[Joint House and Senate Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
THE GOOD FRIDAY AGREEMENT AT
TWENTY YEARS: ACHIEVEMENTS
AND UNFINISHED BUSINESS
=======================================================================
HEARING
before the
COMMISSION ON SECURITY AND COOPERATION IN EUROPE
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
MARCH 22, 2018
__________
Printed for the use of the
Commission on Security and Cooperation in Europe
[CSCE 115-2-2]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via www.csce.gov
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U.S. GOVERNMENT PUBLISHING OFFICE
29-384 PDF WASHINGTON : 2018
COMMISSION ON SECURITY AND COOPERATION IN EUROPE
LEGISLATIVE BRANCH COMMISSIONERS
HOUSE
SENATE
CHRISTOPHER H. SMITH, New Jersey, ROGER F. WICKER, Mississippi,
Co-Chairman Chairman
ALCEE L. HASTINGS, Florida BENJAMIN L. CARDIN, Maryland
ROBERT B. ADERHOLT, Alabama JOHN BOOZMAN, Arkansas
MICHAEL C. BURGESS, Texas CORY GARDNER, Colorado
STEVE COHEN, Tennessee MARCO RUBIO, Florida
RICHARD HUDSON, North Carolina JEANNE SHAHEEN, New Hampshire
RANDY HULTGREN, Illinois THOM TILLIS, North Carolina
SHEILA JACKSON LEE, Texas TOM UDALL, New Mexico
GWEN MOORE, Wisconsin SHELDON WHITEHOUSE, Rhode Island
EXECUTIVE BRANCH COMMISSIONERS
Vacant, Department of State
Vacant, Department of Commerce
Vacant, Department of Defense
[ii]
THE GOOD FRIDAY AGREEMENT AT
TWENTY YEARS: ACHIEVEMENTS
AND UNFINISHED BUSINESS
----------
March 22, 2018
COMMISSIONERS
Page
Hon. Christopher H. Smith, Co-Chairman, Commission on
Security and Cooperation in Europe............................. 1
Hon. Benjamin L. Cardin, Ranking Member, Commission on Security
and Cooperation in Europe...................................... 3
MEMBER
Hon. Brendan Boyle, a Member of Congress from the State of
Pennsylvania (D-13)............................................ 4
WITNESSES
Brian Gormally, Director, Committee on the Administration of
Justice........................................................ 5
Judge James F. McKay III, President, Ancient Order of Hibernians. 9
Mark Thompson, Director, Relatives for Justice................... 12
APPENDIX
Prepared statement of Hon. Christopher H. Smith.................. 29
Prepared statement of Brian Gormally............................. 31
Prepared statement of Judge James F. McKay III................... 36
Prepared statement of Mark Thompson.............................. 42
Prepared statement of Geraldine Finucane......................... 49
THE GOOD FRIDAY AGREEMENT AT
TWENTY YEARS: ACHIEVEMENTS
AND UNFINISHED BUSINESS
----------
March 22, 2018
Commission on Security and Cooperation in Europe
Washington, DC
The hearing was held at 9:30 a.m. in Room 2200, Rayburn
House Office Building, Washington, DC, Hon. Christopher H.
Smith, Co-Chairman, Commission on Security and Cooperation in
Europe, presiding.
Commissioners present: Hon. Christopher H. Smith, Co-
Chairman, Commission on Security and Cooperation in Europe; and
Hon. Benjamin L. Cardin, Ranking Member, Commission on Security
and Cooperation in Europe.
Member present: Hon. Brendan Boyle, a Member of Congress
from the State of Pennsylvania (D-13).
Witnesses present: Brian Gormally, Director, Committee on
the Administration of Justice; Judge James F. McKay III,
President, Ancient Order of Hibernians; and Mark Thompson,
Director, Relatives for Justice.
HON. CHRISTOPHER H. SMITH, CO-CHAIRMAN, COMMISSION ON SECURITY
AND COOPERATION IN EUROPE
Mr. Smith. The Commission will come to order. And good
afternoon to everybody. I want to begin by welcoming our
distinguished witnesses and everyone else in the room joining
us for our hearing on the achievements, with a special focus on
the unfinished business, of the April 10th, 1998 Good Friday
Agreement. As most of you know so well, the signing of the Good
Friday Agreement 20 years ago was truly historic,
extraordinarily difficult to achieve, a remarkable framework
for peace and the hope for beginning of reconciliation.
In its most important provisions, the agreement launched a
series of challenging protocols, by which the leaders of the
nationalist and unionist communities in Northern Ireland agreed
to a better governance, and peaceful resolution of differences.
Prisoner releases, new government structures, British
demilitarization of the North, the decommissioning of
paramilitary weapons and systemic police reform were achieved
to varying degrees over the last 20 years. In the 30 years
between 1969 to 1998, approximately 3,500 people were killed in
political violence, while in the 20 years since the Good Friday
Agreement fewer than 100 have lost their lives.
I have personally chaired 15, now 16 counting this one,
congressional hearings and markups of legislation with a
special focus on police reform and the need to establish a
public, independent judicial inquiry into the state-sponsored
collusion in the murder of human rights attorney and activist
Patrick Finucane and others who were gunned down--or, in the
case of Rosemary Nelson, killed by a bomb. I also offered
legislation that was adopted by the House of Representatives
that put the House on record condemning violence and promoting
peace and justice in Northern Ireland and police reform. And I
just recently introduced H. Res. 777 which, again, calls for a
recommittal of the United States, the British, and all
parties--including the Republic of Ireland--to the peace
process.
The most contentious of my amendments over the year, one of
which became law, resulted in suspending all U.S. support for
and exchanges with the British police force in Northern Ireland
and the Royal Ulster Constabulary (RUC) until standards were
met to vet RUC officers who engaged in human rights abuses.
Those new standards were set and eventually then-President Bush
was able to certify, in accordance with my law, that human
rights principles were part of police training going forward,
both in the RUC and in its replacement police force, the Police
Force of Northern Ireland, or PSNI. With the improvements, the
police exchanges were resumed.
That is the good news. But as the 20th anniversary of the
Good Friday Agreement milestone approaches, serious attention
and effort to be paid to achieving the dream. First and
foremost, the government in Northern Ireland seems unable to
consistently function or even constitute itself. Also, after 20
years, despite many obvious successes and benefits of the Good
Friday Agreement, and although no one wants to scrap it--and
who would want to return to the killing--the reconciliation to
some extent has stalled. One of the reasons is that the long-
standing cases have not been resolved.
You know, we got testimony on numerous occasions--Geraldine
Finucane and her son Michael have been here to testify. She has
submitted testimony for today's hearing. And she points out,
and I quote in part, ``My family has campaigned for a public
inquiry into Pat's murder, but the British Government has
repeatedly failed to establish one. Instead, they have
instigated one confined investigation after another, claiming
to want to examine the facts or get to the truth, but always in
a process conducted away from public view. One cannot but
wonder at the pointlessness of conducting investigation after
investigation that are doomed to fail, no matter how forceful
the conclusions, because they lack the transparency required to
attain public confidence.''
As Geraldine points out further in her testimony, the 1998
agreement represent a new beginning that would mark a point
with the new future for everyone in Ireland, north and south,
could be launched. What was not acknowledged or appreciated,
however, was the fact that moving forward also meant dealing
with the past. And of course, that is something that this
commission and my Subcommittee on Human Rights has tried to do
for the last 20-plus years.
I would like to just point out too, in testimony that's
been provided to us by the Committee on the Administration of
Justice--again, a very important quote from them, ``In a highly
disturbing development, and notwithstanding the reality that
only a small number of legacy cases relate to British soldiers,
a recent report of the Commons Defense Select Committee called
for the enactment of a statute of limitations covering all
troubles related to incidents involving members of the armed
forces. This concept effectively means a selective amnesty for
crimes committed by British soldiers.''
The committee also suggested that it be extended to the RUC
and other security force members. This position is, of course,
completely contrary to human rights standards and, if it were
enacted, would probably be found unlawful by the courts.
Nevertheless, the U.K. Government has said that it will include
the proposed in a forthcoming consultation on the
implementation of the Stormont House Agreement. That is a
dangerous, I think, backtracking on the part of the British
Government. And hopefully they will cease and desist in moving
in that direction.
Without objection, my full statement will be made a part of
the record. Geraldine Finucane's statement will be made part of
the record. We're joined by the ranking member of the Helsinki
Commission, Senator Ben Cardin.
HON. BENJAMIN L. CARDIN, RANKING MEMBER, COMMISSION ON SECURITY
AND COOPERATION IN EUROPE
Mr. Cardin. Well, first, let me thank Chairman Smith for
convening this hearing. There's a lot of lessons to be learned
in regard to the Good Friday Agreement. And it's particularly
appropriate that the Helsinki Commission would hold this
hearing on this 20th anniversary.
And I want to welcome our panelists, our guests, our
witnesses for their testimony. And I'm going to apologize
early. As you know, there's been an agreement reached on the
budget and we have a Finance Committee session on this in 20
minutes. So I apologize for having to leave. But I wanted to be
here.
I was in Belfast, as I know Chairman Smith was in Belfast,
during the troubled times. And what I saw in the early 1990s in
Belfast was a segregated city that I have never seen the likes
of which, where it was literally not safe to cross the street
between the Protestants and the Catholics. The problems--and
that's what it was called, the Troubles--in Northern Ireland
lasted 30 years of active conflict, where 3,500 people lost
their lives. So we celebrated a framework for peace, the Good
Friday Agreements, the Belfast Agreements, because it set us up
with a way to end this bloody conflict. And it represented, I
think, the best of the Helsinki principles for using democratic
process for peaceful resolution of a conflict.
But as Mr. Smith has already laid out, there are still
problems. Twenty years later we still have problems. Coming to
terms with the past has not been easy. Providing justice for
the victims has not been easy. And now we have Brexit, which
changes the open borders between Ireland and the U.K., which
very much complicates the implementation of the peace
agreements. And we have a lack of developed government from
Northern Ireland that can deal with a lot of these issues. So I
do believe returning to Helsinki principles is particularly
important to make sure that the progress that was made 20 years
ago is not lost. And therefore, I think this hearing is
particularly important. And I wanted to stop by and just
reinforce the work that's being done here and to thank our
witnesses for being here.
Mr. Smith. I want to thank my good friend and colleague Ben
Cardin. We have worked side-by-side for decades, including on
Northern Ireland. So I want to thank you for taking the time
out and hope you're not late to your meeting. [Laughs.] Thank
you.
I'd like to yield to Mr. Boyle.
HON. BRENDAN BOYLE, DEMOCRATIC REPRESENTATIVE FOR THE STATE OF
PENNSYLVANIA
Mr. Boyle. Thank you. I'd like to thank Congressman Smith
and Senator Cardin.
As a member of the Foreign Affairs Committee, some know, I
for quite some time pushed to have a hearing on the
consequences of Brexit, which we were able to have actually in
this hearing room, because I am very concerned that this
current Brexit process would yield the collateral damage of the
Northern Ireland peace process which so many here in the United
States and in Ireland and in the U.K. worked hard to create and
foster.
Recently--let me take a step back. For about 19\1/2\ years
of the last 20, the Good Friday Agreement has been accepted as
the accomplishment in which we can all take pride, and the
unquestioned gold standard moving forward. That was and is the
position of Democrats and the Republicans here on Capitol Hill,
the position of all of the political parties in Dublin, and was
the position of all the political parties in the U.K. Very
recently some in London have made comments about the Good
Friday Agreement to the effect of, ``this doesn't need to last,
wasn't meant to be set up forever.'' That is a very disturbing
backsliding, the likes of which we have not heard for the
previous 19\1/2\ years. Former Prime Minister John Major was
right when he spoke out recently against such dangerous
rhetoric.
So as we gather here to observe and celebrate the 20th
anniversary of the Good Friday Agreement, we should be very
loud in repeating the successes of this agreement. No, it's not
perfect. I'm very disappointed about some of the aspects that
have not yet been implemented. And I'm sure we're going to be
talking about those. But to all of a sudden suggest that the
Good Friday Agreement can just be ripped up and thrown out, as
some irresponsible voices have said, is very disturbing. And I
think that I speak for Democrats and Republicans on the Foreign
Affairs Committee and, indeed, in Congress, that there is
absolutely zero support in Washington, DC. for going back to
the days of pre-Good Friday Agreement.
So with that, I thank you for your long-standing interest
and activism on this issue, Chairman Smith. And happy to yield
back.
Mr. Smith. Well, we're very grateful to have a great,
distinguished panel with us this morning, beginning with Brian
Gormally, who is the director of the Committee on the
Administration of Justice (CAJ), a leading human rights
advocacy organization in Northern Ireland. For over a decade,
before he was an independent consultant specializing in
justice, human rights, and equality issues, and has published
and presented extensively on these issues--particularly on
politically motivated prisoner release, victims of terrorism,
dealing with the past and restorative justice. He has been
involved in international peace-related work in South Africa,
Israel, the Basque country, and Italy, and more recently in
Colombia.
We'll then hear from Judge James F. McKay III, who is the
national president of the Ancient Order of Hibernians [AOH],
founded in 1836. The AOH is America's oldest Irish Catholic
fraternal organization, with more than 80,000 members and has
been active in supporting the peace process in Northern
Ireland. Long active in Irish affairs, Judge McKay is an
honorary counsel of Ireland in Louisiana, and serves as chief
judge of Louisiana's 4th Circuit Court of Appeals.
We'll then hear from Mark Thompson, who is founder and
member and CEO of Relatives for Justice, a human rights
advocacy and support organization for survivors of the conflict
in Northern Ireland. Mr. Thompson has decades of experience in
proactively holding those responsible to account and ensuring
that the needs and experiences of the victims of the conflict
are identified and championed. He has made representation on
families' behalf--at U.S. Congress, the United Nations,
European Parliament, European Court, as well as to governments
in both Britain and in Ireland.
Mr. Gormally, the floor is yours.
BRIAN GORMALLY, DIRECTOR, COMMITTEE ON THE ADMINISTRATION OF
JUSTICE
Mr. Gormally. Thank you very much, Mr. Chairman. And thank
you for the invitation to give testimony to this commission,
which is certainly famous in Ireland for keeping the issues
about the peace and human rights in Ireland alive in this
place. And we're very grateful for that.
We're honored to be giving evidence to this commission on
the occasion of the 20th anniversary of the Belfast Good Friday
Agreement. As has already been said from the podium, this
agreement has given us 20 years of relative peace. Following a
disastrous 30-year violent political conflict, that is
something worthy of celebration. CAJ is an organization devoted
to the protection and promotion of human rights. Since we know
that violent conflict always involves a bonfire of human
rights, protecting and promoting the peace settlement is our
top priority.
The peace agreement was designed to create a political and
geographical space which could be shared by those with
different national aspirations and allegiances. To do this, it
recognized the right of the whole people of the island of
Ireland to self-determination, and the right of the people of
the North to vote to join a united Ireland. It declared that it
was the birthright of those born in Northern Ireland to be
Irish or British or both and established a form of government
that would mean that one community could not dominate the
other. To underpin all of that, however, was an infrastructure
of proposed legislation and institutions which would guarantee
that the Northern Ireland of the future would be a rights-based
society.
