By Aoife Duffy –
Truth seeking when researching, investigating, and writing about the ‘Troubles’ presents many obstacles. In my book, Torture & Human Rights in Northern Ireland, about the 1971 security services operation that used torture on the ‘Hooded Men’, I argue that denial of security force abuses was the default UK government position.[i] Here, I examine the continuing effects of state denial, delay, and obfuscation in restricting accountability, as well as how such practices are now being manipulated into a justification for the most extreme form of impunity – unconditional amnesty.
I focus on state sponsored violence because in willingly ratifying international treaties the UK is then bound by the relevant treaty obligations, including duties to investigate and prosecute serious human rights violations. Moreover, British domestic law protects citizens from the loss of life or torture by agents of the state. About 10% or 360 deaths during the Northern Ireland conflict are attributable to the state.[ii] The Secretary for State for Northern Ireland, Brandon Lewis, recently claimed that the vast majority of security force ‘troubles-related deaths… were lawful,’ but he gives no evidence to support this claim; an accountability gap remains for these killings as they were not properly investigated at the time or rarely since then.[iii]
In March 2020, Lewis flagged a proposal to terminate all legacy inquiries so as to end ‘the cycle of re-investigations into the Troubles in Northern Ireland and ensuring equal treatment of Northern Ireland veterans and those who served overseas.’[iv] Then, in July 2021, the UK government published a Command Paper – Addressing the Legacy of Northern Ireland’s Past – which proposed a wide-ranging and unconditional amnesty with sweeping legal effects. These would close down all current and future inquiries including: coroner’s inquests, civil actions, criminal prosecutions, and investigations by the Police Ombudsman of Northern Ireland.[v]
The Conservative government’s justification for introducing this amnesty is underpinned, arguably, by a ‘witch hunt’ narrative that presents state personnel who served in Northern Ireland as under constant attack. But analysts have dismantled this narrative, noting that between 1969 and 1974, 170 people were killed in Northern Ireland by the British Army but that there were no criminal prosecutions of state personnel during this time.[vi] Over the course of the ‘Troubles’ there were only four convictions of Army personnel for murder, one of which was overturned on retrial.
Service personnel and members of the security forces benefited from systemic official denial which covered the realms of criminal justice and civil law, reducing the likelihood that members of the security forces would ever be held accountable for abuses they committed while on duty. This accountability gap was not addressed in the post-conflict transitional phase of peacebuilding and societal transformation. Since 2012 the Director of Public Prosecutions has decided to initiate prosecutions for conflict related killings in 17 cases: 12 of these were against paramilitary defendants, and only 5 were against British Army personnel.[vii] None of the latter has resulted in convictions.
It is my view that the proposed amnesty has more in common with past patterns of denial and obfuscation than it does with democratic values of transparency, accountability, and the rule of law. Indeed, the proposals have been rejected by victims’ groups and civil society organisations, as well as all five major political parties in Northern Ireland.
No international law norm prohibits absolutely the use of amnesties, though certain amnesty elements or forms of amnesty are frowned upon. Yet selective and conditional amnesty provisions developed through negotiated settlements to end political violence can be distinguished from the sweeping nature of the UK government’s current proposals, which are significantly more expansive than, say, the amnesty introduced by former Chilean dictator, General Augusto Pinochet. Furthermore, it’s unthinkable that a world-leading democracy would seek to introduce a bar on state security force accountability 23 years after reaching an international agreement that ended a three-decade long conflict. At a minimum, the Belfast (Good Friday) Agreement envisaged that legacy work conducted in the future would be human rights compliant, and that human rights would be the bedrock for rule of law in the region.
Another aspect that distinguishes the current set of proposals from ad hoc amnesty arrangements worked out to end protracted conflict, or in totalitarian or quasi-authoritarian situations, is that robust legal principles that counter the current proposals already exist in UK law. The Good Friday Agreement paved the way for giving the European Convention on Human Rights (1953) legal effect in UK courts through the Human Rights Act (2001). The UK was a key founding state of the European Convention, and Ed Bates has detailed the significant contribution that Britain made to this first regional human rights treaty.[viii]
The accountability gap for serious state sponsored human rights violations in Northern Ireland is, in part, due to a practice which prevented the RUC from questioning soldiers who had used lethal force (a ‘RUC Force Order’ which was in effect from 1970-1973).[ix] In my book I dedicate a chapter to disentangling the denial and concealment surrounding the ‘Hooded Men’ torture case. This joint British Army-RUC interrogation operation involved subjecting 14 individuals to five techniques – hooding, stress positions, sleep deprivation, white noise, and reduced diet – at a secret detention centre not long after internment was re-introduced to Northern Ireland in 1971. During archival research, I found a letter written by a senior British intelligence officer which stated that ‘the Attorney General did all within his power to ensure that members of the Security Forces were protected from prosecution.’[x] Aside from one sergeant who was prosecuted but later acquitted, no members of the Army’s Military Reaction Force implicated in shoot-to-kill operations in Northern Ireland have ever been charged, prosecuted, or convicted for these shootings. Similarly, members of the RUC and security service personnel, who were either also members of paramilitary groups or utilised paramilitary proxies in collusive actions, were protected from accountability.
There is an unbroken lineage between contemporary obstruction and the apparatus of past denials. The continuing effects of this pattern has been observed, with concern, by several independent agencies and tribunals. The European Court of Human Rights (2005), for example, found the UK government in breach of its procedural obligations to conduct independent and effective investigations into right to life (Article 2) violations committed by state agents.
