‘A Blueprint on How to Entrench Impunity’: The UK’s Legacy Act of 2023
An Interview with Daniel Holder
In September 2023, the UK parliament passed The Northern Ireland Troubles (Reconciliation and Legacy) Act entrenching immunity for crimes committed by the British army during the Northern Ireland conflict (1966-1998). Human rights organisations and activists in Northern Ireland are challenging the Act both in domestic courts and in the European Court of Human Rights.
Despite its own past and present history of human rights violations, the UK (together with the USA and several EU countries), plays a critical role in the global governance of human rights because of its diplomatic and economic clout. Sri Lanka’s trajectory within the UN Human Rights Council (UNHRC) is a case in point. UK has had a significant role in placing Sri Lanka on the agenda of the UN Human Rights Council (UNHRC) and passing several UNHRC resolutions on Sri Lanka. This is in a context where the regime responsible for ending the war denied all atrocities and constructed the military as national heroes. Local and international human rights activists and Tamil victim-survivors including hundreds of family members of the disappeared continue to have expectations on the international community including the UK to put pressure on the Sri Lankan state through the UNHRC to address their demands for truth and justice for atrocities committed by the military during the final phase of Sri Lanka’s civil war. However, in the context of the Reconciliation and Legacy Act and UK’s refusal to call for a ceasefire in Palestine can it wield the same influence in international human rights fora?
Chulani Kodikara spoke with Daniel Holder, Director of the Committee on the Administration of Justice (CAJ) in Belfast, Northern Ireland in January 2023 on the history and circumstances in which the Legacy Act came to be passed, some resonances with the proposed Truth, Unity and Reconciliation Commission in Sri Lanka and the importance of connecting multiple struggles relating to state atrocity and challenging impunity at this moment in time, including United Kingdom’s (UK) unconditional support for Israel’s war in Gaza.
CK: What is the Northern Ireland Trouble (Reconciliation and Legacy) Act of 2023? What does it do?
DH: The Northern Ireland conflict (the most recent one) ran from around 1966 to 1998 and ended with the Good Friday Agreement (GFA). The armed conflict was between Irish Republican armed groups, British loyalist paramilitary groups and then the security forces of the state. There were many human rights violations and abuses during the conflict and lots of members of armed groups and paramilitary groups did go to prison during the conflict for these violations. However, very few state actors were held accountable; and there were very few investigations. Since the signing of the GFA and particularly in more recent years, a series of mechanisms have been looking at historical cases of state and non-state violence committed during this period.
The British government in 2022 introduced the Northern Ireland Troubles (Reconciliation and Legacy) Act (Legacy Act). This legislation essentially seeks to achieve three things: Firstly, it closes down all of the current mechanisms that are dealing with historic violations, even though most of these are not even criminal justice investigations. These proceedings include civil proceedings or an inquest system which is essentially a truth trial into the cause of a death. They also include independent reports from institutions such as the Police Ombudsman that was set up as a result of the peace settlement that are looking at historic human rights violations by the police.
Secondly, it introduces an amnesty. Originally when the British government set out its parliamentary policy paper on this Act, it proposed a blanket amnesty for absolutely all conflict -related violations by all actors. In fact, we assessed this amnesty to be worse than the most notorious amnesties ever—the amnesty introduced by General Pinochet in Chile in the 1970s. It was broader in scope than that. However, in the face of intense criticism, the blanket amnesty was replaced with a ‘conditional immunity scheme’ which requires an application to be made for an amnesty. However, the threshold for this amnesty is suspiciously low. All an individual must do is to apply for the amnesty, give some information that they themselves believe to be true about their role in a conflict related incident and then they are entitled to an amnesty even if that information is already in the public domain or is already known. If the intention is to design a truth recovery mechanism, this amnesty threshold would make no sense. If you are designing a mechanism to give as many amnesties for as many soldiers as possible, then this makes perfect sense.
The third and final thing that this Act will do is to establish a new legacy body called the Independent Commission for Reconciliation and Information Recovery. Our criticisms of this body are three-fold. Despite its name, we don’t think it is independent. There are ministerial powers of intervention at practically every single level. Secondly, it won’t lead to reconciliation. All of the people that are supposed to be reconciled through this Commission are firmly opposed to it. And finally, it won’t lead to significant amounts of information recovery. It is not designed to conduct proper human rights investigations, but rather is subject to high levels of ministerial intervention. Indeed, this Commission does not have the final say over the content of the report or reports that it will produce. Ministers will have powers to redact the reports. Moreover, it will only sit for 5 years. If there is no review of a particular case – a perpetrator can just sit this process out, and such person will be entitled to a blanket amnesty. So this Act is really an attempt to close all current accountability process down and entrench impunity.
