La lengua y la manifestación del espíritu creador del autor

international courts can be observed through a series of right to life cases relating to the NI conflict. Of the 3,600 people who had died during the Troubles, approximately 10 per cent were killed by the police or the army, yet only 33 members of the security forces have been

626 David Harris et al, Harris, Boyle and Warbrick: Law of the European Convention on Human Rights (3 edn, Oxford, Oxford University Press, 2014) 14-17.

627 Evans v United Kingdom App no 6339/05 (ECtHR, 10 April 2007), [77].

628 Handyside v United Kingdom App no 5493/72 (ECtHR, 7 December 1976), [48].

629 Sejdić.

630 U-5/04 (BiH Constitutional Court, 27 January 2006); U-13/05 (BiH Constitutional Court, 29 September 2006).

631 AP-2678/06 (BiH Constitutional Court, 26 May 2006), Separate Concurring Opinion of Judge Feldman, [5].

632 Johanna Kalb, ‘The Judicial Role in New Democracies: A Strategic Account of Comparative Citation’ (2013) 38 Yale Journal of International Law 423.

633 Leach and Donald, Parliaments and the ECtHR134; Eyal Benvenisti and Alon Harel, ‘Embracing the Tension between National and International Human Rights Law: The Case for Discordant Parity’ (2017) 15 International Journal of Constitutional Law 36. A similar conclusion is reached by Daly, The Alchemists 284 in relation to the ability of courts to contribute to the democratisation process of post-authoritarian regimes.

prosecuted in relation to these deaths and just four have been convicted.⁶³⁴ As the numbers suggest, attempts by the victims’ families to find justice through domestic institutions have been largely ineffective and, at times, counterproductive. For instance, in a 1982 incident, three police officers of a specially trained mobile support unit of the Royal Ulster Constabulary fired 109 rounds at a car ridden by Gervaise McKerr, Eugene Toman and Sean Burns, all three of whom were unarmed, and killed them. At the conclusion of the murder trial, Lord Justice Gibson, who was sitting without a jury, found the defendants not guilty and noted the following:

I want to make clear that having heard the entire Crown case exposed in open court I regard each of the accused as absolutely blameless in this matter. I consider that in fairness to them, that finding also ought to be recorded together with my commendation for their courage and determination in bringing the three deceased men to justice, in this case to the final court of justice.⁶³⁵

This deferential approach of the domestic judiciary to the executive in issues that were concerned with the NI conflict was in no way exceptional. Stephen Livingstone, examining 13 House of Lords cases decided between 1969 and 1993, concluded that the Law Lords had consistently failed to consider human rights arguments in their reasoning and had therefore ruled themselves out of playing a constructive role in the resolution of conflicts relating to NI.⁶³⁶ In light of this, victims turned to the ECtHR and argued that the deficient responses to conflict-related deaths by the UK authorities constituted violations of the procedural obligation under the right to life (Article 2 of the Convention). Upholding the applicants’ complaints, the European Court held in Jordan,⁶³⁷ McKerr,⁶³⁸ Kelly,⁶³⁹ and Shanaghan v UK⁶⁴⁰ that the domestic authorities’ practices were indeed problematic because, among others, the police officers investigating the incidents were not sufficiently independent from the officers implicated in them; there was a lack of public scrutiny and provision of information to the victims’ families concerning the investigation; the inquest procedure did not allow for any verdict or findings which might have helped secure a criminal prosecution; and there were undue delays in the completion of the investigations.⁶⁴¹ These findings by the ECtHR were symbolically important because they confirmed allegations in an international and highly visible forum that agents of the UK government were not always acting as neutral parties to the conflict.⁶⁴² At the same time, the cases had practical significance because they provided clear guidance on what the UK needed to do in order to improve its investigative practices.

Thus, by acknowledging the grievances of the victims and providing direction on how these should be addressed, the Court promoted feelings of justice and began the reconciliation-building process.

Nonetheless, had the adjudication of the conflict stopped when the ECtHR delivered its judgment, its peacebuilding impact would have been relatively limited since most victims lack

634 Brice Dickson, ‘The House of Lords and the Northern Ireland Conflict – A Sequel’ (2006) 69 Modern Law Review 383, 388.