The commitments to protecting human rights in legislation
included a promise to incorporate the European Convention of
Human Rights into domestic law, a bill of rights for Northern
Ireland, including additional rights, a Single Equality Act, an
Irish Language Act, and a duty to be placed on public
authorities to consider the equality impact of any policy. In
addition, a series of acts will be required to implement the
recommendations of the Patten Commission on a thorough reform
of policing. Institutionally, the Agreement established a new
Human Rights Commission with extensive investigative and
legislative oversight power, and an equality commission to
enforce the public equality duty.
The reality is that while huge advances have been made, and
society in the North is now very different than that of 20
years ago, there are outstanding commitments and unfilled
promises which weaken the peace process, which the written
testimony I've given to the commission gives more details
about.
Let me just look briefly at the question of policing.
Policing is particularly important in establishing trust in
institutions of society and in the rule of law. Huge progress
has been made. In many respects, the police service of Northern
Ireland tries to live up to the Patten Report's statement that
the purpose of policing should be the protection and
vindication of the human rights of all. There should be no
conflict between human rights and policing. Policing means
protecting human rights.
Our systems of accountability and oversight, especially the
independent ombudsman with its own investigators, should be a
model for democratic policing throughout the world. However,
areas of concern remain. The unaccountable and secret security
service, or MI5, has primacy for national security intelligence
policing in the North, which is a huge gap in accountability.
The Police Service of Northern Ireland (PSNI) is also obliged
to support the activities of the U.K. border force and
immigration enforcement, which have a history of human rights
abuses and no local accountability. We also believe that
there's prima facie evidence of the police unlawfully using
counterterrorism powers in immigration enforcement.
Elements of the police are also responsible for some of the
delay and obfuscation in dealing with the past, which we'll go
into more detail later. The control of intelligence material by
officers who served in the RUC Special Branch, its over-
classification as top secret, and the willful failure to
expedite the production of evidence to inquests and courts are
all continuing problems. It's arguable, however, that the main
area in which continuing human rights violations undermine
society and threaten the peace process is one not properly
covered by the peace agreement. That is the continuing search
for impunity by the U.K. State for the action of its agents
during the conflict.
Combating impunity is one of the foremost preoccupations of
human rights activists throughout the world. The reasoning is
simple: If impunity persists, there can be no justice or truth
for victims, future perpetrators will be emboldened, and
confidence in the rule of law weakened. These outcomes are
exactly being produced with regard to continuing impunity for
those who violated human rights during the conflict in Ireland.
Victims are dying without seeing justice, or even serious
attempts to achieve it. Torture and other crimes have been
carried out by U.K. security forces in other parts of the
world, and faith in the rule of law is falling away.
The delays, obfuscations, and squeezing of resources by the
U.K. authorities and local allies, which have been detailed
year after year, can only be understood as designed to maintain
an apparatus of impunity. The insistence of security agencies
and ministers having a national security veto over what
information is published is an insistence on impunity for their
agents. That's why combating impunity is CAJ's top priority.
In August 2001, the European Court of Human Rights gave
judgment in a number of cases detailing the investigative duty
that comes under the ``Right to Life.'' To this day, the U.K.
has still not discharged its obligations. And the cases remain
under the supervision of the Committee of Ministers of the
Council of Europe, the body which oversees implementation of
the judgments of the court.
In its decision of September the 21st, 2017, the Committee
of Ministers noted with deep concern the lack of progress on
implementing the Stormont House Agreement, which provides for
four mechanisms to deal with the past, and that legacy inquests
have not been funded. The exasperation of the committee with
the procrastination of the U.K. Government is clear. More
important is the hurt of the victim still denied justice, and
the corrosive impact of the lack of institutions to deal with
the past on the present trust in the institutions of state and
the rule of law.
There are some signs of progress in the courts. Exactly a
fortnight ago today the High Court in Belfast held that the
decision of the then-First Minister Arlene Foster to prevent a
request going the British Government to fund legacy inquests
was unlawful. The so-called ``hooded men'' case, in which CAJ
represents the daughter of one of the 14 men caught during 1971
and who died because of it, is being fast-tracked by the court
of appeal, with the intention of getting a swift judgment from
the Supreme Court in the application and investigative
obligation in both right to life and torture cases.
However, there's been a negative development in
jurisprudence. The judgment in the Irish application for the
revision of the European court of human rights judgment in
Ireland versus the U.K.--which in 1978 made the disastrous
distinction between torture and inhuman and degrading treatment
in respect of the hooded men--was delivered on the morning of
Tuesday the 20th of March. This is a narrow and largely
technical decision by the European Court of Human Rights, but
it is hugely disappointing in that it leaves the unjustified
distinction between ``torture'' and ``inhuman and degrading
treatment'' intact. However, we should remember that the
Article 3 prohibition on all such treatment, whatever the
definition, is absolute. Those who have sought to justify
brutal interrogation methods on the basis of the 1978 judgment
are still wrong in law and barbaric in their practice.
For the last four years we've been expecting the U.K.
Government to publish legislation to implement the Stormont
House Agreement. We're now told the text will be published
after Easter consultation. It remains to be seen whether this
will be a good faith attempt to implement the agreement in a
human-rights-compliant manner, or another way of delaying and
denying truth with a blanket national security veto on
information to be released to families. The Chair has already
read the piece of our evidence about the so-called statute of
limitation called for by certain elements in the British
establishment.
So let me move now onto the fact that it's impossible to
continue a discussion on the status of the Good Friday
Agreement without mentioning Brexit, the decision by the U.K.
to leave the European Union. This will have a profound effect
on the legal and constitutional underpinning of the present
jurisdiction of Northern Ireland, its relations with the Irish
State, and U.K.-Ireland bilateral relations. The U.K. and
Ireland's common membership of the EU was an assumption in the
Good Friday Agreement, and the U.K.'s adherence to EU law
regulates the powers and legislative operations of the involved
institutions.
The equal rights of Irish and British citizens, a principle
of the Good Friday Agreement, in great part relies on the equal
rights of both as having EU citizenship. The lack of
significant border regulation is largely due to common
membership of the EU, North and South, as well as the improved
security situation. The U.K.'s clamp down on immigration after
Brexit may turn Northern Ireland into one big border with
enhanced enforcement and serial human rights abuses. Many
equality and anti-discrimination provisions in Northern
Ireland, which have particular importance in a divided society,
rely on EU law.
Furthermore, the decision to leave the EU based on a U.K.
referendum, in which Northern Ireland as well as Scotland voted
to stay, is an affront to the principle of self-determination
of the Irish people, which is a foundation stone of the
agreement. All of these impacts could have a destabilizing
effect on the constitutional, political, and legal settlement
that, in the main, ended the political conflict which
devastated the people of Northern Ireland and gravely affected
those in the rest of the U.K. and Ireland.
While it's unlikely that any one particular effect of
leaving the EU would destroy the peace settlement, the
cumulative impact could begin to unravel it. In particular, any
diminution in the protection of rights of the people living on
the island could reduce trust in the Good Friday institutions.
And any unraveling of the settlement would be disastrous for
human rights. A continuing preoccupation of CAJ will,
therefore, be the protection of the integrity of the peace
settlement, and the various agreements that make it up.
We would like to commend this commission for holding this
hearing and to support the resolution that has been put to
Congress. The Good Friday Agreement is one of 20 years of
relative peace, but the goal of making that peace permanent,
based as it must be on a rights-based society, remains to be
achieved.
Thank you, Chairman.
Mr. Smith. Thank you very much for your testimony. Without
objection, your full statement will be made a part of the
record. And as usual, thank you--it's very thorough and, as
always, full of recommendations.
I'd like to now yield to Judge McKay such time as he may
consume.
JUDGE JAMES F. MCKAY III, PRESIDENT, ANCIENT ORDER OF
HIBERNIANS
Judge McKay. Good morning Mr. Chairman and distinguished
members of the commission. It is an honor to be here today to
discuss the 20th anniversary of the Good Friday Agreement. In
addition to my day job as chief judge of the Louisiana 4th
Circuit Court of Appeal, I also serve as honorary counsel for
Ireland to the State of Louisiana, as well as national
president of the Ancient Order of Hibernians (AOH). It is in
that role as president of the AOH that I testify before you
today.
The Ancient Order of Hibernians is the oldest Irish
Catholic fraternal organization in the United States and
originally founded in 1836. And along with our sister
organization, the Ladies' Ancient Order, we have almost 80,000
members throughout the United States. And not just in places
like Boston, New York, and Philadelphia, but in less obvious
places as well, such as Butte, Montana, Los Angles, California,
and in my hometown of New Orleans, Louisiana. There are an
estimated 33 million people in the United States who claim
Irish heritage.
The world figure is estimated to be around almost 70
million. That means that almost at least half the diaspora
reside here in the United States. In fact, we often hear it
said around St. Patrick's Day that there are only two kinds of
people in the world--the Irish, and those who wish they were.
And even though that's just a joke, there is no question that
for a country roughly the size of the State of West Virginia,
Americans do pay a great deal of attention to the Irish. And it
is this connection between America and Ireland that
organizations like the AOH continue to celebrate and foster.
Twenty years ago, a document that has come to be known as
the Good Friday Agreement was signed by political
representatives of the people of Northern Ireland and
representatives of the British and Irish Governments. This
historic agreement brought an end to the violence of the
Troubles and introduced peace to a conflict where over 3,500
people had lost their lives in civil unrest.
One of the tenets of the AOH is a quote from Padrig Pearse
which states, ``Ireland unfree shall never be at peace.'' The
Good Friday Agreement delivered peace only because it also
promised freedom. The Good Friday Agreement promised freedom
and reconciliation based on a parity of esteem for both sides
of the divide. The successes of the agreement to date have been
achieved through hard work, the commitment of members of all
the local communities who suffered tragedies during the
Troubles, and by requiring considerable courage from political
leaders who faced hard consequences from their constituencies
in making any concessions. What so many of us can all agree on,
the important role of the United States in securing this
historic deal.
The relationship between America and Ireland goes back to
even before there was a United States. It was Ireland that
first send aid to struggling American colonies seeking their
own independence. George Washington once described Ireland as,
``thou friend of my country in my country's most friendless
days.'' While having Americans insert themselves into the
politics and policies of Ireland was nothing new at the time,
the commitment, leadership, and direct engagement shown by the
U.S. officials during this period was unprecedented.
In fact, I am not entirely sure that we would have had a
Good Friday Agreement had it not been for the engagement of
American officials like President Bill Clinton, Senator George
Mitchell, Senator Ted Kennedy, Congressman Richard Neal, and
Congressman Peter King, just to name a few. They refused to
give up on a deal when tensions became too high or certain
groups walked away from the negotiating table and ensured that
the ``Peace and Reconciliation Agreement'' could be born.
The goals of the Good Friday Agreement were meant to give
the future back to the people of Northern Ireland, unshackled
from the legacy of the past. For the first time in a very long
time, simple things like everyday grocery shopping, worshiping
on Sundays, or taking family outings on holidays could be
conducted without fear or trepidation. And during the past 20
years, a generation has grown up in the North without knowing
the fears and anxieties that constant violence inflicts upon
communities.
Further, we have come to learn that peace brings
prosperity. The economy of the North has made significant
advances since the Troubles. And despite setbacks from the
global recession, the North of Ireland has seen a growth in
tourism, a growth in foreign direct investment, and a
commitment to increasing the private sector. On a personal
note, it reminds me of the civil rights movement in our
country. During those turbulent times, many sought delay and
postponement of the initiatives. But because of their moral
weight, they were achieved. Just as in Ireland, this is an
ongoing mission and it must be worked at every day if success
is to continue.
So, while we recognize the great strides that have been
made in the last 20 years in all sectors, final peace has not
yet been achieved in the North. We praise the efforts of
Senator George Mitchell and other subsequent envoys of the U.S.
to Northern Ireland. And we praise the work of all the
politicians on the ground who made the Good Friday Agreement a
reality. However, the GFA was merely the beginning of a process
aimed at creating a fair and equitable society for all the
communities of the North.
At an event just last week at the Library of Congress to
commemorate the 20th anniversary of the Good Friday Agreement
in a pre-recorded message for attendees, President Clinton told
the audience that there is still significant work to be done in
the North. He challenged us to seize this moment of memory and
move into the future together. The AOH agrees with President
Clinton. We believe the time is now for the United States to
recommit itself to the principles of the Good Friday Agreement.
In fact, the AOH has repeatedly requested that this
administration fulfill its commitment to appoint a special
envoy to Northern Ireland immediately.
This is an extremely critical time for the North. As
political parties continue to attempt to form a sustainable
government, while addressing the fears and anxieties of Brexit,
we believe that America must reaffirm through the presence of a
special envoy that the peace and well being of the community of
the North is still a priority of the United States and America
is willing to walk with the representative of those communities
on the road to a lasting peace.
I believe that it is important note that the AOH in America
has been, and will be in the future, working for the
unification of Ireland. The preamble of our AOH Constitution
states that the purpose of our organization is to promote
``friendship, unity, and Christian charity, and to aid and
advance by all legitimate means the aspirations and endeavors
of the Irish people for complete and absolute independence,
providing peace and unity for all of Ireland.''
That being said, we understand that this cannot be
accomplished overnight, and complete independence can only be
achieved when a majority of the people on both sides of the
border wish it to happen.
For over 30 years, the AOH has been engaged with a variety
of organizations in the North and poured hundreds of thousands
of dollars into organizations that provide assistance for
charities and agencies to aid and advance, by all legitimate
means, the aspirations and endeavors of the Irish people. We in
our own way continue on the efforts of successive U.S. envoys
to bridge the gaps of ignorance and mistrust. And our donations
sent to Northern Ireland each year go to a variety of cross-
appeal organizations.
Additionally, the AOH supports the promotion of the Irish
language in Ireland, which has garnered much media attention as
a cause, but not the only one, for the failure to restore the
power-sharing government. It is incredulous that anyone would
have an objection to the Irish language being taught and used
in Ireland. We note that the acts supporting and promoting
indigenous languages in other parts of the United Kingdom,
specifically Scotland and Wales, have long been enacted. To
those who ask if the study of language should be a barrier to
forming a government we respond that if something as benign as
the promotion of the Irish language cannot be resolved, then
what hope is there to address more contentious issues? We
believe that the issues of identity should always be on the
table for discussion and can be addressed better if an
impartial outsider, like an American envoy, chairs these
discussions.
One of the many groups that we support monetarily on an
annual basis is Relatives for Justice, who are certainly here
with us today. This organization works for truth and justice
for victims and survivors of the victims during the Troubles.
Utilizing a third party--in this case, the U.S. envoy again--to
help address some of these legacy issues is critical to finding
a path forward. For example, the Stormont House Agreement was
signed in 2014 and provides a comprehensive framework to
address legacy issues and needs to be fully implemented. The
AOH believes that many legacy issues should be handled with a
third-party negotiator involved, to give credibility to the
impartiality and transparency of the process.
In addition to addressing legacy issues, the people of
Northern Ireland are now forced to deal with concerns
surrounding Brexit and how the North may be impacted. Today the
local people of Northern Ireland can cross the border multiple
times in any given day for work, for school, for shopping, for
life. The dissolution of the U.K.'s membership in the European
Union has once again raised the specter of a ``hard border'' in
which all affected communities are in rare unanimity.
