Tag: European Court of Human Rights

Fifty years ago this Sunday, members of the 1^st Battalion of the British Army’s Parachute Regiment killed thirteen people during a civil rights march in the city of Derry in Northern Ireland. The conclusion of the Saville Tribunal of Inquiry, published almost forty years after the events of Bloody Sunday, highlights not only the obvious criminality of the killings but their significant impact:

The firing by soldiers of 1 PARA on Bloody Sunday caused the deaths of 13 people and injury to a similar number, none of whom was posing a threat of causing death or serious injury. What happened on Bloody Sunday strengthened the Provisional IRA, increased nationalist resentment and hostility towards the Army and exacerbated the violent conflict of the years that followed. Bloody Sunday was a tragedy for the bereaved and the wounded, and a catastrophe for the people of Northern Ireland.

Catherine Kelly, whose brother Michael was killed on 30 January 1972, welcomed the publication of the Inquiry’s findings in 2010: “The wait has been almost 40 years. Today the truth has been told”.

The Saville Inquiry sought to put the record straight as to the events of Bloody Sunday, given the enduring distortions of the Widgery Tribunal, which had reported within months of the events, largely exonerating the soldiers and suggesting that some of those killed “had been firing weapons or handling bombs in the course of the afternoon”. These conclusions were accepted by the British Government upon the report’s publication in April 1972, with the Prime Minister Edward Heath praising Lord Widgery’s “objective and painstaking analysis of events” in the House of Commons.

On the publication of the Saville report in 2010, a copy of the Widgery report was symbolically torn up outside the Guildhall in Derry. Joe Duddy, the brother of 17 year old Jackie, who had been killed while running away from soldiers in the car park of the Rossville flats in the Bogside, said that Widgery had “destroyed our loved ones’ good names”.

While the publication of the Widgery report in April 1972 was met with dismay and anger by the families, there was an immediate determination not to let it be the final word. Amongst the various condemnations, Brigid McGuigan, whose husband Bernard had been killed, told the Irish Times that she was considering taking a case to the European Court of Human Rights to clear his name. This post reflects on attempts to have the Strasbourg authorities address the events of Bloody Sunday, before turning to the present context of continuing but increasingly faltering accountability efforts for the killings of 30 January 1972. These come at a time of sustained hostility on the part of the British government towards the European Convention system for the protection of human rights arising in part out of its application to the war in Iraq.

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Brigid McGuigan’s reference to the European Court of Human Rights was something of a novelty in 1972, compared with the frequency with which the court in Strasbourg, and the International Criminal Court in The Hague, are mentioned today in the context of serious human rights violations. That being said, there have always been efforts to draw international attention to the conflict in Northern Ireland and to draw comparisons with other similar situations.  Kevin Boyle, who later led the Law School here at NUI Galway, and his colleagues in various civil rights groups drew comparisons with the civil rights movement in the United States and sought at times to emulate its tactics. (As Mike Chinoy’s recent book recounts, Boyle spoke of having the “unfortunate record” of having first suggested holding the anti-internment march in Derry in January 1972). Internationalisation also took the form of calling on outside actors to act as impartial observers whose objectivity might validate the experience of victims. The Bloody Sunday Inquiry itself, for example, although chaired by the British judge Lord Saville, was made up of two other members from outside the jurisdiction, William Hoyt from Canada and John Toohey of Australia, a departure from prior practice.

Before Bloody Sunday, efforts were already underway to bring the United Kingdom before the European Court for its practices in Northern Ireland viewed as being contrary to the European Convention of Human Rights. The United Kingdom had been the first State to ratify the Convention, which entered into force in 1953 and thus applied in Northern Ireland throughout the period 1968-1998. Ireland, also a State Party from that time, had been called upon by various organisations and individuals in 1971 to launch an inter-State complaint against the United Kingdom regarding its use of internment without trial, the so-called “five techniques” of interrogation, as well as killings that had taken place at the hands of State forces. Sean MacBride as chair of Amnesty International wrote to Jack Lynch, putting it that an application to Strasbourg against the United Kingdom could have an “immediate effect on the behaviour of its forces in the Six counties”. The Irish government made an application in December 1971.

