Commission on Security and Cooperation in Europe

Testimony :: Michael Posner
Executive Director - Lawyers Committee for Human Rights


Human Rights in Northern Ireland

Statement of Michael Posner

Executive Director

Lawyers Committee for Human Rights

Before the

Commission on Security and Cooperation in Europe

United States Congress

Washington, DC

March 14, 2000

I. Introduction

Chairman Smith and members of the Commission, thank you for inviting me to testify. We
appreciate your longstanding and very active interest in human rights, and your leadership on these
issues within the Congress. We appreciate also your giving us the opportunity to present our views
this morning on human rights issues in Northern Ireland.

The Lawyers Committee for Human Rights has been actively involved in issues relating to Northern
Ireland since 1990. In 1993 the Lawyers Committee issued a detailed report entitled "Human Rights
and Legal Defense in Northern Ireland: The Intimidation of Defense Lawyers, the Murder of Patrick
Finucane". We published a follow up report in 1995 entitled "At the Crossroads: Human Rights and
the Northern Ireland Peace Process". It examined the intimidation of defense lawyers but also
examined some broader issues relating to criminal justice and human rights. In that report we
recommended an end to emergency laws in Northern Ireland, a recommendation we believe has
even greater importance today.

In July of 1999 we published a detailed submission to the Commission on Policing for Northern
Ireland, based on two Lawyers Committee missions to Northern Ireland. We continue to follow these
issues, some of which I wish to comment on this morning, and which are directly relevant to the
protection of human rights advocates.

We have closely followed the investigations into the murders of two prominent human rights lawyers
in Northern Ireland: Patrick Finucane and Rosemary Nelson. We have appreciated the opportunity
to report periodically to you and others in Congress about these two cases and to express concerns
about the lack of progress in those investigations. We appear here again this morning to reiterate
our continued concerns about the official handling of both the Finucane and Nelson cases.

As we meet here this morning we mark two anniversaries. Two years ago, Senator Mitchell helped
bring parties to the table to sign the Good Friday Agreement, an important milestone that continues
to provide the basis for ongoing and still difficult effort to bring a lasting peace to Northern Ireland.
One year ago Rosemary Nelson was murdered in front of her home by a powerful car bomb. This
courageous woman literally gave her life to the cause of human rights and justice.

This hearing is being held at a time of a continuing political dialogue about various issues relating to
the implementation of the Good Friday agreement, including decommissioning of weapons. As
these negotiations continue, it is essential that we continue to remind the negotiating parties that
these two anniversaries are inextricably linked. For many people in Northern Ireland, the denial of
basic human rights has been and continues to be at the heart of the conflict. It is only by reasserting
the centrality of human rights, including justice and accountability in the cases of Patrick Finucane
and Rosemary Nelson, that peace can be achieved.

II. The Murders of Rosemary Nelson and Patrick Finucane

A. Rosemary Nelson

On September 29, 1998, Rosemary Nelson testified before the House Committee on International
Relations with a hope of calling international attention to the plight of Northern Ireland defense
lawyers who take politically sensitive cases. In her poignant testimony, Ms. Nelson detailed the
inherent difficulties of working as a human rights lawyer under a system of emergency law. She also
spoke about the threats she was receiving from the Royal Ulster Constabulary, sharing her fears
and deep concerns for her family and staff. She ended by saying: "I believe that my role as a lawyer
and defending the rights of my clients is vital. The test of a new society in Northern Ireland will be the
extent to which it can recognize and respect our role and enable me to discharge my role without
improper (sic) interference. And I look forward to that day."

Rosemary Nelson did not live to see that day. On March 15, 1999, one year ago, she was killed by a
car bomb in front of her house. Last fall I visited the scene of that horrible crime and met with her
husband and family. I was part of a Lawyers Committee delegation to Northern Ireland examining
the continued threats against human rights lawyers. I was joined by three others including Jim
Brosnahan, a prominent San Francisco lawyer who is actively involved with our work.