To avoid this disastrous consequence of a hard border in
Ireland, compromises will be needed by all parties. The AOH
believes it's yet another excellent reason to appoint a special
envoy who can impartially facilitate finding common ground to
begin and exhibit trust in carving out the future. History has
proven the majority of today can be the minority of tomorrow.
And the blanket of protections enacted today will equally cover
those who may feel they do not currently need them. There is no
question that Senator Mitchell understood this fact 20 years
ago, which is why it is so crucial to find an equitable path
for all parties.
Certainly, one of the most respected members of government
from the nationalist side was my friend Martin McGuinness. In
fact, I don't think most people recognized his stature until
after his death. What he believed in can be reduced to four
basic principles: those of self-determination, respect,
equality, and truth. The AOH in America fully supports these
espoused principles and believe that they are in keeping with
the best values of the organization--truth, respect, equality,
and self-determination.
God only knows the future of Ireland. And we can only
continue to do what we have done in the past. And that is to
support the efforts and the principles of the Good Friday
Agreement and continue to spread the word to all who will
listen of the achievements that have been made to this date.
Thank you, Chairman.
Mr. Smith. Judge, thank you very much for your very strong
and eloquent statement and recommendations.
I'd like to now yield to Mr. Thompson.
MARK THOMPSON, DIRECTOR, RELATIVES FOR JUSTICE
Mr. Thompson. Thank you, Mr. Chairman. I'd like to take
this opportunity to thank this very distinguished commission
that has held quite a number of hearings since the Good Friday
Agreement, assisting the progress of human rights, truth, and
justice in our country. I'd also want to thank your staff and
everyone involved in facilitating this hearing.
Dealing with the past, in which multiple harms and
egregious human rights violations have occurred--not least
systemic abuses that had official government sanction--is a
prerequisite of any post-conflict transformation. Righting the
wrongs of the past, truth seeking, and accountability, are an
imperative to individual and societal recovery and healing, the
restoration of human dignity, and the promotion and protection
of human rights. No one community has a monopoly on the human
heartache that was our conflict. We all suffered. However, in
terms of accountable justice there exists a huge deficit for
those affected by state violence and collusion. And it is no
coincidence that these families face innumerable barriers to
justice.
There is powerful resistance to a process that addresses
the past in the North of Ireland, in an openly transparent,
legally compliant, and, above all, independent way. The
resistance emerges from people within the police, the military,
some institutions, political unionism, and the British
Government, who are not neutral.
They all seek to maintain a false narrative of the past and
about their true role and extent in the conflict. This
position, therefore, necessitates the denial of rights and
ultimately accountable justice. Moreover, this position is
unsustainable if there is to be meaningful change and the full
implementation of all envisaged in the Good Friday Agreement.
Two weeks ago in the Belfast High Court, Justice Paul
Garvin ruled that former First Minister Arlene Foster acted
illegally and with improper political motive when she blocked
attempts by the North's foremost legal representative, the Lord
Chief Justice Sir Declan Morgan, to secure funding for legacy
inquests into 55 cases involving 97 killings, inquests where
families have waited up to four decades to hear.
At the same time, in an adjoining courtroom, Justice
Bernard McCloskey finally removed himself from a hearing in
which the former head of RUC Special Branch, Raymond White,
challenged the police ombudsman's powers and findings into the
Loughinisland massacre, which evidenced RUC collusion.
He delivered a scathing preliminary judgment against the
police ombudsman, but it was then discovered that he had
previous acted for the police and the head of Special Branch
when they challenged the police ombudsman report into the 1998
Omagh bomb, in which Nuala O'Loan, then police ombudsman, was
highly critical of the Special Branch. Her criticisms included
prior intelligence about the planned attack from an agent
within the organization responsible, which might well have
prevented it. The McCloskey judgment, upheld strikingly similar
submissions advanced by the same judge acting as a lawyer for
the same former head of the RUC Special Branch Raymond White on
that occasion. The case will now be held afresh.
As a consequence, the police ombudsman is only able to
publish several major reports into killings involving collusion
until the court case concludes. This rear-guard action by the
former of RUC Special Branch is also designed to stall and
frustrate the process of accountability. With appeals and
challenges, it may take several years to conclude, which is
time families don't have. The current police ombudsman, who has
the confidence of families, has approximately 15 months left to
serve as head. The objective is, we believe, to remove him.
More recently, in the same High Court, the PSNI chief
constable, George Hamilton, was found to be in contempt by
Justice Ben Stephens for refusing to provide disclosures in a
civil case taken by John Flynn in respect to a series of murder
bids on Mr. Flynn by the notorious Mount Vernon-based Ulster
Volunteer Force (UVF), a sectarian criminal gang in which
multiple gang members worked for the RUC Special Branch. Police
Ombudsman Nuala O'Loan, who testified before this commission on
more than one occasion, produced a report entitled ``Operation
Ballast,'' which detailed the activities of this group.
At the same time, in an adjacent criminal court, families
who had loved ones killed by the UVF gang based on Mount Vernon
observed as its leader Gary Haggerty was being sentenced for a
series of criminal activities, including murder. Haggerty,
himself a Special Branch agent throughout his reign of terror,
had become an assisting offender in 2009. As an assisting
offender, Haggerty spent seven years providing evidence on all
of his activities and accomplices, including his Special Branch
handlers who directed his activities and who covered up his
actions--evidence which the courts accepted as credible.
Families accepted that Haggerty would get a reduced
sentence as an assisting offender, but this was mitigated
somewhat in that they would also see his Special Branch
handlers in the dock as well as his fellow loyalists as part of
this process. None of this happened, despite promises by the
PSNI and the Public Prosecution Service throughout. The matter
is now subject to a judicial review by the McParland and
Monaghan families, who lost loved ones. It is suspected that
the reasoning behind the deliberate failure to disclose
evidence in the Flynn case is to protect the same group of
agent handlers within RUC Special Branch also involved with
Haggerty and shield them from prosecution.
These matters bring into sharp focus the independence of
the PSNI, where a cabal of former RUC officers who transferred
over to the PSNI now hold senior positions and now control
dealing with the legacy of the past. Astonishingly, this
stranglehold on legacy involves some of the 20 percent of
former RUC who took the incentivized redundancy retirement
package to leave and to enable change and fresh faces to come
into place, but they simply returned as consultants and
civilian workers the following week. Astonishingly, in this
civilianized capacity, former RUC within the PSNI are not
subject to the oversight powers of the independent police
ombudsman, a loophole that the U.K. and political unionism
refused to rectify.
Taken together with the overall position of the PSNI on
legacy, this has had a corrosive effect on nationalist
confidence in policing, which is now at an all-time low.
The 2009 offer to Haggerty came--strangely or not--from
MI5, the PSNI, and the Public Prosecution Service. The blurring
of boundaries and interference in due process calls into
question, at the very least, the very institutions of justice,
and of course this is nothing new.
The trial of British Army Force Research Unit (FRU) agent
Brian Nelson in 1992 saw the then-British Attorney General
Patrick Mayhew direct the prosecution against him following
interventions by the U.K. Government in a bid to protect Nelson
from taking the witness stand and disclosing his full
activities, including murder. A deal was struck for Nelson's
silence. And in return, 20 counts were removed from the
indictment, including 2 of murder.
1988, the same attorney general told the British Parliament
that it would not be in the public interest to proceed with
prosecutions against RUC officers from a specialist unit known
as E4A involved in a series of deliberate shoot-to-kill
incidents of unarmed republicans. The collusive activities of
the FRU and RUC Special Branch were the subject of three major
inquiries by the then-U.K.'s most senior police officer, Sir
John Stevens. These took place from September 1989 until April
2003.
His inquiries found collusion and he recommended that 25
members of the FRU and RUC Special Branch be prosecuted. This
was never acted upon. Sir John Stevens later told the British
parliamentary committee that of the 210 people he arrested
during his inquiries--that is, not members of the police and
the military--of those 210, 207 were working inside
paramilitary organizations for the British State.
And so we see a pattern where accountability is thwarted
and prevented when involving state killings, its agents
operating inside illegal paramilitaries involved in murder, and
those agent handlers directing and protecting them. It is about
shielding British State conflict policy and practices of
wrongdoing on a massive scale that, if uncovered, would
completely tilt the conflict narrative.
It is about protecting the reputational damage this would
inflict on the U.K. also. It is also about where this leads to
in London and, importantly, to whom. Who sanctioned all of
this? It is precisely why there exists so much opposition to
addressing the legacy of the past.
The pattern of insulating and protecting against such
situations of exposure can also be seen across a range of
institutions and proposed mechanisms to deal with the past.
Take, for example, the agreement reached in December 2014 at
Stormont House to address the past. Post the agreement, the
U.K. Government arbitrarily inserted a ``national security''
veto into draft legislation, enabling the retention and
nondisclosure of information and material in any case they
deemed to be necessary. Charlie Flanagan, who is the minister
who negotiated the agreement on behalf of the Irish Government,
described this as a ``smothering blanket'' of national security
that was completely ``unacceptable.''
More recently in correspondence to Relatives for Justice,
the British secretary of state for the North said that any
consultation on the implementation of the Stormont House
Agreement mechanisms to address the past would also include a
statute of limitations for British soldiers, an amnesty. This
would be unacceptable and illegal.
One of the main arguments proffered for systemic delays in
addressing legacy is a lack of resources and funding. This has
dramatically impacted the police ombudsman office and the
inquest courts, with budgetary cuts despite the increasing
caseload. It is no coincidence, therefore, that these also
happen to be the only two functioning mechanisms that currently
contain the potential to deliver the truth and accountability
for families. Now their capacity is hampered.
By contrast to the resource argument, the PSNI and other
agencies have paid out tens of millions of pounds in a range of
civil cases in order to forgo having to disclose information
about collusion. So the argument is false. It is in this
overall context that resistance by the U.K., supported by
political unionism, to addressing the legacy of the past in a
meaningful, constructive, independent, and legally compliant
way must be viewed.
As a signatory to the European Convention on Human Rights,
the U.K. are legally obligated to conduct thorough and
independent investigations in accordance with Article 2 of the
Convention, the Right to Life. Under the Convention, states
must take measures where life is potentially under threat,
ensuring safety, and where life is taken then they must ensure
investigation meets the above standards.
In truth, the U.K., through its security and intelligence
agencies, issued threats to citizens, denied them protection,
and assisted in every conceivable way those they then sent to
kill them. This is the conclusions of the Stevens inquires, the
De Silva Review, and the Police Ombudsman. It is why the former
U.K. Prime Minister David Cameron apologized to the Finucane
family. In short, Article 2 must govern and be at the heart of
any future mechanism to address the past. This legal
obligation, it would appear, has proven hugely problematic for
the U.K. authorities. Hence, the national security veto, the
proposed statute of limitations, and the general circling of
wagons.
This is best illustrated in the powerful European body, the
Committee of Ministers to the Council of Europe. Following the
May 2001 European Court on Human Rights ruling in the McKerr
group of cases, where the U.K. domestic investigative
procedures were unanimously found to have been deliberately
prohibitive to establishing the facts and holding to account
the perpetrators in respect to state killings, including
collusion, the court passed a judgment to the Committee of
Ministers for supervision. The role of the Committee of
Ministers is to assist the offending state to remedy the
violations by way of ensuring the proper investigative
procedures, legally compliant with the Convention, are put in
place.
Since May 2001, the Committee of Ministers has refused to
sign off on their supervision of the U.K., having not been
satisfied that the U.K., through its action plans, has
fulfilled its legal obligations. That is 17 years. Families
want truth, the right to know who precisely were behind the
murders of their loved ones, and accountability for it. It is
not acceptable that the U.K. State, rather than meet its legal
obligations to investigate, would prefer first to deny the
truth, then when evidence is revealed, delay processes to
secure justice and accountability, all in the hope that
relatives may simply die off--which is happening.
But other relatives are picking up the baton, continuing
the fight, newer generations. And so families will never give
up. As I said at the outset, accountability for human rights
violations are central to healing and recovery. It enables the
victim to recover that sense of disempowerment often associated
with a wrong committed. Righting that wrong is therefore
ethically, morally, and above all legally imperative, not least
when the finger--the evidential trail--points and leads
directly to those in power--the police, the military and the
government, who carry the duty to protect and prevent
wrongdoing but who, instead, engaged in the practice of murder
and cover up.
In such situations, the necessity to ensure justice and
accountability is, arguably, all the more. Implicit in this
testimony, there has been no police reform when it comes to
dealing with the legacy of the past, only obfuscation.
Implicit, families are actively to the fore in public
discourse, engaged in litigation and other forums, seeking
truth and accountability for past violations, having to
challenge a state standing in their way. The work by families
is about historic clarification, the dignity of truth and
healing. The families we are humbled to work with, the families
engaged in all of this work, are the real heroes of the Irish
peace process.
Finally, I want to put on the record the crucially
important international forum these hearings provide to
families and NGOs engaged in the promotion and protection of
human rights and to secure justice. These hearings, even 20
years after the peace accord, are necessary in assisting and
encouraging a rights-based approach within the context of our
still-developing peace process. A lot has been achieved, but
the reality is, we are not there yet. Your influence,
vigilance, and scrutiny therefore have real meaning and impact
in the work still to be completed. In particular, I want to
acknowledge Congressman Smith for your consistent and dedicated
work over the two decades in seeking to consolidate and build
upon the peace process.
On behalf of the families, we thank you.
Mr. Smith. Thank you very much, Mr. Thompson, for your
extraordinary testimony--incisive, pointing out the coverup.
You know, resource-starving of the police ombudsman is one way
of creating even more of a sense of impunity. And chapter and
verse, you have laid it out so effectively. I continue to be
amazed at both some of the ruling parties and certainly the
British Government don't seem to understand the dishonor that
this continued obfuscation, denying resources so that the
police ombudsman can do its work, produce reports and, of
course, above all, bring prosecutions for those who have
committed high crimes, especially murder, and the collusion
that led to those murders brings nothing but dishonor to the
British Government.
And my hope would be that--we have a resolution, which,
again, recognizes the achievements of the Good Friday Agreement
but also, simultaneously, points out that there are shortfalls.
And in this area--and I misspoke before when I said this
was my 16th hearing. This is my 17th. We actually had a
hearing--and I think you will find this very interesting,
Judge--we had Edward Wallace and Mary Paglione, who were the
presidents of the AOH and the AOH Ladies back in 1997--and I
remember well their testimony.
And, Mr. Gormally, we also had Martin O'Brian, one of many
times that he was here. Matter of fact, it was in Belfast in a
meeting with Martin O'Brian and Rosemary Nelson when she had
multiple death threats made against her by the RUC that we
decided to bring her here. And she testified. And about a half-
year later she was killed in a terrible, terrible assignation.
Her words were haunting. She was warned. And that sense of
impunity and that sense of violence, collusion at the highest
levels of government continues to this day.
We do have some votes, so we will take a brief respite--
four votes are on the floor. But I do have a number of
questions I would like to ask each of you. I would like to
start with one. The statute of limitations issues. In this
country, in any civilized country, there are no statutes of
limitations on murder. And, Judge, as you know, some of our old
civil rights cases that go back to the 1960s, when compelling
information would be brought forth, those who have committed
those crimes can be brought to prosecution. And to think that
this is being hid under the table, covered up, systematically.
