Earlier this year 26 relatives of people killed during the conflict travelled to Brussels at the invitation of MEP Martina Anderson. NGOs Relatives for Justice and the Pat Finucane Centre also attended. A series of meetings were organized with MEPs who heard firsthand about each killing and the devastating impact this has had on families. MEPs also heard irrefutable evidence of wider governmental, security and intelligence policies of direct State violence and collusion with illegal paramilitaries that lay behind each atrocity. Focus was also given to the thematic patterns of systemic state sponsored violence and nature of perfunctory investigative processes that continue impunity.
Whilst in Brussels the relatives also met representatives of both the Irish and British governments raising these same concerns. Families underlined the need for accountability in the wake of unionist opposition to proposals by the Panel of Parties, (Haass/O’Sullivan), to address the legacy of the past. Importantly they also noted the absence of both governments in these talks and further underlined that the UK government had the ultimate legal responsibility for ensuring proper investigations. The families also made it clear that attempts to abdicate and evade accountability would not be permitted.
As a direct consequence of the visit Martina Anderson also facilitated a follow up meeting in Strasburg with the European Commissioner for Human Rights, Nils Muižnieks, and Christos Giakoumopoulos, the Director of Human Rights for the Council of Europe, who’s responsibility includes the supervision of the Execution of Judgments. The latter to which the British government, as a key signatory to the European Convention on Human Rights (ECHR), must report to and provide remedy following a series of European Court rulings that found the UK government violated its legal obligation to conduct effective independent investigations into killings such as those raised by the families.
A series of landmark rulings by the European Court have heavily criticized how the British government failed to investigate disputed and controversial killings involving its forces and agents. The most notable being the May 2001 ruling involving the RUC killing of six men in late 1982 in three separate incidents in north Armagh; the SAS killings of 9 men at Loughgall, 1987; the loyalist killing of Patrick Shanaghan at Castlederg in 1991; and the RUC killing of Pearse Jordan in 1992, Belfast.
Known as the McKerr group of cases the UK government found itself faced with having to make a number of significant changes to its coronial inquest system; including how it would now to seek to properly investigate these and hundreds of other similar killings in a manner compliant with its legal duty under the ECHR. Essentially the UK government had to discharge what is commonly referred to as its Article 2 (Right To Life) obligation. This means that when the State kills someone, or is alleged to have colluded with others in killings, that there must be effective, independent and transparent investigations. This is what is known as the negative obligation of Article 2. The positive obligation means that the State must act and take every necessary measure to ensure the safety of its citizens when they face threats or are at risk. And when one examines the nature of these particular killings, symbolic of hundreds of killings, we have had, in our view, absolute violations. The State was sponsoring the murders of those it had a duty to protect under the law. The State was killing people when there existed ample opportunity for safe and effective arrest and the administration of justice under the rule of law yet decide to dispense with due process.
As a consequence of the rulings the Committee of Ministers at the Council of Europe began monitoring the UK government in terms of how they would now begin to remedy and address Article 2 violations.
The UK authorities responded with what is referred to as the ‘package of measures’. These include the role of the Police Ombudsman in terms of examining the role of the police in criminal wrongdoing where killings occurred; the reformed inquest court that can now compel police officers and British soldiers responsible for killings to the proceedings including relevant material held by the State concerning killings. Inquests can now also examine the facts of a killing beyond what was previously a tightly restricted remit that prohibited any scrutiny of the wider facts. The third and final element of the package was the PSNI’s Historical Enquiries Team (HET).
The reality is that the ‘package of measures’ has failed. In the face of having to make changes, which would otherwise lift the lid on these killings, the UK has now resorted to delaying the investigations into these killings using a ‘lack of resources’ argument. Put simply this masks a more strategic rearguard approach aimed at curbing scrutiny of State actions. Using this excuse inquests are stalled, quite apart from there not being enough Coroners; The Ombudsman is on record as publicly stating that given resource cuts he cannot now meet his Article 2 obligations and the Senior Coroner has also publicly stated that he too fears that this may also be the case given significant delays in receiving State documentation. And the HET has effectively been binned following a damning report exposing that British Army killings were examined with ‘less rigour’ and weren’t Article 2 complaint.
RFJ have argued that the UK Treasury must directly fund all related legacy investigative work rather than this having to come from the allocated block grant to the devolved institutions. After all it is the UK government that is the signatory to the ECHR and not the devolved Executive.
More recently the UK government, in a response to a submission by RFJ to the Committee of Ministers to the Council of Europe, said that the matter of resolving these cases rested with the local parties and Executive. This is disingenuous. It was as a consequence of the overall security policy and practices of the UK government in London that these killings occurred.
Stepping into the frame this Thursday will be the European Commissioner for Human Rights Nils Muižnieks. He will gave a keynote address in Belfast at a conference organized on Article 2 by UUJ’s Transitional Justice Institute (TJI). The conference is as a direct result of the engagements by NGOs RFJ and PFC with the Commissioner and facilitated by MEP Martina Anderson, including the delegation of relatives that went to Brussels earlier this year.
Collectively NGOs, lawyers, academics, and importantly families, have all played a vital role in ensuring that these matters remain to be resolved.
No doubt Commissioner Muižnieks is alive to the current issues and it would be an objective that he be invited back into the jurisdiction in an official capacity given the huge problems in securing proper investigations. Hopefully this is something that the UK government would also welcome.