A new report by leading academics and human rights activists in Northern Ireland - Prosecutions, Imprisonment, and the Stormont House Agreement - challenges the British government’s rationale for abandoning the Stormont House Agreement (SHA).
The authors assert that government officials, who claim “inquests, investigations and prosecutions” of Troubles legacy cases “constitute a ‘witch-hunt’ specifically directed against former members of the British security forces and in particular British soldiers,” are wrong. Far from a witch-hunt which denotes an unprincipled search to persecute, the purpose of the SHA is to promote reconciliation, advance human rights and uphold the rule of law. Unfortunately, its implementation has been stalled the past five years.
Recently, to end what Prime Minister Johnson labels “vexatious prosecutions” of Army veterans, his government unilaterally announced a new “way forward” on legacy cases. The government said the solution is to limit investigations to cases supported by “new compelling evidence and a realistic prospect of a prosecution.” In cases where the standard is not met, a fresh investigation will not take place, and victims’ families will be given whatever information exists “on how their loved ones lost their lives.” If an investigation is stopped or curtailed, however, that information may not amount to much.
Queen’s University Law Professor Kieran McEvoy explained what the government hopes to achieve with its new “way forward.” He told the Irish Times: “It is clear that a driving influence on the UK government’s approach to legacy [cases] in recent times has been a desire to ensure that British soldiers do not go to prison for conflict-related offenses.”
The witch-hunt narrative arose because of investigations and prosecutions involving soldiers. The narrative alleges there is an imbalanced and disproportionate focus on investigating and prosecuting former soldiers for legacy matters.
Part of the “witch-hunt” allegation rests on the overall percentage of deaths attributed to responsible parties. According to the authors of Lost Lives, republicans were responsible for 58% of Troubles-deaths; loyalists were responsible for 30%, and British security forces were responsible for 10%. Approximately 80% of the security force killings were committed by members of the British military, making the military responsible for about 8% of Troubles-related deaths.
In looking at the numbers, Former British Prime Minister Theresa May said soldiers - despite responsibility for a small percentage of killings - were being “unfairly” targeted for investigation by police legacy investigators because they were the only group being investigated. This claim was rebutted by the Northern Ireland Victims Commissioner who said there is no evidence of “systematic or unsystematic targeting of state forces.”
The report explains that, during the Troubles and afterward, “many State-killings were not properly investigated in the first place” in violation of the European Convention of Human Rights’ (ECHR) obligations. That accounts for why there is a huge backlog of security force cases that require a fresh look. This sad truth debunks the claim of unfair targeting.
At present, Northern Ireland’s Police Service and Police Ombudsman, along with specially-assigned outside police investigators, handle legacy-related investigations. Once those investigations are complete, the Director of Public Prosecutions (DPP) decides “whether or not to prosecute” a case. The report states the DPP has “initiated prosecutions in 17 legacy cases” and declined “to prosecute 16 cases.” Of the 17 matters, eight involved republican paramilitaries, four involved loyalist paramilitaries, and five involved British soldiers.
Another argument supporting the narrative relies on a comparison of the number of soldier prosecutions to paramilitary prosecutions. Since cases involving members of the military were either not investigated initially or improperly investigated, it should not be a surprise when re-investigation results in charges.
More prosecutions may be coming. It took decades for charges to be filed in the Bloody Sunday case involving the murder of 13 unarmed civilians. Last year, charges were filed in that case against a single paratrooper for two of the murders.
This soldier - Soldier F - met the DPP’s test for prosecution. First, the DPP found a reasonable prospect for a conviction based upon the evidence; and second, the DPP found prosecution was in the public interest. The DPP rejected filing charges against 15 other paratroopers, after concluding “there was insufficient evidence to provide a reasonable prospect of conviction.” The DPP’s handling of the case shows the decision-making was guided by thoughtful analysis.
Prosecutions are much more difficult to bring with the passage of time. Witnesses’ memories fade. Witnesses become confused, or forgetful. Witnesses cannot be located or die. Each legacy case, therefore, rises or falls on an individual assessment of the evidence. Cases are difficult to compare because all cases are not equal.
Government backsliding on the SHA gives cause for concern. Many opposed to soldier prosecutions say it is a “betrayal” to prosecute those who were merely following orders and protecting their country from “some of the bloodiest enemies [the] nation has encountered.” Critics of the prosecutions say former soldiers deserve amnesty. As the report points out, neither the Good Friday Agreement (GFA) nor SHA included amnesty provisions. Instead, these agreements contemplated an investigation of criminal conduct and prosecution when warranted.
It is unclear if the government’s new “way forward” will become a shield for a category of defendants - former soldiers - by preventing investigation of their crimes and, in effect, providing them amnesty. If it does, it will clearly violate a fundamental premise of the rule of law, which is that all are equal in the eyes of the law.
The SHA called for the establishment of new institutions to acknowledge and address the suffering of victims and survivors, facilitate the pursuit of justice, and address the past in a balanced, proportionate, fair and equitable way. One of the SHA’s proposed institutions is the Historical Investigations Unit (HIU). The HIU’s function is to conduct investigations of “outstanding Troubles-related deaths” in a manner that is human rights-compliant and to advise affected families on the results.
Under ECHR Article 2, States have an obligation to protect the right to life, which includes the duty to conduct independent, effective and transparent investigations into State-involved killings. Investigations conducted by the HIU would satisfy these requirements. What is not clear, however, is whether investigations conducted under the government’s new “way forward” will.
The report calls for the passage of the SHA. That means conducting Article 2-compliant investigations into legacy cases and bringing a prosecution when there is sufficient proof of criminal conduct. The report points out though that a reduction of a sentence imposed after conviction to “zero-time” would be lawful. In lieu of the government’s new “way forward,” the report recommends the SHA be amended to allow such a reduction of sentence.
Such a change would not undo commitments the government made under the GFA and SHA, nor would it run afoul of ECHR and human rights standards. That makes it a better way forward.
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