Dealing with past in Northern Ireland was never going to be an easy complete deal made before last Christmas. Although nearly a year has passed since the Stormont House Agreement, the actual hard negotiations of the legal intricacies are only now being hammered out. While the draft legislation itself is very technical and abstruse, it is apparent that finding the truth about the past in Northern Ireland is not going to be straightforward. Mark Thompson has been sounding the warning bells that the current draft legislation will effectively ‘tie the hands’ of any director of the Historical Investigation Unit to obtain permission of the Secretary of State before disclosing any material identified which may be sensitive to national security. This is a step back from the language of the Stormont House Agreement about the UK government’s commitment to ‘full disclosure’ with similar obligations for the Irish government. This piece tries to provide some solutions to the impasse from human rights and international law.
National Security, Disclosure and the Historical Investigation Unit
National security is an important consideration in combating terrorism and preventing future attacks. Revealing past practices of how informants were recruited and handled by UK intelligence services and the RUC Special Branch could endanger current operations, practices and agents. That said the veil of national security over the shadowy workings of the intelligence services should not be a shroud for complicity or greater involvement in past murders or collusion with paramilitary groups.
The Historical Investigations Unit (HIU) on the face of the Stormont House Agreement offered a way to continue to investigate outstanding Troubles-related deaths and allow the possibility of future prosecutions (if only a few, due to limits in evidence), alongside the Independent Commission for Information Retrieval to allow a wide scope for recovering information on past atrocities. The Stormont House Agreement spoke of being ‘victim-centred’ and being independent, a way to obtain the most truth possible.
Yet the draft Stormont House Agreement legislation refers to three main types of information, which may raise disclosure issues: “prejudicial”, “sensitive” and “protected international”. Section 14 defines these types as: prejudicial information is that which if disclosed could put the safety or lives of persons in danger; sensitive information is material that if disclosed would risk national security; and protected international information is intelligence from agencies outside the UK. Under Schedule 8 the HIU has a duty to identify prejudicial or sensitive information, which is understandable given the risks to individuals’ lives. However, a second ‘relevant authority’ reviews such information. “Relevant authority” is defined the Chief Constable, the Ombudsman, any Westminster government minister, Security Service (MI5), Secret Intelligence Service (MI6), GCHQ, any other department of the UK government, and any of HM forces. These actors could serious compromise the independence of such a process, preventing disclosure of information which carries criminal penalties under the proposed legislation for those who disclose such sensitive material.
For families of those killed, under s.19(9)(b) of the proposed legislation the HIU can remove any information from a report to a family if it is in the ‘public interest’, clearly to be read in light of its obligations to not disclose sensitive information that could risk national security. In addition, schedule 14 enables inspections of the HIU by the Criminal Justice Inspectorate, whereby the Secretary of State can notify the inspectors that sensitive information (national security) or protected international information is to be excluded from any public report. How can these provisions be reconciled principles of being victim-centred and independent. What guidance can regional or international law offer us in getting through this quagmire?
Human rights obligations on the UK and Irish governments
Human rights law has been developing an emerging right to truth around serious violations of human rights. The right to truth, while not a stand alone right like the right to a fair trial, has been interpreted by regional courts as an important guide in ensuring effective investigations, in particular for gross violations of human rights, such as disappearances and extra-judicial executions.
In the El-Masri v Macedonia case involving CIA rendition of terrorist suspects before the European Court of Human Rights, the court commented that national security ‘has often been invoked to obstruct the search for the truth.’ National security can bring up obstacles or difficulties making an investigation inadequate, thereby a procedural violation, as it impacts on the victims and society’s right to truth. Instead states need to undertake transparent, independent, effective and timely investigation as ‘essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts’ and ‘there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory.’
The UN Special Rapporteur on Countering Terrorism Ben Emmerson has noted that ‘executive claims of non-justiciability on national security grounds to the most penetrating scrutiny.’ In other words where states claim national security they should be examined by judges and as far as The Council of Europe has also stated in its Impunity Guidelines that ‘impunity must be fought as a matter of justice for the victims, as a deterrent to prevent new violations, and to uphold the rule of law and public trust in the justice system.’ Similar the Inter-American Commission and Court of Human Rights both stated that ‘public bodies cannot shield themselves behind the protective cloak of official secrets to avoid or obstruct the investigation of illegal acts ascribed to members of its own bodies.’ It added that,
‘resorting to official secret with respect to submission of the information required by the judiciary may be considered an attempt to privilege the “clandestinity of the Executive branch” and to perpetuate impunity. Likewise, when a punishable fact is being investigated, the decision to define the information as secret and to refuse to submit it can never depend exclusively on a State body whose members are deemed responsible for committing the illegal act.’
The issue of disclosure of state intelligence to international bodies about gross violations of human rights amounting to international crimes has been a sensitive one. The international criminal tribunals and courts have developed some rules and procedures to enable judges and in some cases victims to access such material in order to determine the truth.
