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.

Various non-state armed groups, including Hay’et Tahrir al-Sham (HTS) and factions of the Syrian National Army (SNA), who initiated the offensive that overthrew the Syrian government, have carried out human rights abuses and war crimes in Syria. In an interview on 13 January 2025, the UN Special Envoy for Syria, Geir O. Pederson, acknowledged that despite the relative stability in many parts of the country after the takeover of these groups, there had been incidents of extrajudicial and revenge killings, as well as attacks on minority groups. These attacks have intensified in recent weeks.

This highlights how the decision for States to return Syrian asylum seekers and refugees to Syria is built on the assumption that the Assad regime was the sole driver of Syrians seeking asylum. As Obai Kurd Ali and Mai El-Sadany wrote, this assumption “contributes to an erasure of victims of non-regime groups”, those who fled hostilities, and members of marginalized groups such as religious minorities or members of the LGBTQ+ community. A collective decision like this puts asylum applicants whose applications were motivated by factors outside of the Assad regime at risk of being subjected to the very persecution that they fled from.

This is why the Refugee Convention requires States to conduct individualized assessments to determine whether an individual can be recognized as a refugee. Furthermore, it is why the ICCPR requires States to conduct individualized assessments to determine whether an individual expelled or transferred from its territory may experience treatment that would violate its non-refoulement obligations. A State may recognize refugee status on the basis of “readily apparent, objective circumstances in a country of origin”, such as persecution or generalized violence, as opposed to an individual’s specific circumstances. However, it cannot reject refugee status in the same manner or collectively expel individuals.

The Importance of Conducting Individualised Risk Assessments for Syrians

The UN’s Human Rights Committee (HRC) is tasked with monitoring State compliance with the ICCPR and has the authority to examine complaints regarding alleged violations of the ICCPR. In Abdilafir Abubakar Ali and Mayul Ali Mohamad v. Denmark, the HRC clarified that States must undertake individualised assessments of the risk an individual may face if they are removed to another country as part of their obligations under the principle of non-refoulement.

Syria’s newly appointed President, Ahmed al-Sharaa, has expressed that his government will uphold human rights and fundamental freedoms for all Syrians. However, as the European Court of Human Rights established in MSS v. Belgium and Greece, diplomatic assurances, the existence of domestic laws, or even accession to international human rights treaties are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment.

Thus, States cannot deport Syrians back to Syria until there is enough information available to assess the current situation in Syria, and until States carry out individualized risk assessments to determine whether those refugees and asylum seekers which States are planning to return are not at risk of suffering irreparable harm.

In April 2013, EU and Council of Europe negotiators reached an agreement on the EU accession to the ECHR; but on the 18^th  December 2014, the Court of Justice of the EU (“CJEU”)  issued Opinion 2/13 declaring the agreement be incompatible with the EU Treaties.  The Court stated that the Agreement failed to adequately recognise the specific characteristics arising from the very nature of EU law and its autonomy, identifying eleven issues that had to be addressed, among them Common Foreign and Security Policy (“CFSP”).  In March 2023, a revised draft accession agreement was concluded addressing many of the issues raised in Opinion 2/13 although not CFSP, which the EU signalled it would deal with internally.

Article 24(1) TEU limits CJEU jurisdiction over CFSP except for: (i) compliance with Article 40 TEU (delineation of CFSP competences and external competences in TEFU) and (ii) Article 275 TFEU which gives CJEU jurisdiction over sanctions. Accession could have led to a situation where a CFSP measure under EU law could be challenged before the Strasbourg court alleging a violation of the ECHR without the CJEU having the jurisdiction to review and address the matter within the parameters of EU law. This could have resulted in judicial review of CFPS by the ECtHR and not the CJEU, a situation the latter deemed impermissible under EU law. One simple though unrealistic solution might have been to amend the treaty to remove the limitations on CJEU jurisdiction. An interpretative solution emerged in the opinion of Advocate General Ćapeta in joined cases C-29/22 P and C-44/22 P (KS and KD) relating to the appeal of two General Court orders denying jurisdiction over Article 340 (2) TFEU claims alleging human rights violations in the context of the EULEX mission in Kosovo.  The AG opined that the CJEU had the power to assess the EU fundamental rights compatibility of national measures adopted pursuant to CFSP decisions: CJEU review “could not be excluded simply because that breach occurred in the context of the CFSP’’.  At the same time, she argued that the CJEU lacked jurisdiction to interpret the underlying CFSP measure or assess conformity of CFSP provisions with the EU Treaties.

On the 10^th of September 2024 the CJEU issued its ruling in the case EUR-Lex – 62022CJ0029 – EN – EUR-Lex.  The Grand Chamber ruled that the CJEU has jurisdiction to assess the legality of acts or omissions under CFSP that are not directly related to political or strategic choices, but relate to operational aspects, such as personnel choices, the establishment of review measures and remedies, including actions for damages for alleged violations of fundamental rights. In the instant case, the Court found that the absence of a remedy or judicial review was not a measure directly related to political or strategic choices of CFSP. The judgment thus sought to balance preserving the autonomy of the EU legal order and providing effective judicial protection and access to justice in line with the standards of the ECHR. With respect to accession, the ruling confirms CJEU jurisdiction in the area of CJEU addressing a key obstacle previously identified by the Court in Opinion 2/13, and thereby removing what many had viewed as the last significant hurdle to the resumption of negotiations.  Of course, the text of the Agreement must still be ratified by all 46 Council of Europe members and the EU, and will almost certainly be put before the CJEU again for its opinion, pursuant to the procedure in Article 218(11) TEU.  Still, the  ruling is significant in and of itself. To the extent it revives the prospects of accession, it offers the promise of greater legal accountability by ensuring that the EU will be subject to external international human rights oversight. Despite the qualitative differences between the EU and ECHR frameworks – supranational vs. international – and the different coverage of rights, there exists sufficient substantive overlaps between the rights protected for accession to have an impact in EU Member States. In particular, it should help address fragmentation and ensure that gaps or tensions between EU and ECHR standards are addressed, including by national courts, thereby promoting consistency between EU and ECHR laws.  Ultimately, accession will advance legal and policy coherence for rights in Europe at a time when this is much needed.

Siobhán McInerney-Lankford – this contribution is written in the author’s personal capacity and the views it expresses should not be attributed to the EU FRA.