Advice of the Northern Ireland Human Rights Commission on the House of Common's Defence Committee Report on 'Investigations
Total Page：16
File Type：pdf, Size：1020Kb
Advice of the Northern Ireland Human Rights Commission on the House of Common’s Defence Committee report on ‘Investigations in fatalities in Northern Ireland involving British military personnel’ Summary The NIHRC provides the following advice to the NI Office in relation to the options put forward by the House of Common’s Defence Committee Report on ‘Investigations in fatalities in Northern Ireland involving British military personnel’. Option1: The NIHRC advises that a statute of limitation restricting the prosecution of state actors would amount to an amnesty. If such an amnesty were to be held to excuse acts constituting gross human rights violations and abuses (including the right to life and the prohibition on torture or other cruel, inhuman or degrading treatment or punishment) this would be incompatible with human rights law. (paragraph 34) Option 2: The NIHRC continues to recommend that the Stormont House Agreement is implemented in line with the recommendations of the UN Human Rights Committee and Council of Europe. (paragraph 40) Option 3: Noting that the lack of certainty regarding the general application of the Sentences (NI) Act 1998 and concerns about its application to members of the police service and armed forces the NIHRC recommends a review, and if necessary amendment, to ensure the legislation is applied equally and fairly to all perpetrators of conflict-related offences. (paragraph 52) Option 4: The NIHRC recommends against this option, as it would put the UK government in breach of its international human rights obligations to conduct an effective official investigation under the right to life and prohibition of torture, inhuman and degrading treatment. (paragraph 57) Advice of the Northern Ireland Human Rights Commission on the House of Common’s Defence Committee report on ‘Investigations in fatalities in Northern Ireland involving British military personnel’ Introduction 1. The Northern Ireland Human Rights Commission (NIHRC), pursuant to Section 69(1) of the Northern Ireland Act 1998, reviews the adequacy and effectiveness of law and practice relating to the protection of Human Rights. The NIHRC also has a role, under Section 69(3), to advise the Secretary of State and the Executive Committee of the Assembly of legislative and other measures which ought to be taken to protect human rights. In accordance with these functions, the following advice is submitted to the Northern Ireland Office in response to the House of Common’s Defence Committee report on ‘Investigations in fatalities in Northern Ireland involving British military personnel’. 2. The NIHRC bases its advice on the full range of internationally accepted human rights standards, including the European Convention on Human Rights as incorporated by the Human Rights Act 1998 and the treaty obligations of the Council of Europe (CoE) and United Nations (UN) systems. The relevant international treaties in this context include: the International Covenant on Civil and Political Rights (ICCPR)1 the Convention against Torture (CAT)2 EU Charter on Fundamental Rights (CFR)3 1 Ratified by the UK in 1976. 2 Ratified by the UK in 1988. 3 Ratified by the UK in 2000. 1 3. The UK Government is subject to the obligations contained within these international treaties by virtue of its ratification of these instruments.4 4. In addition to these treaty standards, there exists a body of ‘soft law’ developed by the human rights bodies of the UN and the CoE. These declarations and principles are non-binding but provide further guidance in respect of specific areas of human rights law. The relevant standards in this context include: CoE Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations5 UN OHCHR, Rule-of-law Tools for Post-conflict States, Amnesties (2009) UN Principles on the Effective Prevention and Investigation on Extra-legal, Arbitrary and Summary Executions6 Relevant human rights standards Procedural obligations 5. The right to life is protected by Article 2 ECHR and Article 6 of the ICCPR. The right to freedom from torture, inhuman and degrading treatment is protected by Article 3 ECHR and Article 7 of the ICCPR as well as by the CAT. In addition to these substantive rights, human rights law requires that allegations covering the right to life be thoroughly investigated. This is the procedural limb of the rights and a failure to conduct such an investigation can amount to a violation in its own right. 6. The ECHR requires an effective official investigation in respect of allegations under Articles 2 and 3.7 The European Court of 4 The UK Mission at Geneva has stated, ‘The UK's approach to signing international treaties is that we only give our signature where we are fully prepared to follow up with ratification in a short time thereafter.’ See, UK Mission at Geneva, ‘Universal Periodic Review Mid- term Progress Update by the United Kingdom on its Implementation of Recommendations agreed in June 2008’ (March 2010) on recommendation 22 (France). 5 Guidelines adopted by the Committee of Ministers on 30 March 2011 at the 1110th meeting of the Ministers’ Deputies, H/Inf (2011) 7 (2011) 6 Recommended by Economic and Social Council resolution 1989/65 of 24 May 1989, UN Doc. E/1989/65 (1989) Annex 7 Although these principles were established in Article 2 cases, the ECt.HR has confirmed that these apply to Article 3 cases: Assenov and Others v. Bulgaria, Application No. 90/1997/874/1086 (28 October 1998) para 102; Mocanu and Others v. Romania, Application Nos. 10865/09, 45886/07 and 32431/08 (17 September 2014) paras 319-325 2 Human Rights (ECt.HR) has set out that such an investigation must include the following elements: (1) the investigation must be independent; (2) the investigation must be capable of leading to the identification of those responsible; (3) the investigation must be prompt; (4) there must be public scrutiny of the investigation or its results; and (5) the next-of-kin or the victim must be involved to the extent necessary to safeguard their interests.8 7. The ECt.HR has highlighted that the obligation to ensure effective investigations extends to circumstances in which the perpetrator is a private individual. In the case of Angelova and Ilev v. Bulgaria, the ECt.HR commented: “However, the absence of any direct State responsibility for the death of the applicants' relative does not exclude the applicability of Article 2 of the Convention…...The Court reiterates that in the circumstances of the present case this obligation requires that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances. The investigation must be capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment. Where death results, as in the present case, the investigation assumes even greater importance, having regard to the fact that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life.”9 8. The general procedural obligations under the ICCPR also requires the State to “investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies.”10 CAT requires a “prompt and impartial investigation, wherever there is reasonable ground to believe that an act of 8 Jordan v. the United Kingdom, Application No. 24746/94 (04 August 2001) paras 106-9 9 Angelova and Ilev v. Bulgaria, Application no. 55523/00 (26 July 2007) paras 93-4 10 UN HRC, General Comment 31, Nature of the General Legal Obligations on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (2004) para 15; UN, Comments and General Recommendations Adopted by Human Rights Treaty Bodies, General Comment 6 on Article 6 (Sixteenth session, 1982) contained within UN Doc. HRI/GEN/1/Rev.1 at 6 (1994) para 4 3 torture has been committed”,11 and the UN Principles on the Effective Prevention and Investigation on Extra-legal, Arbitrary and Summary Executions requires a “thorough, prompt and impartial investigation” in all cases where complaints are made suggesting an unnatural death.12 9. The ECt.HR has found procedural violations under Article 2 ECHR in respect of the failure to conduct effective investigations into conflict-related deaths in NI. In the McKerr group of cases the ECt.HR found a number of violations, including: lack of independence of investigating police officers, lack of public scrutiny and information to victims' families on reasons for decisions not to prosecute, defects in the police investigation, limitations on the role and scope of the inquest procedure, absence of legal aid for the representation of the victims' families and delays in inquest proceedings.13 10. In respect of the framework for the investigation of Article 2 deaths in NI, the CoE’s Committee of Ministers continues to supervise the execution of the McKerr group of cases. Whilst the UK Government has introduced a number of general measures to address this issue, the CoE does not consider the judgments findings have been fully implemented. In June 2016, the Committee of Ministers: “called upon the authorities to take all necessary measures to ensure the Historical Investigations Unit can be established and start its work without any further delay, particularly in light of the length of time that has already passed since these judgments became final and the failure of previous initiatives to achieve effective, expeditious investigations.”14 11 Article 12 CAT 12UN CESCR, Principles on the Effective Prevention and Investigation on Extra-legal, Arbitrary and Summary Executions, Recommended by Economic and Social Council resolution 1989/65 of 24 May 1989, UN Doc.