On March 30, 1999, RUC Chief Constable Ronnie Flanagan announced the appointment of Mr.
Colin Port, the Deputy Chief Constable of the Norfolk Constabulary in England, as Officer in Overall
Command of the Nelson murder investigation. While Mr. Port has devoted himself to building a
team of investigators to work on this case, and has himself become closely involved in the
investigation, there are continuing questions about whether his investigation is sufficiently
independent from the RUC. Specifically, critics have noted that Mr. Port is working out of an RUC
office and is employing RUC officers. Mr. Port has created three separate databases to exclude
RUC access to sensitive witness information, but he acknowledges that he still needs considerable
RUC assistance and is still answerable to RUC Chief Constable Flanagan.

In part because of these continuing concerns about the structure of the current investigation, on
December 10, 1999, the Lawyers Committee joined five other human rights organizations in a joint
statement calling for an independent inquiry into these larger questions surrounding the murder of
Rosemary Nelson. The statement recognized that "the current criminal investigation is limited to the
specific circumstances of the murder and will not be able to deal with the many questions that . . .
Rosemary Nelson's murder raise." Yesterday the Lawyers Committee joined ten other international
organizations to repeat the call for "the UK government to act immediately to set up an independent
inquiry" into the questions surrounding Rosemary Nelson's murder. In particular, the Lawyers
Committee is concerned that the Port investigation will not adequately resolve issues of collusion
relating to the Nelson murder. It is also apparent that the investigation will not result in a full inquiry
into the official threats made against Rosemary Nelson prior to her murder.

On January 8, 2000, the Director of Public Prosecutions (DPP) decided against prosecuting any
police officers with respect to allegations that they threatened Ms. Nelson before her death.
Following the DPP's decision, Rosemary Nelson's husband Paul Nelson said that "Tony Blair must
recognise his responsibility in relation to truth and justice for Rosemary and establish an
independent international judicial inquiry into all the circumstances surrounding her murder." We
echo his call, and urge members of Congress to do the same.

B. Patrick Finucane

The Lawyers Committee also continues to press for an independent inquiry into the murder of
Patrick Finucane, the Belfast lawyer who was killed on February 12, 1989. Many others have also
called for an independent inquiry in this case. Last month the Irish Taoiseach, Bertie Ahern, made a
public call for such an independent inquiry. Prior to his death, Mr. Finucane received death threats
from members of the police, threats that were communicated through his clients. His unresolved
murder continues to have a chilling effect on other defense lawyers.

London Detective John Stevens heads the renewed murder investigation. Since this latest
investigation began, the RUC has arrested 11 individuals in connection with the Finucane murder,
including William Stobie in June 1999. Other than Stobie, three others were charged (with offenses
unrelated to the Finucane murder). All remaining suspects, five of whom were unnamed, were
released by late 1999.

When charged, William Stobie revealed that he had been an RUC police informer at the time of the
Finucane murder. On October 5, 1999, Mr. Stobie was released on bail. During his bail hearing, Mr.
Stobie's lawyer revealed that in 1990, Stobie was interviewed for more than 40 hours by members
of the RUC Special Branch. These interviews, which included Stobie's confession to supplying the
weapons used in the murder, were transcribed and have been available to the authorities since
1990. Among other things, these notes identify the names of the members of the RUC Special
Branch who had warned about the murder. At that time, the authorities never charged Stobie with
murder and the DPP dropped firearms charges against him in 1991. Current charges against Mr.
Stobie are still pending.

Mr. Stobie's lawyer, Joe Rice, appeared in court on March 8 to complain about the failure to
prosecute his client and to object to further remand. On January 12, Mr. Rice had consented to a
two-month remand on the basis that substantial progress would be made in the case. However, the
Crown counsel claimed he only received the case papers two to three weeks prior to this latest
court appearance and was preparing an opinion for the DPP. Mr. Rice challenged the counsel's
request for a four week remand by pointing out that the bulk of evidence had been in existence eight
or nine years. The judge expressed concern about the delay but granted an adjournment until April

Recent news reports published on January 23, 2000 indicate that Mr. Stevens recently identified six
loyalist members of the paramilitary Ulster Defence Association suspected of the murder of Mr.
Finucane, and sent the files to the Director of Public Prosecutions (DPP). According to the
Independent, "DNA samples have been obtained from at least one of the murder weapons and a
balaclava helmet worn by one killer. Detectives have also collected tape recordings, witness
accounts and forensic material, believed to support claims that Royal Ulster Constabulary (RUC)
officers failed to prevent the hit, despite being warned about the imminent killing."

