In January 2024, the Irish government brought an inter-state case against the British government at the European Court of Human Rights (ECHR). The case alleges that the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (Legacy Act) violates the State’s obligation to investigate loss of life and acts of torture under Articles 2 and 3 of the European Convention on Human Rights (ECHR), as well as the rights to a fair trial (Article 6), effective remedy (Article 13) and the prohibition of discrimination (Article 14).

The Legacy Act has been condemned by victims, families, human rights groups and campaigners, and is opposed by every political party in Northern Ireland. The backlash was prompted by the legislation effectively shutting down the “Package of Measures” —a system of mechanisms that has successfully facilitated information recovery in the absence of a formal truth and reconciliation mechanism in the Good Friday Agreement (1998).

Given that the Irish government has taken such a strong stance on this issue, it may come as a surprise that there is no systemic process for investigating legacy human rights violations in Ireland.

Ireland ratified the ECHR in 1953. Therefore, the State has a legal obligation to investigate loss of life, instances of torture and other forms of ill-treatment – including those committed by An Garda Síochána, the Irish police service. However, victims can currently only submit a complaint to the Office of the Police Ombudsman within one year of an alleged incident.

As a result, victims of the ‘Heavy Gang’ — a group of police officers who used unlawful tactics (including torture) to extract false confessions up until the 1980s — are being denied justice.

Currently, a miscarriage of justice can be reviewed under the Criminal Procedural Act 1993. However, this only applies to cases where there is a “new or newly discovered fact”. Given that the existence and practices of the ‘Heavy Gang’ have been documented, it is unlikely that the rights of victims will be vindicated using this mechanism. Critically, it fails to investigate or address the culture of impunity that allowed these human rights violations to occur, nor does it assign individual criminal responsibility.

Other violations of Articles 2 and 3 that have not been sufficiently investigated include deaths in custody, and the role of An Garda Síochána and the State in the Dublin and Monaghan bombings of 1974.

This is explored in a new cross-border report published by the Irish Council for Civil Liberties and the Committee on the Administration of Justice. The report recommends the establishment of three mechanisms that would fulfil the State’s legal obligations to conduct public, prompt, independent and thorough investigations into Article 2 and 3 violations.

The first recommendation is for the Irish government to establish an independent, time-bound Historical Investigations Unit (HIU). The HIU would have the power to initiate and oversee police investigations into unresolved deaths and incidents of torture or ill-treatment, and to assign individual criminal responsibility. The HIU would not be limited to investigating conflict-related cases. It would also be given the authority to investigate other miscarriages of justice from the Troubles onwards, such as the 2011 death of Shane O’Farrell.

The second recommendation is for a system of strong, robust and independent public inquiries and inquests. However, new legislation will likely be required to ensure human rights compliance. Recent experience with the Commission of Investigation into Mother and Baby Homes and Certain Related Matters has been a stark reminder of how existing inquiries are often ad hoc and lack transparency, leading to limited State accountability and unsatisfactory outcomes for victims.

Our final recommendation is for the establishment of an all-Ireland truth commission to promote reconciliation, accountability, and cross-border truth recovery for victims and families. This mechanism would examine the systemic conditions and culture that enabled abuses and impunity on both sides of the border.

The purpose of the recommended mechanisms is to vindicate the rights of victims, survivors, and their families to an effective investigation, to access justice, to truth, and to guarantees of non-reoccurrence. It is a legal and moral imperative for the Irish government to abide by its ECHR obligations and finally grant victims and survivors of human rights violations the answers and remedies they deserve.