THE APPARATUS OF IMPUNITY? Human rights violations and the Northern Ireland conflict: a narrative of official limitations on post-Agreement investigative mechanisms Committee on the Administration of Justice January 2015 The Apparatus of Impunity? Committee on the Administration of Justice (CAJ) © Committee on the Administration of Justice January 2015 The material may be reproduced, free of charge, in any format or medium without specific permission, provided the reproduction is not for financial or material gain.The material must be reproduced accurately and not used in a misleading context. If the material is to be republished or issued to others, acknowledgement must be given to its source, copyright status, and date of publication. This publication is available on our website. CAJ Committee on the Administration of Justice 2nd Floor, Sturgen Building 9-15 Queen Street Belfast BT1 6EA Tel: 028 9031 6000 Fax: 028 9031 4583 [email protected] www.caj.org.uk ISBN 978 1 873285 94 7 The Apparatus of Impunity? Committee on the Administration of Justice (CAJ) THE APPARATUS OF IMPUNITY? Human rights violations and the Northern Ireland conflict: a narrative of official limitations on post-Agreement investigative mechanisms Committee on the Administration of Justice January 2015 The Apparatus of Impunity? Committee on the Administration of Justice (CAJ) Recent comments from key Council of Europe and UN human rights bodies in relation to existing mechanisms investigating the conflict in Northern Ireland: The absence of any plausible explanation for the failure to collect key evidence at the time when this was possible, and for attempts to even obstruct this process, should be treated with particular vigilance. In fact the period of demonstrated, if not deliberate, systematic refusals and failures to undertake timely and adequate investigation and to take all necessary steps to investigate arguable allegations under Articles 2 [right to life] and 3 [prohibition on torture and inhuman/degrading treatment]seem as a matter of principle to make it possible for at least some agents of the State to benefit from virtual impunity as a result of the passage of time. European Court of Human Rights, Concurring Opinion of Judge Kalaydjieva, in McCaughey & Others v the UK and Hemsworth v the UK, judgments of 16 July 2013 The Committee...notes however, reports of apparent inconsistencies in the investigation processes where military officials are involved, which delayed or suspended investigations, thus curtailing the ability of competent bodies to provide prompt and impartial investigations of human rights violations and to conduct a thorough examination of the systemic nature or patterns of the violations and abuses that occurred in order to secure accountability and provide effective remedy. In addition, the Committee is concerned about the State party’s decision not to hold a public inquiry into the death of Patrick Finucane. UN Committee Against Torture, Concluding Observations on UK, May 2013 It is clear that budgetary cuts should not be used as an excuse to hamper the work of those working for justice. Westminster cannot say ‘well we will let the Northern Irish Assembly deal with this, this is under their jurisdiction’. The UK Government cannot wash its hands of the investigations, including funding of the investigations. These are the most serious human rights violations. Until now there has been virtual impunity for the state actors involved and I think the Government has a responsibility to uphold its obligations under the European Convention to fund investigations and to get the results. The issue of impunity is a very, very serious one and the UK Government has a responsibility to uphold the rule of law. This is not just an issue of dealing with the past, it has to do with upholding the law in general. Nils Muižnieks, Commissioner for Human Rights, Council of Europe Speaking in Belfast, 6 November 2014 The Apparatus of Impunity? Committee on the Administration of Justice (CAJ) 1974-2014 - Investigative Bias? The Attorney General assures me he himself carefully reviews every serious allegation against a soldier and that the final decision whether to prosecute in such a case is made by him only after close and anxious consideration of all of the evidence and the requirements of the public interest. He assured me in plainest terms that not only he himself but also the [Director of Public Prosecutions] and senior members of his staff, having been army officers themselves, having seen active service and knowing at first hand about the difficulties and dangers faced by soldiers, were by no means unsympathetic or lacking in understanding in their in their approach to soldier prosecutions in Northern Ireland. Rather the reverse, since directions not to prosecute have been given in more than a few cases where the evidence, to say the least, had been borderline. Letter to General Sir Cecil Blacker from Lt General Frank King, 17 January 1974 HET maintains it is not appropriate to compare the review processes