Over the next three weeks a number of our regular contributors and guest bloggers will consider key events in Irish legal history which have had an impact on the political institutions in place in Ireland and in particular upon questions of human rights. The first guest post in this series is contributed by Dr Louise Mallinder, a lecturer in human rights and international law at the Transitional Justice Institute, University of Ulster. It explores the attempts by the Stormont Parliament to institute amnesties for particular crimes in the late 1960s and their role in the descent towards The Troubles.
For millennia, amnesty laws have been used across the world by governments whose legitimacy and authority have been threatened by rebellions and civil unrest (See eg Robert Parker, ‘Fighting the Siren’s Song: The Problem of Amnesty in Historical and Contemporary Perspective’ (2001) 42 Acta Juridica Hungarica 69). They have been used in the midst of violence as counter-insurgency measures or efforts to diffuse tensions. They are also a common feature of peace agreements (For examples of peace agreements containing amnesty provisions, see the Transitional Justice Institute/INCORE Peace Agreement Database). Indeed, Article 6(5) of Additional Protocol II to the Geneva Conventions 1977, which is the only international human rights or humanitarian law treaty to explicitly mention amnesty laws, calls upon state parties to enact the ‘broadest possible amnesty’ at the end of non-international conflicts. The rationale for this provision is that an amnesty is a necessary prerequisite to encourage combatants to surrender their weapons and reintegrate into society, and that in contrast efforts to pursue retribution could risk further inflaming tensions. However, as was evident in Northern Ireland during the Consultative Group on the Past’s public consultations, amnesty laws are often strongly opposed by victims’ groups and human rights activists (Philip Bradfield, ‘Victims hit out over talks on amnesty’ Newsletter (17 January 2008); Chris Thornton, ‘“Don’t mention the war”, 2,000 letters tell Eames’ Belfast Telegraph (21 February 2008)).
This opposition argues that amnesty laws violate victims’ rights and risk undermining the rule of law (for a more detailed discussion of the international legal framework relating to amnesty laws and the arguments for and against their use, see Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide (Studies in International Law, Hart Publishing, Oxford 2008)). Such debates often overlook the fact that during the Northern Irish peace process there have been several ‘amnesty-like’ policies for encouraging disarmament, incentivising truth recovery and for releasing political offenders from prison. In addition, as this post will explore in relation to the 1969 amnesty, amnesties laws have been used in Northern Ireland’s past and have even benefited individuals who have opposed amnesty measures in the peace process (See the comments of Ian Paisley Sr, pictured above, during House of Commons debates on 13 October 2005).
In May 1969, the new Northern Irish Prime Minister, James Chichester-Clarke, decided with the support of the Attorney General and his cabinet at Stormont to introduce a general amnesty for ‘events associated with, or arising out of, political protests, utterances, marches, meetings, demonstrations’ occurring between 5 October 1968 and 6 May 1969 (Northern Ireland Information Service Press Release, 6 May 1969). This amnesty was an executive decision rather than enacted legislation. According to the Attorney General, it applied to criminal proceedings that were pending, any future proceedings, the collection of fines already imposed, and provided for the remission of sentences for those already convicted (Northern Ireland Information Service Press Release, 6 May 1969).However, the Attorney General specified ‘that proceedings would be taken against any of those persons concerned in any way with acts of sabotage who could be brought to justice’ (Northern Ireland Information Service Press Release, 6 May 1969).
The amnesty was introduced within a context of growing civil unrest and aimed to de-escalate the rapidly escalating conflict, or in the words of the then Prime Minister, to ‘wipe the slate clean and look to the future’ (Northern Ireland Information Service Press Release, 6 May 1969). It had a wide application to all criminal offences associated with the demonstrations, including attacks on civilian homes, but excluding ‘acts of sabotage’. It was designed to cover both civilians and members of the Royal Ulster Constabulary, and it was unconditional. Among those released from prison in accordance with the amnesty were Major Ronald Bunting and the future First Minister, Ian Paisley.