I think something that you said, Mr. Thompson, was very--
taken together, the position of the PSNI on legacy has had a
coercive effect on nationalist confidence in policing, which is
now--and this is really a powerful statement--at an all-time
low. And that it has been very low in the past. To think that
it's at an all-time low is frightening.
So if you could just speak to that as soon as we resume
our sitting. And again, I thank you for your testimonies.
[Recess.]
Mr. Smith. The Commission will resume its hearing. And
again, I apologize for the rather long recess. We did have four
votes, and they took a little while to get through.
Let me just ask, if I could, some opening questions. I did
begin to set up the question about the statute of limitations.
If you could speak to that as being--you know, in terms of
jurisprudence, in terms of law, it seems to me that that is an
aberration in the extreme.
So, Mr. Gormally, you might want to speak to that first.
Mr. Gormally. Thank very much, Chairman.
I think the first thing to say is that the idea of a
statute of limitations is foreign to U.K. law anyway. Though
there are certain limitations on occasion in terms of timing,
in civil cases and things like that. But in criminal--serious
criminal cases, anyway, there's no such thing as statute of
limitations. So it's a concept that's been plucked out of the
air, really, in order to avoid the word amnesty, because that
is, in effect, what it would be. And again, an amnesty for a
serious crime, except in certain circumstances of post-conflict
resolution and so on, is completely contrary to international
law. It's highly likely as well it would fall afoul of the
Human Rights Act, the European Convention of Human Rights, even
in terms of discrimination. You can't say that certain
categories of people will be exempt from the application of the
law and others won't be, just on an arbitrary basis.
In all fairness, however, I think one has to say that this
proposal comes from certain elements of the military, of the
conservative party and only certain elements of the Democratic
Unionist Party [DUP], for example, because other people--it
would negatively affect other people who are constituents. For
example, those who see themselves as so-called innocent
victims, as opposed to other people. The perpetrators might be
caught by a general amnesty because the only real way you could
make it legal in terms of discriminating between different
categories would be to make it broader. Now, even that might be
against international law, depending. So it's a kind of an idea
that's come from certain particularly reactionary and blinkered
members, I think, of political society.
And probably isn't even majority-favored by the U.K.
Government. And so I think that the idea that it would be in a
consultation--a formal consultation--allegedly this was
negotiated out with the side agreement, so-called, that Sein
Fein had with the British Government. I mean, we don't know
this, it's only what the parties have said. And we don't know
if it will be back in the consultation if and when it comes
out. But we don't even know when the consultation's going to
come out. We've been promised it year after year and it's never
yet happened. So we'll have to see.
But what it is, is a rather distressing kind of reminder of
the mindset of people who will put the rule of law at risk for
a narrow view of history on the one hand, and a desire for
impunity for certain sections of society on the other.
Mr. Smith. Mr. Thompson.
Mr. Thompson. Yes, well, I concur fully with what Brian
says in respect to it being wrong in terms of human rights and
there being no precedent for it. I think in some senses, there
has been a de facto impunity that has existed during the course
of the conflict in which members of the police and the British
army killed people. The majority killed were unarmed civilians,
over 60 children--that is, people age 18 and under--women,
priests aiding the injured. Two priests were murdered in west
Belfast--one during Ballymurphy, and the following year another
priest in Springhill, where another three children and another
man were killed along with that priest.
I think the sense of it was that the investigative
processes were deeply flawed. We uncovered a secret document
out of the official British records from July 1972 in which the
then-secretary of state for the North of Ireland, the senior
military general officer commanding the commander of land
forces, the police constable, and other senior Tory politicians
in Britain had a conversation that was noted in which they said
it would important to indemnify soldiers from prosecution as
they went into areas and conducted their activities. And in
some senses, that document sets the basis for the de facto
impunity.
Therefore, the domestic investigative processes were
deliberately flawed in holding to account and punishing police
officers and soldiers. But it went beyond that, also the agents
that they had secreted into paramilitary organizations and who
were directed. So all of that clandestine activity, any proper
investigation would uncover it. So, therefore, the
investigative system was deeply flawed. It was not what was
practiced elsewhere in the jurisdiction, for example. Police
investigated themselves. Royal military police investigated
soldiers. The RUC overall conducted what were perfunctory
investigations, resulting in no prosecutions.
The public prosecutor would never make public how he or she
arrived at determinations not to prosecute where prima facie
evidence existed that would have warned of prosecutions. And
thus what happened was that the cases were long-fingered and
sent to an inquest, a colonial process, to which juries could
not return findings of unlawful killing. They were restricted.
And the whole circumstances pertaining to the killings were not
allowed to be discussed. So really what they were, were a sham
process.
So in 1998 Relatives for Justice, along with the Committee
on the Administration of Justice and Families and lawyers
gathered to discuss the impact this had, why in a court in
Belfast could we not get to the facts and we couldn't establish
them? So the investigative process itself was put on trial in
the Article 2 case in 2000 that went to Europe, with the
unanimous decision in May 2001 that the investigative processes
at play, particularly pertaining to state killings and whether
there was collusion, were not compliant legally with the U.K.'s
obligations under the convention.
And that has been the problem for 17 years. The Committee
of Ministers has refused to give a clean bill of health to the
U.K. Government. So Article 2 has presented a huge problem for
the British Government. And any independent process with
transparency that examines these issues will inevitably get to
the bottom of it. So the national security veto, the statute of
limitations, the denial of funding to the coroner's courts, the
denial of funding to the police ombudsman is circumventing all
of these processes, is really designed both to stall and to
prevent the exposure of what really went on.
And that's what's behind us really. It is the U.K.
Government that is stalling and dragging its heels, supported
by political unionism and a cabal of very powerful former
police officers and intelligence people that have influenced
the Tory party around the statute of limitations. As one person
would say to me, a family--they told us for 40 years they never
did anything wrong. Why now do they want an amnesty?
Mr. Smith. Does the coalition government in the U.K. have
any bearing on this issue? Does it affect Theresa May's
perspective in terms of trying to deal with impunity?
Mr. Thompson. Well, of course, the U.K. Government, they're
holding on with a slender majority, of which 10 DUP MPs keep
them in power. And we--you know, there are a number of the--
three DUP MPs have signed the motion for the amnesty, the
statute of limitations in the U.K. Parliament. But as Brian
pointed out, there's a little bit of tension within that party,
insofar as its leader, Arlene Foster, who herself is a lawyer,
had told her party colleagues that if you go down this route
and you seek an amnesty, what will in effect eventually emerge,
if it were to emerge, is that the amnesty would be general to
cover all the actors to the conflict.
And in her constituency, quite a number of people have been
harmed and affected by other actors in the conflict. And that
amnesty then would impact, if it were to be a general amnesty,
right across the board. And they would feel that at the
electoral count, if you will. So there's mixed messages. What
they really want is, they want an amnesty for state forces and
not for anyone else. And that's not possible.
Mr. Smith. Over the years we've had every special envoy
testify at these hearings. Above all, having a presence in
Ireland and Belfast certainly has been a game-changer. Our
resolution, as you know, calls for the establishment of that
envoy. I raised it with Secretary Tillerson in meetings some
time ago, six months ago or more, as well as with the special
envoy on combating antisemitism.
Could you detail for us what you think would be the
positives, so that we can obviously bring that to the State
Department, bring it to President Trump and Vice President
Pence, why that's so important right now to re-establish a
special envoy----
Judge McKay. Congressman, I think--oh, I'm sorry.
Mr. Smith. Please, Judge.
Judge McKay. I certainly think timing is important. And
it's so--I see it in the legal field every day that more things
are going to mediation and arbitration from a practical
standpoint, that people who, like on each side of the legal
argument, can't stand to be in the same room with each other
sometimes. And it's always nice to have someone go take their
request, that's not coming from one of the parties, one of the
litigants.
So I think practically speaking and conceptually speaking,
it's made to order. And we've already seen the results 20 years
ago when it worked so well. So I do think that a trusted third-
party participant sitting down with the litigants is very, very
important.
Especially since there's no government that--Stormont is
dead in the water. And somebody has to take the impetus, and
nobody's willing to move. And I think timing is everything. And
I think, you know, if they tell me in five years, well five
years is too late. Five months may be too late.
Mr. Smith. Gentlemen?
Mr. Thompson. Yes. I would agree there needs to be an
impetus to move things forward. I think that, you know, there--
the U.K. likes to present itself as a neutral player in this
situation, or a facilitator. And that's quite disingenuous.
That's anything but the truth of the matter. So therefore
intervention, as has always been from President Clinton, the
bipartisan approach, Senator George Mitchell, the involvement
of Senator Haass, and other envoys and other people that have
tried to assist the process has always been a useful and very
worthwhile process.
I spoke in my testimony about the all-time low of
confidence from the nationalist republican community in
policing, given the position and stance on legacy by the PSNI.
I'd probably like to maybe just illustrate this, because it's
probably important that you hear it in a very human way. My
brother was murdered by the British army. He was unarmed. He
was shot 13 times by two soldiers in quite appalling
circumstances in West Belfast in January 1990. He was killed
along with two other men. And I have a cousin who was a
republican who was killed in the conflict too.
Now, the example of how this is probably--if my mother and
my aunt went out in Belfast this evening and, God forbid, their
handbag was stolen or their car was broken in and taken, the
response by the on-the-ground PSNI is markedly different and
completely transformed to when it was the RUC. There's no
question about that. A lot of the problems aren't coming from
ordinary guys and police officers, male and female, on the
ground.
If my mom and my aunt were to go to the police tonight, or
go anywhere and ask about, ``we want to know what happened to
our children,'' there is no change whatsoever. It is exactly
the same. And that is where the problem is. It's about the
unwillingness to deal with these matters. So by virtue of the
PSNI on the front line, and the cabal of officers that I
referred to, and the stranglehold on legacy, because we must
remember former RUC Special Branch officers are now in the PSNI
as civilian workers, unaccountable to the police ombudsman, who
are determining what evidence----
Mr. Smith. And how many----
Mr. Thompson. Twenty percent of the RUC went back into the
PSNI as civilianized workers. Many of them are former leading
members of the Special Branch. They designed the process of
disclosure to the courts around legacy. And they are dictating
the pace of what is and is not disclosed. They are people who
in which the organization they were part of is being examined
in those very same courtrooms. That is not acceptable. A
national security veto to bury the sins of what you were
involved in is not acceptable. None of this is acceptable. And
it doesn't comply with the U.K.'s domestic and international
legal obligations. And Article 2 will govern whatever emerges.
And that's what they're trying to prevent. That's really where
this is at.
Thank you.
Mr. Smith. Just a couple of final questions. On the
Finucane case, what do you see? Where will we be in a year,
five years? Are they, just like other cases, just covering it
up?
Mr. Thompson. Well, of course. And the family have been----
Mr. Smith. I know the answer, but I want to get you on the
record.
Mr. Thompson. Yes, the Finucane family have been a
marvelous inspiration to the other families. They are beacon of
hope. I think Geraldine in particular, in her leading of this
family, the campaign by the family to achieve the inquiry--many
families look to her because the inquiry by virtue of it will
vindicate what they claim.
But it also will look at the policy of collusion that
affected many, many hundreds of people across the community.
The U.K., as you know, committed, along with the Irish
Government of Weston Park to hold an inquiry. And then they
changed the legislation around government inquiries and brought
in the legislation that prevented involvement of the British
minister to determine what----
Mr. Smith. Well, you recall we protested that profoundly,
robustly.
Mr. Thompson. Yes.
Mr. Smith. I mean, I couldn't believe that they would give
that kind of veto power to the ministers. It was a sham.
Mr. Thompson. Totally. And then gave the review by Sir
Desmond de Silva QC into the murder of Pat. In itself, it
wasn't what was required. Much more is required. In all, the de
Silva review threw up quite fascinating facts. For example, the
organization, the Ulster Defence Association (UDA), that killed
Pat Finucane, 85 percent of its intelligence--and remember, it
killed several hundred people--over 600, almost 700 people--85
percent of the intelligence involved in those murders came from
either secret service MI5, British army military intelligence,
or RUC Special Branch. And that's an indictment in itself.
So the failure to hold the inquiry was challenged. And it
will be at the supreme court in the next number of weeks, where
the family went to London to challenge the failure to implement
the--what was an internationally binding agreement between two
governments to hold the inquiry. And I think that illustrates
in a microcosm the broader macro problem that exists in
respects to dealing with past when it concerns the British
Government.
Judge McKay. There seems like two standards of engagements.
One in London and one in Belfast. This is--you know, it reverts
back to, they want to have a statute--in a way, the statute of
limitations in Belfast and not in London.
I'm sure if Pat Finucane were murdered on the streets of
London in the same manner, this would have been headlines and
inquiries going on within three or four months. But because it
involved the North of Ireland, well, that's a separate set of
rules that they have. And this is what we hope that envoys and
involvement in other Helsinki groups, the hearing that we're
having today, will have some effect on that in the future.
Mr. Gormally. Yes, I think the Finucane case is emblematic,
clearly, of the failure to properly investigate. And it's
emblematic almost because of the seriousness with which,
paradoxically, the U.K. Government has actually taken the
issue, that it was one of those that was subject to the Tory
report which the Canadian judge who was brought in to look at a
number of cases. And the commitment was to hold an inquiry if
he recommended inquiry. And he did, and they didn't.
And the reality is that even with the 2005 Act--which
you're quite right was an appalling Act deliberately designed
around this case to prevent whatever it is coming out--but even
then the agreement between Geraldine's lawyers and the
government's lawyers was that they would have a so-called
Bahamuza [ph] thing. This was an Iraqi inquiry under the Act,
but where the government in advance promised, you know,
publicly not to use the powers to intervene in the inquiry
process. And Geraldine was prepared to accept that. And when
they went to Downing Street that time, they fully expected that
that was going to be announced by the prime minister. And
according to those who were at the meeting, in fact, what he
said, there are people around here who won't let me have an
inquiry.
And one has got to ask oneself, as Mark just said, the
revelations that were in the review of the papers--so-called--
were actually quite startling in themselves. So there's
something else still that remains hidden. And you really do
have to ask yourself: What is it in this case?
We know there was collusion. The prime minister of the U.K.
apologized in Parliament for it. But we don't know the
character of that, how far it went upwards or across. You know,
to what extent was this an authorized policy, or was this
murder politically sanctioned? There must be something of that
character.
And that's one of the reasons why the Finucane case is so
emblematic. It's so serious at the one level. And so
extraordinary have been the permutations and convoluted kind of
exercises to avoid a full public inquiry that it points to
something deeply dark and deeply rotten in human-rights terms.
Mr. Thompson. Just for the record, in respect to the
decision not to hold an inquiry as the U.K. had promised, the
most senior British civil servant sent a communication to David
Cameron and between other civil servants, and it's a matter of
record in the court case, in which he said: I don't get this. I
don't understand it. This is much worse than anything in Iraq
or Afghanistan. Why aren't we holding the inquiry?
So even within the civil service there seem to be--and as
Brian rightly alluded to--when the signaling of the buildings
around here, what was really that was about was Whitehall.
That's the establishment itself, the political-military
establishment that are implicated and who have questions they
themselves they ask.
Mr. Smith. Well, I would say an apology without justice is
no apology at all. It is beyond shallow.