in military cases with reviews of murders committed by terrorists. Soldiers were deployed on the streets of Northern Ireland in an official and lawful capacity, bound by the laws of the UK and military Standard Operating Procedures of that time. PSNI Historical Enquiries Team (HET) Operational Guide 2013 We found that the HET, as a matter of policy, treats deaths where there was state involvement differently from those cases where there is no state involvement. We consider the HET’s approach to be entirely wrong in that: 1. it is clear that the HET has adopted a different approach between cases that have state involvement and those that do not; and 2. the approach that the HET has adopted in state involvement cases is susceptible of challenge, as it appears to be based on a misunderstanding of the law. ...practices [,] which would appear to derive from the HET’s different approach in state involvement cases, may seriously undermine the capability of the HET’s review process to lead to a determination of whether the force used was or was not justified in state involvement cases, and to the identification and punishment of those responsible...Since 2010 it is striking that not one state involvement case relating to the British Army has to date been referred to the PSNI for further investigation or for prosecution. HM Inspectorate of Constabulary June 2013 Inspection of the Police Service of Northern Ireland Historical Enquiries Team Legacy is one of the defining issues of our future...We are all proud of our service in the RUC. The PSNI is determined to play our part in the defence of the RUC. [The] bedrock of what we are trying to do is to protect our people. To protect the reputation of the organisation and to protect people’s security. Comments attributed in official notes to a PSNI Deputy Chief Constable and Senior Legal Advisor, in a 2012 ‘Legacy Information Evening’ for the NI Retired Police Officers Association (cited in Irish News, 2 December 2014,p14). The Apparatus of Impunity? Committee on the Administration of Justice (CAJ) Key Acronyms CAJ Committee on the Administration of Justice CHIS Covert Human Intelligence Source CJI Criminal Justice Inspection (Northern Ireland) CMP Closed Material Procedure DoJ (Northern Ireland) Department of Justice DPP Director of Public Prosecutions ECHR European Convention on Human Rights FoI Freedom of Information HET PSNI Historical Enquiries Team HIU Historical Investigations Unit HMIC Her Majesty’s Inspectorate of Constabulary IRA Irish Republican Army LIB (PSNI) Legacy Investigations Branch LSU (PSNI) Legacy Support Unit MoD (UK) Ministry of Defence NCND Neither Confirm Nor Deny NIO (UK) Northern Ireland Office NIRPOA The Northern Ireland Retired Police Officers Association OPONI Office of the Police Ombudsman for Northern Ireland OTR ‘On the Run’ PFC Pat Finucane Centre PPS Public Prosecution Service PRONI Public Records Office of Northern Ireland PSNI Police Service of Northern Ireland RFJ Relatives for Justice RMP Royal Military Police RUC Royal Ulster Constabulary SOCPA Serious Organised Crime and Police Act 2005 UDA Ulster Defence Association UDR Ulster Defence Regiment UVF Ulster Volunteer Force The Apparatus of Impunity? Committee on the Administration of Justice (CAJ) What is CAJ? The Committee on the Administration of Justice (CAJ) was established in 1981 and is an independent non-governmental organization affiliated to the International Federation of Human Rights. CAJ takes no position on the constitutional status of Northern Ireland and is firmly opposed to the use of violence for political ends. Its membership is drawn from across the community. The Committee seeks to ensure the highest standards in the administration of justice in Northern Ireland by ensuring that the government complies with its responsibilities in international human rights law. The CAJ works closely with other domestic and international human rights groups such as Amnesty International, Human Rights First (formerly the Lawyers Committee for Human Rights) and Human Rights Watch and makes regular submissions to a number of United Nations and European bodies established to protect human rights. CAJ’s activities include - publishing reports, conducting research, holding conferences, campaigning locally and internationally, individual casework and providing legal advice. Its areas of work are extensive and include policing, emergency laws and the criminal justice system, equality and advocacy for a Bill of Rights for Northern Ireland. CAJ however would not be in a position to do any of this work without the financial help of its funders, individual donors and charitable trusts (since CAJ does not take government funding). We would like to take this opportunity to thank Atlantic Philanthropies, Barrow Cadbury Trust, Hilda Mullen Foundation, Joseph Rowntree Charitable Trust, Oak Foundation and UNISON. The organization has been awarded several international human rights prizes, including the Reebok Human Rights Award and the Council of Europe Human Rights Prize.