How the Conditional Immunity Scheme of the Independent Commission on Reconciliation and Information Recovery will work (or not)
Rather than promoting reconciliation, the conditional immunity scheme runs the risk of entrenching divided narratives of the past and undermining trust in public institutions says Professor Louise Malinder.
Image: Sir Declan Morgan, Chief Commissioner of the Independent Commission on Reconciliation and Information Recovery.
The Independent Commission on Reconciliation and Information Recovery (ICRIR) was established on 1 December 2023 to implement the UK government’s controversial Northern Ireland Troubles (Legacy and Reconciliation) Act (‘Legacy Act’) that had became law on 18 September 2023. It is now preparing to begin work in summer 2024. These preparations have included publishing reports with ideas on how it might receive requests for information recovery from bereaved families, conduct its investigations into serious Troubles-related offences, and produce reports. However, it has yet to reveal its thinking about how to approach the most controversial of its functions, namely ‘to determine whether to grant persons immunity from prosecution’ for serious Troubles-related offences.
In this blog, I analyse what the Legacy Act tells us about how this process will operate. Much remains uncertain pending the Northern Ireland Secretary of State and Chief Commissioner developing its rules and guidance as required by the legislation. However, the terms of the Legacy Act make clear that the conditional immunity scheme has only limited potential to yield new information for families and Northern Irish society. These limitations coupled with the reality that the scheme was enacted in the face of widespread opposition within Northern Ireland mean that rather than promoting reconciliation, the scheme runs the risk of entrenching divided narratives of the past and undermining trust in public institutions.
Who can request immunity?
Participation in the conditional immunity scheme is voluntary and individuals responsible for serious offences can apply to take part irrespective of whether victims or bereaved families have requested a review of any of the offences for which immunity is being sought.
The conditional immunity scheme is intended to remove the prospect of criminal liability for serious Troubles-related offences, relating to deaths and serious mental and physical harms, and connected offences. The Legacy Act grants less serious Troubles-related offences unconditional amnesty.
Only sexual offences are ineligible for immunity. Immunity can be granted to all other serious offences, including murder and torture, provided that the low threshold of conditions described below are met. Persons who are responsible for sexual offences can apply for and receive immunity for any other serious Troubles-related offences that they committed. In addition, as the Legacy Act bans the PSNI and Police Ombudsman from investigating all conflict-related offences, including sexual violence, excluding sexual violence from the immunity scheme is largely symbolic as criminal investigations will nonetheless be barred.
Individuals are not however permitted to seek immunity for offences for which they have been convicted or for which a decision to prosecute has been taken. Immunity applications could also be put on hold where an individual is being prosecuted for other offences and the ICRIR is concerned that granting immunity would jeopardise those proceedings.
Overall, the conditional immunity scheme offers very broad immunity for very serious offences. Several international criminal courts and human rights bodies have objected to amnesties for such serious violations on the grounds that crimes this serious should be subject to criminal investigation, prosecution and punishment. For example, the UN’s Committee Against Torture has observed in 2019 than any amnesty or statute of limitations for torture committed during the Troubles would be impermissible. These judgments have all related to unconditional amnesties. In a few instances, courts have left open the possibility that conditional amnesties that are genuinely intended to deliver truth, reparations, and reconciliation to victims could be permissible. The broad scope of the conditional immunity scheme means that ongoing litigation before UK courts and the European Court of Human Rights are likely to look closely on whether the conditions built into the immunity scheme would deliver positive outcomes for victims and society.
What conditions do offenders have to fulfil to obtain immunity?
If a person wishes to obtain immunity, they have to make a formal request. The Secretary of State and Chief Commissioner have not yet published the rules and procedures on how requests can be made and how they will be dealt with. However, the Legacy Act indicates that requests will have to be made within five years of the ICRIR becoming operational, except for where they relate to a review that is ongoing after the five-year period ends.
Where an individual formally requests immunity, the ICRIR must grant them immunity if the individual directly provides the ICRIR with information on eligible offences and that information is ‘true to the best’ of the person’s ‘knowledge and belief’. This is a very low and subjective bar, particularly since the disclosed information can consist of information that the person has previously disclosed (directly to the ICRIR or otherwise). This could mean, for example, that although British courts have found that statements given by soldiers to the Royal Military Police in connection with crimes committed during the early 1970s in Northern Ireland are inadmissible in criminal trials, former soldiers could nonetheless rely on such statements to obtain immunity.
This scheme does not reflect best practices in other societies, such as South Africa, Gambia, Seychelles, and Colombia, where conditionalities and alternative sanctions have been used to ensure that measures that remove or reduce criminal liability are only offered where offenders make substantial contributions towards ensuring an effective remedy for victims and promoting reconciliation. These types of conditionalities ask offenders not only to truthfully provide information about their own actions, but also in some instances, to provide broader information about the organisations in which they worked which could contribute to truth recovery or open up leads for criminal investigations, to make symbolic or material reparations, to express remorse, or to contribute in other ways to reconciliation. In contrast, where applicants to this conditional immunity scheme only repeat previous disclosures, they will receive immunity without making any substantive contributions to information recovery and reconciliation.
