Letter: The courts are not designed or equipped to deal with the legacy of communal ethnic conflicts

The decision of the Irish government to initiate an inter-state case against the British government at the European Court of Human Rights over the implantation of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 was entirely predictable and is yet another example of how both governments have contracted out the task of truth recovery and reconciliation for victims and survivors of the Troubles to the courts.

It is also further evidence that relations between the two states are probably at their lowest point since the signing of the Belfast Good Friday Agreement in 1998.

The Irish government will argue that it has no choice but to take a case before the opportunity to do so expires on January 17. The British government will argue in response that it is the only one willing to provide solutions for victims and their families while there is still time.

The fact remains that the current situation is a direct consequence of the failure of both governments to build on the Stormont House Agreement of 2014.

The establishment of the Independent Commission on Information Retrieval (ICIR), which provided a very effective mechanism for recovering the remains of the ‘disappeared’ should have been used as a template to address the need for the families of all those killed, as well as over 45,000 survivors who suffered life changing injuries to receive some measure of truth and justice.

No one is suggesting that an agreed approach will be easy but nor should the problem have been contracted out to the courts. They are not designed or equipped to deal with the legacy of communal ethnic conflicts. Time is fast running out, especially for the majority of those affected by death and injury who had suffered by the end of 1975 – almost half a century ago more.Now it seems both governments are shifting the problem to the European Court of Human Rights.

We would argue that a Truth Recovery Process, providing amnesties that are conditional on former combatants providing honest testimony should be considered as an alternative. The other conditions would be that former combatants must be willing to engage with the victims through mediation if the latter so wish. This process can address the many outstanding cases that will never see the inside of a courtroom. It can also address the many miscarriages of justice that occurred. Such a process would leave the legal option open to those victims and survivors who would rather seek justice through the courts.

If both governments continue down the current path, there will be a price to be paid not alone by victims and their families but by future generations.

The decisions by the British government in 1922 to issue a general amnesty for the War of Independence and by the Free State government for the Civil War were far from ideal, but at least it saved future generations from having to perpetuating the conflict through the courts.

​Harry Donaghy, Northern Chair, John Green, Southern Chair, Padraig Yeates, Secretary, www.truthrecoverprocess.ie, Dublin