The Northern Ireland Amnesty Act under Scrutiny in Strasbourg

By Matilda Radoš*

On 17 January 2024, Ireland submitted a new inter-state application (no. 1859/24) against the United Kingdom before the European Court of Human Rights under Article 33 ECHR. The case concerns the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, adopted by the United Kingdom on 18 September 2023.

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.

The UK pursued the enactment of the Act despite concerns 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.

Domestic proceedings

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.