CK: Can you explain the history of this Act, the absence of transitional justice mechanisms in the Good Friday Agreement and ‘piece-meal efforts’ or ‘package of measures’ that were put in place to address demands of victim-survivors relating to truth, justice, and reparations?
DH: The Good Friday Agreement of 1998 was an agreement between the British and Irish governments. It was approved by a referendum, in Ireland north and south, and endorsed by the majority of parties within Northern Ireland. It contained a number of elements that are typical of conflict resolution processes including mechanisms for paramilitary disarmament and the disarmament of armed groups. It contained provisions for early prisoner release; so those with conflict-related convictions were released after two years. It also contained measures for policing, justice reform and demilitarization. But it didn’t have any sort of truth-seeking process or transitional justice mechanism. Essentially from the perspective of all the key participants in the GFA, drawing a line under the past had a great emphasis placed on it. However, you can’t do that under European human rights law.
In the wake of the agreement, CAJ and a number of other organisations, families and lawyers filed a series of cases in the European Court of Human Rights complaining that the right to life under Article 2 of the European Convention on Human Rights had been breached by the failure to investigate state involvement in killings during the troubles—whether killings by the security forces or killings by Loyalist paramilitary groups with suspected involvement of the security forces. As a result, the European Court of Human Rights found in a series of judgments running up to around 2003/2004, that the UK had breached the provision relating to right to life and the procedural requirement to conduct independent and effective investigations into these killings. The response of the UK government was ultimately to present and agree what they called ‘the package of measures’—a series of ad-hoc mechanisms, changes to criminal justice mechanisms, and changes to peace process bodies in order to investigate conflict related cases. For example, the European Court of Human Rights in Strasbourg commented on deficiencies in the inquest system which couldn’t summon soldiers that had fired the fatal shots for example that had resulted in a killing. That had to be changed so that inquests could deal with historical killings. The Police Ombudsman’s office which was set up for independent investigations couldn’t deal with historic investigations. Its remit was changed. Prosecutors could make decisions not to prosecute a member of the military without giving any reasons, but the reforms meant that prosecutors would have to give reasons and were required to follow particular criteria in making their decisions. So all of these changes were made.
Once the package of measures was in place, the British government and its agencies spent a long time trying to limit or thwart and obstruct investigation of conflict related cases that involved the state. Many of them of course were also investigating unresolved cases that involved non-state actors. However, because the GFA incorporated the European Convention on Human Rights into Northern Ireland law, families and their lawyers could challenge every limited or sham investigation. As a consequence, we ultimately reached a stage in the last few years with this package of measures really delivering for families. It is at this point that the door is being closed because these measures have been delivering uncomfortable truths. It’s not delivering many prosecutions; given the passage of time that was always unlikely.
Whilst there is a huge hysteria amongst sections of the UK media and sections of the ruling Conservative Party about what they call a witch hunt against soldiers—what is happening is essentially the application of the justice system and the rule of law to soldiers somewhat belatedly. But this is predominantly resulting in information recovery not prosecutions. In fact, the numbers speak for themselves. There’s only been about half a dozen prosecutions of soldiers, only one conviction and zero jail time. So the witch hunt narrative is quite significantly exaggerated. What is notable is that the inquest system is increasingly contradicting the ‘official truth.’ According to the state, the vast majority of killings by the security forces were lawful. Yet civil inquests that judges are looking at are finding that killings weren’t justified in the vast majority of cases.
So through a series of negotiations and struggles during the period after the GFA, a number of transitional justice mechanism were implemented, but which were piecemeal. Finally in 2014, almost 10 years ago, there was a bilateral agreement between the British and Irish governments called the Stormont House Agreement. It was also endorsed by the largest Irish nationalist party, the largest British unionist Party and by most of the political parties in Northern Ireland. This agreement would have established a new series of transitional justice mechanisms including one overarching mechanism to oversee independent police investigations into unresolved conflict-related cases whether by state actors or non-state actors (the Historical Investigations Unit). There was a second institution to be established by way of a treaty agreement between the UK and Ireland in 2015. It was called the Independent Commission for Information Retrieval. This was somewhat similar to a body we had here to look into disappearances. It would have allowed armed groups to approach it through interlocutors and give information in confidence, which information could not be used in criminal investigations or judicial proceedings. But it wasn’t an amnesty. So we had this suite of mechanisms and they would have provided a much broader set of tools to ensure truth recovery and to ensure proper investigations.
