In September 2023, the United Kingdom (UK)’s Parliament passed the Northern Ireland (Legacy and Reconciliation) Act 2023 (hereinafter 2023 Act) in the latest effort to address the legacy of the Troubles in Northern Ireland and promote reconciliation in Northern Irish society. Despite then-Prime Minister Rishi Sunak’s claims that the new legislation would help people obtain the information they need and achieve the justice they deserve, the 2023 Act was strongly condemned across the Northern Irish political spectrum. Michelle O’Neill, Sinn Féin’s Vice President and First Minister of Northern Ireland, called the Act a “denial of human rights of victims and their families.” Her words were echoed by the leader of the Democratic Unionist Party, Sir Jeffrey Donaldson, who categorically stated, “the Bill must be scrapped and for good.” Even the United Nations High Commissioner for Human Rights, Volker Türk, expressed his concerns about the 2023 Act, affirming that it “would obstruct the rights of victims, survivors and their families to effective judicial remedy and reparations, including by prohibiting most criminal prosecutions and civil actions for Troubles-related offences”.
Transitional Justice Concerns
Before delving into the criticisms of the 2023 Act, it is important to first understand its objectives and context.
From 1968 to 1998, Northern Ireland became a theatre of violent unrest, largely between Unionists, who want the region to remain part of the UK, and Republicans, whose objective is the integration of the six counties of Northern Ireland into the Republic of Ireland. More than 3500 individuals, 54% of whom civilians, were killed in the sectarian conflict commonly referred to as the Troubles, which tore Northern Irish society apart. It was only after 30 years of violence that the conflict was brought to an end by the Good Friday Agreement (GFA), which serves as the linchpin of the Northern Irish transitional process, as it aims to confront a situation of past widespread human rights violations while building a society grounded in peace and democracy.
Transitional Justice (TJ) involves “the set of measures that can be implemented to redress the legacies of massive human rights abuses”, by giving force to human rights norms that were systematically violated. These measures include both judicial and non-judicial mechanisms, varying in their levels of international involvement. They comprise criminal prosecutions, reparations, truth-telling, and institutional reforms, all aimed at recognizing victims, fostering civic trust, and contributing to reconciliation and democratization. This conceptualization underscores TJ’s relevance in addressing the legacy of the Troubles, as it offers a framework for treating mass crimes and contributing to lasting peace after extreme violence.
Notwithstanding the importance of the GFA in bringing peace and reconciliation in Northern Ireland, it has offered little guidance on unaddressed violations of the right to life and the prohibition of torture that remain central to the current accountability debate. The absence of a truth-telling mechanism shedding light on these human rights violations has perpetuated the societal divide within Northern Ireland, preventing healing and reconciliation. The 2023 Act attempts to address these unresolved issues, but its approach has sparked significant debate and concerns regarding its alignment with the principles of TJ and the underpinnings of the GFA.
The 2023 Act appears to be Janus-faced. On the one hand, the 2023 Act fits squarely within the TJ paradigm, as it aims to deliver on the promises of the GFA by directly addressing the legacy of the Troubles, through promoting reconciliation and healing in Northern Ireland. However, while striving to fulfil these goals, the 2023 Act violates parts of the GFA, including rights protected under the European Convention on Human Rights (ECHR), thereby threatening the very objectives of TJ. Three major issues stand out. First, the 2023 Act establishes an Independent Commission for Reconciliation and Information Recovery (ICRIR) – notably omitting ‘Truth’ from its name – whose actual independence remains dubious. Here, the extensive influence of the Secretary of State across the ICRIR’s operations – including the unfettered possibility to shut down the Commission if “satisfied that the need for the ICRIR (…) has ceased” – creates significant concerns on the independence and impartiality of the body. Second, the ICRIR is authorised to conduct reviews or establish historical records and grant immunity to individuals for offences committed during the Troubles. While there is no international treaty prohibiting amnesties, and the European Court of Human Rights (ECtHR) confirmed 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 conditional immunity scheme in the 2023 Act has not been carefully crafted to be compliant with the ECHR. The conditions for granting immunities demonstrate an alarming level of leniency, making no exception for grave breaches of fundamental human rights such as murder, torture, and enforced disappearances, thereby violating the procedural dimension of Arts. 2 and 3 ECHR – a stance already confirmed by the High Court of Belfast in Dillon. Third, the 2023 Act terminates Troubles-related civil actions commenced on or after 17 May 2022 and prevents the initiation of new civil proceedings for wrongs committed during the conflict, thereby denying victims the opportunity to seek reparations before domestic courts.
