Forgive, Forget, and Forsake: Martin Flaherty on Human Rights and The UK's Amnesty Proposal for Northern Irish Violence
Is the UK’s proposal to ban prosecution of bad actors in Northern Ireland consistent with international law?
The UK Parliament has published a proposal to ban prosecutions of those accused of violent crimes during the Troubles in Northern Ireland. Photo: Wikimedia Commons.
By: Cameron Wallace, Assistant Online Editor
Martin Flaherty is an expert on international human rights law and the Leitner Family Professor of Law and Founding Co-Director of the Leitner Center for International Law and Justice at Fordham Law School. He is also a Visiting Professor at the Woodrow Wilson School of Public and International Affairs at Princeton University and the New School in New York. Professor Flaherty has taught at China University of Political Science and Law, the National Judges College in Beijing, Sungkyunkwan University in Seoul, Queen’s University Belfast, Columbia Law School, Cardozo School of Law, and St. Johns University School of Law. In addition to teaching, Professor Flaherty co-founded the Committee to Support Chinese Lawyers, an independent NGO on which he serves as the Vice Chair. Professor Flaherty has published widely on constitutional law, international human rights, and history.
Below, Professor Flaherty discusses the history behind the UK’s recent proposal, why that proposal may violate international human rights law, and how the international community has reacted to it.
This interview has been edited for clarity and length.
The UK has recently come under fire for its proposal to ban prosecutions of those accused of violent crimes during the Troubles in Northern Ireland. Can you talk a bit about the background behind the proposal and why it may have been made?
One thing to clarify up front is that the proposal would prevent not just criminal prosecutions, but any form of investigations, whether criminal or civil or independent, so it’s pretty sweeping with regard to its scope. The Troubles in Northern Ireland roughly started in 1968-69. When the 26 Irish counties to the South gained their independence, the six counties to the North were separated out to remain part of the United Kingdom because they had a Unionist-Protestant majority. The official name of the country is actually the United Kingdom of Great Britain and Northern Ireland.
After partition, the Nationalist-Catholic minority was subject to various discriminatory laws and policies, which sometimes led to violent unrest in certain periods. In the 1960s, there was the beginning of a peaceful civil rights movement modeled on the Black civil rights movement of Martin Luther King, Jr. It was met with violent resistance by some members of the Unionist community. At that point, the British government sent in troops because the police force of Northern Ireland was something like over 90 percent Protestant-Unionist, and they were not trusted by the Nationalist side. The army, ironically, was originally welcomed, but once they stayed, it brought echoes of British occupation of the island for centuries before. The army became seen as an oppressive force. All of this revived the Irish Republican Army. Long story short, in 1969 or so, violent terrorist paramilitary activities started to take place, which was augmented by loyalist paramilitary activities and killings on the part of the police and army.
The paramilitary violence lasted for about 30 years, during which over 3,000 people were killed. Northern Ireland was a small society of only about 1.5 million people at the time; therefore, many families were touched by the killings, and many more families were touched by political violence involving woundings and knee cappings, etc. That was more or less brought to an end in 1998 by the Belfast Good Friday Agreement, in which the IRA in particular pledged to give up violence. The Agreement created an executive in Northern Ireland that would be split between Unionist parties and Nationalist parties, and peace has more or less been in place ever since.
So where does this proposal come from? There have been various attempts to deal with legacy issues. As in South Africa, Argentina, or any place that has been subject to political strife, the local government and organizations attempt to deal with the past for the purposes of accountability and reconciliation. Interestingly, in the case of Northern Ireland, the initial attempt came from a reconstituted police force, which is now the police service of Northern Ireland. But ultimately, it was through an agreement between the Irish Republic, the United Kingdom, and various major political parties in Northern Ireland - the Stormont House Agreement of 2015, which sought to establish various bodies and mechanisms to deal with the past.
The Agreement would leave the door open for prosecutions but focus on assembling an account and a record of who was responsible for what killings. That is where things were until about a year ago. Then, earlier this year, the Boris Johnson government released a proposal framed as a statute of limitations that would preclude any inquiry into the Troubles.
Why are they doing it? They are saying they are doing it because the people of Northern Ireland want to move on and not be troubled by the past. The issue with that rationale is that every political party, from the Democratic Unionist party to Sinn Fein, opposes the proposal, as do families from either side of the religious divide who have been victims. Talking to them has been especially poignant. There is virtually uniform opposition in Northern Ireland, which belies this government’s claim. So what is really behind it?
One of the base constituencies of the Tory government in England is people who support veterans. Part of what is going on is in essence collateral damage in a related attempt to make sure that there are no investigations or prosecutions of what British soldiers did in Iraq. This is a classic example of the historic indifference by particularly conservative politicians and governments in England as to what goes on in Northern Ireland. But they're finding that because of the international law implications, they are getting pushback from Europe, the United States, the United Nations, etc.
Why have human rights organizations and international governments protested the proposal, and might the proposal violate any international laws?
On the one hand, related to Northern Ireland itself, there had been a blueprint which resulted from a hard fought process under both the Belfast Good Friday Agreement and the Stormont House Agreement for dealing with legacy that would involve accountability. So those concerned about dealing with the past in Northern Ireland are perturbed by this proposal.