These and other recent events underscore the need for a full independent inquiry into all aspects of
the murder of Patrick Finucane, including allegations of official collusion. Some UK authorities have
recently suggested that the current criminal investigation, led by Mr. Stevens, precludes such an
independent inquiry. We disagree. At a minimum, there is nothing that prevents UK authorities from
announcing the establishment of an independent inquiry, or from appointing members to such an
inquiry. The time is long overdue for such an independent inquiry to be put into place.

As we wrote to the Commission on Policing last July:

"In order for the process of creating a new beginning for policing in Northern Ireland to go forward,
certain aspects of past policing practice must be brought into the open. If official responsibility is
found [in the Finucane case] a degree of accountability must ensue. This would signal a break in the
cycle of impunity, thereby playing an important role in encouraging support for the police force from
the communities."

Many of our concerns have been expressed also by Dato' Param Cumaraswamy, the UN Special
Rapporteur on the Independence of Judges and Lawyers. He first commented on the seriousness of
this situation in his April 1998 report to the United Nations. According to Cumaraswamy, "the RUC
has engaged in activities which constitute intimidation, hindrance, harassment or improper
interference" often because they identify "solicitors with their clients or their clients' causes as a
result of discharging their functions." On April 12, 1999, Mr. Cumaraswamy also expressed his "lack
of confidence in the RUC investigation mechanism" in connection with the Independent
Commission for Police Complaints (ICPC). The RUC officers implicated in Ms. Nelson's complaints
continue to serve as officers and are likely to avoid internal discipline since, in deciding whether to
take internal disciplinary measures, the RUC uses a "beyond a reasonable doubt" standard.

III. The Patten Commission Report and the Need for Legal Reform

In its work on Northern Ireland, the Lawyers Committee has repeatedly recommended that all
emergency powers should be repealed as a pivotal step in the process of building confidence in the
legal order in Northern Ireland. The police force in Northern Ireland has never operated in any
framework other than that of emergency legislation. Emergency powers in Northern Ireland have
been linked to serious human rights violations, and the Lawyers Committee believes that the
maintenance of emergency legislation inevitably will continue to create conditions leading to such
violations. Under international human rights law, states may only derogate from international
standards in emergency situations that threaten the life of the nation. Particularly since the adoption
of the Good Friday Agreement, and its express recognition of the need to remove emergency
legislation, it is extremely difficult for the UK government to justify the continued imposition of
emergency law.

Emergency law provisions are especially undermining of due process rights of criminal suspects, in
particular regarding arrest, detention and trial. In broad terms, the extraordinary powers dictate the
climate within which the police force operates. A corollary is the alienation of that considerable
section of the community that is implicitly considered a threat to the life of the nation. Under the
emergency regime, the police have expansive powers to stop, question, search, detain and
interrogate persons suspected of security offenses. It is clear that the legislative purpose of these
expansive powers is to deal with any "terrorist" threat still existing in Northern Ireland. Nevertheless,
on a day to day basis, there are credible reports that such powers have been and are used as an
instrument of harassment against a portion of the Northern Ireland population. Dismantling of the
emergency regime would be a significant and much needed step towards changing the culture of
policing in Northern Ireland.

Chairman Smith, last September you convened a consultation under the auspices of the House
Committee on International Relations which focused on the Patten Commission's report on policing
in Northern Ireland. At that consultation, in which Mr. Patten appeared, we welcomed the publication
of his Commission's report, entitled "A New Beginning: Policing in Northern Ireland." In particular,
we commended the report's emphasis on the twin themes of human rights and accountability.
Focusing specifically on the Finucane and Nelson cases, we emphasized that "building a culture of
human rights and accountability in the future will also require some process for addressing past
violations." We are convinced that any future progress in developing a rights sensitive police force
in Northern Ireland depends on breaking the still existing cycle of impunity. Resolution of the
Finucane and Nelson cases would help advance that objective.