635 Quoted in McKerr v United Kingdom App no 28883/95 (ECtHR, 4 May 2001), [19].

636 Stephen Livingstone, ‘The House of Lords and the Northern Ireland Conflict’ (1994) 57 Modern Law Review 333.

637 Jordan v United Kingdom App no 24746/94 (ECtHR, 4 May 2001).

638 McKerr v UK.

639 Kelly v United Kingdom App no 30054/96 (ECtHR, 4 May 2001).

640 Shanaghan v United Kingdom App no 37715/97 (ECtHR, 4 April 2001).

641 Jordan, [142] and [144]; McKerr v UK, [157]-[158]; Kelly, [136] and [138]; Shanaghan, [122].

642 Christine Bell and Johanna Keenan, ‘Lost on the Way Home? The Right to Life in Northern Ireland’ (2005) 32 Journal of Law and Society 68, 88.

the time and resources to go through this procedure.⁶⁴³ What made the Court’s recommendations applicable to a broader range of interested parties, and pushed for the implementation of changes that would result in the effective investigation of these deaths, was the fact that its rulings were utilised by the domestic judiciary.⁶⁴⁴ Although the adoption of ECtHR case law by domestic courts has not been conductive to the promotion of justice at every step of the way, over time, British judges have moved in the right direction. For instance, the Coroners Act (NI) 1959 provides that the purpose of an inquest is to set forth the identity of the deceased and ascertain ‘how, when and where he [sic] came to his death’.⁶⁴⁵ Problematically, this had been interpreted to mean ‘by what means’ the death took place, rather than ‘in what broad circumstances’, which left family members with very little information about what had caused their loved one’s death.⁶⁴⁶ After the ECtHR decisions, the House of Lords dubiously held in (a domestic case also called) McKerr that although there was a right to an effective investigation of deaths that had occurred before 2000 under the European Convention, this right did not exist under the Human Rights Act 1998.⁶⁴⁷ The decision meant that the restrictive interpretation of the Coroners Act was maintained and those who wanted to complain about ineffective investigations of deaths that had taken place during the Troubles, could only do so by resorting to the European Court.

Despite this originally restrictive interpretation of the law, which perpetuated a lack of information and undermined feelings of justice, as time passed, judges started laying the foundations for developing a more peace-friendly jurisprudence. Thus, the House of Lords ruled in Middleton, a (non-conflict related) case concerned with the investigation of a suicide in prison that had taken place before 2000, that an inquest verdict which only focused on the means through which someone died was not compatible with Article 2.⁶⁴⁸ Problematically, the two domestic cases – McKerr and Middleton – resulted in an unsustainable state of affairs:

both were delivered on the same day and were concerned with the State’s procedural obligations under Article 2. Yet, one held that there was a duty to investigate a death under the Human Rights Act and the other, that no such obligation existed. In practice, this meant that family members could be given information about their loved ones’ death, except when the death was somehow connected to the NI conflict. Recognising the problems this created, three years later in Jordan, the House of Lords relaxed the strict McKerr approach and held that although juries in inquests had to deliver a verdict of ‘lawful’ or ‘unlawful death’, nothing prevented them from interpreting their mandate more broadly. ⁶⁴⁹ Finally, in 2011, the UK Supreme Court completely abandoned the originally restrictive approach and held that the procedural obligations under Article 2 of the Human Rights Act should directly apply to conflict-related deaths as well.⁶⁵⁰

643 As an indication, McKerr died in 1982 and the ECtHR’s decision was delivered in 2001. The Court awarded the applicant, who had also received legal aid from the Council of Europe, an additional GBP 25,000 for costs and expenses. (McKerr v UK, [185].) Also see Galanter, ‘Why the “Haves” Come out Ahead’, 93, arguing that the impact of judgments of ‘peak’ courts is not always felt by the people on the ground.

644 Bell and Keenan, ‘Lost on the Way Home?’, 75.

645 Coroners Act (Northern Ireland) 1959, Section 31(1).

646 R. v HM Coroner for North Humberside and Scunthorpe, ex parte Jamieson [1995] QB 1.

647 McKerr [2004] 1 WLR 807. This is part of a long saga of McKerr cases and was decided after the ECtHR delivered McKerr v UK.

