By Matilda Radoš*
The objective of the act is to deal with the legacy of
the violent conflict in Northern Ireland that took place between 1 January 1966
and 10 April 1998, known as ‘the Troubles’, which led to the deaths of over
3600 people and the torture of many others. The act provides inter alia for the
establishment of ‘the Independent Commission for Reconciliation and Information
Recovery’ (ICRIR). The ICRIR will have the power to grant conditional amnesties
to perpetrators of certain offences related to the Troubles.
expressed earlier by, among others, victims’ groups, the Council of Europe’s Committee
of Ministers (see here)
and the Commissioner for Human Rights (see here).
The Irish Government has consistently condemned the Act because of its incompatibility
with the UK’s obligations under the Convention (for an overview of the origins
of the case, see this post
authored by Daniel Holder and Andrew Forde). In a press release issued on 20
December 2023, the Tánaiste and Minister for Foreign Affairs of Ireland Micheál
Martin stated:
‘The British Government enacted this legislation on 18 September 2023, shutting
off any possibility of political resolution. We now find ourselves in a space
where our only recourse is to pursue a legal path.’
Ireland contends that certain provisions (section 19
and 39) that provide for immunity from prosecution are contrary to the obligations
under the ECHR, more specifically state obligations stemming from Articles 2
(right to life) and 3 (prohibition of torture or inhuman or degrading
treatment). This short post concerns the permissibility of amnesties under
these provisions.
The Northern Ireland Troubles (Legacy and
Reconciliation) Act 2023
The establishment of the Independent Commission for
Reconciliation and Information Recovery (ICRIR) under the Act would replace the
methods for criminal and civil investigations currently in place. According to
Section 2 of the Act, the ICRIR is established inter alia to conduct
investigations into crimes that were committed during the period of the Troubles
and to determine whether to grant individuals an amnesty for criminal
prosecutions for ‘serious or connected Troubles-related offences other than
Troubles-related sexual offences’. Section 1(5)(b) of the Act provides that a
Troubles-related offence is ‘serious’ if it consists of the following acts:
murder, manslaughter, culpable homicide, other offences committed by causing
the death of a person, or offences committed by causing the suffering of
serious physical or mental harm. One of the most controversial provisions in
the Act is Section 19 entitled ‘Immunity from prosecution’. This section stipulates
that the ICRIR has the power to grant an individual immunity from criminal
investigation and prosecution for serious or connected Troubles-related
offences if the individual cooperates with the ICRIR (conditional amnesty). It
follows from Section 39 of the Act that no criminal enforcement action can be
taken against individuals who have been granted an amnesty under Section 19 of
the Act. The key question this raises is whether Sections 19 and 39 of the
Northern Ireland Troubles Legacy and Reconciliation act breach the procedural
limbs of Articles 2 (the right to life) and 3 (prohibition of torture or
inhuman or degrading treatment) of the Convention.
Amnesties and the ECHR
Several scholarly
contributions of the last few years have focused on the issue of the
compatibility of amnesties with the Convention (see here, here and here). Most of these argue that
the Court’s position on the permissibility of amnesty laws under the Convention
is not entirely clear. The Court has not (yet) conducted a direct judicial
review of amnesty laws. However, the Court has developed a rich jurisprudence
on the procedural obligations of States to investigate and prosecute violations
of Articles 2 and 3, and in a few judgments it has made some general remarks on
the legality of amnesties from criminal prosecution.
As is well-known, in
relation to violations of both Articles 2 and 3 ECHR, the Court has determined
that states have an obligation to conduct effective investigations into alleged
violations (for instance in McCann and Others v. UK in relation to the right to
life and Aksoy v. Turkey in relation to the
prohibition of torture or inhuman or degrading treatment). In its judgment in
the case of McKerr v UK, the Court held that an investigation can be considered effective if it is
capable of resulting in the identification and punishment of those responsible
for the violations.
In addition to this it seems
that the Court may find the failure to prosecute violations of Articles 2 and 3
to constitute a violation of the Convention (see for instance Öneryildiz
v. Turkey [2004] [para. 93] in
relation to Article 2 ECHR and Gäfgen v.
Germany [2010] [para. 119] in
relation to Article 3 ECHR). However, the Court has not granted victims the
right to demand prosecutions (see for instance Brecknell
v. the UK in which the Court said that ‘there is no absolute right
however to obtain a prosecution or conviction’ [para. 66]). Furthermore, as
regards the punishment of those responsible for violations of Articles 2 and 3
ECHR, the Court held in Ali
and Ayşe Duran v. Turkey: ‘While there is no absolute obligation for
all prosecutions to result in conviction or in a particular sentence, the
national courts should not under any circumstances be prepared to allow life
endangering offences and grave attacks on physical and moral integrity to go
unpunished.’ (para. 61)
Next to this line of case
law, in the few judgments in which the Court has considered the issue of
amnesties, it seems that under certain circumstances the Court leaves the door
open for amnesties. As regards alleged violations of the right to life under
Article 2 ECHR, in its admissibility decision in Dujardin and Others v.