Thank you. Yes. Thank you so very much. If you have
anything you'd like to add, like where we might be in the next
six months if there's not a concentrated refocus on this----
Judge McKay. I'm sure they do. But I would like, on behalf
of the Ancient Order of Hibernians, to thank you for your House
resolution. And anything that we can do in this country to get
our folks mobilized to add any backing that you need we
certainly offer. And thank you personally for what you do for
the Irish.
Mr. Smith. Well, certainly a letter to the speaker to make
sure it comes up. I mean, we're trying, and I think it will
come up. And any additional language you think might make it
stronger, more clear, or anything along those lines because
it's--you know, introduction is only the first part of the
process. It'll have to be marked up in committee and then go to
the floor. So if you have any thoughts on that, please.
Mr. Thompson. Just a thought. We have a political vacuum.
Mr. Smith. Yes.
Mr. Thompson. We have the unfulfilled promises around the
Finucane case. We have the unfulfilled promises for thousands
of families across the community to implement an Article 2-
compliant investigative process that examines the past, which
has been agreed to by all the executive parties when the
executive was functioning and both the governments. The U.K.
needs to be urged to join the rest of us--the international
community, the human rights NGOs, the families, the majority of
the political parties on the island--to get over on the right
side of the line with the Unionists and do the right thing. An
envoy would certainly contribute immensely to that.
But we also have Brexit coming, so we have a situation
where there's a political vacuum, there is confidence at an
all-time low on policing because of what we've spelt out
collectively, and Brexit and the border. All of those contain
the potential for six months, or in a year's time to further
undermine the political institutions of the Good Friday
Agreement and what was envisaged within it.
So I do think that it would be timely to have a U.S.
intervention.
Mr. Smith. Thank you.
Mr. Gormally?
Mr. Gormally. Thank you, Chair. Well, let me echo the
thanks of my co-contributors to you and the commission for
continuing to keep the spotlight on Northern Ireland and human
rights in Northern Ireland. And it is very, very, very strongly
welcomed and supported back in Ireland.
In terms of where we are going forward, as Mark has
suggested, we are in a situation of many unknowns. It's a
situation of flux. It's probably the most unstable time in many
ways since the Good Friday Agreement was made, and we really do
not know what's happening. There is a perfect storm, in a
sense, of the institutions no longer up and running, Brexit
coming along, an unstable political alliance at Westminster
with one faction of Northern Ireland politics having a
disproportionate influence on the U.K. Government. So we're in
a dangerous place, there's no doubt.
All I can say from our perspective is that the real
lodestar, the guiding principle before and since the Good
Friday Agreement, is to implement human rights standards. The
extent to which that has been done is the extent to which the
Good Friday Agreement has succeeded in bringing us relative
peace. The extent to which those commitments are unfulfilled is
the extent to which our peace is unstable and has not been made
permanent. And we have yet to achieve the rights-based society
which is the promise of the agreement.
Mr. Smith. I thank you so very much. You know, Peter Cory
testified before our Commission in 2004. He couldn't have been
clearer that resolving those cases, starting with Pat Finucane,
were the lynchpin to Stormont. And, you know, he was himself
incredibly frustrated. He spoke for about an hour without a
single note, he was so focused on the issue. And, you know, so
many people continue to be disappointed in the beyond-
lackluster performance by the British Government and by other
parties that have, I believe, been part of a massive coverup.
I thank you again. The hearing's adjourned.
[Whereupon, at 11:37 a.m., the hearing ended.]
A P P E N D I X
=======================================================================
Prepared Statements
----------
Prepared Statement of Hon. Christopher H. Smith
Mr. Speaker, on March 22 I chaired a hearing at the
Helsinki Commission on the achievements--with a special focus
on the unfinished business--of the April 10th, 1998 Good Friday
Agreement. As Members know so well, the signing of the Good
Friday Agreement 20 years ago was truly historic,
extraordinarily difficult to achieve, a remarkable framework
for peace, and the hope for beginning of reconciliation.
In its most important provisions, the agreement launched a
series of challenging protocols, by which the leaders of the
nationalist and unionist communities in Northern Ireland agreed
to a better governance, and peaceful resolution of differences.
Prisoner releases, new government structures, British
demilitarization of the North, the decommissioning of
paramilitary weapons and systemic police reform were achieved
to varying degrees over the last 20 years. In the 30 years
between 1969 and 1998, approximately 3,500 people were killed
in political violence, while in the 20 years since the Good
Friday Agreement fewer than 100 have lost their lives.
I have personally chaired 16 congressional hearings and
markups of legislation on human rights issues in Northern
Ireland, most of them with a special focus on police reform and
the need to establish a public, independent judicial inquiry
into State-sponsored collusion in the murder of human rights
attorney Patrick Finucane and others who were gunned down or,
in the case of Rosemary Nelson, killed by a bomb. I also
offered legislation that was adopted by the House of
Representatives that put the House on record condemning
violence and promoting peace and justice in Northern Ireland
and police reform. And I just recently introduced H. Res.777
which calls for a recommittal of the United States, the
British, and all parties--including the Republic of Ireland, to
the peace process.
The most contentious of my amendments over the years, one
of which became law, resulted in suspending all U.S. support
for and exchanges with the British police force in Northern
Ireland, the Royal Ulster Constabulary, or RUC, until standards
were met to vet RUC officers who engaged in human rights
abuses. Those new standards were set and eventually then-
President Bush was able to certify, in accordance with my law,
that human rights principles were part of police training going
forward, both in the RUC and in its reformed successor, the
Police Service of Northern Ireland, or PSNI. With the
improvements, the police exchanges were resumed.
That is the good news. But as the 20th anniversary of the
Good Friday Agreement milestone approaches, serious attention
and effort needs to be paid to achieving the dream. First and
foremost, the government in Northern Ireland seems unable to
consistently function or even constitute itself. Also, after 20
years, despite many obvious successes and benefits of the Good
Friday Agreement, and although no one wants to scrap it--no one
would want to return to the killing?--the reconciliation to
some extent has stalled. One of the reasons is that long-
standing cases have not been resolved.
Geraldine Finucane, widow of murdered human rights lawyer
Patrick Finucane, submitted testimony for my March 22d hearing.
And she points out, and I quote in part, ``My family has
campaigned for a public inquiry into Pat's murder, but the
British government has repeatedly failed to establish one.
Instead, they have instigated one confined investigation after
another, claiming to want to examine the facts or get to the
truth, but always in a process conducted away from public view.
One cannot but wonder at the pointlessness of conducting
investigation after investigation that are doomed to fail, no
matter how forceful the conclusions, because they lack the
transparency required to attain public confidence.''
As Geraldine points out further in her testimony, ``the
1998 agreement represent a new beginning that would mark a
point from which the new future for everyone in Ireland, north
and south, could be launched. What was not appreciated or
acknowledged, however, was the fact that moving forward also
meant dealing with the past.'' And of course, that is something
that this Commission and my Subcommittee on Human Rights has
tried to do for the last 20-plus years.
I would like to just point out too, testimony that's been
provided to us by the Committee on the Administration of
Justice-again, a very important quote from them, ``In a highly
disturbing development, and notwithstanding the reality that
only a small number of legacy cases relate to British soldiers,
a recent report of the Commons Defense Select Committee called
for the enactment of a statute of limitations covering all
troubles related to incidents involving members of the armed
forces. This concept effectively means a selective amnesty for
crimes committed by British soldiers.'' The Commons Defense
Select Committee also suggested that it be extended to the RUC
and other security force members. This position is, of course,
completely contrary to human rights standards and, if were
enacted, would probably be found unlawful by the courts.
Nevertheless, the U.K. government has said that it will include
the proposed in a forthcoming consultation on the
implementation of the Stormont House Agreement. That is a
dangerous backtracking on the part of the British government.
Hopefully it will cease and desist in moving in that direction.
Prepared Statement of Brian Gormally, Director, Committee on the
Administration of Justice
The Committee on the Administration of Justice (CAJ) is
honoured to be giving evidence to this Commission on the
occasion of the 20th anniversary of the Belfast Good Friday
Agreement. This Agreement, and the subsequent agreements of
different kinds designed to implement it, has given us 20 years
of relative peace; following a disastrous, thirty year violent
political conflict that is something genuinely worthy of
celebration. CAJ is an organisation devoted to the protection
and promotion of human rights. Since we know that violent
conflict always involves a bonfire of human rights, protecting
and promoting the peace settlement is our top priority.
The peace agreement was designed to create a political and
geographical space which could be shared by those with
different national aspirations and allegiances. To do this it
recognised the right of the whole people of the island of
Ireland to self-determination and the right of the people of
the North to vote to join a united Ireland. It declared that it
was the ``birthright'' of those born in Northern Ireland to be
Irish or British or both and established a form of government
that would mean that one community could not dominate the
other. To underpin all of that, however, was an infrastructure
of proposed legislation and institutions which would guarantee
that the Northern Ireland of the future would be a rights based
society.
CAJ, along with others, made substantial efforts to ensure
human rights were mainstreamed into the peace settlement and
the Agreement itself. There was considerable success. A cursory
search of the text of the Agreement shows that the words
`right' or `rights' appears 61 times. The then U.N. High
Commissioner for Human Rights, Mary Robinson noted ``. . . the
Good Friday Agreement is conspicuous by the centrality it gives
to equality and human rights concerns.'' The range of
subsequent international Agreements between the two sovereign
governments to implement and take forward the settlement also
contained a number of human rights commitments (although
unfortunately no dispute resolution mechanism to assist
implementation).
The commitments to protecting human rights in legislation
included a promise to incorporate the European Convention of
Human Rights into domestic law, a Bill of Rights for Northern
Ireland including additional rights, a Single Equality Act, an
Irish Language Act and a duty to be placed on public
authorities to consider the equality impacts of any policy. In
addition, a series of Acts would be required to implement the
recommendations of the ``Patten Commission'' on a thorough
reform of policing. Institutionally, the Agreement established
a new Human Rights Commission with extensive investigative and
legislative oversight power and an Equality Commission to
enforce the public equality duty.
CAJ has long pressed for enforcement to ensure that the
elements of the peace settlement which do protect human rights
are, and continue to be, implemented. It is important to stress
that these provisions were not mere manifesto commitments by
governments now out of office but rather provisions which were
enshrined into bilateral (UK-Ireland) treaties and
international agreements between them which are binding in
international law.
The reality is that, while huge advances have been made and
society in the North is now very different to that of 20 years
ago, there are outstanding commitments and unfulfilled promises
which weaken the peace process. Concern has been expressed by
CAJ and other human rights organisations for some years that
there has been and continues to be persistent attempts at a
`rollback' by the State, or elements within its institutions,
of the human rights provisions of the Agreements. This includes
commitments made as part of the settlement which have never
been implemented and areas where institutional and policy gains
were made which are now being undermined.
There are unimplemented commitments to legislate for a Bill
of Rights and Irish Language Act and to introduce an anti-
poverty strategy; the statutory equality duties have not been
properly implemented and there are unfulfilled commitments to
repeal emergency law. There is even a threat to the European
Convention on Human Rights and its incorporation into Northern
Ireland law. Some commitments like the `right of women to full
and equal political participation' and to supporting young
people from areas affected by the conflict have never had a
delivery mechanism to take them forward.
There has been regression in commitments to victims'
services, a drift away from commitments to tackle inequality on
the basis of objective need, and to remove employment barriers
for ex-prisoners. There has been a slow pace of some justice
reform and the undermining of the independence of key peace
settlement institutions such as occurred during the tenure of
the second Police Ombudsman. Policing also has seen regression
from the Patten blueprint--most notably in the 2007 transfer of
the most controversial area of policing (`national security'
covert policing) away from the PSNI and all the post-Patten
oversight bodies to the Security Service MI5.
Policing is particularly important in establishing trust in
the institutions of society and in the rule of law. Huge
progress has been made. In many respects the Police Service of
Northern Ireland tries to live up to the Patten Report's
Statement that the purpose of policing should be ``the
protection and vindication of the human rights of all . . .
There should be no conflict between human rights and policing;
policing means protecting human rights.'' Our systems of
accountability and oversight, especially the independent
Ombudsman with its own investigators, should be a model for
democratic policing throughout the world. However, areas of
concern remain.
The unaccountable and secret Security Service or MI5 has
primacy for national security intelligence policing in the
North, which is a huge gap in accountability. They run agents
with no system--that we know of--for limiting their engagement
in criminality. The PSNI also run secret informants but at
least an Assistant Chief Constable has to sign off on any
criminal activity. The PSNI is also obliged to support the
activities of the UK Border Force and Immigration Enforcement--
which have a history of human rights abuses and no local
accountability. We believe that there is prima facie evidence
of the police unlawfully using counter-terrorism powers in
immigration enforcement.
Elements of the police are also responsible for some of the
delay and obfuscation in dealing with the past which we detail
below. The control of intelligence material by officers who
served in RUC Special Branch, its over classification and the
wilful failure to expedite the production of evidence to
inquests and courts are all continuing problems.
It is arguable, however, that the main area in which
continuing human rights violations undermine society and
threaten the peace process is one not properly covered by the
peace agreement. That is the continuing search for impunity by
the UK State for the actions of its agents during the conflict.
Combating impunity is one of the foremost preoccupations of
human rights activists throughout the world. The reasoning is
simple--if impunity persists there can be no justice or truth
for victims, future perpetrators will be emboldened and
confidence in the rule of law is weakened. Those outcomes are
exactly being produced with regard to continuing impunity for
those who violated human rights during the conflict in Ireland.
Victims are dying without seeing justice or even serious
attempts to achieve it, torture and other crimes have been
carried out by UK security forces in other parts of the world
and faith in the rule of law is falling away.
The delays, obfuscations and squeezing of resources by the
UK authorities and local allies, which have been detailed year
after year, can only be understood as designed to maintain an
apparatus of impunity. The insistence on security agencies and
ministers having a ``national security'' veto over what
information is published is an insistence on impunity for their
agents. This is why combating impunity is CAJ's top priority.
In August 2001, the European Court of Human Rights gave
judgment in a number of cases from Northern Ireland known
collectively as the ``McKerr group of cases.'' These were cases
involving deaths in which UK security forces were involved; CAJ
was the legal representative in three of them. Other judgments
followed in 2002, 2003 and 2013. All said that the UK was in
breach of its obligation under Article 2 of the Convention
(``Right to Life'') to properly investigate these crimes. To
this day, the UK has still not discharged its obligations and
the cases remain under the supervision of the Committee of
Ministers of the Council of Europe, the body which oversees
implementation of the judgments of the Court.
In its decision of September 21st 2017, the Committee of
Ministers:
``noted with deep concern that the Historical Investigations
Unit (HIU) and other legacy institutions agreed upon in
December 2014 [the Stormont House Agreement] have still not
been established because of a failure to reach agreement on the
legislation required;
``considered it imperative that a way forward is found to
enable effective investigations to be conducted particularly in
light of the length of time that has already passed since these
judgments became final, and the failure of previous initiatives
to achieve effective, expeditious investigations; called upon
the authorities to take all necessary measures to ensure that
the planned public consultation phase regarding the HIU is
launched and concluded within a clear timescale to ensure that
the legislation can be presented to Parliament and the HIU
established and made operational without any further delay;''
It went on to say that it:
``deeply regretted that the necessary resources have not been
provided to allow effective legacy inquests to be concluded
within a reasonable time; strongly urged the authorities to
take, as a matter of urgency, all necessary measures to ensure
both that the legacy inquest system is properly resourced and
reformed in accordance with the Lord Chief Justice of Northern
Ireland's proposals and that the Coroners' Service receives the
full co-operation of the relevant statutory agencies to enable
effective investigations to be concluded.''
