In February 2024, the High Court in Belfast declared in Dillon and others that fundamental aspects of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 are unlawful and should be disapplied. Most notably, it ruled that provisions for immunity from prosecution for serious violations are incompatible with Articles 2 and 3 of the European Convention on Human Rights and Article 2 of the Windsor Framework. This blog focuses on an aspect of the ruling that has received much less attention, namely the extent to which this Act can deliver on its principal objective to ‘promote reconciliation’. Although the High Court concluded, rightly in our view, that ‘there is no evidence that the granting of immunity under the 2023 Act will in any way contribute to reconciliation in Northern Ireland’ and that ‘indeed, the evidence is to the contrary’ [187], it did not address the extent to which other aspects of the Act are likely to do so.

How do Academics Understand Reconciliation?

Reconciliation is commonly understood by scholars from multiple disciplines as a process that is intended to improve relationships between specific actors [(such as individual victims and perpetrators, antagonistic communities, people and the state or opposing states). For some, reconciliation simply connotes the absence of physical violence. However, most favour ‘thicker’ conceptualizations that emphasize (re-)building peaceful relationships based on mutual respect, co-operation, and . This involves creating spaces where individuals, communities and institutions can listen to and respect the narratives of others. This dialogue is backward- and forward-looking – identifying how and why relationships have broken down and the steps necessary to redress harms and prevent repetition. Such processes will ideally help to: reduce stereotyping and prejudice; increase political tolerance and support for human rights principles; and extend the legitimacy of democratic institutions.

How do International Courts and Tribunals Understand Reconciliation?

Reconciliation has frequently been referenced by international human rights institutions and criminal tribunals. Indeed, the International Criminal Court (ICC) has repeatedly cited the promotion of reconciliation as one of its objectives. The European Court of Human Rights has also made reference to reconciliation when considering the legality of amnesties in its Margus and Ould Dah cases, but did not define the term. Through reviewing the case law of these international human rights bodies and tribunals, it is nonetheless possible to pinpoint key elements of a human rights compliant approach to reconciliation. These closely align with core transitional justice principles concerning victim-centricity; inclusivity and gender sensitivity; and the need to address the root causes of mass violence.

International courts have repeatedly emphasized the importance of truth and acknowledgment for reconciliation. The Inter-American Commission (IACHR) has argued that ‘truth is a precondition to reconciliation’ [136]. The International Criminal Tribunal for the Former Yugoslavia (ICTY) when mitigating sentences after guilty pleas argued that ‘truth cleanses ethnic and religious hatreds’ [21] and ‘provides closure to victims’ [111]. It also contended that the revelation of truth by offenders publicly condemns the crimes [76] and reduces the possibility of revisionist denial narratives [260].

They have also emphasized that reconciliation should entail victim-centred approaches that seek to remedy the harm experienced by victims and to ‘rebuild trust among citizens and between citizens and public institutions’ [182]. Thus, for international human right bodies and tribunals, reconciliation is associated with repairing harms experienced by victims and rebuilding relationships between antagonistic groups and between citizens and the state.

Several of these decisions indicate the importance of symbolic and material reparations to reconciliation. For example, the IACHR argued that an amnesty law ‘disregards the legitimate rights of the victims’ next-of-kin to reparation…such a measure will do nothing to further reconciliation’ [215].

These decisions indicate that human rights centred approaches to reconciliation must seek to encourage offenders to disclose the truth about their actions, acknowledge their wrongdoing, and provide reparations to individuals and communities to repair the harm and prevent repetition.

Minimum Standards for Reconciliation

With respect to reparations, the ICC argued that they should be ‘culturally and locally relevant’ [182], should have community involvement [188], address the root causes of the violence [218], and be gender sensitive [188]. They should also refrain from favouring one side of the conflict over another [183]. In addition, the IACHR observed that: ‘No state policy on … reconciliation can omit the victims, without seriously violating their international human rights obligations’. These decisions emphasize that measures to promote reconciliation should be developed and implemented with the involvement of victims and affected communities, including women, and that they should be oriented to addressing the needs of the affected society rather than serving other political or policy objectives.

The fact that many judicial discussions of reconciliation have come from sentencing judgments following criminal convictions indicates that prosecutions are not viewed as inherently in tension with reconciliation, as suggested by the UK government. In addition, these sentencing decisions follow guilty pleas based on public, often televised, court proceedings. Disclosures of truth and acknowledgement of guilt were not given anonymously or confidentially. Nor was the substance of the truth they disclosed kept secret. Furthermore, offenders’ disclosures were not taken at their word. Instead, the ICTY expressly connected reconciliation to facts being proven beyond a reasonable doubt and the capacity of offenders’ public admissions to establish socially accepted truths about past violence.

Part 2 uses these legal and theoretical understandings to explore how the Legacy Act poses a threat to reconciliation in Northern Ireland.

This blog was equally co-authored by Anna Bryson and Louise Mallinder.