In the aftermath of Bloody Sunday, Ireland amended its application against the United Kingdom alleging that the killings amounted to violations of the right to life as protected by Article 2 of the Convention, as had been claimed for the seven deaths in the original application (including the killing of Father Hugh Mullan in Ballymurphy). The European Commission ultimately found this additional application inadmissible, stating in an October 1972 decision that Ireland had failed to bring “substantial evidence” of the existence of an administrative practice involving official tolerance and repetition of acts causing deprivation of life contrary to Article 2. The Commission could not, therefore, deal with these deaths “unless and until it were shown, as required by Article 26, that the domestic remedies … have been exhausted”.

The United Kingdom had relied upon the findings of the Widgery Tribunal, stating that the soldiers “came under fire from unknown snipers who, endangering the lives of the soldiers, inflamed a situation which might have otherwise passed without bloodshed”. The Widgery findings, it submitted, “gave a picture of soldiers conscientiously doing their best under very difficult circumstances”. While there may have been a couple of cases “where soldiers fired without justification”, these were insufficient to amount to an administrative practice – Ireland had “not even begun to discharge their burden” of showing evidence of a pattern of killings or official tolerance.

Ireland had responded before the European Commission that the “conclusions of the Widgery report were not accepted” and that its findings were at times “in total conflict” with the material the State had presented in its submission to the Strasbourg authorities. The absence of prosecutions, Ireland argued, constituted official tolerance and acceptance by the British authorities and therefore an administrative practice involving breaches of the European Convention could be said to exist.

With dozens having been killed at the hands of State forces prior to Bloody Sunday, including many more than the sole example from Ballymurphy included in the application, the Irish government could have strengthened its submission in the first place, although equally, the Commission set a very high bar for demonstrating the existence of an “administrative practice”.

With the killings of Bloody Sunday excised from the proceedings, Ireland v. United Kingdom proceeded, albeit with continued controversy. The European Commission found in 1976 that the five techniques of in-depth interrogation applied against the so-called “hooded men” amounted to torture, but the Grand Chamber of the Court ruled in 1978 that such practices lacked the “special stigma” of torture, amounting instead to inhuman and degrading treatment, equally prohibited under Article 3. For Brice Dickson, the finding “sent a subliminal message to the UK government that it could continue to tolerate heavy-handed interrogation tactics without having to worry too much about international opprobrium”. The judgment has had a lasting and at times shameful legacy, having been cited approvingly in the infamous United States “torture memos” prepared in the aftermath of 11 September 2001. Ireland was unsuccessful it its efforts to have the European Court review the judgment following the discovery of additional evidence in 2014 relating to British policy regarding these unlawful interrogation techniques.

Ireland’s attempt to have the Strasbourg authorities address Bloody Sunday proved fruitless, and the Ireland v. United Kingdom judgment contains only the briefest and anodyne mentions of the event:

On 30 January 1972, 13 people were killed by army gunfire in the course of disorders taking place in the predominantly Catholic town of Londonderry. This incident led to a new upsurge in support for the IRA amongst the Catholic community.

It would be almost twenty years before recourse was again had to the European Court of Human Rights for Bloody Sunday. Relatives of those killed did so in 1994 as direct complainants, rather than via an inter-State complaint, following the British government’s refusal to establish a new inquiry. The application to Strasbourg came at a time of increasing cases against the United Kingdom in relation to Northern Ireland before the European Court, as well as resort to other international mechanisms, such as the UN Special Rapporteur on Summary and Arbitrary Executions.

