Austen Morgan: There may be peace in Northern Ireland but there is not justice for past violence

The UK counter-terror strategy began the process, in 1997. The following principal milestones (there are more) mark the corruption of criminal justice:

• the Belfast agreement of April 1998, providing for a transition from terrorism to democracy, approved in a referendum in May 1998;

• NI (Sentences) Act 1998 (originating in an Adams/Blair one-year agreement), providing for the release of 229 republican and 199 loyalists prisoners after two years;

• the Northern Ireland Office’s (‘NIO’) administrative scheme, from 2000 to 2014, in which at least 187 of 228 pro-Adams/McGuinness IRA applicants, were issued with secret letters.

Rule 159 of customary international law (according to the international committee of the red cross) reads: ‘At the end of hostilities, the authorities in power must endeavour to grant the broadest possible amnesty to persons who have participated in a non-international armed conflict, or those deprived of their liberty for reasons related to the armed conflict, with the exception of persons suspected or accused of or sentenced for war crimes.’

This was codified in recent years in: the second additional protocol to the 1949 Geneva conventions, 1977, article 6(5). The UK ratified the protocol in January 1998; the Republic of Ireland in May 1999. This rule was cited in Strasbourg, but not considered properly or at all, in Margus v Croatia in 2013 and 2016.

Much more significant is the intervention of Prof William Schabas, of Middlesex university, affirming international law, with a number of NI supporters: Louise Mallinder; Christine Bell (then of Edinburgh); Tom Hadden; and Kieran McEvoy.

The new Irish state created in December 1922, legislated three times in 1923-24 for amnesties, dispensing with civil and criminal liability for violence and force: first, for UK state forces before evacuation; second, for republicans in the so-called war of independence against British rule; and third 1923, for free state forces in the subsequent civil war. Subsequently, after each IRA campaign, governments in Belfast and Dublin pursued lawful early-release-of-prisoners policies, including at the start of the NI Troubles.

On Friday, 17 December 1999, Bertie Ahern, the Irish taoiseach, travelled to London, to meet Tony Blair, the UK prime minister. The former then wrote to the latter that his government’s view was that “there is a strong case for deciding that the relevant authorities will not proceed further ... in regard to certain outstanding warrants or any proceedings that may be subsequently contemplated’. The taoiseach went on to name several leading republicans who were at risk of arrest in NI (including I believe Rita O’Hare).

Around 3,750 people were killed during the Troubles – 60% of them by republicans; 30% by loyalists; and 10% were state killings. Disregarding for the moment, the fact that all the terrorists killings were unlawful, and most of the state killings were lawful (in domestic and international law), one would expect prosecutions over the past 25 years to have run roughly 60% republicans, 30% loyalists and 10% police and soldiers – in order to allow every relative the same access to justice. That has not been the case; far from it. The only republican facing the courts is John Downey, and he is a special case. Loyalists have been slightly more visible. But it is mainly soldiers who have dominated Troubles prosecutions in recent years.

Dennis Hutchings died of Covid during his part-time show trial (on dialysis three times a week), without the opportunity to clear his name. The prosecution of soldiers A and C collapsed over the admissibility of evidence. As a result, the prosecution abandoned the soldiers F and B trials. But that was to reckon without the NI judiciary, and its unique judicial reviewing.

Jonathan Holden was the only conviction success: sounding in a two-years’ suspended sentence for gross negligence manslaughter.

But the state broadcaster, covering the ‘perp’ walks (as they call them in the US) of aged veterans, in and out of the crown court in Belfast, was able to build up the picture of the state – not the real perpetrators – being punished and held accountable.

The Malone House group (with which I am associated) was the only unreported body to support the NIO policy of closing down lawfare; and opening security files to the relatives and others as outlined in the government’s command paper of July 2021. The NI Troubles (Legacy and Reconciliation) Bill, when introduced last May, was disappointing. True, a great deal would stop. But the bill provided for an independent commission on reconciliation and information recovery (‘ICRIR’), which threatens to join the family of alternative justice bodies in NI.

The Labour opposition came eventually to promise repeal. The five parties of Stormont, which had failed to legislate for legacy when given the responsibility, voiced opposition discordantly. Relatives groups – from different corners – expressed disappointment

Perhaps some home truths should now be told. The five-party coalition cannot rally round one victim in common. The DUP has offered no amendments which would substantively undo the corrupting of the criminal justice system. Nationalists want some aged police officers to join the military veterans on the perp walks in and out of court. The Alliance party cheers on the non-governmental organisations, indiscriminately.

Twenty five years after the Belfast agreement – with the cohorts of police, soldiers and paramilitaries being rapidly depleted – there is no active criminal justice system convicting the guilty.

Unionists fantasise about republicans being held to account, oblivious of the statecraft of turning terrorists into politicians (look what happened when Gerry Adams was asked about Jean McConville). Nationalists have an anti-colonial agenda, tipping towards historical justification of the IRA’s not-so-long war.

Northern Ireland continues to do a great deal of harm to itself, contrary to the 1998 vision of reconciliation: ‘The achievement of a peaceful and just society would be the true memorial to the victims of violence.’ There may be peace: there is not justice.

• Austen Morgan is a barrister based in London. He is the author of Tony Blair and the IRA: The 'On The Runs' Scandal