Challenging the 2023 Act
Unless the 2023 Act is repealed by the new UK government, the only possibility to block the implementation of the controversial legislation and the work of the ICRIR is through legal action. In this regard, the GFA is consequential, as the adherence to the standards set by the ECHR is key for its implementation. To this end, the GFA explicitly requires the incorporation into Northern Ireland Law of the ECHR, including “direct access to the courts, and remedies for breach of the Convention”. With the enactment of the Human Rights Act 1998 (HRA), not only the UK fulfilled this obligation, but also gave effect to Art. 13 ECHR, which provides for the right to an effective judicial remedy in case of a violation of the Convention. The implementation of the ECHR into domestic law through the HRA allows for challenging the 2023 Act before national courts and, once all domestic remedies are exhausted, bringing the case before the ECtHR.
The ECHR architecture provides for two avenues to appear before the Strasbourg Court: individual and inter-state applications. While the former aims to ensure individual justice, the latter focuses on collectively enforcing human rights, thus addressing violations of the Convention beyond specific cases.
However, it would be fundamentally wrong to suggest that individual cases cannot have a broader societal impact. In recent years, we have witnessed an increase in the number of individual cases before the ECtHR for strategic purposes in various fields (one notable example is the recent KlimaSeniorinnen v Switzerland). Strategic litigation aims to bring about significant changes in the law by taking to court selected cases where the applicants have been victims of wrongs suffered by many others. This approach fits what Martina Dillon, John McEvoy, Lynda McManus and Brigid Hughes – all relatives of victims of the Troubles – are pursuing by challenging the human rights compliance of the 2023 Act before domestic courts. Despite the favourable judgement rendered by the High Court of Belfast, which temporarily blocked the granting of conditional immunities by the ICRIR, uncertainty surrounds the next stages of the proceedings, which could reverse the first instance decision. Additionally, the path to the ECtHR appears particularly long due to the burdensome requirement to exhaust domestic remedies before resorting to the Strasbourg machinery set by Art. 35 ECHR.
In a parallel effort to scrap the controversial legislation, in January 2024, Ireland lodged a new inter-state application against the UK (Ireland v the United Kingdom III) before the ECtHR. The application challenges the legislation by citing violations of Arts. 2, 3, 6, 13 and 14 ECHR. Although any High Contracting Party could have launched the application, it does not come as a surprise that Ireland took the initiative. Following the signature of the GFA, Ireland assumed a guardian role over the transitional process in Northern Ireland and expressed its opposition to the 2023 Act from the very beginning. This is not the first time Ireland uses inter-state applications in relation to the Troubles (see Ireland v the United Kingdom I and Ireland v the United Kingdom II), but it is the first time this instrument is used to enforce the GFA and the transitional process it underpins. The application to the ECtHR comes as a last resort by the Irish government after its concerns on the passing of the 2023 Act went unheeded by their UK counterparts. With this case, Ireland undeniably affirms its commitment to the safeguarding of the TJ process in Northern Ireland. Considering the widespread criticisms for the 2023 Act (see here, here and here), Ireland seems to have a strong case to bring before the ECtHR.
It is unlikely that the 2023 Act will survive the ECtHR’s scrutiny. In the past, the Court has, with some identifiable degree of consistency, found that the effects of immunities, amnesties and pardons in cases of serious human rights violations are incompatible with state obligations stemming from the ECHR (see Ould Dah v France, Yeter v Turkey, Association 21 December 1989 v Romania, Enukidze and Girgvliani v Georgia and Marguš v Croatia). However, a decision on the matter is not expected in the short-term, especially in light of the Court’s backlog of approximatively 76,000 cases and the lack of a prioritisation mechanism for inter-state applications.