Even though this agreement was in place, the British government at the time delayed and delayed and delayed implementing it until the election of the government of Boris Johnson. The Johnson government then unilaterally tore up this 2014 peace process agreement and the treaty of 2015 for all intents and purposes. It then unilaterally introduced this Legacy Act with ministers quite openly stating that this was about ending investigations into the military and into soldiers. In reality, we think there is a much broader agenda. We think this is much more about trying to preserve the official narrative of the conflict. This isn’t really about sparing the frontline soldiers from jail, because in reality very few are under such a threat. This is about retaining an official truth and not getting to the reality of some of the security practices that were run outside of the law, which any human rights compliant process would need to ensure truth, justice but above all non-recurrence.
CK: Can you explain this change of policy under Boris Johnson? Were there groups within Northern Ireland putting pressure on the Johnson government to dismantle the package of measures?
What’s interesting about this is that every party in Northern Ireland is opposed to this amnesty and legislation for very different reasons or similar reasons in some senses but for different constituencies. Victims of the state are very angry that essentially a system that is proving itself to be independent and delivering for the first time ever is being shut down. The deficiency was always an investigation of the state—families who are victims of state violence are angry that that their mechanisms and their inquests that they waited for years are being shut down as are some of the victims of non-state actors. Victims of Irish Republicans are also angry that an amnesty is being introduced, which they had always strongly opposed. They would like the existing criminal justice mechanisms to continue into this process. Every single political party in Northern Ireland is opposed to this. The Irish government is opposed to it. You have every other political party on the island of Ireland opposed to it. You have actually all of the opposition parties in Britain opposed to this. It is the Conservative government going ahead with this on their own. It very much fits with the pattern of populist right-wing policy making that was typical of the Boris Johnson government that initiated it. The attitude is –let’s just ignore international law, let’s just ignore our duties and let’s just unilaterally do what we want regardless of the consequences.
The response to this from families have been almost universal opposition. Dozens and dozens of cases have been lodged before both the domestic courts and the European Court of Human Rights. Moreover, the Irish government with whom the existing treaty and agreement was broken have launched an Inter-state challenge at the European Court of Human Rights against the UK.
CK: What chance of success in these cases?
DH: Because we have the European Convention on Human Rights incorporated within Northern Ireland law because of the Good Friday Agreement and the Human Rights Act, families are able to challenge the Legacy Act in domestic courts. A small number of those cases have now been selected as test cases. We are expecting the lower court to make a decision very soon on those. But there will be various stages of appeal. It could go up to the Court of Appeal. It could then go to the UK Supreme Court and then possibly the Strasbourg Court. The interstate case taken by Ireland has the benefit of being against the whole Legacy Act. It is not dependent on the individual circumstances of an applicant, or a family and it is the quickest way of getting it into the door of the European Court, although that itself may take some time. In terms of the prospects of success, certainly there seems to be a well-developed consensus that certain provisions of the Act are so bad that they will be declared unlawful and particularly the amnesty provisions. But it’s much broader than that. The closing down of the existing human rights compliant mechanisms is an issue but equally there are issues around the independence and ability of this new legacy commission to conduct independent inquiries and effective investigations. It is highly likely that the courts will stop this. The question is what the reaction of the current British government will be. But we are also conscious that time is running out for them. There will be a UK election this year and who knows probably a change of government, which has taken a different view on this.
CK:The international human rights regime has always been plagued by questions of hypocrisy, double standards, and selectivity. In the context of what is happening in Gaza, all of those shortcomings are being exposed in real time and in a really glaring and stark way for all the world to see. It seems that what The Legacy Act is showing is that there is no political will to uphold accountability even domestically. This Act and UK’s unconditional support for Israel at the moment appear to be two sides of the same coin. What do you think are the broader implications of both of these for victim survivors in other contexts who have relied on the leadership of the international community, including countries like to the UK to put pressure on their states for truth and justice in the wake of war?
DH: It’s really difficult to even know where to start. The UK has long articulated itself as a global champion for human rights and it’s long been clear that that they have been selective in this role. As you say, the UK’s response to international law compliance in relation to Gaza lays it bare possibly as never before, but this selectivity has always been there. If you think of Chagos Island and the UK’s actions towards the forced displacement of an entire population and the failure to abide by international law in relation to that population. Another example I could give you that brings it back to the local but also the global is Ireland. Ireland has now taken an interstate case against the UK in relation to the Legacy Act. It’s the 2nd inter-state case it has taken in relation to the troubles. The first one was in the 1970s—Ireland vs the UK. What does it relate to? It relates to torture. It is related to the use of very particular techniques of torture—the five techniques as they were called—although we now know that there far more than five. But the use of those torture techniques in Northern Ireland wasn’t new. They have been used before in Kenya, Malaya, Aden and various other places. It’s reasonably well documented now and in relatively recent times within living memory. There has been litigation recently in the UK courts from Kenyans in relation to that.