Strasbourg again failed to accept the complaint, for procedural reasons. The European Commission concluded in the application of McDaid and others v. United Kingdom that the complaint was inadmissible as it fell outside the six-month period following the relevant “final decision” at the domestic level, in this context the Widgery Inquiry, the Royal Ulster Constabulary investigation and the inquest into the deaths on Bloody Sunday:

Insofar therefore as the applicants complain of a failure to provide an effective investigation into the circumstances of the deaths of their relatives or to commence a prosecution, they must have been aware by 21 August 1973 at the latest of the basis of their present complaint. In particular, it must have been clear to the applicants that no prosecution would be instituted and they would already have been aware of the allegedly unsatisfactory conclusion of the Widgery Report which was the official response to the events. The applicants' complaints to the Commission however were introduced on 18 August 1994, which is more than twenty years after the Inquest terminated.

The European Commission also cited its finding in Ireland v United Kingdom that insufficient evidence had been provided to show an “administrative practice” in relation to Bloody Sunday. It dismissed the argument of the applicants that the absence of prosecutions or a thorough or impartial investigation into Bloody Sunday amounted to a “continuing violation” of human rights:

While the Commission does not doubt that the events of "Bloody Sunday" continue to have serious repercussions on the applicants’ lives, this however can be said of any individual who has undergone a traumatic incident in the past. The fact that an event has significant consequences over time does not itself constitute a “continuing situation”.

The declaration of inadmissibility in 1996 effectively marked the closing off of Strasbourg as a route for accountability for the events of Bloody Sunday.

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The lack of State accountability before the European Court of Human Rights for Bloody Sunday was not an anomaly. Throughout most of the conflict, individual applications were few and only occasionally successful. The Convention itself allows for States to derogate from certain rights during times of emergency, while the Court has shown a deferential attitude towards measures taken by States under its “margin of appreciation” doctrine. It is on this basis that internment, a key issue for the marchers on 30 January 1972, was found not to be contrary to the European Convention in Ireland v. United Kingdom. While the Court became more assertive during the mid 1990s, Brice Dickson’s conclusion is that the United Kingdom had “a relatively easy ride in Strasbourg” throughout the Troubles. Not only did the Convention constitute “a blunt instrument” for most of the time, decisions of the Court may have “helped to prolong the conflict”, he concludes.

Another factor which limited the impact of human rights law was that implementation of European Convention in national legislation did not come about until the adoption of the Human Rights Act in 1998 on foot of a commitment in the Good Friday Agreement. At this time, the United Kingdom also signed the Rome Statute of the International Criminal Court which had been negotiated in July and ratified the two 1977 Additional Protocols to the 1949 Geneva Conventions. International humanitarian law was never formally applied during the conflict, despite the view of some British legal advisers that the conflict in Northern Ireland met the threshold of Common Article 3 of the 1949 Geneva Conventions at times. It is telling that this flurry of treaty-signing and legislating came after the end of the conflict.

The domestic implementation of the European Convention was not a trigger for the establishment of the Saville Inquiry by the British government in 1998.  It came about following a resurgent campaign by the families and pressure from the Irish government following revelations by Dermot Walsh of inconsistencies and alterations of the statements of the soldiers appearing before the Widgery Tribunal. The Human Rights Act did, however, have an influence on the proceedings. Soldiers were able to successfully argue that they should be granted anonymity before the Tribunal and not be obliged to give evidence in Derry because of the risk to their lives. While the rights of the paratroopers may have “trumped” those of the families, as Angela Hegarty put it, these concessions did not fatally detract from Saville’s ultimate findings.

The European Convention was also relied upon by the families of soldiers killed in Iraq in domestic proceedings taken against the Ministry of Defence arguing a breach of the United Kingdom’s Article 2 obligations resulting from the provision of substandard military equipment. Iraqi civilians who had been killed and tortured by British forces in Iraq were equally able to take proceedings in Strasbourg against the United Kingdom leading to findings not only of similar violations, but also judicial confirmation of the extraterritorial application of human rights during times of conflict. The Court has become much more robust regarding the extent of the obligation of States to conduct effective investigations into alleged unlawful killings. This partly explains the outright hostility currently being shown by the British government towards the European Court and the Human Rights Act.