Conclusion
Despite this, the repeal and revision of the 2023 Act may not be forced through any judicial process at all. The Labour Party’s victory in the 2024 UK general election has dramatically shifted the political discourse on Northern Ireland. Within the Party, the GFA is still considered one of the proudest achievements of the Labour government under Tony Blair’s leadership, and thus, unsurprisingly, the new Government has been steadfast in its commitment to repeal and replace the 2023 Act. However, with the inter-state case pending, Prime Minister Keir Starmer must be cognisant of the time-sensitive nature of the issue. Not only must immediate strides be made towards ensuring justice and truth for the victims of the Troubles and their families before the past recedes completely beyond the horizon, but it would also be wise to repeal the 2023 Act before the Court spends its time and resources on a case that seems all but decided. Under the Conservative and Unionist Party’s leadership, the UK had grown increasingly hostile towards the ECtHR (see here, here, here and here), at a time when the Strasbourg Court had its hands full with arguably more pressing issues such as the implications of High Contracting Parties succumbing to authoritarian impulses (Ilias and Ahmed v Hungary, M.L. v Poland and Kavala v Turkey), climate justice (KlimaSeniorinnen v Switzerland), and, of course, the Russian Federation’s invasion of Ukraine (Ukraine v Russia (re Crimea)).
As an experienced human rights barrister and former human rights advisor to the Northern Ireland Policing Board, Prime Minister Starmer should understand the significance of swiftly repealing the 2023 Act. In doing so, the new Labour Government can not only honour the GFA and protect the rights of victims of the Troubles and their families, but also steer the UK away from its collision course with the Court, repositioning the country as an ally in defending and promoting human rights across Europe.
The Northern Ireland Troubles Act 2023: A Line Under the Violence or a Strike Through Human Rights?
Written by Robin van der Lugt and Gaia ZoboliIn September 2023, the United Kingdom (UK)’s Parliament passed the Northern Ireland (Legacy and Reconciliation) Act 2023 (hereinafter 2023 Act) in the latest effort to address the legacy of the Troubles in Northern Ireland and promote reconciliation in Northern Irish society. Despite then-Prime Minister Rishi Sunak’s claims that the new legislation would help people obtain the information they need and achieve the justice they deserve, the 2023 Act was strongly condemned across the Northern Irish political spectrum. Michelle O’Neill, Sinn Féin’s Vice President and First Minister of Northern Ireland, called the Act a “denial of human rights of victims and their families.” Her words were echoed by the leader of the Democratic Unionist Party, Sir Jeffrey Donaldson, who categorically stated, “the Bill must be scrapped and for good.” Even the United Nations High Commissioner for Human Rights, Volker Türk, expressed his concerns about the 2023 Act, affirming that it “would obstruct the rights of victims, survivors and their families to effective judicial remedy and reparations, including by prohibiting most criminal prosecutions and civil actions for Troubles-related offences”.
Transitional Justice Concerns
Before delving into the criticisms of the 2023 Act, it is important to first understand its objectives and context.
From 1968 to 1998, Northern Ireland became a theatre of violent unrest, largely between Unionists, who want the region to remain part of the UK, and Republicans, whose objective is the integration of the six counties of Northern Ireland into the Republic of Ireland. More than 3500 individuals, 54% of whom civilians, were killed in the sectarian conflict commonly referred to as the Troubles, which tore Northern Irish society apart. It was only after 30 years of violence that the conflict was brought to an end by the Good Friday Agreement (GFA), which serves as the linchpin of the Northern Irish transitional process, as it aims to confront a situation of past widespread human rights violations while building a society grounded in peace and democracy.