648 R (on the Application of Middleton) v West Somerset Coroner [2004] UKHL 10.

649 Marny Requa and Gordon Anthony, ‘Coroners, Controversial Deaths and Northern Ireland’s Past Conflict’

(2008) Public Law 443, 450; Marny Requa, ‘Keeping up with Strasbourg: Article 2 Obligations and Northern Ireland’s Pending Inquests’ (2012) Public Law 610.

650 Re McCaughey’s Application [2011] UKSC 20.

A negative reading of this line of cases would see the domestic courts as simply following – with much delay and in a very roundabout way – the European Court’s guidance and would suggest that the former have not been effective peacebuilding actors. In fact, domestic judges have arguably done a lot more than that. Although the House of Lords was initially reluctant to adopt a human rights friendly approach, over time, it developed the ECtHR’s jurisprudence by applying it in less controversial cases (such as those relating to deaths in custody) and gradually expanded its interpretation to cover conflict-related deaths.⁶⁵¹ Moreover, as years passed, domestic courts addressed with renewed vigour the problematic practices that had been identified by the ECtHR and pushed for the reform of the investigation process in novel ways that had not been flagged up by the European Court. For instance, domestic case law has held that inquests should be prompt,⁶⁵² secured the granting of legal aid to families⁶⁵³ and ensured that adequate document disclosure takes place during the investigations.⁶⁵⁴ Additionally, in cases where the inquest had been concluded before the domestic judiciary revised its position, applicants have instigated proceedings to compel the Secretary of State to initiate a new investigation⁶⁵⁵ and challenged decisions of the Director of Public Prosecutions to not prosecute suspects and/or refuse to give reasons for this decision.⁶⁵⁶ Most of these are not issues that were directly addressed by the ECtHR, but are nevertheless important in ensuring that the conflicts concerning deaths during the Troubles are resolved in a way that promotes justice to the greatest possible extent.

Therefore, it was the combined use of domestic and international courts that led to the development of this jurisprudence, which in turn, pushed for greater transparency and accountability of the State’s actions. On the one hand, had it not been for the ECtHR, the first difficult step of finding the original violation would arguably not have been taken. This is supported by the fact that when the House of Lords had been asked in another conflict-related case whether there was a right to have a solicitor present when someone was being interviewed by the police, it held that no such right existed.⁶⁵⁷ Part of the Law Lords’ reasoning was based on the argument that the ECtHR had not yet held that Article 6 of the Convention , relating to the right to fair trial, encompasses such an obligation. Similarly in the right to life cases, it is unlikely that the domestic courts would have adopted a progressive attitude towards investigating past injustices, had the European Court not taken the first step in this direction.

On the other hand, the gradual adoption of the ECtHR’s case law by the domestic judiciary had its own distinct advantages, such as the fact that it developed this guidance further, helped build momentum for its implementation by the relevant authorities and brought the provision of remedies closer to home. However, calling for better teamwork between the two levels of courts, which is what is being proposed here, is a strategy that requires peacebuilders to focus not only on judges, but other actors as well. Thus, secondments, exchanges, meetings, conferences and joint associations for the staff of domestic and international courts are likely to assist in this process.⁶⁵⁸

IV. The Impact of Timing on the Successful Adjudication of the Conflict

651 See, for instance, R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653.

652 Jordan, Re Application for Judicial Review [2002] NICA 27.

653 Jordan, Re an Application for Judicial Review [2003] NICA 30.

654 Wright [2003] NIQB 17.

655 McKerr.

656 Jordan, Re Application for Judicial Review [2003] NICA 54.

657 R v Chief Constable of the Royal Ulster Constabulary, ex parte Begley and Mcwilliams [1997] 1 WLR 1475.

658 Daly, The Alchemists 285.

While academics have identified courts as potential peacebuilding actors, and therefore appreciated their abilities to resolve conflicts,⁶⁵⁹ little, if anything has been written on when judicial intervention should take place in order to be most effective.⁶⁶⁰ This section argues that it makes a difference if the conflict is being adjudicated before or after the signing of a comprehensive peace agreement and how much time has passed since the stopping of the violence. In instances where a comprehensive peace agreement has been signed, the passage of time encourages judicial involvement in the resolution of a dispute. Conversely, where time passes in the absence of a peace settlement, judges are less likely to become involved.