The Committee on the Administration of Justice (CAJ), an NGO based in Northern Ireland, noted that ten years after a package of measures was supposed to be introduced due to the European Court finding the UK state in violation of Article 2, ‘there are still significant delays, deficiencies and obstruction of the implementation of resolution in the very cases which were the subject of these judgments.’[xi] A legacy body established within the Police Service of Northern Ireland (PSNI) to investigate outstanding conflict deaths, the Historical Enquiries Team (HET), was assessed by the Inspectorate of Constabulary (2013) as being so partial and affording such preferential treatment to cases alleging state involvement that it was unlawful and therefore disbanded.[xii]
The UK government currently argues that it is necessary to end all investigations into ‘Troubles’ related offences because of the cost of historical inquiries and the ‘time and effort used in these cases’. [xiii] This, they claim, is ‘taking decades to complete and feeding into intergenerational trauma with all the societal issues this continues to bring to communities.’[xiv] But these two factors may stem from state denial, delay, and obfuscation. With regards to costs, when legacy cases reach the courts, the state’s legal teams challenge and contest even the most basic requests for documents and evidence. This legal strategy results in avoidable costs and unnecessary delays.[xv] Official documents are suppressed and some destroyed; significant materials are not shared with legacy agencies mandated with investigating these crimes.[xvi] One victim’s group recently emphasised the impact of ‘decades of delay, during which some families have sought every legal avenue to achieve access to a justice process.’[xvii] This pattern epitomises the legal maxim, ‘justice delayed is justice denied.’
Significantly, alternative legacy mechanisms have already been designed, which just need to be revived, resourced, and established. Following consultations with victims’ groups and the main political parties of Northern Ireland, the UK government signed a treaty, the Stormont House Agreement (2014), with four of the five major political parties and the Irish government.[xviii] Through three core legacy institutions (Historical Investigations Unit, Independent Commission on Information Retrieval, Oral Histories Archive) victims, families, and the public would be able to seek justice & truth through informal and judicial channels. The key thrust of these mechanisms would be truth recovery, but the possibility of criminal prosecutions would not be foreclosed. Such a direction seems aligned to international best practice, which situates families’ needs at the centre of the process.
An erosion of trust and confidence in the apparatus of the state is the flipside of systematic denial and impunity. However, it is not too late to protect peace and stability in Northern Ireland by abandoning these new amnesty proposals and instead properly resourcing the legacy bodies negotiated in the Stormont House Agreement. This would ensure, crucially, that the UK remains in compliance with the European Convention on Human Rights and with its own moral and political obligations as a world-leading democracy.
(Image: William Murphy Flickr Account)
Aoife Duffy is an interdisciplinary human rights scholar and co-deputy director of the Human Rights Centre, University of Essex. Aoife would like to thank Carla Ferstman, Lars Waldorf, Paul O’Connor and the Writing the Troubles team for helpful comments on earlier drafts of this post. Any remaining errors belong solely to the author.
[i] Aoife Duffy, Torture and Human Rights in Northern Ireland: Interrogation in Depth (Routledge, 2019),
[ii] This percentage increases when violence resulting from collusion between state security forces and loyalist paramilitaries is included. See McEvoy, K., Holder, D., Mallinder, L., Bryson, A., Gormally, B., & McKeown, G., Prosecutions, Imprisonment and the Stormont House Agreement: A Critical Analysis of Proposals on Dealing with the Past in Northern Ireland (2020), p. 9.
[iii] ‘Addressing the Legacy of Northern Ireland’s Past’, Presented to Parliament by the Secretary of State for Northern Ireland by Command of Her Majesty, July 2021, p. 20.
[iv] Brandon Lewis, ‘Addressing Northern Ireland Legacy Issues’, 18 March 2020: https://questions-statements.parliament.uk/written-statements/detail/2020-03-18/HCWS168.
[v] ‘Addressing the Legacy of Northern Ireland’s Past’, by the Secretary of State for Northern Ireland, July 2021.
[vi] McEvoy, K et al, Prosecutions, Imprisonment and the Stormont House Agreement, pp. 10-11.
[vii] Ibid, pp. 4-5.
[viii] Ed Bates, The Evolution of the European Convention on Human Rights (Oxford University Press, 2011).
[ix] Anne Cadwallader, ‘The Northern Ireland ‘amnesty’: Hiding Britain’s ‘misdeeds’?’, Al Jazeera, 23 September 2021: https://www.aljazeera.com/features/2021/9/23/the-northern-ireland-amnesty-hiding-britains-misdeeds.
[x] Duffy, Torture and Human Rights in Northern Ireland, p. 72.
[xi] Committee on the Administration of Justice, The Apparatus of Impunity? Human Rights Violations and the Northern Ireland Conflict: A Narrative of Official Limitations on post-Agreement Investigative Mechanisms, Jan. 2015, p. 2.
[xii] Ibid, ii.
[xiii] ‘Addressing the Legacy of Northern Ireland’s Past’, Secretary of State for Northern Ireland, July 2021, paras. 32, 38.
[xv] Committee on the Administration of Justice, The Apparatus of Impunity?, p. 28.
[xvi] Ian Cobain, ‘Ministry of Defence holds 66,000 files in breach of 30-year rule’, The Guardian, 6 Oct. 2013: https://www.theguardian.com/uk-news/2013/oct/06/ministry-of-defence-files-archive.
[xvii] Kenova Victim Focus Group Review, May 2021, p. 6.
[xviii] The Stormont House Agreement (2014): https://www.gov.uk/government/publications/the-stormont-house-agreement.