So even as UK has pushed human rights and human rights frameworks strongly in relation to other countries, its legitimacy to do so has not just been undermined by double standards at the international level, but very much undermined by what it’s done in other countries and here.
Another example is the UN Security Council Resolution 1325 on Women, Peace and Security. The UK signed up to it and was a global champion of it. But they wouldn’t apply it to Northern Ireland based on all sorts of entirely incorrect arguments that somehow it would imply that there was a war here in legal terms, even though there were specific provisions within the GFA that map onto Res. 1325 on the right of women to full and equal political participation.
But the Legacy Act really does take us to a new level. It is fairly well established under international law for some time now that you can’t have an amnesty for torture. But the Legacy Act includes an amnesty for torture. How is the UK going to argue with a straight face in relation to Sri Lanka or Russia or numerous other states around the world that they have to respect human rights and conduct investigations into a post conflict or post regime context after the Legacy Act? I recall that Pablo de Greiff, the former UN Special Rapporteur on Truth, Justice, and Guarantees of Non-Recurrence submitted a report to the UNHRC back in 2016 on the Northern Ireland legacy situation. The report emphasized very much the need to implement the Stormont House Agreement and the provisions that were in it but to go well beyond that. His response to the policy proposal that led to the Legacy Act was to say every dictator on the planet will be licking their lips at this and it is a blueprint on how to entrench impunity. It is the opposite of a human rights-based approach.
I think the power of the UK on the global stage is greatly diminished over the years but it is still a permanent member of the Security Council, and its Legacy Act will be cited as a precedent to swap transitional justice for what is essentially an approach grounded in impunity.
CK: There are some uncanny parallels between the Legacy Act and what is happening in Sri Lanka right now. The current government is proposing to establish a Truth and Reconciliation Commission, primarily to shut down the UNHRC process. The difference is that families in Northern Ireland have more options to challenge the state both through domestic courts and the European Court of Human Rights. There is no Asian Charter or Convention on Human Rights and no Asian Human Rights Court. So survivors are dependent on generating pressure through UN mechanisms and resolutions, which means relying on powerful nations to do so.
DH: It is the case that having the European Convention on Human Rights (ECHR), being able to go to the Strasburg court and then as a result of the GFA peace agreement having both the ECHR brought into Northern Ireland law but also having a reform process applied to the justice system so that the law will be applied, has been transformational.
At one level, families, NGOs and their lawyers have had a measure of success in Northern Ireland in achieving some sort of historical clarification and truth recovery with the existing mechanisms. There was a promise of more under the Stormont House Agreement. However, the British government is in such a state of alarm it has moved to unilaterally shut everything down and replace it with something it thinks it can control. That does sound like a parallel.
We have been fortunate here to have the ECHR but for many years there were few avenues for families and seeking to internationalise our issues, through the UN mechanisms, in particular, has long been a strategy. The diaspora has also played a role in this regard.
CK: Can you say a little bit about the International Expert Panel on Impunity that CAJ and the Pat Finucane Centre has convened regarding the Legacy Act? What are your expectations of this panel? It seems this panel is a way of emphasizing the need for civil society advocacy and activism even as you pursue litigation strategies.
DH: Yes. This expert panel was set up in response to the British Government’s shut down of any viable process for dealing with the past. CAJ and another human rights NGO—the Pat Finucane Centre—named after a human rights lawyer murdered in 1989, asked the Norwegian Centre for Human Rights at the University of Oslo to convene a panel of international experts to consider the question of the extent of state impunity in the Northern Ireland conflict. This in part was also in response to the argument that there is some sort of witch hunt against the security forces. In fact, we consider investigations are needed now as there was in reality few proper investigations into state violations during the conflict. We, therefore, asked the international panel to consider this question. It is composed of experts from different parts of the world, who are human rights lawyers, activists, academics. One member is a former senior police officer. They are working with a number of students from Queen’s University, Belfast to gather archival evidence, evidence from the legacy investigations that have taken place and undertaken field work with families to produce a report on the extent to which there has been impunity. We anticipate this report will be launched soon.
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