Transitional Justice (TJ) involves “the set of measures that can be implemented to redress the legacies of massive human rights abuses”, by giving force to human rights norms that were systematically violated. These measures include both judicial and non-judicial mechanisms, varying in their levels of international involvement. They comprise criminal prosecutions, reparations, truth-telling, and institutional reforms, all aimed at recognizing victims, fostering civic trust, and contributing to reconciliation and democratization. This conceptualization underscores TJ’s relevance in addressing the legacy of the Troubles, as it offers a framework for treating mass crimes and contributing to lasting peace after extreme violence.
Notwithstanding the importance of the GFA in bringing peace and reconciliation in Northern Ireland, it has offered little guidance on unaddressed violations of the right to life and the prohibition of torture that remain central to the current accountability debate. The absence of a truth-telling mechanism shedding light on these human rights violations has perpetuated the societal divide within Northern Ireland, preventing healing and reconciliation. The 2023 Act attempts to address these unresolved issues, but its approach has sparked significant debate and concerns regarding its alignment with the principles of TJ and the underpinnings of the GFA.
The 2023 Act appears to be Janus-faced. On the one hand, the 2023 Act fits squarely within the TJ paradigm, as it aims to deliver on the promises of the GFA by directly addressing the legacy of the Troubles, through promoting reconciliation and healing in Northern Ireland. However, while striving to fulfil these goals, the 2023 Act violates parts of the GFA, including rights protected under the European Convention on Human Rights (ECHR), thereby threatening the very objectives of TJ. Three major issues stand out. First, the 2023 Act establishes an Independent Commission for Reconciliation and Information Recovery (ICRIR) – notably omitting ‘Truth’ from its name – whose actual independence remains dubious. Here, the extensive influence of the Secretary of State across the ICRIR’s operations – including the unfettered possibility to shut down the Commission if “satisfied that the need for the ICRIR (…) has ceased” – creates significant concerns on the independence and impartiality of the body. Second, the ICRIR is authorised to conduct reviews or establish historical records and grant immunity to individuals for offences committed during the Troubles. While there is no international treaty prohibiting amnesties, and the European Court of Human Rights (ECtHR) confirmed 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 conditional immunity scheme in the 2023 Act has not been carefully crafted to be compliant with the ECHR. The conditions for granting immunities demonstrate an alarming level of leniency, making no exception for grave breaches of fundamental human rights such as murder, torture, and enforced disappearances, thereby violating the procedural dimension of Arts. 2 and 3 ECHR – a stance already confirmed by the High Court of Belfast in Dillon. Third, the 2023 Act terminates Troubles-related civil actions commenced on or after 17 May 2022 and prevents the initiation of new civil proceedings for wrongs committed during the conflict, thereby denying victims the opportunity to seek reparations before domestic courts.
Challenging the 2023 Act
Unless the 2023 Act is repealed by the new UK government, the only possibility to block the implementation of the controversial legislation and the work of the ICRIR is through legal action. In this regard, the GFA is consequential, as the adherence to the standards set by the ECHR is key for its implementation. To this end, the GFA explicitly requires the incorporation into Northern Ireland Law of the ECHR, including “direct access to the courts, and remedies for breach of the Convention”. With the enactment of the Human Rights Act 1998 (HRA), not only the UK fulfilled this obligation, but also gave effect to Art. 13 ECHR, which provides for the right to an effective judicial remedy in case of a violation of the Convention. The implementation of the ECHR into domestic law through the HRA allows for challenging the 2023 Act before national courts and, once all domestic remedies are exhausted, bringing the case before the ECtHR.
The ECHR architecture provides for two avenues to appear before the Strasbourg Court: individual and inter-state applications. While the former aims to ensure individual justice, the latter focuses on collectively enforcing human rights, thus addressing violations of the Convention beyond specific cases.