The release of Mr Paisley, who had already been convicted and was serving part of his sentence (According to the papers from the time, Paisley apparently chose to be imprisoned rather than sign a bail bond.), was perhaps the most contentious issue for the cabinet when debating the amnesty, as they viewed him as too much of a security risk. Stormont Cabinet papers from the time record that after other prisoners had been released under the amnesty, Ian Paisley wrote to the Stormont government demanding that he and Major Bunting be included in the amnesty. Prime Minister Chichester Clarke described the ‘threatening tone of the letter’ as ‘deplorable’, and argued that ‘if the Paisley faction returned to the streets, the entire story of street agitation might be repeated’. Despite these reservations, Paisley was eventually released under this amnesty. However, unfortunately, this amnesty policy failed to stem the violence and it was soon followed by the outbreak of The Troubles.
Today saw the publication of Baroness Vivien Stern’s review into the handling and reporting of rape cases in England and Wales. Baroness Stern (pictured left) is a Senior Research Fellow at the International Centre for Prison Studies (ICPS) at King’s College, London, and there is much in her review that is relevant to those involved in criminal justice and law reform debates surrounding the offence of rape throughout the legal systems of the UK and Ireland. This post provides a short overview of the focal points of the review. Read more…
At the end of February the UK Parliament’s Joint Committee on Human Rights reconsidered the use of Control Orders under the Prevention of Terrorism Act 2005, which the Home Secretary (Alan Johnson, pictured left) has asked Parliament to renew for another year from 11 March (the fifth such renewal). Control Orders impose “tailored” restrictions upon individuals on whom they are imposed, which typically involve relocation of the individual, restricted contact with friends and family and a denial of access to the internet and other unmonitored forms of communication.
The Home Secretary informed Parliament in formulaic language based upon the wording of the PTA 2005, that, ‘the powers are needed to ensure that a control order can continue to be made against any individual where the Secretary of State has reasonable grounds for suspecting that individual is or has been involved in terrorism-related activity’. The chief argument marshalled in favour of the orders was that, ‘it is necessary to impose obligations on that individual for purposes connected with protecting members of the public from a risk of terrorism’. Read more…
The head of MI5, Jonathan Evans, has today launched an attack upon the media storm swirling around the Court of Appeal’s decision on Wednesday to reject the Government’s arguments and order the disclosure of seven redacted paragraphs from an earlier judgment detailing the maltreatment of former Guantanamo detainee Binyam Mohamed (pictured left) whilst he was in US custody.
The maltreatment, which even the British Government admits amounts to repeated instances of at least inhuman and degrading treatment, was known to British authorities, who continued to supply questions to the US Government to use as the basis of their interrogations.
This state of affairs opens the government to two possible types of action, meaning that the Mohamed case is more likely the beginning than the end of the Government’s difficulties. Firstly, the Government already faces civil actions from a number of former Guantanamo detainees seeking damages arising out of further allegations of MI5 collusion. The first decision has already been handed down allowing elements of these cases to be heard in camera (Al Rawi (no. 2)). One of the reasons behind the government’s decision to stop fighting this case is likely to cut its losses in preparation for this coming legal battle.
Moreover, individuals such as Witness B, the MI5 officer present at some of the interrogations of Mohamed and who continued to supply questions even in light of his treatment, could face criminal liability (an investigation was launched last year). This would focus on the offence of torture provided by section 134 of the Criminal Justice Act 1988. This provision, coupled with section 31 of the Criminal Justice Act 1948 which makes it illegal for public officials to act overseas in a manner which would break UK law within the jurisdiction, hangs like the sword of Damocles over members of the Security Service cooperating with the US authorities in the aftermath of 9/11.
The corrosive effect of such investigations on morale in the Security Service likely forced Jonathan Evan’s hand in his Telegraph op-ed, which focuses on refuting accusations of a cover up by highlighting that ‘[t]he material our critics are drawing on to attack us is taken from our own records, not prised from us by some external process but willingly provided by us to the court, in the normal way’.
