May 31, 2022
In 1998, people across the island of Ireland overwhelmingly endorsed the Good Friday Agreement, in a historic decision that signaled hope for a post-sectarian, post-conflict future. The British Parliament responded to this popular mandate by returning devolution to Northern Ireland. On May 24, 2022, the opposite happened: faced with vehement opposition from Northern Irelandthe british parliament vote take the second step of a Invoice this would have a huge impact on efforts to resolve the conflict in Northern Ireland.
The Bill: An Overview
The Northern Ireland Troubles (Inheritance and Reconciliation) Bill consists of 4 main parts. Part 1 defines “The Troubles”, a term traditionally used to euphemistically describe the violent political and sectarian conflict that lasted just over 3 decades in Northern Ireland. Part 2 establishes a new body, the Independent Commission for Reconciliation and Information Retrieval (ICRIR), to (among other things) review deaths and certain other “harmful conduct” and grant immunity from prosecution to individuals in exchange for information about those individuals. potentially criminal behavior during the conflict in Northern Ireland. Part 3 largely ends criminal investigations, prosecutions, civil actions, inquiries, and inquiries (except in special circumstances). Part 4 provides for the compilation of histories of the conflict in Northern Ireland.
Although the provisions of the bill are complex, this post is not primarily about those provisions. Instead, in addition to the Secretary of State’s statement (under paragraph 19(1)(a) of the Human Rights Act 1998) of conformity with the rights of the Convention, the bill is accompanied (somewhat unusually) by a 36-page documentEuropean Convention on Human Rights Memorandum‘, written by the Northern Ireland Office. This memorandum gives the UK Government’s view of Why the bill complies with the Convention and that is what will be explored here.
The Memorandum: main points
This post focuses on the Memorandum’s claims that the termination of criminal investigations and prosecutions, coupled with a conditional amnesty, are “proportionate” interferences with the right to life and the prohibition of torture under Articles 2 and 3 (respectively) of the European Convention on Human Rights. rights (ECHR).
Frequent readers may recall that Articles 2 and 3 have a common procedural element not found in the text of the ECHR: the obligation to investigate violations of substantive rights and prohibitions under each article. The case law of the Court of Strasbourg on this procedural obligation is a fairly well-established question, as recognized by the Supreme Court of the United Kingdom time and time Again. In summary, the obligation on the part of the state is to conduct an independent investigation, effective in the sense that it is able to identify and punish the perpetrators, expeditious and reasonably expeditious, with a sufficient element of public scrutiny and involvement on the part of the victim’s next of kin (see Jordan v United Kingdom (2003) 37 EHRR 2, -).
It is important to recognize that the memorandum comprehensively sets out all of this. The problem is with his justification of the contents of the bill in these legal requirements. ICRIR is presented as the sole substitute for criminal investigations (Clause 33), with certain police and coroner pitfalls (Clause 5 – ICRIR disclosure obligations, Clause 6 – ICRIR officers have the powers and privileges of constables and clause 14 – ICRIR is able to require persons to attend and give information). However, since prosecution is rendered almost impossible due to general and specific immunities (clause 18), the requirement of Article 2 that an investigation must be efficient is impossible to respect. The Memorandum attempts to square the circle by stating that the conditional amnesty regime:
…may be justified as an exception to the obligation to punish those identified as responsible for death or life-threatening injury, as a proportionate means of achieving and facilitating the establishment of truth and reconciliation in Northern Ireland, given the [Strasbourg] jurisprudence relating to amnesties. (para. 22)
However, a closer look at how the Memorandum takes Strasbourg case law into account reveals a flawed approach. The memorandum recognizes the general prohibition of amnesties under the ECHR as set out in cases such as Marguš against Croatia (2014) 62 EHRR 17 and Ould Dah against France  ECHR 532 (paragraph 43). However, we rely on two Strasbourg judgments to say that the prohibition of amnesties can allow exceptions: Tarbuk against Croatia (Application No. 31360/10; Judgment of December 11, 2012) and Dujardin against France (Application no. 16734/90; Commission decision of 2 September 1991). Tarbuk was a decision on Article 6 of the ECHR. Croatia decreed a general amnesty for his behavior during the war period between 1990 and 1996, and the applicant benefited from this amnesty by obtaining the abandonment of the criminal proceedings against him. He later filed a claim for compensation for his pre-trial detention (before the charges against him were dropped), but the compensation law was to be amended to exclude those who had benefited from the general amnesty . Tarbuk did not contain a detailed examination of the Strasbourg Court’s opinion on the compatibility of the Croatian amnesty with the ECHR, as this issue was not at issue in this case. In Of the gardenthe European Commission of Human Rights observed that an amnesty would not be in itself violates the ECHR unless “it can be considered part of a general practice aimed at systematically preventing the prosecution of the perpetrators of such crimes”, which is clearly the aim of the bill. In addition, Of the garden had backdated the emergence of the investigative obligation of Article 2. In these circumstances, the confident assertion of the Memorandum that conditional amnesty and termination of criminal investigations can be justified by reference to Article 2 is highly suspect. Tellingly, the Memorandum’s assertion that Strasbourg case law “recognizes that recourse to amnesty may further the goal of reconciliation” (paragraph 56) refers to its consideration of cases such as Tarbuk and Of the garden. This circular reference only raises the question of the compatibility of Article 2.
The memorandum adopts its reasoning from Article 2 for its equal reliance on Article 3 (paragraph 70), so the above criticism also applies to this assertion.
Derogation from the non-derogable?
Article 15 of the ECHR allows a State to derogate from certain rights in cases of emergency (“war or other public emergency threatening the life of a nation”) and only to the extent “strictly required by the requirements of the situation”. Notably, the only derogation possible under Article 2 is “in respect of deaths resulting from lawful acts of war”. The British government never called the conflict in Northern Ireland a war; even less did he designate his own actions in the conflict as lawful acts of war. Even if this were the case, no such circumstance currently exists in Northern Ireland which could justify a derogation under section 2. Moreover, the bill itself defines “disorder” between 1966 and 1998 (clause 1) and therefore refers to a previous, no current conflict. Finally, reconciliation, of the type contemplated in the bill, or of any other kind for that matter, is no reason to waive the obligation to investigate suspicious deaths and life-threatening circumstances. .
However, the draft law amounts to a permanent, statutory and illegal (at least in international legal terms) derogation from the obligation to investigate provided for in Article 2 of the ECHR. The Human Rights Act 1998 provides that waivers must be designated by order and originally contained exemptions for Northern Ireland – under Article 5 of the ECHR (right to liberty and security), in terms of the length of time a person suspected of terrorism offenses can be held in detention without charge. It was deleted in 2005. No designation order preceded the bill.
Of course, that’s not to say the bill is illegal under domestic law – if passed, it would be the product of the same sovereign parliament as the Human Rights Act. Even that of the latter ordered to interpret legislation “whenever enacted” in accordance with ECHR rights contained in the law, while simultaneously taking into account Strasbourg case law Account can only go so far.
On the contrary, as the bill progresses to the next stage of the legislative process, concerns about its content are directed to Parliament. The British government has recently been criticized for announcing legislative proposals that may violate international law (also in relation to Northern Ireland) and the Legacy Bill does not look any different. Far from reconciling anything, the Bill as it stands significantly restricts the human rights framework on which the Northern Ireland peace process was built.