Ireland is set to take the UK to court in the European Court of Human Rights (ECHR).
The case, which Dublin must officially file by January 17, is expected to increase political pressure for the UK to leave the seven-decade old human rights convention, legal experts have told Brussels Signal.
Dublin argues that a recent UK amnesty given to British soldiers for their actions during the so-called ‘Troubles’, from the late 1960s to 1998, is incompatible with human rights law – and in particular the ECHR’s Article 2.
That articles states countries must carry out “effective” investigations into all loss of life. This means holding judicial inquests whenever soldiers or police take lives on home soil – inquests that will be stopped by the UK Troubles legacy bill, or Legacy Act, which became law in September.
“Ireland has a very strong case on the merits,” said Dublin barrister Diane Duggan. She asked however whether the UK would comply if it loses.
London could simply ignore the decision. Alternatively, political pressure could grow for the UK to leave the ECHR entirely, especially from the Right of the governing Conservative Party, she said.
That, in turn, poses a problem for the Good Friday Agreement, the 1998 pact that ended most political violence in Northern Ireland and includes the “full incorporation in Northern Ireland law of the ECHR”.
Samantha Newbery, reader in international security at the University of Salford, told Brussels Signal that for the Strasbourg-based ECHR judges, the “key here will, I’m confident, be that the Legacy Act is, allegedly – though I believe it to be true – not compliant with Article 2”.
In practice, she said, this means ruling will turn on whether the UK can guarantee an “effective” investigation into Troubles-era deaths while still granting immunity to soldiers and security personnel.
From May, the Legacy Act replaces inquests and civil cases with a new Independent Commission for Reconciliation and Information Recovery (ICRIR), which can also grant immunity from prosecution.
Westminster will need to show that is also an “effective” alternative.
“The five requirements for it to be ‘effective’ were set out in Finucane v The Secretary of State for Northern Ireland”, a 2017 High Court case, said Newbery.
So “the investigation must be capable of identifying those responsible, be independent, and prompt, and involve public scrutiny and the next of kin,” she added.
Irish Tánaiste, or Deputy Prime Minister, Micheál Martin argued the proposed body is “not an adequate substitute for police investigations, carried out independently, adequately, and with sufficient participation of next of kin”.
The Dublin case will be relatively unusual; there have only been 30 interstate court challenges in the ECHR’s 70-year history, compared with more than 1 million applications by individuals.
There also could be a bit of waiting involved; there is a current backlog of 76,000 cases, although interstate cases such as this take priority.
Ireland previously took the UK to the ECHR in 1971. After seven years, judges ruled that interrogation techniques used by the British Army constituted “inhuman and degrading treatment” but not “torture”.
Ireland appealed that ruling in 2014, saying new evidence had since come to light, but that was dismissed in 2018.
The Legacy Act sets out to stop repetitions of the 2021 Ballymurphy inquest, experts say.
In that case, a coroner said 10 people shot in West Belfast by members of the British Parachute Regiment in 1971 were innocent and their killings were “without justification”.
From 1971 until 2021, the official record was that the soldiers involved were returning fire on Republicans who had fired first, said Duggan.
“This is what is at stake in legacy issues – determining a rigorous truth recovery process – how to tell the truth about history at its most serious level,” she added.
The pending court case has already led to calls for the UK to leave the ECHR.
“The fact Ireland is suing the UK over protecting our own soldiers is yet another reason to quit the ECHR,” argued one commenter on X.
Others claimed if the UK ignored international law over the Legacy Act, it weakened its standing when commenting on topics such as the Ukraine war.