Nonetheless, on the substantive issue of the role of British personnel in interrogations of those in US custody, he concedes that,
‘One shortfall it highlighted in 2005 and again in 2007 was that the British intelligence community was slow to detect the emerging pattern of US mistreatment of detainees after September 11, a criticism that I accept. But there wasn’t any similar change of practice by the British intelligence agencies. We did not practice mistreatment or torture then and do not do so now, nor do we collude in torture or encourage others to torture on our behalf.’
Despite this admission, in the penultimate paragraph of his piece Evans attempts to deflect some of the attention from his embattled officers:
‘For their part, our enemies will also seek to use all tools at their disposal to attack us. That means not just bombs, bullets and aircraft but also propaganda and campaigns to undermine our will and ability to confront them. Their freedom to voice extremist views is part of the price we pay for living in a democracy, and it is a price worth paying because in the long term, our democracy underpins our security.’
This claim misses the point. With or without a cover up, Irish history teaches us that blood tends to seep out from under closed doors. These events must remain the focus of public attention, for if they do not the British Government will not learn the lessons of the lack of oversight in the Security Service that Evans acknowledges. This is all the more important because Evans’s claim fails to appreciate that it is the malpractice itself which drives extremist propaganda, not the reporting of malpractice or the analysis of events in court. Indeed, it is the only process likely to satisfy the public that mistakes have been corrected.
Warning of the risks of providing propaganda to extremists by reporting the British Government’s failings smacks of the reaction to the Thatcher Government’s response to criticism of the Gibraltar killings or the attacks by members of the Bush Administration on Barak Obama’s release last year of the “Torture Memos”. The real problem for those implicated in all these cases not the reporting, it’s that blood sticks.
Last week the United Kingdom’s Home Secretary, Alan Johnson, announced that he was taking steps to ban the group Islam4UK in the wake of the conviction of several of its members for public order offences relating to their protests at a parade of soldiers from the Royal Anglian Regiment returning from service in Iraq in 2009.
Islam4UK, fronted by Anjem Choudary (left), is the offspring of Omar Bakri Mohammed’s al-Muhajiroun, which infamously referred to the 9/11 hijackers as “the magnificent nineteen”. The group denounces “Western Values”, supports the implementation of Sharia law, and has argued that British Muslims owe no allegiance to the United Kingdom. Although in this latest incarnation the group claims not to publically promote violence in the support of these causes, members have been convicted in relation to terrorism and public order offences. It has been adept at attracting media coverage, particularly amongst the British tabloid press, to its extremist views.
A nine-judge panel of the United Kingdom Supreme Court today delivered what the Guardian is describing as ‘the most controversial ruling since the supreme court [sic] was created’. Whilst the Court, in the words of its President Lord Phillips (at ), ‘has not welcomed being required to resolve this dispute’, it ruled, in a 259 paragraph judgment, that the Jewish Free School’s (JFS) admissions policy amounted to direct discrimination on the basis of race. Whilst further commentary will undoubtedly follow over the next few days, there follows a brief summary of this decision. Mairead Enright blogged on the Court of Appeal’s decision on this case when the Supreme Court heard the case in October (here and here).
At issue was whether part of the JFS’s policy for choosing between potential pupils in the event of oversubscription (and, as Lord Phillips noted at , ‘JFS is an outstanding school. For many years far more children have wished to go there than there have been places in the school’) which gave priority to applicants regarded as “Jewish by birth”. M, a child who applied to the JFS, was denied a place at the school because, in the determination of the Office of the Chief Rabbi of the United Kingdom, M’s mother was not Jewish at the time of M’s birth as her conversion to Judaism had not taken place in an Orthodox synagogue. Read more…
This year’s publication of the Ryan Commission (Commission to Inquire into Child Abuse) report and Murphy Commission (Commission of Investigation into Catholic Archdiocese of Dublin) report (pictured left, in the hand of Archbishop of Dublin Diarmuid Martin), detailing the involvement in, and concealment of, abuse of children by religious orders in Ireland will likely have a profound impact upon child protection laws in the Republic of Ireland.