The exasperation of the Committee with the procrastination
of the UK Government is clear--more important is the hurt of
the victims still denied justice and the corrosive impact of
the lack of institutions to deal with the past on the present
trust in the institutions of State and the rule of law.
There are some signs of progress in the courts. Exactly a
fortnight ago, the High Court in Belfast held that the decision
of the then First Minister, Arlene Foster, to prevent a request
going to the British government to fund legacy inquests was
unlawful (Hughes Case). The judgment was partly based on the
finding that each part of government has to take into account
the Article 2 duty to investigate past deaths and to ignore
that responsibility is unlawful. The so-called ``hooded men''
case, in which CAJ represents the daughter of one of the 14 men
tortured in 1971 and who died because of it, is being fast
tracked by the Court of Appeal with the intention of getting a
swift judgment from the Supreme Court on the application of the
investigative obligation in both right to life and torture
cases.
The judgment in the Irish application for revision of the
European Court of Human Rights judgment in Ireland v. UK--which
in 1978 made the disastrous distinction between torture and
inhuman and degrading treatment in respect of the hooded men--
was delivered on the morning of Tuesday 20th March. This is a
narrow and largely technical decision by the European Court of
Human Rights. It considered that the new evidence was not
sufficient to show that, had it been taken into account by the
original court, it would have been decisive in changing the
original judgment. This is hugely disappointing in that it
leaves the unjustified distinction between ``torture'' and
``inhuman and degrading treatment'' intact. However, we should
remember that the Article 3 prohibition on all such treatment,
whatever the definition, is absolute. Those who have sought to
justify brutal interrogation methods on the basis of the 1978
judgment are still wrong in law and barbaric in their practice.
For the last 4 years we have been expecting the UK
Government to publish legislation to implement the Stormont
House Agreement (SHA). We are now told the text will be
published after Easter for consultation. It remains to be seen
whether this will be a good faith attempt to implement the SHA
in a human rights compliant manner or another way of delaying
and denying truth with a blanket national security veto on
information to be released to families.
In a highly disturbing development, and notwithstanding the
reality that only a small number of legacy cases relate to
British soldiers, a recent report of the Commons Defence Select
Committee called for the enactment of a ``statute of
limitations'' covering all Troubles-related incidents involving
members of the Armed Forces. This concept effectively means a
selective amnesty for crimes committed by British soldiers. The
Committee also suggested that it be extended to the RUC and
other security force members. This position is, of course,
completely contrary to human rights standards and, were it
enacted, would probably be found unlawful by the courts.
Nonetheless, the UK Government has said that it will include
the proposal in the forthcoming consultation on the
implementation of the Stormont House Agreement.
It is impossible to conclude a discussion on the status of
the Good Friday Agreement without mentioning ``Brexit,'' the
decision by the UK to leave the European Union. This will have
a profound effect on the legal and constitutional underpinning
of the present jurisdiction of Northern Ireland, its relations
with the Irish State and UK-Ireland bilateral relations. The UK
and Ireland's common membership of the EU was an assumption in
the Belfast Good Friday Agreement (GFA) and the UK's adherence
to EU law regulates the powers and legislative operations of
the devolved institutions. The equal rights of Irish and
British citizens, a principle of the GFA, in great part relies
on the equal rights of both as having EU citizenship. The lack
of significant border regulation is largely due to common
membership of the EU, North and South, as well as the improved
security situation. The UK clamp down on immigration after
Brexit may turn Northern Ireland into ``one big border'' with
enhanced enforcement and serial human rights abuses. Many
equality and antidiscrimination provisions in Northern Ireland,
which have particular importance in a divided society, rely on
EU law. Furthermore, the decision to leave the EU, based on a
UK referendum in which Northern Ireland (as well as Scotland)
voted to stay, is an affront to the principle of self-
determination of the Irish people, which is a foundation stone
of the Agreement.
All of these impacts could have a destabilising effect on
the constitutional, political and legal settlement that, in the
main, ended the violent political conflict which devaStated the
people of Northern Ireland and gravely affected those in the
rest of the UK and Ireland. While it is unlikely that any one
particular effect of leaving the EU would destroy the peace
settlement, the cumulative impact could begin to unravel it. In
particular, any diminution in the protection of rights of the
people living on the island could reduce trust in the GFA
institutions and any unravelling of the settlement would be
disastrous for human rights. A continuing preoccupation of CAJ
will therefore be the protection of the integrity of the peace
settlement and the various agreements that make it up.
We would like to commend this Commission for holding this
hearing and to support the resolution that has been put to
Congress. The Good Friday Agreement has won us 20 years of
relative peace but the goal of making that peace permanent,
based as it must be on a rights based society, remains to be
achieved.
Prepared Statement of Judge James F. McKay III, President, Ancient
Order of Hibernians
The Ancient Order of Hibernians (AOH) is the oldest Irish
Catholic fraternal organization in the United States,
originally founded in 1836. Along with our sister organization,
the Ladies Ancient Order of Hibernians, we have over 80,000
members throughout the United States, and not just in places
like Boston, New York, and Philadelphia--but in less obvious
places as well, such as Butte, Montana; Los Angeles,
California; and New Orleans, Louisiana. According to the most
recent U.S. Census, there are an estimated 33.3 million people
in the U.S. who claim Irish heritage. \1\ The world figure is
estimated to be around 70 million, \2\ which means at least
half of the Irish diaspora resides in the United States. In
fact, we often hear it said around St. Patrick's Day that there
are only two kinds of people in the world--the Irish, and those
who wish they were. Even though that's just a joke, there is no
question that for a country roughly the same size as the State
of West Virginia, Americans do pay a great deal of attention to
the Irish, and it is this connection between America and
Ireland that organizations like the AOH continue to celebrate
and foster.
---------------------------------------------------------------------------
\1\ U.S. Census Bureau (http://factfinder.census.gov/bkmk/table/
1.0/en/ACS/13--1YR/B04003/0100000US)
\2\ ``Global Irish: Ireland's Diaspora Policy,'' Department of
Foreign Affairs and Trade, March 2015.
---------------------------------------------------------------------------
Twenty years ago, a document that has come to be known as
the Good Friday Agreement was signed by political
representatives of the people of Northern Ireland and
representatives of the British and Irish governments. This
historic agreement brought an end to the violence of the
Troubles, and introduced peace to a conflict where over 3,500
people had lost their lives in civil unrest, proportionately
one of the deadliest in history. \3\
---------------------------------------------------------------------------
\3\ https://docs.google.com/spreadsheets/d/1hRidYe3-
avd7gvlZWVi1YZB7QY6dKhekPS1I1kbFTnY/edit#gid=0
---------------------------------------------------------------------------
One of the tenants of the AOH is a quote from Padrig Pearse
which states, ``Ireland Unfree Shall Never Be At Peace.'' The
Good Friday Agreement delivered peace only because it also
promised freedom. The Good Friday Agreement promised freedom
and reconciliation based on a parity of esteem for both sides
of that divide. The successes of the Agreement to date have
been achieved through hard work, the commitment by members of
all the local communities who suffered tragedies during the
Troubles, and by requiring considerable courage from political
leaders who faced hard consequences from their constituencies
in making any concessions.
Countless books and articles have been written on the topic
of the Good Friday Agreement, and we have seen a number of
recent celebrations of the 20-year milestone in both Ireland
and the United States. And one of the topics that so many of us
can all agree on is how important the United States was in
securing this historic deal known as the Good Friday Agreement.
The relationship between America and Ireland goes back to even
before there was a United States. It was Ireland that first
sent aid to struggling American colonies seeking their own
independence. George Washington once described Ireland as,
``thou friend of my country in my country's most friendless
days,'' and concluded with, ``May the God of Heaven . . . cause
the sun of Freedom to shed its benign radiance on the Emerald
Isle.'' While having Americans insert themselves into the
politics and policies of Ireland was nothing new at the time,
the commitment, leadership, and direct engagement shown by U.S.
officials during this period was unprecedented. In fact, I am
not entirely sure we would have even had a Good Friday
Agreement, had it not been for the engagement of American
officials like President Bill Clinton, Senator George Mitchell,
Senator Ted Kennedy, Congressman Richie Neal, and Congressman
Peter King--to name just a few, who refused to give up on a
deal when tensions became too high or certain groups walked
away from the negotiating table. These representatives of the
American people helped build a bridge over the dark chasms of
mistrusts, providing an impartial ear to the concerns of all
parties and provided an incubator where the Good Friday
Agreement, sometimes called the ``Peace and Reconciliation
Agreement'' could be born.
This Good Friday Agreement, and subsequent agreements such
as the St. Andrews Agreement in 2006, the Hillsborough
Agreement in 2010, and the Stormont Agreement in 2014, was
anchored on the fundamental principles of basic human dignity
and rights that are the foundation of our own government. The
goals of the Good Friday Agreement were meant to give the
future back to the people of Northern Ireland unshackled from
the legacy of the past. For the first time in a very long time,
simple things, like everyday grocery shopping, worshipping on
Sundays, or taking family outings on holidays could be
conducted without fear or trepidation. And during the past 20
years, a generation has grown up in Northern Ireland without
knowing the fears and anxieties that constant violence inflicts
upon communities.
Further, we have come to learn that peace brings
prosperity. The economy in Northern Ireland has made
significant advances since the Troubles, and despite setbacks
from the global recession, the North of Ireland has seen a
growth in tourism, a growth in foreign direct investment, and a
commitment to increasing the private sector. In fact, Northern
Ireland's Gross Domestic Product has grown slightly in the four
quarters ending in September 2017, and the unemployment rate is
currently 3.9 percent, which is lower than the UK average at
4.4 percent, the Irish average at 6.3 percent, and the EU
average at 7.3 percent. \4\ Additionally, the gap in
unemployment rates between members of the Catholic and
Protestant community is near parity.
---------------------------------------------------------------------------
\4\ Northern Ireland Statistics and Research Agency, Northern
Ireland Labour Market Report, February 2018.
---------------------------------------------------------------------------
So while we recognize that great strides have been made in
the last 20 years in all sectors, final peace has not yet been
achieved in Northern Ireland. We praise the efforts of Senator
George Mitchell and other subsequent envoys of the United
States to Northern Ireland, and we praise the work of all the
politicians on the ground in Northern Ireland who made the Good
Friday Agreement a reality. However, the Good Friday Agreement
was merely the beginning of a process aimed at creating a fair
and equitable society for all the communities of the North of
Ireland.
At an event just last week at the Library of Congress to
commemorate the 20th anniversary of the Good Friday Agreement,
in a pre-recorded message for attendees, President Clinton told
the audience that there is still significant work to be done in
the North of Ireland. He noted that the Good Friday Agreement
is still not finished and he challenged all of us, ``seize this
moment of memory to move into the future--together.'' \5\ As
President Clinton pointed out, there are still ongoing hurdles
in Northern Ireland. These challenges exist at every level of
civil society and address basic issues such as dealing with the
past with justice and respecting the history and culture of all
communities with mutual respect and parity of esteem. These are
difficult and tough discussions to be had, but these are
conversations that must take place.
---------------------------------------------------------------------------
\5\ Forum Marking the 20th Anniversary of the Good Friday
Agreement (3/13/17)https://www.youtube.com/watch?v=VC-RlOteG1s)
---------------------------------------------------------------------------
The Ancient Order of Hibernians agrees with President
Clinton; we believe the time is now for the United States to
recommit itself to the principles of the Good Friday Agreement.
In fact, the AOH has repeatedly requested that this
Administration fulfill its commitment to appoint a Special
Envoy to Northern Ireland immediately. This is an extremely
critical time for Northern Ireland, and as political parties
continue to attempt to form a sustainable government while
addressing the fears and anxieties of Brexit, we believe that
America must reaffirm through the presence of a Special Envoy
that the peace and well-being of the community of the North of
Ireland is still a priority to the U.S., and America is willing
to walk with the representatives of those communities on the
road to a lasting peace.
I believe that it is important to note that the Ancient
Order of Hibernians in America has been and will be in the
future, working for the unification of Ireland. The Preamble of
our AOH Constitution States that the purpose of our
Organization is to promote:
Friendship, Unity and Christian Charity: and to aid and advance
by all legitimate means the aspirations and endeavors of the
Irish people for complete and absolute independence providing
peace and unity for all Ireland.
That being said, we understand that this cannot be
accomplished overnight and complete independence can only be
achieved when a majority of people on both sides of the border
wish it to happen.
For over 30 years, the Ancient Order of Hibernians has been
engaged with a variety of organizations in the North of
Ireland, and poured hundreds of thousands of dollars into
organizations that provide assistance for charities and
agencies to aid and advance, by all legitimate means, the
aspirations and endeavors of the Irish people. We in our own
way continue on the efforts of successive U.S. envoys to bridge
the gaps of ignorance and mistrust. Our donations sent to
Northern Ireland each year go to cross-appeal organizations
such as Holy Cross Trust of Ardoyne, Belfast, Omagh Community
Youth Choir, St. Patrick's Centre, Downpatrick, and Conway Mill
Trust Inc., just to name a few.
Additionally, the AOH supports the promotion of the Irish
language in Ireland, which has garnered much media attention as
a cause, but not the only one, for the failure to restore the
power sharing government in the North of Ireland. It is
incredulous that anyone would have an objection to the Irish
language being taught and used in Ireland. We note that acts
supporting and promoting indigenous languages in other parts of
the United Kingdom, specifically Scotland and Wales, have long
been enacted. The Irish language is one of the ten oldest
languages still spoken in the world today; it is a treasure
that all communities of Ireland should be proud of. To those
who ask if the study of language should be a barrier to forming
a government, we respond that if something as benign as the
promotion of the Irish language cannot be resolved, then what
hope is there to address more contentious issues. We believe
that these issues of identity should always be on the table for
discussion and can be addressed better if an impartial
outsider, like an American Envoy, chairs the discussions.
Finally, one of the many other groups that we support
monetarily on an annual basis is Relatives for Justice, which
works for truth and justice for victims and survivors of
victims during the Troubles. Utilizing a third party, in this
case, the U.S. Envoy, to help address some of these ``legacy
issues'' is critical to finding a path forward. For example,
the Stormont Agreement was signed in 2014 and created agencies
such as the IRG (The Implementation and Reconciliation Group),
the OHA (Oral History Archive), the ICIR (The Independent
Commission on Information Retrieval) and the HIU (Historical
Investigative Unit). These agencies were created to address
human rights violations of the past and to attempt to achieve
some type of closure and justice when possible. Not all of
these agencies have gone into full effect yet because although
the Good Friday Agreement has been enabled, it has not been
fully implemented. The AOH believes the many legacy issues
should be handled with a third-party negotiator involved to
give credibility to the impartiality and transparency of the
process.
In addition to addressing legacy issues, the people of
Northern Ireland are now forced to deal with concerns
surrounding Brexit and how Northern Ireland may be impacted.
