Commission on Security and Cooperation in Europe

Testimony :: Ms. Elisa Massimino
Director of the Washington, D.C. Office - Human Rights First

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Introduction

Chairman Smith and members of the Helsinki Commission, thank you for convening this hearing today and for inviting me to share the views of Human Rights First, formerly the Lawyers Committee for Human Rights. Human Rights First’s mission to protect and promote human rights is rooted in the premise that the world’s security and stability depend on long-term efforts to advance justice, human dignity, and respect for the rule of law in every part of the world. Since our inception in 1978, we have worked both in the United States and abroad to support human rights activists who fight for basic freedoms and peaceful change at the local level; to protect refugees in flight from persecution and repression; to help build strong national and international systems of justice and accountability; and to make sure human rights laws and principles are enforced.

Human Rights First has been working to advance human rights in Northern Ireland since 1990. We have published a number of reports about the intimidation and murder of defense lawyers in Northern Ireland, with particular focus on the cases of solicitors Patrick Finucane and Rosemary Nelson. As you know well, the situation of defense lawyers in Northern Ireland has been closely linked to the criminal justice and emergency law system and to the conduct of the police.

I would like to say a particular word of thanks to you, Chairman Smith, for your unwavering commitment to keeping human rights on the agenda of the United States Congress. People around the world who struggle against oppression and injustice have in you a strong and stalwart ally. Your persistence in raising these issues -- and following through on them -- is something we have all come to count on over the years.

That persistence is much needed with respect to Northern Ireland. While there has been important progress in the human rights situation since the Good Friday Agreement, nearly six years later there is still strong and quite stubborn resistance in some quarters to implementing many of the human rights commitments made in the context of the Agreement. As has been the case over some years, the peace process in Northern Ireland is often beset with political crises which have tended to stall progress on important human rights reforms. This in turn has tended to undermine support for the Agreement itself from those who are waiting to experience real change in their daily lives. We believe strongly that progress on human rights will sustain support for peace in Northern Ireland, even during periods of political turmoil. The United States has an important role to play in encouraging its close friend and ally, the United Kingdom, to overcome resistance to change and press ahead with the agenda for reform in the areas of criminal justice, policing and accountability for human rights violations.

My colleagues Jane Winter and Paul Mageean will speak in detail on the issues of accountability and policing, so I will focus my remarks today on the criminal justice reform process and on continued emergency legislation. I would like to commend to the Commission a report released last week by the Association of the Bar of the City of New York which addresses many of the issues we are discussing today and from which I have drawn extensively for my testimony. Fiona Doherty, Senior Counsel at Human Rights First, participated in the mission which culminated in that report, and was one of the report’s authors. I would ask that the report be made a part of the record of this hearing.

The Criminal Justice Reform Process

Structural reforms in the criminal justice system will be fundamental to achieving human rights progress in Northern Ireland. This is the framework in which the reformed policing service must operate; if it is faulty, no improvements in policing will ultimately be effective. The Good Friday Agreement recognized this in its call for a review of the criminal justice system, and on June 27, 1998 a Criminal Justice Review Group was established to look at a wide range of criminal justice issues, excluding policing (which was subject to a separate review) and emergency legislation (which was excluded altogether from independent review). The Criminal Justice Review Group was composed of four government representatives and five independent experts. Its mandate was to produce recommendations on reforms to increase the accountability, equity, and efficiency of the criminal justice system, as well as to consider the possibility of devolving criminal justice powers from the British government to the local Northern Ireland Assembly. In March 2000, the Review Group published a report, the Review of the Criminal Justice System in Northern Ireland (“the Review”), which included 294 recommendations for reform.

It was not until eighteen months later that the British government published an Implementation Plan and a draft Justice (Northern Ireland) Bill in response to the Review. The Bill, which received Royal Assent in July 2002 and became the Justice Act 2002, codified aspects of the Implementation Plan. The Act’s provisions did not, however, take immediate effect. Many provisions were contingent on the devolution of criminal justice powers from London to Belfast, but the Act established no timetable for devolution.