The experience of disclosure at the international criminal tribunals and court
The International Criminal Tribunal for the former Yugoslavia (ICTY) has a separate hearing for disclosure of information from states where there is a national security interest. Under Rule 54bis (F) states can object to material being disclosed if they identify the basis of a national security claim and can request the judge to direct appropriate protective measures. Such measures include holding the hearing in private and without other partes (i.e. the defence), allow documents to be submitted in redacted form signed by state officials explaining the reasons for such a measure, or ordering that no records of the hear is not filed with the court or made public. A single judge can order such protective measures or reject the state’s application and disclose the material.
In practice the ICTY has said that there is no national security privilege for states before international criminal courts or tribunals when it comes to international crimes. As stated in Blaškić (IT-95-14) 18 July 1997 (para.147):
‘the mere assertion by the Prosecutor that information in its possession may affect a State’s national security does not in itself constitute sufficient ground to relieve it from the general obligation of disclosure. On the contrary, the Trial Chamber must be satisfied that the information is indeed confidential before granting it protection from disclosure. In such cases, the Prosecutor must give the reasons for its objection to disclosure and furnish the Trial Chamber “with the information that is sought to be kept confidential” (emphasis added). Hence, in a similar manner, a State invoking a claim of national security as a basis for non-production of evidence requested by the International Tribunal, may not be exonerated from its obligation by a blanket assertion that its security is at stake. Thus, the State has the onus to prove its objection. Although the State has the authority to determine that which endangers, threatens or compromises its national security, it must be specific in its refusal to comply with an order of the International Tribunal, and it is the refusal itself that the International Tribunal is called to assess with the State in question substantiating the basis of its assertions.’
Subsequently the ICTY Appeals Chamber held in Blaškić (IT-95-14) 29 October 1997 (para.65):
‘to grant States a blanket right to withhold, for security purposes, documents necessary for trial might jeopardise the very function of the International Tribunal, and “defeat its essential object and purpose”. The International Tribunal was established for the prosecution of persons responsible for war crimes, crimes against humanity and genocide’
More recently in Karadžić case (IT-95-5/18) 30 June 2010 the Trial Chamber held (para.41) ‘a state does not have a blanket right to withhold the production of documents on the basis that this raises national security concerns.’ However with intelligence held by third parties these cannot be disclosed (para.43).
The International Criminal Court
The International Criminal Court (ICC) has a similar hearing process to the ICTY, but the it is based on consent (including national security) rather than explicitly on national security (Rules 81 and 82). The ICC disclosure agreement between the information provider and the OTP is said to be an absolute agreement to uphold, i.e. Article 54(3)(e) material is only preparatory material to generate further evidence, inadmissible in criminal proceedings. In the Lubanga (para.72) case at the ICC the Chamber said that such confidentiality agreements should be only used exceptionally. As the Court said (para.73) ‘the proper use of the provision, [is] exceptionally, to allow the prosecution to receive information or documents which are not for use at trial but which are instead intended to “lead” to new evidence.’ In other words, relevant evidence about the guilt or innocence of an individual should be disclosed.
Importantly for Northern Ireland it is worth noting victims unique role at the ICC in that they can participate as parties through legal representatives. This could be instructive for the future Historical Investigation Unit with victims’ access to confidential information. The ICC jurisprudence has for the most part allowed victims access to public materials, and has only granted rights to confidential material on a case-by-case basis, but not ‘ex-parte’ information, i.e. confidentiality agreement of material disclosed by states to OTP under Article 54(3)(e) see Katanga case (para.128-131 and 168). In other words, if national security is raised it should be provided to judges to decide when it should be disclosed, they can also decide what redactions should be made for victims.
Clearly there is a need for a more transparent way to deal with sensitive information. It is apparent from international and regional courts’ jurisprudence that all relevant information, whether prejudicial, sensitive or protection international intelligence, should be disclosed to a court dealing with Troubles-related deaths and other serious offences. However, special hearings should be put in place were a security vetted judge can review such material and provide appropriate redacted or other protect measures to ensure that as much information and thereby truth can be revealed to victims and the wider public. In the case of protected international intelligence, such material following the ICTY approach could not be publicly disclosed, but should be made available to a judge to determine its probative value, with the burden on the state to prove the basis of its national security claims and need for protective measures. What is important is that relevant information should not be in the control of the executive, but publicly scrutinised as far as possible by an independent body (such as the originally proposed HIU), with judges as gatekeepers rather than the intelligence service. See the CAJ model implementation bill for a more human rights compliant approach.
We are at the stage of doing a deal of the past right, or throwing up more hurdles so that in five years time we are negotiating a new agreement on the past. Given over forty years has past since the Troubles began, at what point do such delays become inhuman and degrading treatment for victims? What does it say about our new society that we lack the leadership and trust in each other to bring into the light our dark past to prevent it from happening again in the future? Really do we want the whole truth and nothing but the truth, or just an Orwellian manufactured truth?
The HIU or other mechanisms in the Stormont House Agreement are unlikely to get us the whole truth, due to failing witnesses’ memorial, destruction of evidence and the passage of time, but implementing human rights compliant legislation can be a honest commitment to find as much truth as is possible. Truth is important to victims in acknowledging their suffering and for society in awakening its public consciousness to ensure that such atrocities do not occur again and that impunity does not fester at the legitimacy of our democracy.