After the Good Friday Agreement was initially implemented in
1998, not only was the ``hard border'' of military checkpoints
and concertina wire demolished, but also the psychological
borders that separated two people on a tiny island. All that
was left was the memory of those trying days trying to get back
and forth across the border. Today, the local people of
Northern Ireland can cross the border multiple times in any
given day--for work, for school, for shopping--for life.
The dissolution of UK's membership in the European Union
has once again raised the specter of a ``hard border'' in which
all affected communities are in rare unanimity. Yet, no
feasible, detailed means of avoiding a ``hard border'' have yet
been identified. Much has been made of ``commitments'' and
``desires'' to avoid a hard border, but the devil is in the
details. To avoid the disastrous consequences of a hard border
in Ireland, compromises will be needed by all parties. The AOH
believes this is yet another excellent reason to appoint a
Special Envoy to Northern Ireland who can impartially
facilitate finding common ground and begin to exhibit trust in
carving out the future.
If the current demographics of Northern Ireland at 48
percent Protestant and 45 percent Catholic continue, \6\ this
trend would indicate a Catholic majority in five to 10 years,
or perhaps even less. In attempting to obtain reconciliation
and justice, these figures cannot be ignored. The majority of
today can become the minority of tomorrow and the blanket of
protections enacted today will equally cover those who may feel
they do not need them today. There is no question that Senator
Mitchell, who forged this Agreement 20 years ago, knew of these
facts when he espoused them during his mediations in 1998,
which is why it is so crucial to find an equitable path forward
for all parties.
---------------------------------------------------------------------------
\6\ ``Two tribes: A divided Northern Ireland,'' The Irish Times (4/
1/2017) (https://www.irishtimes.com/news/ireland/irish-news/two-tribes-
a-divided-northern-ireland-1.3030921)
---------------------------------------------------------------------------
Certainly one of the most well respected members of
government from the Nationalist side was Martin McGuinness. In
fact, I don't think most people recognized his stature until
after his death. What he believed in has been reduced by some
of our Irish organizations in this country, the AOH included,
to four basic principles: those of self-determination, respect,
equality and truth.
(1) SELF-DETERMINATION
A BORDER POLL TO AFFIRM IRISH SELF-DETERMINATION
``The imposition of Brexit, despite the vote of the people
of the north to remain (in the European Union) underlines the
undemocratic nature of partition . . . There is a democratic
imperative to provide Irish citizens with the right to vote in
a Border poll to end partition and retain a role in the EU.''
``A border poll is part of the process of building a modern
and dynamic New Republic on this island--an agreed Ireland
achieved by peaceful and democratic means.''
----Martin McGuinness.
(2) RESPECT
FULL STATUTORY EQUALITY FOR THE IRISH LANGUAGE
``Successive British Governments . . . have totally failed
to meet their obligations . . . to protect the rights of the
Irish language community.''
----Martin McGuinness
(3) EQUALITY
THE ENACTMENT OF A BILL OF RIGHTS
``We have pressed consistently for the establishment of a
Bill of Rights in the North and an all-Ireland Charter of
Rights.''
----Martin McGuinness
(4) TRUTH
EQUAL JUSTICE FOR VICTIMS OF THE CONFLICT AND THEIR
FAMILIES
``Dealing with the legacy of the past remains one of the
key outstanding challenges of our peace process. Unless it is
dealt with in a comprehensive manner then the essential process
of healing and reconciliation cannot gain momentum.''
----Martin McGuinness
The Ancient Order of Hibernians in America fully support
these espoused principles and believe that they are in keeping
with the best values of our organization, i.e., Truth, Respect,
Equality, and Self-Determination. Only God knows the future for
Ireland and we can only continue to do what we have done in the
past, and that is to support the efforts and principles of the
Good Friday Agreement and continue to spread the word to all
who will listen of the achievements that have been made to
date.
Prepared Statement of Mark Thompson, Director, Relatives for Justice
`Dealing with the past': including accountability for past
abuses and collusion, the need of surviving family members for
justice & closure, and reform of policing
May I first take this opportunity to thank the Committee,
Chairman Senator Wicker, and CoChair Congressman Smith, your
staff, and all involved in facilitating and convening this
hearing.
Dealing with the past in which multiple harms and egregious
human rights violations have occurred--not least systemic
abuses that had official government sanction--is a perquisite
of any post-conflict situation.
Righting the wrongs of the past--truth seeking and
accountability--are an imperative to individual and societal
recovery and healing, the restoration of human dignity, and the
promotion and protection of human rights. They are central to
the correction and rebuilding of the institutions of governance
post-conflict not least criminal justice agencies.
No one community has a monopoly on the human heartache that
was our conflict. We all suffered.
However, in terms of accountable justice there exists a
huge deficit for those affected by State violence and collusion
and it is no coincidence they face innumerable barriers to
justice--barriers erected by those who are charged with
ensuring justice--those accused in the first instance of
violation.
There is huge and powerful resistance to enabling a process
that addresses the past in an openly transparent, legally
compliant, and above all independent way. This resistance
emerges from within the police, the military, some
institutions, political unionism, and the British government--
who are not neutral.
They all seek to maintain a false narrative of the past and
about their true role in the conflict. This position
necessitates the denial of rights and ultimately accountable
justice. Moreover, this position is unsustainable if there is
to be meaningful change.
Families actively using the law & courts, asserting their
rights, seeking accountability for past violations
Two weeks ago in the Belfast High Court Justice Paul Girvan
ruled that former First Minister Arlene Foster acted illegally
and with improper political motive \1\ when she arbitrarily
blocked attempts by the North's foremost legal representative
the Lord Chief Justice (LCJ) Sir Declan Morgan, and the then
Justice Minister David Ford, to secure funding for legacy
inquests into 55 cases involving 97 killings; inquests where
families have waited up to four decades to hear. \2\
---------------------------------------------------------------------------
\1\ https://www.judiciary-ni.gov.uk/sites/judiciary-ni.gov.uk/
files/decisions/soj-In-re-Brigid-Hughes.pdf
http://relativesforjustice.com/inquest-funding-judicial-review/
http://relativesforjustice.com/4089
http://relativesforjustice.com/4089
http://relativesforjustice.com/4089-2/
http://www.bbc.com/news/uk-northern-ireland-43330861
\2\ http://www.bbc.com/news/uk-northern-ireland-0941165119
---------------------------------------------------------------------------
At the same time in an adjoining courtroom Justice Bernard
McCloskey finally recused himself from a hearing in which the
former head of RUC special branch, Raymond White, challenged
the Police Ombudsman's powers and findings into the
Loughinisland massacre, which evidenced RUC collusion. \3\
Having delivered a scathing judgment against the Police
Ombudsman it had been discovered that there was a lack of
candour in disclosing to the court that as a lawyer Justice
McCloskey had previously acted for the same applicants, White
et al, when they unsuccessfully challenged the Police
Ombudsman's report into the 1998 Omagh bomb in which Nuala
O'Loan was highly critical of special branch. \4\ These
criticisms included prior intelligence about the planned attack
from an agent within the organisation responsible, which might
well have prevented it. The McCloskey judgment was strikingly
similar to his failed legal submission when acting for the
former head of RUC special branch on that occasion. The case
will be held afresh.
---------------------------------------------------------------------------
\3\ https://relativesforjustice.com/mr-justice-bernard-mccloskey-
finally-leaves-the-building/
\4\ https://www.irishtimes.com/news/ireland/irish-news/
loughinisland-families-welcome-judge-s-stepping-down-from-case-
1.3370081
https://www.irishnews.com/news/northernirelandnews/2018/01/26/news/
relatives-welcome-judge-s-move-over-loughinisland-massacre-challenge-
1242804/
https://www.belfasttelegraph.co.uk/news/northern-ireland/loughinisland-
drama-as-judge-told-to-withdraw-from-police-ombudsman-collusion-report-
case-36506937.html
---------------------------------------------------------------------------
As a consequence the Police Ombudsman is unable to publish
several major reports into killings involving collusion until
the court case concludes. \5\ This rearguard action by the
former head of special branch is also designed to stall and
frustrate accountability. With appeals and challenges it may
take several years to conclude which is time families don't
have. The current Police Ombudsman, who has the confidence of
families, has approximately 15 months left to serve.
---------------------------------------------------------------------------
\5\ http://www.irishnews.com/news/northernirelandnews/2018/02/08/
relatives-call-for-ombudsman-reports-to-be-published-1251470/?ref=sh
https://relativesforjustice.com/ombudsman-forced-to-delay-publication-
of-collusion-reports/
---------------------------------------------------------------------------
More recently in the same High Court the PSNI chief
constable George Hamilton was found to be in contempt, not once
but several times by Justice Ben Stephens, for refusing to
provide disclosures in a civil case taken by John Flynn in
respect to a series of murder bids on him by the notorious
Mount Vernon UVF, in which multiple members of this sectarian
and criminal gang worked for the special branch. \6\
---------------------------------------------------------------------------
\6\ https://www.newsletter.co.uk/news/police-ordered-to-reveal-
files-in-loyalist-agent-collusion-case-1-7841475
https://rm.coe.int/168073e17d
https://www.belfasttelegraph.co.uk/news/northern-ireland/police-given-
fiveweek-extension-to-disclose-files-on-loyalist-informer-incollusion-
case-36516257.html
www.belfasttelegraph.co.uk/news/northern-ireland/judge-refuses-psnis-
high-court-appeal-for-disclosure-of-loyalist-informer-files-
36068766.html
---------------------------------------------------------------------------
Police Ombudsman Nuala O'Loan's report Operation Ballast
detailed the activities of this group. \7\
---------------------------------------------------------------------------
\7\ https://policeombudsman.org/Investigation-Reports/Historical-
Reports/Operation-Ballast-investigation-into-the-circumsta
---------------------------------------------------------------------------
The disclosures were relevant to establishing a quantum for
damages in the case.
At the same time in the adjacent criminal court families
who had loved ones killed by the Mount Vernon gang observed as
leading UVF figure Gary Haggarty was being sentenced for a
series of criminal activities including murder. \8\ Haggarty, a
special branch agent throughout his reign of terror, had become
an assisting offender in 2009. \9\ As an assisting offender
Haggarty spent seven years providing evidence on all his
activities and accomplices including his special branch
handlers who directed his activities, evidence which the court
accepted as credible. Families accepted that Haggarty would get
a reduced sentence as an assisting offender but this was
mitigated somewhat in that they would also see his special
branch handlers in the dock as well as his fellow loyalists as
part of this process. None of this happened despite promises by
the PSNI and Public Prosecution Service (PPS) throughout. The
matter is now subject to judicial review by the McParland and
Monaghan families. \10\
---------------------------------------------------------------------------
\8\ http://www.irishnews.com/news/northernirelandnews/2018/01/30/
haggarty-victims-hit-out-as-loyalist-supergrass-has-35-year-jail-
termcut-to-six-and-half-1244832/?ref=sh
\9\ http://www.bbc.com/news/uk-england-40379903
\10\ http://www.bbc.com/news/uk-northern-ireland-42428270
---------------------------------------------------------------------------
It is suspected that the reasoning behind the deliberate
failure to disclose evidence in the Flynn case is to protect
the same group of agent handlers within the special branch also
involved with Haggarty--shielding them from prosecution.
Policing reform--certainly not when it comes to dealing with
the past
This brings into sharp focus the whole matter of the
independence of the PSNI, where a cabal of former RUC officers
who transferred over and now hold senior positions, including
those who took the incentivised redundancy/retirement package
to leave \11\ but who through a loophole returned as
`consultants' and `civilian workers' and who now control
legacy. \12\ Further in this `civilianised' capacity they are
not subject to the oversight powers of the Police Ombudsman.
---------------------------------------------------------------------------
\11\ http://www.thedetail.tv/articles/rehiring-in-the-police-the-
full-story
\12\ http://www.bbc.com/news/uk-northern-ireland-16600069
---------------------------------------------------------------------------
Taken together with the position of the PSNI moreover on
legacy this has had a corrosive effect on nationalist
confidence in policing, which is now, at an all time low.
The 2009 offer to Haggarty it was revealed came--strangely
or not--from MI5, the PSNI and the PPS. \13\ The blurring of
boundaries and interference in due process, politically and
from the intelligence agencies involved in the conflict and
whose activities are highly questionable if not directly
illegal, is nothing new. It was and continues to be wrong.
---------------------------------------------------------------------------
\13\ Minutes of 21st January 2010 Policing Board meeting on file
with RFJ & judgment in Haggarty case page 1, para 1; https://
www.judiciaryni.gov.uk/sites/judiciary-ni.gov.uk/files/decisions/
R%20v%20Haggarty%20%28Gary%29.pdf
---------------------------------------------------------------------------
Impunity
The trial of British Army Force Research Unit (FRU) agent
Brian Nelson in 1992 saw the then British Attorney General
(AG), Patrick Mayhew, direct the prosecution case against him
following interventions by the UK government in a bid to
prevent Nelson from taking the witness stand and disclosing his
full activities including murder. A deal was struck with Nelson
and 20 counts were removed from the indictment including two
for murder. \14\
---------------------------------------------------------------------------
\14\ The North's shadow Labour spokesperson Kevin McNamara MP
would later raise the matter in a parliamentary debate where he
questioned the motives of that government intervention: ``I was not
happy when the (British) Attorney-General took control of that
prosecution and I was dubious about his reasons for deciding to drop
charges. Those reasons remain undisclosed.'' https://
publications.parliament.uk/pa/cm200203/cmhansrd/vo030514/halltext/
30514h01.htm> Column 73WH
---------------------------------------------------------------------------
In 1988 the same Attorney General told the British
parliament that it would not be in the public interest to
proceed with prosecutions against RUC officers, from a
specialist unit known as E4A, involved in a series of shoot-to-
kill incidents of unarmed republicans. \15\
---------------------------------------------------------------------------
\15\ http://hansard.millbanksystems.com/commons/1988/jan/25/royal-
ulster-constabulary-stalker
---------------------------------------------------------------------------
The collusive activities of the FRU and RUC special branch
were the subject of three major enquiries by the UK's most
senior police officer, Sir John Stevens, from September 1989 to
April 2003. His enquiries found collusion \16\ and he
recommended that 25 members of the FRU and special branch be
prosecuted. \17\ This was never acted upon. Sir John Stevens
later told a British Parliamentary Committee that of the 210
people he arrested during his enquiries--that is non-military
and police--207 were agents working for the State. \18\
---------------------------------------------------------------------------
\16\ http://relativesforjustice.com/wp-content/uploads/2016/11/
Stevens-3-Inquiry-Report.pdf
\17\ Letter from PPS on file with RFJ & Stevens public statement
re same
\18\ https://www.youtube.com/watch?v=q9LFp95CCHo
---------------------------------------------------------------------------
And so we see the pattern where accountability is thwarted
and prevented when involving State killings, its agents
operating inside illegal paramilitaries involved in murder, and
those agent handlers directing and protecting them.
It is about protecting British State conflict policies and
practices of wrongdoing on a massive scale that uncovered would
completely tilt the conflict narrative. It is about protecting
the reputational damage this would inflict on the UK. It is all
about where this leads to in London and importantly--to whom.