The Implementation Plan also made clear that the individual criminal justice agencies were supposed to carry out independently the reform measures that did not require further legislation. For example, the Plan supported human rights training for all criminal justice personnel, but left it to the specific agencies to decide when and how to carry out that training. The plan itself did not discuss a mechanism for overseeing the proposed changes, nor did it set out a timetable for their implementation. In light of these deficiencies, it is not surprising that, three years later, criminal justice agencies are only just beginning to initiate significant reforms. Those reforms that had been implemented within the prosecution service and other agencies are only now beginning to be systematically monitored, and they have not been well-publicized, so the public is barely aware of these developments.

After much delay, and following significant pressure from non-governmental organizations and political parties, a Justice Oversight Commissioner was finally appointed in July 2003. The Justice Oversight Commissioner will play a role similar to that of the Oversight Commissioner for Policing Reform. The appointment of a Justice Oversight Commissioner earlier in the process could have helped to address problems of transparency and delay, and pushed the sluggish criminal justice reform process forward. While the substance of the reforms recommended by the Criminal Justice Review Group are welcome and have the potential to enhance justice and accountability in Northern Ireland, it is striking how far behind criminal justice reforms are, judged against the pace of reform in other areas, such as policing. Nearly six years after the Good Friday Agreement, reform in the prosecution service, judicial appointments process, and other criminal justice agencies is only just beginning.

Recent Developments in Criminal Justice

1. The Joint Declaration

In a Joint Declaration published in April 2003, the British and Irish governments laid out a series of proposals intended to realize more fully the promises made in the Good Friday Agreement. With respect to criminal justice reforms, the Declaration announced that the British government would introduce a second Criminal Justice bill to speed up the creation of a Judicial Appointments Commission and to “make further provision to promote a human rights culture in the criminal justice system.” The Declaration also made clear that the government “accepted the desirability of devolving policing and justice” within the lifetime of the next Northern Ireland Assembly, as long as this was done with the broad support of Northern Ireland’s political parties. The Declaration did not specify which responsibilities would be devolved, but it did make clear that the British government would retain control over issues such as the armed forces and national security.

In order to pave the way for devolution, the Declaration also proposed four possible models for the local administration of devolved justice powers: (1) the creation of a single justice department headed by one minister; (2) the creation of a single justice department headed by two ministers, in order to “strengthen cross-community accountability” by requiring both ministers, presumably from different communities, to agree on decision-making; (3) handing over responsibility for criminal justice matters to the Office of the First and Deputy First Ministers; and (4) the creation of two separate departments, for example policing and justice, headed by ministers from different communities. These different models raise questions about the relationships that will exist between the ministers in charge of the department(s) as well as the relationships between these officials and the local executive, the judiciary, the Attorney General, and policing officials. But the goal of local control over criminal justice and policing is an important one that we believe will help to address human rights concerns about the current system.

The process for arriving at the appropriate model for local control of criminal justice issues should include wide public consultation and should begin immediately, so that once the Assembly is reinstated, devolution of criminal justice can occur with minimal delay.

2. Updated Implementation Plan and New Legislation

In June 2003, the United Kingdom government published an updated Criminal Justice Implementation Plan. The 2003 Plan significantly revised the 2001 Implementation Plan and set out a timetable for previously agreed-upon reforms. Most importantly, the new Plan committed the government to introducing new Criminal Justice legislation. The timetable included:

• Introduction of the new Criminal Justice bill in the fall of 2003;

• Launching of the new Public Prosecution Service in December 2003, to be phased in over three years;

• Publication of statements of ethics by criminal justice agencies by the end of 2003 (this has not been accomplished to date); and

• A review by a (not then appointed) Oversight Commissioner in December 2003, with a report to be published in January 2004.

The new Criminal Justice bill (“Justice Bill 2003”) was finally introduced in December 2003 and is expected to become law, after revisions, in the spring or summer of 2004. It will make the following changes to the Justice Act 2002:

• The Judicial Appointments Commission (“JAC”) will be established prior to devolution, with a key objective being to secure a judiciary in Northern Ireland that is reflective of society, consistent with merit requirements. Both the lay and legal membership of the JAC will be required to be reflective of society, insofar as possible.