More generally, those whose concerns go beyond Northern Ireland are perturbed because this proposal would put the UK at one extreme regarding how to deal with human rights violations and political violence in the past. This falls under the more general rubric of transitional justice. At one end of the spectrum would be dealing with human rights violations with criminal prosecution. No amnesty. At the other end would be complete amnesty, which virtually no post-transition regime has adopted. In the middle, there are things like South Africa’s Truth and Reconciliation Commission, which says if you admit or confess to what you did in the past you will not be prosecuted. The quid pro quo was that at least information would be made available without prosecution, because if you did not admit to it then you would be open to prosecution. The concern is that if a nation like the UK, a liberal democracy that ostensibly supports human rights and the mother of all parliaments, is willing to go so cavalierly at one end of the spectrum, it will create a terrible precedent globally.
To answer the second part of your question, whether the proposal would violate international human rights standards, the short answer is yes. There are certain agreements relating to Northern Ireland specifically, and then there are more general human rights treaties that it would violate. The more specific treaties would be, first, the Belfast Good Friday Agreement of 1998. While that Agreement does not specifically lay out legacy issues, it does pledge both governments to abide by their commitments under the European Convention on Human Rights.
Second, the Stormont House Agreement between the UK and Ireland sets forth a detailed process for legacy which does not involve this kind of amnesty. And third, there is the Weston Park Agreement from 2002, in which the two governments pledged to have independent investigations of five prominent political murders. There have been prominent investigations of four of those five murders, but not the one that I have been involved with since 1992 - the murder of the civil rights lawyer Patrick Finucane. Right now that case remains in litigation in the UK. The family keeps winning cases and the government keeps doing what it can to drag out the litigation. The amnesty proposal would end that litigation. However, if it ended that litigation, it would be in violation of the Weston Park Agreement. So those are three specific agreements between the two governments.
The two general human rights treaties would be the European Convention on Human Rights and the International Covenant on Civil and Political Rights (ICCPR). The UK is a state party to both without relevant reservations. The European Court of Human Rights has held repeatedly that a failure to investigate credible allegations of state involvement in extrajudicial murder is itself a violation of Article 2 The Right to Life. In fact, it has handed that ruling down with reference to Northern Ireland. So this amnesty would be a violation of the European Convention. While it would not be a violation of British domestic law, under the Belfast Good Friday Agreement, the UK has incorporated the European Convention into domestic law.
Because of parliamentary sovereignty, this amnesty would supersede the Agreement if it went through, but that would certainly be backtracking in terms of domestic law. Pretty much the same story with regard to the ICCPR, because it is the same analysis with regard to right to life, and also the ICCPR has a provision under article 2 and 26 for providing adequate remedies for violations of rights.
What instruments might be important in pressuring the government to reverse course?
There is only one effective way to pressure the UK government to abide by its international agreements: the United States. When you are talking about enforcing international law, and especially international human rights law, the geopolitical setting is critical. The cost benefit analysis for the Johnson government is how much of a price they are willing to pay to keep their conservative base in England happy. I think they are willing to pay the price even of disregarding the European Court of Human Rights, of being criticized by European governments and the Council of Europe, of being criticized by UN rapporteurs, and pretty much all of that has happened. That is not going to be enough.
The US is really the only player in the story that has leverage, which is why there has been a lot of lobbying of the State Department, the White House, and Congress. That lobbying appears to have paid off for a number of reasons. First, President Joe Biden is Irish; so he is open to this. Second, This is one of the few issues in DC that has bipartisan support. The Belfast Good Friday Agreement is seen as one of the big diplomatic achievements of the United States in the past 30 years, because the catalyst for it was Bill Clinton and Senator George Mitchell, who was the special envoy. The United States basically brokered the deal between all parties in 1988 that led to peace in Ireland. So there is a high degree of ownership on the part of the United States, both Republican and Democrat.
For both of these reasons, the United States is predisposed to play an active role in defending the Belfast Good Friday Agreement. The more specific leverage in all of this is Brexit, which has stirred the hornet’s nest in Northern Ireland. One of the things the Johnson government said it could do post-Brexit was to cut a deal with the US free of the constraints of the continental Europe. Biden sort of, Nancy Pelosi very much, and Kamala Harris maybe have indicated to the UK that it is going to be very difficult for you to get a trade deal with the United States if the British government undermines the Good Friday Agreement. A lot of the talk has been about this Northern Ireland protocol to avoid a hard border, but I think because of lobbying efforts people are starting to realize the gravity of this proposal. We will see if it's enough.
What do you expect to happen next with regard to the proposal?
Our understanding with regard to timing is that, if this were to be introduced, it would probably be introduced as a bill in November, which is why there has been such intense effort and lobbying about it. The Irish prime minister absolutely wants a complete withdrawal of the proposal. But Ireland does not have the same leverage as the United States. We will see what happens. Speculating, we might see a proposal where the British try to placate the veteran’s lobby while also placating the United States, and there the devil will be in the details. But at this point I would be somewhat surprised if they pressed ahead with this. We will see.
Cameron Wallace is a second-year student at Columbia Law School and an assistant online editor of the Columbia Journal of Transnational Law. He graduated from Rice University in 2020.