Despite the advancements in European human rights law over the past two decades in the context of conflicts (and some reversals), impunity often remains. There are remarkable parallels in this respect between Bloody Sunday and British war crimes in Iraq – a line can be drawn from ‘the Bogside to Basra’. While the establishment of the Saville Inquiry allowed the truth of Bloody Sunday to be told, heard, and amplified, justice has not been done.

No soldier or officer has been prosecuted for the killings on Bloody Sunday. Bernard McGuigan, whose wife had said in April 1972 that she might take a case to the European Court of Human Rights, was one of two people that the Saville Inquiry was “sure” were killed by Lance Corporal F, and that it was “highly probable” that he was responsible for two other casualties on Bloody Sunday. Despite “Soldier F” being potentially responsible for four of the thirteen deaths, the Public Prosecution Service concluded in July 2021 that because of problems with evidence, there was no reasonable prospect of his conviction, or that of another solider also being investigated.  

In the context of Iraq, there has been a dearth of war crimes prosecutions – one corporal pleaded guilty to inhuman treatment in 2007 for the ill-treatment of civilians in Basra. A December 2020 report of the Prosecutor of the International Criminal Court found that despite there being a “reasonable basis” to believe many other war crimes such as murder, torture and rape were committed by British forces in Iraq, the relevant domestic investigative process running over ten years resulted in “not one single case being submitted for prosecution”. This, as the Prosecutor noted, has “deprived the victims of justice”.

While evidentiary problems inevitably arise with the passage of time, in relation to both Bloody Sunday and Iraq, shortcomings with the original investigations have played an enduring role. As to responsibility up the chain of command, not only have no officers been prosecuted for Bloody Sunday, the Saville Inquiry itself “insulated higher levels of the military and the state from culpability”. The Prosecutor of the International Criminal Court also observed a “paucity of cases concerning command responsibility that have resulted in referrals for prosecution” in relation to Iraq.

The European Court of Human Rights proved incapable of addressing Bloody Sunday, although it has offered an avenue of state accountability for Iraqi victims. Successive prosecutors of the International Criminal Court have, however, declined to proceed with formal investigations into British conduct in Iraq: the first did not consider the number of alleged crimes sufficiently grave, while the second, remarkably and rather meekly, concluded that despite the scale of alleged war crimes and the absence of accountability, she could not find evidence of a demonstrable intent on the part of British authorities to shield perpetrators from justice. When it comes to powerful States, the International Criminal Court demonstrates a continued and frustrating unwillingness to intervene.

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The current political climate in the United Kingdom is one which works in the service of impunity. The Overseas Operations Act 2021 includes an explicit “presumption against prosecution” for British soldiers operating outside the jurisdiction. The widely-condemned proposal in July 2021 by the British government for a statute of limitations on prosecutions in Northern Ireland would put an end to justice efforts relating to the conflict in Northern Ireland, including those concerning Bloody Sunday. There is of course a more general antipathy in the United Kingdom towards international institutions, of which Brexit is the clearest manifestation. A more assertive European Court of Human Rights has encountered the ire of the British establishment in recent years. Had the Prosecutor of the International Criminal Court decided to proceed with an investigation into British conduct in Iraq, the Court in The Hague would no doubt be targeted in the same way as its Strasbourg counterpart.

Fifty years after Bloody Sunday, victims continue to be denied justice for serious human rights violations. The denials and delays on the part of State authorities are often insufficiently countered by relevant international institutions. The European Court of Human Rights proved to be a dead end for the victims of Bloody Sunday. While the Saville Inquiry eventually ensured that the truth of 30 January 1972 was largely told, the prospects for prosecution have all but evaporated. Bloody Sunday has had an unimaginable personal toll on the families of the victims and was arguably the most politically costly incident of the Troubles. The impunity which followed has equally come at a price, including unprecedented financial costs associated with the inquiries and other legal proceedings. For some, this seems to be a price worth paying for the avoidance of accountability.

Professor Shane Darcy is the Deputy Director of the Irish Centre for Human Rights in the School of Law at the National University of Ireland Galway.