• The Prime Minister will appoint the Lord Chief Justice and Lord Justices of Appeals “taking into consideration” the recommendation made by the local First Minister and Deputy First Minister, and the JAC will advise the ministers on the procedure for these appointments. In contrast, the 2003 Implementation Plan had promised that such appointments would be made “based on” the recommendation of the local leaders, and the government has not provided an explanation for this shift in weight given to the recommendation of local leaders. We recommend that the language of the 2003 Plan be implemented instead, giving local ministers more influence in the appointments process.

• Criminal justice agencies must have regard to guidance issued by the Attorney General for Northern Ireland regarding “the exercise of their functions in a manner consistent with international human rights standards.” The 2003 Plan was more straightforward, committing the government to include a provision in the new bill whereby criminal justice agencies would have due regard to human rights standards. We recommend use of the Plan’s language. Also, in the proposed legislation, it was not clear if the referral to the “Attorney General for Northern Ireland” meant that the provision would await devolution and the appointment of that post, or if the current Attorney General for the United Kingdom and Northern Ireland would issue the guidance. This point should be clarified before the bill is enacted.

• The Director of Public Prosecutions for Northern Ireland (“DPP”) shall refer to the Police Ombudsman matters that appear to the DPP to indicate that a police officer “may have committed a criminal offence; or may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings” unless the Ombudsman is already aware of the issue.

This revised legislation more closely reflects the Criminal Justice Review team’s recommendations than did the Justice Act 2002. As noted above, however, the legislation falls short of some important commitments made in the government’s 2003 Implementation Plan. We recommend, on those issues, that the bill be amended to track the language of commitments in the Implementation Plan

3. Justice Oversight Commissioner

On July 18, 2003, the British government appointed Lord Clyde, a former Scottish law lord, to be Oversight Commissioner to monitor criminal justice reforms. The appointment of an Oversight Commissioner provides an opportunity not only to monitor progress, but also to push forward the implementation of reform, and we encourage Lord Clyde to work proactively with the criminal justice agencies to increase the pace of reform. In this regard, it is important that Lord Clyde review the provisions of the new Justice Bill. We also recommend that the government codify the powers and duties of the Oversight Commissioner in statute and ensure that the office is sufficiently resourced in light of the scope and importance of the job. Grounding the powers in statute would create the same standing for the Justice Oversight Commissioner as is given to the parallel Oversight Commissioner for Policing. Providing the Commissioner with a statutory mandate would increase the public accountability of his office and help ensure that he receives full cooperation from the criminal justice agencies he is overseeing. We recommend that these provisions be added to the Justice Bill 2003 before it is enacted.

Emergency Powers

The United States, now faced with its own struggle against terrorist violence, can take a lesson from the United Kingdom experience with emergency laws. These draconian provisions, enacted in response to political violence in the 1970’s, fostered an environment in Northern Ireland in which human rights were routinely violated. The laws gave the security forces in Northern Ireland expansive powers to stop, question, search, arrest, detain, and interrogate persons suspected of terrorist activity. Some of the more draconian provisions included authorization of detention without charge for up to seven days warrantless searches and seizures, denial of access to an attorney for successive 48 hour periods, and trial in non-jury "Diplock" courts with lower standards for the admissibility of evidence. At the time, the government insisted that the laws were a temporary, targeted response to the specific threat posed by paramilitaries.

Experience in Northern Ireland shows that these kinds of police powers are very hard to get rid of, once enacted. Rather, they become embedded in the fabric of the criminal justice system. In February 2001, the United Kingdom brought into force the Terrorism Act 2000, despite the 1998 Good Friday Agreement and the many years of paramilitary cease-fires. This law significantly expanded the definition of terrorism and put many of the supposedly “emergency” powers on a permanent, UK-wide footing. Under the Act, for example, suspects anywhere in the United Kingdom can be arrested without a warrant, detained for up to 7 days without charge (with judicial authorization after the first 48 hours), and denied all access to an attorney for 48 hours following arrest. The Act also includes a special section on Northern Ireland which, among other measures, explicitly authorizes the use of non-jury Diplock courts. While the Northern Ireland provisions of the Act expire automatically if they are not renewed each year by order of the Secretary of State for Northern Ireland, so far, they have been renewed each year. Unfortunately, the British government specifically excluded emergency laws from the remit of the Criminal Justice Review. The Joint Declaration indicated, however, that the British government intended to repeal these provisions by April 2005 if there was a “continuing enabling environment.”