Moreover, the passing last month of a motion in the Northern Ireland Assembly calling upon the Executive to ‘commission an assessment of the extent of abuse and neglect in Northern Ireland’ and to liaise with authorities in the Republic to ‘ensure that all-Ireland protections for children and vulnerable adults’ suggests that the impact of these reports will extend into Northern Ireland.
Whilst Mairead Enright and Kieran Walsh have already posted their thoughts on the impact of the Murphy Commission report here and here, this post will consider Mary Raferty’s opinion piece in the Irish Times on 27 November, which drew comparison between the methods adopted to gain an accurate picture of the widespread nature of abuse and tackling organised crime.
The Ryan report was compelled to provide anonymity to some figures that it considered to be involved in the abuse and cover-up (the Christian Brothers case – Murray & Anor v. Commission to Inquire into Child Abuse & Ors  IEHC 102) and has as yet resulted in no prosecutions. Indeed, whilst the matter was being debated in the Northern Ireland Assembly, Michelle McIlveen (DUP, Strangford) sponsored an amendment motion rejecting calls to establish a public inquiry on the Ryan Commission model. She explained that:
“I tabled the amendment because I remain seriously concerned that to follow the road of the Ryan inquiry would deny victims the kind of acknowledgement and justice that they most need. The lack of a focus on criminal prosecutions and the agreement to immunity from prosecution for those guilty of such abuse is the most fundamental flaw in the inquiry and not one that serves any of the victims. The Assembly should not move forward in a manner that denies natural justice and gives protection to those guilty of such crimes.”
Independent Monitoring Commission Report: Devolution of Policing will undermine Dissident Republican Terrorism
The members of the Independent Monitoring Commission (IMC) may have thought that they were caught in limbo. Obliged under the Northern Ireland (Monitoring Commission etc.) Act 2003 following an International Agreement between the British and Irish Governments, the Commission has in recent years been able to declare that many of the groups once central to the “troubles” are now committed to exclusively peaceful means. A successive series of their Reports dealt with ever decreasing levels of political violence. The Commission’s mandate, to “monitor any continuing activity by paramilitary groups” (Article 4) and to “recommend any remedial action considered necessary” (Article 7) in response to this activity, appeared close to obsolescence.
If the Commissoners had once come round to this way of thinking, this week’s Twenty-Second Report adopted a markedly different tenor. The IMC asserts (at [2.7]) that the main dissident republican groups (the Real IRA and the Continuity IRA) have expanded their membership base (although largely through recruiting ‘inexperienced young males’). Moreover, the IMC evaluates how the attack against the Massereene Army Base in Antrim on 7 March 2009 (killing Sappers Mark Quincy and Patrick Azimkar) and the murder of PC Stephen Carroll in Craigavon on 9 March presaged a summer of increasingly ambitious attacks, often only thwarted by effective policing on both sides of the border (see [2.6]).
In other respects the Report was more hopeful. Having asserted that the Provisional IRA is committed to an exclusively peaceful path in its Nineteenth Report (at [2.7]), the IMC emphasised that (at [4.4]), particularly after the attacks in March, senior figures in Sinn Féin and the Provisional IRA, ‘have continued to give leadership to the republican community to refrain from violent and other crime, to adhere to the exclusively political path, and to reject the dissident republicans who want to destroy the peace process, pointing out the futility of their actions and the lack of a political strategy on their part’. Moreover, the leadership of loyalist groups were singled out (see [4.5]) for their, ‘efforts to prevent a violent reaction on the part of members to the dissident republican murders’. This position was bolstered, on 4 September 2009, by the Independent International Commission on Decommissioning’s verification of the UVF and Red Hand Commando’s weapons. The IMC also cautiously welcomed (at [2.21]) the INLA’s renouncement of violence on 11 October 2009.