However, it would be fundamentally wrong to suggest that individual cases cannot have a broader societal impact. In recent years, we have witnessed an increase in the number of individual cases before the ECtHR for strategic purposes in various fields (one notable example is the recent KlimaSeniorinnen v Switzerland). Strategic litigation aims to bring about significant changes in the law by taking to court selected cases where the applicants have been victims of wrongs suffered by many others. This approach fits what Martina Dillon, John McEvoy, Lynda McManus and Brigid Hughes – all relatives of victims of the Troubles – are pursuing by challenging the human rights compliance of the 2023 Act before domestic courts. Despite the favourable judgement rendered by the High Court of Belfast, which temporarily blocked the granting of conditional immunities by the ICRIR, uncertainty surrounds the next stages of the proceedings, which could reverse the first instance decision. Additionally, the path to the ECtHR appears particularly long due to the burdensome requirement to exhaust domestic remedies before resorting to the Strasbourg machinery set by Art. 35 ECHR.
In a parallel effort to scrap the controversial legislation, in January 2024, Ireland lodged a new inter-state application against the UK (Ireland v the United Kingdom III) before the ECtHR. The application challenges the legislation by citing violations of Arts. 2, 3, 6, 13 and 14 ECHR. Although any High Contracting Party could have launched the application, it does not come as a surprise that Ireland took the initiative. Following the signature of the GFA, Ireland assumed a guardian role over the transitional process in Northern Ireland and expressed its opposition to the 2023 Act from the very beginning. This is not the first time Ireland uses inter-state applications in relation to the Troubles (see Ireland v the United Kingdom I and Ireland v the United Kingdom II), but it is the first time this instrument is used to enforce the GFA and the transitional process it underpins. The application to the ECtHR comes as a last resort by the Irish government after its concerns on the passing of the 2023 Act went unheeded by their UK counterparts. With this case, Ireland undeniably affirms its commitment to the safeguarding of the TJ process in Northern Ireland. Considering the widespread criticisms for the 2023 Act (see here, here and here), Ireland seems to have a strong case to bring before the ECtHR.
It is unlikely that the 2023 Act will survive the ECtHR’s scrutiny. In the past, the Court has, with some identifiable degree of consistency, found that the effects of immunities, amnesties and pardons in cases of serious human rights violations are incompatible with state obligations stemming from the ECHR (see Ould Dah v France, Yeter v Turkey, Association 21 December 1989 v Romania, Enukidze and Girgvliani v Georgia and Marguš v Croatia). However, a decision on the matter is not expected in the short-term, especially in light of the Court’s backlog of approximatively 76,000 cases and the lack of a prioritisation mechanism for inter-state applications.
Conclusion
Despite this, the repeal and revision of the 2023 Act may not be forced through any judicial process at all. The Labour Party’s victory in the 2024 UK general election has dramatically shifted the political discourse on Northern Ireland. Within the Party, the GFA is still considered one of the proudest achievements of the Labour government under Tony Blair’s leadership, and thus, unsurprisingly, the new Government has been steadfast in its commitment to repeal and replace the 2023 Act. However, with the inter-state case pending, Prime Minister Keir Starmer must be cognisant of the time-sensitive nature of the issue. Not only must immediate strides be made towards ensuring justice and truth for the victims of the Troubles and their families before the past recedes completely beyond the horizon, but it would also be wise to repeal the 2023 Act before the Court spends its time and resources on a case that seems all but decided. Under the Conservative and Unionist Party’s leadership, the UK had grown increasingly hostile towards the ECtHR (see here, here, here and here), at a time when the Strasbourg Court had its hands full with arguably more pressing issues such as the implications of High Contracting Parties succumbing to authoritarian impulses (Ilias and Ahmed v Hungary, M.L. v Poland and Kavala v Turkey), climate justice (KlimaSeniorinnen v Switzerland), and, of course, the Russian Federation’s invasion of Ukraine (Ukraine v Russia (re Crimea)).
As an experienced human rights barrister and former human rights advisor to the Northern Ireland Policing Board, Prime Minister Starmer should understand the significance of swiftly repealing the 2023 Act. In doing so, the new Labour Government can not only honour the GFA and protect the rights of victims of the Troubles and their families, but also steer the UK away from its collision course with the Court, repositioning the country as an ally in defending and promoting human rights across Europe.
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