France in [1991], the former European Commission of Human Rights
held that:
‘The State is justified in
adopting, in the context of its criminal policy, any amnesty laws it might
consider necessary, with the proviso, however, that a balance is maintained
between the legitimate interests of the State and the interests of individual
members of the public in having the right to life protected by law.’ (p. 244)
In later judgments, such as
in the case of Tarbuk v. Croatia, the Court reiterated the Commission’s
position adopted in the Dujardin case. This statement suggests that
amnesty laws, even for violations of the right to life, may be permissible
subject to the condition that they are necessary to achieve legitimate ends and
as long as a fair balance is struck between the interests of the state and
individual members of society.
As regards alleged
violations of Article 3, the Court’s position on the permissibility of
amnesties seems to be less flexible. In the case of Ould
Dah v. France the Court considered amnesties to be generally incompatible with
the Convention. However, the Court has not pronounced an absolute prohibition
on amnesties for violations of Article 3 and some room for states to adopt amnesties seems
to exist when amnesties are granted in the context of a reconciliation process.
The Court held:
‘Admittedly, the possibility
of a conflict arising between, on the one hand, the need to prosecute criminals
and, on the other hand, a country’s determination to promote reconciliation in
society cannot, generally speaking, be ruled out.’ (p. 17)
According to scholars such
as Miles Jackson (see here) and Louise Mallinder (see here), the Courts’ position on
amnesties for violations of the prohibition of torture or inhuman and degrading
treatment and other human rights violations that can be considered as
international crimes is stricter. In the case of Marguš v Croatia in [2014], the Court held:
‘In the present case the
applicant was granted amnesty for acts which amounted to grave breaches of
fundamental human rights such as the intentional killing of civilians and
inflicting grave bodily injury on a child, and the County Court’s reasoning
referred to the applicant’s merits as a military officer. A growing tendency
in international law is to see such amnesties as unacceptable because they are
incompatible with the unanimously recognized obligation of States to prosecute
and punish grave breaches of fundamental human rights. Even if it were to
be accepted that amnesties are possible where there are some particular
circumstances, such as a reconciliation process and/or a form of compensation
to the victims, the amnesty granted to the applicant in the instant case
would still not be acceptable since there is nothing to indicate that there
were any such circumstances.’ (para. 139). (emphasis added)
Even though the language used by the Court in Marguš is less absolute compared to its pronouncements in Dujardin and Tarbuk, the Court seems to leave some degree of
flexibility to states to enact amnesties even for the most grave human rights
violations. However, it has narrowed the permissibility of amnesties by stating
that amnesties for gross human rights violations may be allowed only in particular
circumstances, such as a reconciliation process or compensation to the victims
of the violation.
Parallel to the current inter-state
application, domestic proceedings in the UK have also been ongoing, on 28
February 2024, in a case filed by a number of relatives of victims of
Trouble-era crimes, the High Court of Justice in Belfast ruled that Section 19 of the Act
violates Articles 2 and 3 ECHR because it prevents the prosecution of grave
breaches of fundamental rights and does not contribute to reconciliation in
Northern Ireland. In the High Court’s words:
‘The immunity contemplated under the 2023 Act does not
provide for any exceptions for grave breaches of fundamental rights including
allegations of torture. If an applicant for immunity meets the criteria the
ICRIR must grant immunity. The victims have no role or say in these decisions.
Victims may be confronted with a situation where an applicant for immunity does
so at the last minute, in circumstances where a recommendation for prosecution
is imminent or inevitable. I accept that the provision of information as to the
circumstances in which victims of the Troubles died or were seriously injured
is clearly important and valuable. It is arguable that the provision of such
information could contribute to reconciliation. However, there is no evidence
that the granting of immunity under the 2023 Act will in any way contribute to
reconciliation in Northern Ireland, indeed, the evidence is to the contrary.’ (para.
187)
In conducting a direct
judicial review of the immunity provisions in the Act, the Belfast Court took
into account the issues that the European Court of Human Rights will also have
to engage with when reviewing the legality of the Act under the Convention.
Conclusion
Thus, in the current
inter-state case, in scrutinizing the compatibility of the immunity provisions
of Northern Ireland Amnesty Act the Court will have to determine, among other
things, whether the Act prevents effective investigations into crimes committed
during the Troubles-era, whether the amnesty is necessary to achieve legitimate
aims, whether the amnesty contributes to reconciliation and/or whether the
amnesty is accompanied by remedies for victims.
* Matilda Radoš
is Lecturer and PhD Candidate in international human rights law at Utrecht
University. She is assistant editor of the ECHR blog.