The first part of this blog drew on academic literature and international case law to examine the key components of a human rights centred concept of reconciliation. Here, we argue that the legal, political and institutional processes underpinning the Northern Ireland Legacy Act are not founded on a transparent and human rights-based understanding of reconciliation. We note that: the weakness of the truth recovery functions of the Independent Commission on Reconciliation and Information Recovery inhibits its ability to contribute to reconciliation; the Legacy Act is opposed by victims; and the proposed memorialisation work is deliberately designed to privilege a particular narrative of the conflict.

Weakness of the Truth Recovery Functions

The Legacy Act will permanently close existing police and judge-led investigations into offences connected to the armed conflict in Northern Ireland from 1966 to 1998, including criminal investigations, civil litigation, coroners’ inquests, Police Ombudsman Investigations, and public inquiries. In their place, a new Independent Commission on Reconciliation and Information Recovery (ICRIR) has been established to review Troubles-related violence that resulted in deaths or serious physical and mental injuries. The reviews are primarily geared towards producing reports for bereaved families. As reviews are a lighter-touch process than criminal investigations, the Council of Europe Human Rights Commissioner and the Northern Ireland Human Rights Commission have raised concerns that they do not equate to thorough and effective investigations.

The ICRIR is also controversially tasked with granting immunity to persons who have committed serious Troubles-related crimes, including killings and torture. This immunity is conditional on the offender disclosing information that is ‘true to the best’ of the person’s ‘knowledge and belief’. This is a very low and subjective bar, particularly since the disclosed information can be details that the person has previously disclosed. The ICRIR has discretion over whether to conduct a review relating to the disclosed information. If there is no review, it seems unlikely that the disclosed information will contribute to the type of societal truth that the international courts associate with reconciliation.

Opposition of Victims and Wider Society

In Dillon and others, the Court observed that there is ‘widespread opposition to these proposals’ and ‘the measures are not supported by groups who represent victims’ [501]. They have indeed been opposed in the strongest possible terms by victims and survivors groups, all of the Northern Ireland political parties, the Northern Ireland Human Rights Commission, the Irish government, the Council of Europe, the United Nations and leading members of the US Congress. This resounding local and international opposition, alongside the fact that the legislation was introduced unilaterally, make it impossible to see how the Legacy Act can be framed as resulting from the type of dialogic and victim-centred process that international courts argue is essential for reconciliation.

Rewriting History

Criticism of the government’s motivation for bringing forward this legislation has focused on the former Secretary of State for Northern Ireland’s pledge that: ‘no longer will our veterans be hounded and hauled in for questioning about events that happened decades ago.’ What has attracted less attention is the desire to ‘halt the rewriting of history’. Writing in Conservative Home, Brandon Lewis explained that this was the objective behind Part IV of the Act which provides for a ‘Troubles-related work programme’ (to include a major new oral history initiative, a memorialization strategy and academic research into ‘themes and patterns’). The government has also appointed a panel carefully selected academics to write a ‘public history’ of the Troubles.

The Act does not define reconciliation, but Government amendments emphasized that the ‘Troubles-related work programme’ should promote ‘reconciliation, anti-sectarianism and non-recurrence of political and sectarian hostility between people in Northern Ireland’. This coupling of reconciliation and anti-sectarianism was highlighted by Cillian McGrattan as a victory for the Malone House Group – who ‘pushed for the inclusion of anti-sectarianism as a robust way of promoting the recalibration of the story told about the past, which republicans have long dominated.’ We agree that these amendments speak to a desire to resurrect a ‘two sectarian tribes’ version of the Troubles that shifts public attention away from state culpability. It is difficult to square such an approach with the international case law that underlines that reconciliation requires all narratives to be heard and respected – including those that are critical of the state.

Reconciling History and Impunity

The final point we wish to consider is the danger of a distorted ‘reconciliation process’ serving to conceal the more sinister aspects of the legislation. The UN recently reported that ‘the obligation to adopt memorialization processes in societies that have suffered gross violations of human rights and serious violations of international humanitarian law derives from both primary and secondary sources of international human rights law’. The Special Rapporteur was careful to note, however, that ‘memory processes complement but do not replace mechanisms for truth, justice, reparation and guarantees of non-recurrence’ and that ‘memory mechanisms should never serve as a pretext for granting de jure or de facto impunity to the perpetrators of gross violations of human rights or serious violations of international humanitarian law’. In the Northern Ireland context, we have grave concerns that the provisions for oral history, memorialisation and academic research are designed to promote a flawed conception of reconciliation in a cynical attempt to whitewash impunity and control the narrative of the past.

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