How will immunity decisions be taken?
The ICRIR Commissioner for Investigations has discretion over whether an immunity request becomes a review, is linked to an existing review, or is not reviewed. A review is the process by which the Commission ‘looks into all the circumstances of the death or other harmful conduct to which it relates’. It is a lighter touch process than a criminal investigation and is intended to lead to a written report on the findings. These reports will be published and given to the victims and families who requested the review.
Immunity can be granted irrespective of whether the facts of the immunity request are reviewed. If the immunity request does not become a review, the ICRIR has to determine if the information provided is true ‘to the best’ of the person’s ‘knowledge and beliefs’. It remains to be seen whether the ICRIR will interpret this as requiring them to verify that the information provided is factually accurate or whether they will view this as requiring them only to consider if the person requesting immunity believed it to be true. The choice here will of course shape the quality of information recovery.
To support this verification work, the ICRIR ‘must take reasonable steps to gather any information the ICRIR knows or believes to be relevant’ including information from any ICRIR reviews and previous investigations by other persons. The ICRIR can use its disclosure powers to require public authorities to make information available to it.
Victims and families are able to make personal statements about offences for which immunity has been requested, irrespective of whether they request a review or the Commission chooses to open a review. This suggests that victims and families should be informed if immunity has been requested for offences relating to them. However, the statements are not linked to the immunity process and have no role in verification. In addition, the ICRIR can only publish the personal statements if they do not contravene national security and, if Chief Commissioner believes publishing part or all of a statement would be contrary to the public interest, the Commission can withhold publication.
The decision on whether to grant immunity will be made by an immunity requests panel composed of the Chief Commissioner and two ICRIR offices, who must be judges or lawyers.
The draft ICRIR Governance Framework suggests that the panel could permit persons requesting immunity to attend its meetings.
The panel is required to communicate its decisions in writing to individuals who request immunity, including if relevant, describing the offences covered by the immunity. The Legacy Act does not require them to communicate outcomes to victims and families, nor is it required to publish the names of persons who have received immunity.
What happens to disclosed information?
Information provided or indirectly obtained through the immunity scheme is inadmissible in criminal and civil proceedings, except where an information provider faces criminal charges for false statements or distorting evidence.
If an immunity request is linked to a review then a report will be produced upon completion of the review. Persons who requested immunity will have the opportunity to respond to critical information in draft reports and if a victim or family requested the review, they will be able to respond to the draft report. If the review was not requested by a victim or family, the ICRIR has discretion over whether to publish the report. If the report is not published, persons appointed by the Northern Ireland Secretary of State may receive summaries of the report to inform their work on memorialisation and oral history.
If an immunity request was not linked to a review, there will be no report and it is unclear if anyone other than the ICRIR will have access to the information provided in exchange for immunity. The only requirement on the ICRIR in such instances is to publish statistical information on processing requests in its annual report.
Will the conditional immunity scheme be effective in promoting information recovery and reconciliation?
The conditional immunity scheme is designed to allow the ICRIR to grant perpetrators of serious crimes broad immunity on the basis of very weak conditions, which do not require them to provide new information to the Commission. In addition, the considerable discretion granted to the Commission in determining the extent to which information provided will be verified, reviewed, shared with families, published, or contribute to reconciliation and memorialisation work leaves open the possibility that any information recovered by the ICRIR is seen only by the staff of the Commission. This could mean that persons responsible for serious offences could be granted immunity without the information they disclose being used to further information recovery for victims and families or to promote reconciliation.
In addition, unlike conditional amnesties introduced in other contexts, victims and families have only a very limited voice in this process. Many victim have strongly opposed the enactment of the Legacy Act, including the conditional immunity scheme, and they do not feel their voices were heard by the UK government when it was developing this policy. The resulting law suggests that victims and families can be informed when an immunity request is made, can make a personal statement, and if the immunity request is tied to a review that they have requested, they will receive a report. However, if they make a personal statement, there is nothing to suggest that this will be considered by the Immunity Request Panel. In addition, the ICRIR has not suggested that victims or their legal representatives could attend the panel’s meetings or otherwise have a voice in that process.
South Africa’s Truth and Reconciliation Commission’s power to grant amnesty to individuals who fully disclosed their involvement in political offences, including serious violations, is the most studied example of conditional amnesty and the UK government has repeatedly, and self-servingly, invoked it as a model for the conditional immunity scheme. Research exploring the outcomes of the South African amnesty have, however, showed how, despite the scheme’s substantial role in truth recovery, its contributions to reconciliation were impaired by concerns that victims had not consistently been sufficiently included in the amnesty decision making process and the South African government had failed to provide adequate reparations and address socio-economic inequalities. As the Legacy Act provides the conditional immunity scheme with much more limited potential to contribute to information recovery, allows victims far less say in the immunity decision making process, and provides the ICRIR with far weaker powers to promote reconciliation than the South African Truth and Reconciliation Commission, it provides little reason to be hopeful that its unilateral imposition on Northern Ireland by the UK government will promote reconciliation.
Image courtesy of the Vice-Chancellor’s Office at Queen’s University Belfast.
