justice.

That the HIU has not yet been formed can ostensibly be deemed the result of a continuing dispute between the UK Government and Sinn Féin, the main political party representing nationalist communities in Northern Ireland. The dispute centres upon section 37 of the Stormont House Agreement, which while committing the UK Government to making full disclosure of documents to the HIU, simultaneously opened the door for disclosure to be limited on grounds of national security, stating: “In order to ensure that no individuals are put at risk, and that the Government’s duty to keep people safe and secure is upheld, Westminster legislation will provide for equivalent measures to those that currently apply to existing bodies so as to prevent any damaging onward disclosure of information by the HIU.” Sinn Féin oppose the inclusion of any clause in the HIU’s founding legislation that might allow the UK Government to censor information about Troubles-related deaths before handing it over to the HIU, arguing that it would undermine the ability of the HIU to carry out proper investigations.

As a result, relatives of victims killed on all sides during The Troubles, with the help of human rights lawyers and organisations such as Relatives For Justice, have continued to seek justice through the only means left open to them: the PSNI’s Legacy Investigation Branch and the Director of Public Prosecutions.

The Department of Legacy and Justice at the PSNI was established in February 2016. Its Legacy Investigation Branch (LIB), which was formed to replace the Historical Enquiries Team, is currently investigating 1,118 killings which took place between 1969 and 2004. On the basis of its investigations, it submits cases to the Director of Public Prosecutions who then decides whether the cases merit prosecution or not. Human rights lawyers are also engaged in preparing legacy-cases for submission to the Public Prosecutor.

The LIB has faced criticism from human rights organisations regarding its independence. A Freedom of Information request in 2015 revealed that 23 out of the Branch’s 53 staff were formerly members of the Royal Ulster Constabulary, raising questions about a potential conflict of interest. The LIB also faces serious issues of funding, with the UK Government refusing to improve its over-stretched budget.

The DUP, the main political party representing unionists in Northern Ireland and the largest party in the State following its recent snap-election, has repeatedly accused legacy investigations of being skewed against “deaths attributed to the State”, in favour of paramilitaries. The party claims that although 90 percent of killings during The Troubles were carried out by paramilitaries, the emphasis of legacy investigations is nonetheless being placed on the alleged 10 percent committed by State forces.

The overwhelming evidence of collusion between the UK military and intelligence services with loyalist paramilitaries during The Troubles casts doubt over this stance, yet it has been reinforced the Secretary of State for Northern Ireland, James Brokenshire – “Yes, I do have some concerns about imbalance within the system” – the Prime Minister, Theresa May – “I think it is absolutely appalling when people try to make a business out of dragging our brave troops through the courts” – as well as Conservative MPs in the House of Commons.

On 22 February 2017, Julian Lewis, MP for New Forest East stated, “… people are starting to use the same techniques in Northern Ireland against them [ex-military] as were used against veterans of Iraq”, and called for a statue of limitations which would prevent “the prosecution of veterans to do with matters that concerned prior to the date of the Belfast [Good Friday] Agreement.”

In January 2017, Sir Gerald Howarth, MP for Aldershot and former minister at the Ministry of Defence, called on the government to “… protect the interests of former British soldiers, currently being charged by the Sinn Féin supporting Director of Public Prosecutions of Northern Ireland, with murder for events which took place 40 years ago.”

Similarly, in December 2016, Sir Henry Bellingham, MP for Norfolk, whilst speaking at a debate on legacy issues, claimed, “We cannot simply revisit cases from 42 years ago and try to reinterpret them through the prism of the 21st century, with its emphasis on human rights.”

With the support of the British tabloid press, who claim the existence of a Sinn Féin orchestrated “witch-hunt”, this pressure increased when ex-British Army soldiers formerly deployed in Northern Ireland marched on Downing Street on 28 January 2017. Subsequently, in its report of 24 April 2017, the House of Commons Defence Select Committee, made up of 11 MPs: 5 from the Conservative Party, including Julian Lewis, the committee’s chair, 4 from Labour, 1 from the SNP and 1 from the DUP, recommended that the next UK Government enact, as a matter of urgency, a statute of limitations covering all Troubles-related incidents involving the Armed Forces which took place before the signing of the Good Friday Agreement in 1998.

A guiding line of this narrative is the Conservative Party’s repeated assertion of “the danger of seeing the past rewritten,” yet this is undermined by the facts. The LIB is currently investigating 1,118 Troubles-related killings. 530 of these are attributed to republican paramilitaries, 271 to loyalists, and 354 to security forces, with 33 undesignated. In other words, cases relating to the security forces make up roughly 32% of the LIB’s workload. The DPP, meanwhile, which receives around 40,000 cases per year, has taken the decision to prosecute 12 Troubles-related cases since the current Director was appointed in November 2011. Of these 12 cases, 7 have been linked to republican paramilitaries, 3 to loyalists, and 2 to the military. Cases are only taken forward for prosecution if the evidence is sufficient to provide a reasonable prospect of conviction and prosecution is in the public interest.

Impunity is a core element in the abuse of power. Attempts to extend it are attempts by the powerful  to expand the basis upon which they can act without accountability or fear of reprisal in the present and the future. When Theresa May, James Brokenshire and the DUP claim that the past is in danger of being rewritten, they are serious. They mean that justice for the oppressed is coming closer to finding its place in the picture of the past and changing the dynamics of power in the present. Through their determined judicial efforts, aided by human rights lawyers and non-governmental organisations in Northern Ireland, family members of those killed during The Troubles threaten to set a precedent that would undermine the way in which the UK Government exercises power, particularly through the British military and intelligence services, both within the UK and abroad.

The UK Government has attempted to block every path that could lead to historical justice in Northern Ireland. There is a commitment to making full disclosure of documents to the HIU in the Stormont House Agreement, however limitations to full disclosure has been built into these processes. This is compounded by the refusal to release extra funding for the PSNI whilst the Agreement remains unimplemented, the criticism of the work of the PSNI’s legacy branch, the attempts to to undermine the Director of Public Prosecutions in Northern Ireland and the targeting of human rights lawyers for slander and intimidation. In doing this, the UK Government has provided clear insight into its stance on accountability and justice when it comes to human rights violations committed in its exercise of power: neither will be tolerated.

This approach may give little hope to victims and survivors of crimes committed during The Troubles; however, they continue to fight for justice, accountability and a change in the orientation of power, and as the Derry-based Pat Finucane Centre recently outlined, they have no intention of going quiet: “Your government is waiting for us to die off but our families will not go away. We demand a fully independent HIU and implementation of the other legacy proposals. All bereaved families have a right to truth, and to have their proposals on how to achieve that right respected. These are rights, not privileges.”

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