For the moment the dissident republican groups remain fragmented and fractious, unable, in the words of the IMC, to undertake ‘effective strategic collaboration’. Nevertheless, focusing police resources on the dissident republican threat to the peace process will not, in the long term, deflect attention from the power vacuum which is developing at the centre of the peace process as a result of stalled efforts to devolve policing and justice powers to the Northern Ireland Assembly (a point addressed in some of my earlier posts). As part of its wide mandate to recommend remedial action to counter terrorist threats, the IMC emphasised the paramount importance of devolving these powers (at [5.1]):
‘There are security and intelligence contributions to be made to addressing the developing problems. However, the early devolution of policing and justice powers to the Northern Ireland Assembly and Executive could provide a potent intervention. This would not be because the dissidents would be impressed by it. It would be because policing and justice would no longer be a point of contention across the political divide; rather, it would be a platform for co-operation against those trying to undermine the peace process.’
Polls continue to suggest that the vast majority of Northern Irish voters support parties which remain committed to democratic politics. The longer this enforced hiatus persists, however, the easier dissidents will find it to persuade some people, even if they are ‘inexperienced young males’, that the peace process is not serving their interests.
Last week’s Northern Ireland Court Service Annual Report (2008-09) provides backslapping bonhomie and useful statistics on the operation of the Courts in Northern Ireland in equal measure.
The recession’s impact on the activities of courts in this period has been particularly interesting. The relatively stable amount of business in Northern Ireland’s Crown Courts and a 6 per cent drop in cases before magistrates courts can be set against fears of rising crime rates which accompanied the economic downturn. Unsurprisingly, however, the civil courts have made up for this shortfall, with an overall 14 per cent rise in caseload largely being accounted for by a 77 per cent rise in mortgage cases.
Nonetheless, in recognition of the degree to which the Court Service has tackled these challenges, the Report notes that ‘all 21 courthouses in Northern Ireland achieve the new Cabinet Office “Customer Service Excellence” Standard’, the successor to the Chartermark standard for public service providers (p.6). As Jack Straw noted in his response to the report, these awards provide ‘clear testimony to the positive experience of court users and the service delivered by front-line staff’ (p. 7). Nonetheless this award scheme is, like its predecessor, dogged by the reality that, even if its performance dramatically declined, the people of Northern Ireland would have no alternative to the Court Service as presently organised (and that lobbying for reform would still have to go through Westminster as policing and justice spheres are yet to be devolved).
Newcastle Human Rights Research Group Symposium: Human Rights – A Drop of Liberation or Fig Leaf of Legitimation?
Date & Venue: 23 January 2010, Newcastle Law School, Newcastle University, UK.
This symposium draws upon the proliferation of academic commentary asserting that the international human rights project is in a state of crisis in the first decade of the twenty-first century, requiring a re-evaluation of both its impact and its future direction. With papers from world leading authorities on human rights, this symposium provides a forum for assessing the effectiveness of human rights as an element of international law and in the domestic context of the United Kingdom in the face of these renewed and novel challenges. Moreover, this symposium draws together human rights sceptics and supporters from across disparate strands of transatlantic human rights scholarship.
Professor David Kennedy, Harvard University - ‘The International Human Rights Movement: Still Part of the Problem?’
Professor Christine Bell, University of Ulster – ‘Human rights activism, expertise and academic inquiry: beyond legitimation v emancipation – a self-critical reflection’
Professor Keith Ewing, Kings College London - Title TBC
Professor David Bonner, University of Leicester – ‘If you cannot change the rules of the game, adapt to them: United Kingdom responses to the restrictions set by Article 3 ECHR on “national security” deportations’
Mr. Steven Wheatley, Reader, University of Leeds – ‘The problematic authority of international human rights law.’
A limited number of places for delegates are available on a first-come-first-served basis, at a cost of £30 per head (or £10 per head for full-time postgraduates), inclusive of lunch and refreshments. Full details of the Conference Programme are available on the Newcastle Law School website.
Please make all cheques for delegate fees payable to Newcastle University and send them to Dr Rob Dickinson, Symposium Co-ordinator, Newcastle Law School, 21-24 Windsor Terrace, Newcastle-upon-Tyne, NE1 7RU.