Moving the goal posts--British bad faith
The pattern of insulating and protecting against such
situations of exposure can also be seen across a range of
institutions and proposed mechanisms. Take for example the
agreement reached in December 2014 at Stormont House to address
the legacy of the past. \19\ Post the agreement the UK
government arbitrarily inserted a `national security' veto into
draft legislation enabling the retention and non-disclosure of
information in any case they deemed necessary. Charlie
Flanagan, who as minister negotiated the agreement on behalf of
the Irish government, described this as `a smothering blanket'
that was `unacceptable'. \20\
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\19\ https://relativesforjustice.com/?s=stormont+house+agreement
\20\ http://www.irishnews.com/news/2015/11/27/news/flanagan-
critical-of-national-security-smothering-blanket--334991/
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More recently in correspondence to RFJ the British
Secretary of State for the North said that any consultation on
the implementation of any proposed mechanism to address the
past would also include a `statute of limitations' \21\ for
British soldiers--an amnesty. This would be unacceptable.
---------------------------------------------------------------------------
\21\ Letter on file with RFJ-- http://www.irishlegal.com/9509/
irish-government-criticises-uk-government-statute-of-limitations-plan/
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The `lack of resources' excuse exposed
One of the main arguments proffered for systemic delays in
addressing legacy is a lack of resources and funding. This has
dramatically impacted the office of the Police Ombudsman and
the inquest courts with budgetary cuts despite the increasing
caseload. \22\ It is no coincidence that these also happen to
be the only functioning mechanisms that have the potential to
deliver for families. Now their capacity is hampered. By
contrast the PSNI and other agencies have paid out tens of
millions of pounds in a range of civil cases in order to forgo
having to disclose information about collusion. \23\
---------------------------------------------------------------------------
\22\ Police Ombudsman caseload is currently 420 cases where police
misconduct in investigations and possible collusion exists
\23\ https://www.theguardian.com/uk/2008/oct/24/danny-morrison-
northern-ireland; http://republican-news.org/current/news/2012/09/
britain--admits--miscarriage--of.html
---------------------------------------------------------------------------
It is in this overall context that resistance by the UK,
supported by political unionism, to addressing the legacy of
the past in a meaningful, constructive, independent and legally
compliant way must be viewed.
Families using the international courts to assert their rights
As a signatory of the European Convention on Human Rights
\24\ (ECHR) the UK are legally obligated to conduct thorough
and independent investigations in accordance with Article 2 of
the Convention, the Right to life. Under the Convention States
must take measures where life is potentially under threat
ensuring safety, and where life is taken then they must ensure
investigation meets the above standards.
---------------------------------------------------------------------------
\24\ https://www.echr.coe.int/Documents/Convention--ENG.pdf
---------------------------------------------------------------------------
In truth the UK, through its `security' and intelligence
agencies, issued threats to citizens, denied them protection,
and assisted in every conceivable way those they then sent to
kill them. That is the conclusions of the Stevens Enquiries,
the De Silva Review and the Police Ombudsman. It is why former
UK Prime Minister David Cameron apologised to the Finucane
family.
In short Article 2 must govern and be at the heart of any
future mechanism to address the past.
This legal obligation--it would appear--has proven hugely
problematic for the UK authorities--hence the `national
security' veto, the proposed statute of limitations, and
general circling of the wagons. And we know precisely why.
This is best illustrated in the powerful European body the
Committee of Ministers to the Council of Europe (CoM/CoE).
Following the May 2001 European Court on Human Rights
ruling in the McKerr \25\ group of cases, where the UK domestic
investigative procedures were unanimously found to have been
deliberately prohibitive to establishing the facts and holding
to account the perpetrators in respect to State killings
including collusion, the Court passed the judgment to the CoM/
CoE for supervision.
---------------------------------------------------------------------------
\25\ https://search.coe.int/cm/Pages/result--
details.aspx?ObjectID=09000016805c212a
---------------------------------------------------------------------------
The role of CoM/CoE is to assist the offending State to
remedy the violations by way of ensuring that proper
investigative procedures, legally compliant with the
Convention, are put in place. \26\
---------------------------------------------------------------------------
\26\ http://www.europewatchdog.info/en/structure/committee-of-
ministers/supervision-execution-judgments/
---------------------------------------------------------------------------
Since May 2001 the CoM/CoE has refused to sign off on their
supervision of the UK having not been satisfied that the UK,
through its action-plans, has fulfilled its legal obligations.
That is 17 years.
This is testament to what the families face on one level
but they also take hope in this vindication of their rights by
the CoM/CoE.
The need for surviving family members for justice enabling them
to move forward
Families want truth, the right to know who precisely were
behind the murders of their loved ones--the recovery of
historic memory.
It is not acceptable that the State, rather than meet its
legal obligations to investigate, would prefer to first deny
the truth, then when evidence is revealed delay processes to
secure justice and accountability all in the hope that
relatives might simply die off--which is happening. But other
relatives are picking up the baton, continuing the fight, newer
generations, and so families will never give up.
As I said at the outset accountability for human rights
violation is central to healing and recovery; it enables the
victim to recover that sense of disempowerment often associated
with a wrong committed--righting that wrong is therefore
ethically, morally and above all legally imperative not least
when the finger--the evidential trail--points and leads
directly to those in power--the police, military and
government--who carry the duty to protect and prevent
wrongdoing but who instead engaged in the practice of murder
and cover-up.
In such situations the necessity to ensure justice and
accountability is, arguably, all the more.
Implicit in this testimony--there has been no police reform
when it comes to dealing with the past--only obfuscation--only
Perfidious Alboin.
Implicit--families are actively to the fore in public
discourse, engaged in litigation and other forums seeking truth
and accountability for past violations--having to consistently
challenge a State standing in their way.
This work by families is about historic clarification, the
dignity of truth, and healing.
The families we are humbled to work with--the families
engaged in all this work--are the real heroes of the Irish
peace process.
Finally I want to put on record the crucially important
international forum these hearings provide to families and
NGO's engaged in the promotion and protection of human rights.
These hearings, even 20 years after the peace accord, are
necessary in assisting and encouraging a rights based approach
within the context of our still developing peace process.
A lot has been achieved but the reality is we are not there
yet. Your influence, vigilance and scrutiny therefore have real
meaning and impact in the work still to be completed.
In particular I want to acknowledge Congressman Smith for
his consistent and dedicated work over two decades in seeking
to consolidate and build upon the peace process.
Thank you--Go raibh maith agaibh
Prepared Statement of Geraldine Finucane
The Good Friday Agreement 1998: Unfinished Business and the Public
Inquiry Into the Murder of Pat Finucane
Thursday, 22 March 2018
Mr. Chairman, Members of the Committee, Fellow Speakers,
Honoured Guests, Ladies and Gentlemen . . .
On behalf of my entire family, I would like to thank you
for this invitation to speak today and to testify before this
Commission. I would especially like to thank the Chairman, Mr.
Smith, for his continued interest in the case of Patrick
Finucane, my husband, in particular, and the issue of human
rights in Northern Ireland in general. As many people will
know, Mr. Smith has been a keen supporter of, and advocate for,
the development and enhancement of human rights in Northern
Ireland throughout the peace process. His work and that of the
US Congress in general has proved invaluable to the people of
Ireland in maintaining and developing our peace initiative. I
think the topic we are discussing is one of the most important
aspects of the peace process in Ireland, namely, how we
approach our past, how we deal with it and how we move beyond
it, without forgetting it or worse still, pretending it did not
happen.
I am particularly honoured to be able to address you in
this 20th anniversary year since the signing of the Belfast
Agreement on Good Friday, 10th April 1998. This momentous event
took place some 10 years after the murder of my husband, Pat
Finucane, a solicitor who practiced law in Belfast in the law
firm he co-founded with his friend and business partner, Peter
Madden. Pat was murdered by Loyalist paramilitaries, in our
home, on Sunday, 12 February 1989, in front of myself and our
three children.
I would like to say that the passing of the years has made
Pat's death easier to bear but his would not be true. In fact,
the more time that passes, the more difficult it is to bear his
loss. This is partly because of how much we all miss him as a
person but it is also because of what we now know about the
circumstances surrounding his murder. We know, beyond any
doubt, that Pat was murdered with the active assistance and
participation of the former NI police force, the RUC, the
British Army and the British State.
There was a time when we did not know as much as we do now
and the claim that Britain was involved produced scepticism in
many quarters. Politicians in government and officials in State
positions at home and abroad disbelieved our suspicions
entirely. Some even poured scorn on our allegations of State
collusion and said the ideas were fanciful. Pat's case was
merely one more killing in the midst of so many. One more case
to be archived and forgotten. However, Pat's case was not
forgotten, nor were the very many others. The 1998 Agreement
represented a new beginning that would mark a point from which
the new future for everyone in Ireland, north and south, could
be launched. What was not appreciated or acknowledged, however,
was the fact that moving forward also meant dealing with the
past. In this respect, the greatest number of difficulties have
been encountered by people like me who seek to hold the British
State to account for its actions during the conflict period.
My family has campaigned for a public inquiry into Pat's
murder but the British Government has repeatedly failed to
establish one. Instead, they have instigated one confined
investigation after another, claiming to want to `examine the
facts' or `get to the truth' but always in a process conducted
away from public view.
One cannot but wonder at the pointlessness of conducting
investigation after investigation that are doomed to fail, no
matter how forceful the conclusions, because they lack the
transparency required to attain public confidence.
For example, in April 2003, the newly appointed
Commissioner of the London Metropolitan Police, John Stevens,
announced the findings of his investigation with the following
remarks:
``My enquiries have highlighted collusion, the wilful failure
to keep records, the absence of accountability, the withholding
of intelligence and evidence, and the extreme of agents being
involved in murder. These serious acts and omissions have meant
that people have been killed or seriously injured.''
One year after this, in April 2004, the former Canadian
Supreme Court Judge, Peter Cory, announced the findings of his
investigation. The concluding paragraph of his report reads as
follows:
``Some of the acts summarized . . . are, in and of themselves,
capable of constituting acts of collusion. Further, the
documents and Statements I have referred to in this review have
a cumulative effect. Considered together, they clearly indicate
to me that there is strong evidence that collusive acts were
committed by the Army (FRU), the RUC SB and the Security
Service. I am satisfied that there is a need for a public
inquiry.''
In December 2012, the Prime Minister, David Cameron,
addressed the House of Commons with a speech on the findings of
a report by Sir Desmond de Silva, a barrister tasked with
conducting a review of State papers dealing with collusion. Mr.
Cameron's conclude his speech with the following remarks:
``The collusion demonstrated beyond any doubt . . . , which
included the involvement of State agencies in murder, is
totally unacceptable. We do not defend our security forces, . .
. by trying to claim otherwise. Collusion should never, ever
happen. So on behalf of the Government, and the whole country,
let me say again to the Finucane family, I am deeply sorry.''
This outcome took 11 years and four visits to Downing
Street to meet two different Prime Ministers. This is all too
typical of the response by Britain to accusations of collusion,
namely, to deny as long as possible and then, ultimately, to
hide as much as possible.
It has been clear to many people for many years that the
legacy of conflict would have to be addressed. The Good Friday
Agreement represents a step in the journey toward achieving the
goal of creating a peaceful society that has been permanently
transformed. However, it is a means to an end, not an end in
itself. It is supposed to represent a break from the methods of
the past that undermine public confidence in government and the
rule of law. Many questions remain about the murder of Pat
Finucane. Many questions remain unanswered about the murders of
many other people.
Rather than participating in a public inquiry process, as
the British Government once promised us, my family has been
forced to take legal action to force the State to fulfil its
obligations.
The first stage of this process took place in the High
Court in Belfast and was heard by Mr. Justice Ben Stephens, who
delivered his ruling on 26 June 2015. In the opening paragraphs
of his judgment, he said the following:
``[Geraldine Finucane] . . . was convinced from the beginning
that servants or agents of the State were involved in the
murder of her husband. The government has accepted that there
was State involvement and has apologised for it. It is hard to
express in forceful enough terms the appropriate response to
the murder, the collusion associated with it, the failure to
prevent the murder and the obstruction of some of the
investigations into it. Individually and collectively they were
abominations, which amounted to the most conspicuously bad,
glaring and flagrant breach of the obligation of the State to
protect the life of its citizen and to ensure the rule of law.
There is and can be no attempt at justification.''
Sadly, Mr. Justice Stephens concluded that the decision of
the British Government not to hold a public inquiry was not
unlawful and so he was unable to order them to establish such
an inquiry. I appealed this decision to a higher court but the
Northern Ireland Court of Appeal ruled against us. However,
notwithstanding the fact that we were unsuccessful but we have
sought and been granted permission to appeal to the UK Supreme
Court. The hearing is scheduled for June 2018.
Where, then, does the case for a public inquiry into the
murder of Pat Finucane rest? The courts have concluded that
they cannot order an inquiry. The British Government has
determined it will not hold one.
Perhaps all that can be done has been done already . . . ?
Perhaps the murder of Pat Finucane is simply, `old news' . . .
?
I do not think that the controversy surrounding the murder
of Pat Finucane has been properly resolved. I believe I am
right in this, not just because of a broken promise by the
British Government but because of the unanswered questions that
arise from Pat's murder and the fact that no-one within the
British establishment has ever been made accountable for it.
Most of all, I believe I am right because of the unwavering
support my family and I have had from the people of Belfast and
beyond for the last twenty-nine years.
Many people have stood with us for all of those three
decades, helping us, encouraging us, willing us on. I meet them
often, sometimes at organised events or just when I am out and
about my daily business. I am constantly approached by people
who wish me and my family well. They tell me we are doing great
work. Some people even tell me that they have known tragedy in
their lives but were unable to follow through on it, for
various reasons. But they gain comfort and some degree of
closure by knowing that someone is holding the British State
accountable for their actions.
But everyone ends by telling me the same thing: ``Keep
going. It's important.''
This is why my family and I do what we do. This is why we
keep going even though it isn't easy. It is also why many
people keep searching for the truth behind the killing of their
relatives and friends, despite the resistance they encounter
from Britain and its government. The constant reply from the
State is that there can be no investigations and that we should
look to the future because that is what is important. However,
what the British Government cannot or will not acknowledge is
that until we know everything about our past then we cannot
possibly equip ourselves to build a solid future.
It is true that the recent past in Northern Ireland was
characterised and marred by violence. But it was also marred by
a lack of transparency in government, the absence of proper
accountability and the serial abuse by the State of our human
rights. The violence may have ceased but it is hard to
acknowledge improvement in other aspects until the State
demonstrates change in a real way. One way of demonstrating
that the change is real would be to establish a public inquiry
into the murder of Pat Finucane.
There are so many people, who, like us, want to find out
the truth behind Pat's murder. It is unfinished business for
them. It is unfinished business for us.
We want to know, why. We want to know, how. We want to
know, who.
We want to ask our own questions and to hear the answers
for ourselves. We want to be able to read the documents and
understand the frameworks.
Most of all, we want to be able to show them to the entire
world so that everyone can know and learn what can be done by
governments in the name of the people if we are not vigilant.
The British Government likes to describe those of us who
demand answers as people who are stuck in the past and who lack
an understanding of democracy. On the contrary: I believe those
who are committed to holding the State to account for past
actions understand democracy the best of all.
Thank you very much.
[all]
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