We are concerned that the Terrorism Act 2000 defines terrorism too vaguely and that its provisions allowing the use of Diplock Courts, the possibility of 48-hour detention without access to a lawyer, and warrantless arrest violate international human rights law. The U.N. Human Rights Committee has expressed its concern about Diplock Courts and 48-hour detention. The Northern Ireland Office has not reported the number of Diplock trials in recent years, but statistics indicate that there were 149 offenses heard before Diplock courts in 2002. Although we welcome the decreased reliance on Diplock trials over the last several years, it is difficult to understand why the special procedures are used at all, or for that matter, why they are still on the books. We believe the Northern Ireland provisions of the Terrorism Act are unnecessary and should be revoked. In addition, the Northern Ireland Office should publish clear statistics on past and present use of Diplock courts.

Human Rights Defenders: Patrick Finucane and Rosemary Nelson

Today’s hearing comes at a critical moment in the long struggle for justice and accountability for the murders of human rights lawyers Patrick Finucane and Rosemary Nelson. Having sought for years to put off the difficult process of uncovering the truth in these cases, the United Kingdom government has finally come to the threshold of holding public inquiries into government collusion in the deaths of Finucane and Nelson. Peter Cory, the international judge appointed to conduct investigations in these and four other contested cases, has concluded in reports not yet made public that there should be public inquiries established in the Finucane and Nelson cases. Having already committed at the outset, as part of negotiations leading to Cory’s appointment, to implement his recommendations, the United Kingdom government should move quickly to:

• Disclose Judge Cory’s reports in their entirety to the families of the victims concerned;

• Publish the reports immediately;

• Consult with the families about the terms of reference of the public inquiries; and

• Establish those inquiries without delay.

Some have argued that focusing on redress for past wrongs will simply reopen old wounds and mire society in the bitterness of a conflict that is now essentially over. But this view ignores the violence done to the fabric of society by leaving such wounds to fester. As so many societies transitioning from conflict to peace have learned, building a culture of human rights and accountability will require having a process for addressing past violations. Public inquiries into government collusion in the deaths of these two human rights lawyers is quite simply a pre-requisite to breaking the cycle of impunity that continues to persist in Northern Ireland. Until the government demonstrates a commitment to acknowledging the wrongs done in these cases, there will be a fundamental withholding of faith on the part of many in Northern Ireland that no amount of policing or criminal justice reforms will remedy.

While it is certainly true that the situation of human rights lawyers and activists in Northern Ireland has become less insecure over the last several years, there is an ongoing need for vigilance, particularly since the onset of the global “war on terrorism,” to ensure that irresponsible rhetoric does not once again create an environment in which attacks on human rights advocates is tolerated. In this regard, Human Rights First was deeply troubled by public remarks made recently by David Trimble, leader of Northern Ireland’s Ulster Unionist Party, in which he attacked human rights organizations as a “great curse.” Speaking at a conference on victims of terrorism in Madrid, Mr. Trimble charged that human rights groups “justify terrorist acts and end up being complicit in the murder of innocent victims.” We believe such remarks are inflammatory and reckless and can contribute to a climate in which governments and non-state actors feel little restraint in attacking human rights defenders who are critical of official actions. In fact, Mr. Trimble’s remarks were reminiscent of those made by Douglas Hogg in an address to the British Parliament on January 9, 1989. Hogg charged that unnamed solicitors in Northern Ireland “are unduly sympathetic to the cause of the IRA.” Weeks later, Patrick Finucane was murdered. We have written to Mr. Trimble expressing our concern about these remarks, and we urge this Commission to do the same.

Thank you for the opportunity to share our views with the Commission.