I want to conclude with a brief update on reactions to the Patten Commission and efforts to
implement its principal recommendations. On January 19, 2000, the Secretary of State for Northern
Ireland, Peter Mandelson, announced the government's decision to implement virtually every major
recommendation in the Patten report. Mr. Mandelson supported the Patten Report's emphasis on
human rights, stating that "[a]ll officers will…receive human rights training, and will be required to
behave in accordance with a code of ethics. This Code will be provided for in legislation, and will,
like the new Oath, emphasize the priority to be given to human rights." He also stressed that
implementation of the Patten Commission's recommendations will depend on the promulgation of
new legislation, the appropriation of adequate funding, and the cooperation of the Royal Ulster
Constabulary (RUC). The Lawyers Committee welcomes Mr. Mandelson's announcement and
supports the Government's initiatives to implement the Patten Commission's recommendations.

The UK government's endorsement of the Patten Commission's findings and recommendations has
not been echoed either by the police or by a majority of those in the now suspended Northern
Ireland Assembly. To the contrary, in December, the RUC issued a detailed and very critical
evaluation of the Patten report. While accepting a number of the Patten Commission's findings and
recommendations, the RUC vigorously rejected key recommendations, including that it change its
name to the Northern Ireland Police Service and that members of the current force take a new oath
that includes a pledge to human rights. The RUC also has resisted appointment of an outside
advisor on human rights, implying that the RUC already had enough staff expertise to align its
practices with human rights standards. The RUC statement reflects the overall reluctance of the
RUC to acknowledge past problems in the recruitment of minority officers, means of internal
discipline, or means of accountability to external monitoring bodies.

On January 24, 2000, the Northern Ireland Assembly voted against the Patten recommendations.
The Assembly charged that the Patten reforms rewarded terrorists. The vote was largely symbolic
since the Secretary of State still controls security after the devolution. However, the opposition
reflects the reluctance of Unionist political parties, who make up the majority of the 108-seat
assembly, to support the reform effort.

At this critical juncture, we urge congressional focus on the appointment of the Oversight
commissioner, a new position recommended by the Patten Commission to supervise the
implementation of the Commission's recommendations. In making this recommendation, the Patten
Commission commented, "The oversight Commissioner would provide more than a stocktaking
function. The review process would provide an important impetus to the process of transformation.
We recommend that the government, the police service, and the Policing Commission should
provide the oversight commissioner with objectives (with timetables) covering their own
responsibilities, and that they should report on the progress achieved at the periodic review
meetings, and account for any failures to achieve objectives. All will need to demonstrate to the
commissioner their commitment to the objectives of transforming policing, and the commitment of
their members and staff."

The UK government has announced its intention to create this position and to follow the Patten
Commission recommendation that it appoint someone from outside the United Kingdom or Ireland.
It is imperative that the person who is appointed for this very important position has the requisite
skills, experience and independence to carry out this difficult assignment effectively. Among the
criteria that the UK authorities should consider in making this appointment are: intimate knowledge
of and practical experience

with police practices and operations, integrity, rights sensitivity, a demonstrated commitment to
building a system of official accountability, independence and perseverance. The new Oversight
Commissioner must be willing to make a major personal commitment to devote extensive time and
energy to carry out this critical work. The UK Government must provide sufficient resources to
support the Commissioner's work and political support to enable the Commissioner to implement
effectively the Patten Commission's recommendations.

We urge members of this commission and others in Congress to pay active attention to the
appointment process with respect to this critically important new position. Proper implementation of
this and the other recommendations contained in the Patten Commission report is the responsibility
and duty of the UK government. Lasting peace cannot take hold in Northern Ireland until the UK
government demonstrates the willingness and ability to secure justice for the families of Rosemary
Nelson and Patrick Finucane and a commitment to creating a representative and accountable
police force for Northern Ireland's future.