Professor Cheryl Lawther

The Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 has generated thousands of pages of critical commentary since it passed into law on 18 September 2023. The majority of that critique has centred around three aspects of the legislation.

First is the closure of all conflict-related investigations and legal proceedings, including civil actions, coronial inquests and historical investigations by the police and Police Ombudsman — all vital sources of truth recovery for victims and survivors of the conflict. The ‘guillotine’ motion created by the legislation came into play on 1 May 2024.

Second is the establishment of the Independent Commission for Reconciliation and Information Recovery (ICRIR) which will carry out ‘reviews’ (not investigations) of deaths and other harmful forms of conduct that occurred during the conflict. The independence of the ICRIR and its ability to deliver investigations that are compliant with Article 2 ‘the right to life’ of the European Convention on Human Rights have come under sustained scrutiny from victims’ groups and local and international human rights NGOs and transnational bodies including the Council of Europe Committee of Ministers.

Third was the provision of conditional immunity for applicants who disclosed their involvement in serious offences to the ICRIR. This provision was ruled to be in breach of the European Convention on Human Rights in Belfast High Court on 28 February 2024.

A central part of the recently elected Labour government’s mandate was to ‘repeal and replace’ the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023. On 29 July 2024, the new Secretary of State Hilary Benn committed to revising the prohibition on bringing new civil proceedings and proposing measures to allow previously halted inquests to proceed. While not disbanding the ICRIR, the party has also promised a fresh period of consultation with victims and survivors and other stakeholders to seek their views on how best to address the legacy of the past.

For many victims and survivors these proposals will be met with cautious optimism. However, while the door to achieving some measure of truth and justice appears to have been prised open again for some victims and survivors, for others, principally victims and survivors of conflict-related sexual violence, achieving truth, justice, acknowledgement and reparation remains elusive. While Northern Ireland did not experience sexual or gender-based violence as a weapon of war or on a scale as that experienced in Uganda, Sierra Leone, Bosnia-Herzegovina or Rwanda for example, sexual and gender-based violence (SBSV) / conflict-related sexual violence (CRSV) were indisputably related to the context of the conflict. According to the United Nations SGBV or CRSV refers to:

While it is impossible to put a precise figure on the number of cases of CRSV in Northern Ireland — not least due to the fact that the first available data on violence against women in Northern Ireland are statistical records for domestic violence beginning in 1996 — two years after the first paramilitary ceasefires, CRSV has been described to this author as Northern Ireland’s ‘shadow conflict’. Four main patterns of violations can be identified: CRSV perpetrated by paramilitary actors; CRSV perpetrated by state forces; intimate partner violence and the use of (alleged) paramilitary connections to threaten, control and/or abuse women; and the double victimisation of those already bereaved as a result of CRSV post their original trauma.

Within these categories, personal experiences of CRSV recounted to the author include: the sexual abuse of children who following the death of a parent/parents, became ‘looked after’ children within the institutional care system; the sexual abuse, degradation and humiliation of incarcerated women and men by prison officers; the sexual abuse of women within republican communities by members of the Republican movement; and the ‘preying’ on vulnerable bereaved women and children by abusers within their own communities.

The need to respond to these distinct forms of harm in terms of truth, justice and reparations and the intersection between CRSV and, for example, physical and psychological health, inter-generational trauma and between CRSV and historical institutional abuse has remained absent from mainstream debates on legacy in the past decade. Indeed, in April 2024, the report of the Independent Panel on State Impunity and the Northern Ireland Conflict entitled ‘Bitter Legacy: State Impunity in the Northern Ireland Conflict’, found that

As noted above, in its current form the ICRIR has the power to sanction reviews into ‘other harmful forms of conduct that occurred during the conflict’. CRSV has not been specified as such a form of harmful conduct and the requirement for what constitutes ‘serious physical or mental harm’ as per the legislation is regrettably, unlikely to apply to the majority of victims of sexual and gender-based violence.

The new consultation process announced by Hilary Benn therefore represents a prime opportunity to return sexual and gender-based violence to the forefront of the debate on legacy in Northern Ireland. Re-centring CRSV in the debate on legacy would, of necessity, require consultation with those most acutely affected by these harms and should form part of a wider ‘menu of options’ available to victims and survivors of the conflict more broadly. However, at this stage, some broad preliminary markers for discussion can be identified. Such an approach to CRSV should:

• Take into consideration the experience of women, girls, men and boys;
• Adopt a ‘whole person’ approach which encompasses the relationship between physical and mental health, the affect across the life-course and the impact of trans-generational trauma as a result of CRSV;
• Provide space for both the identification and recording of individual and broader patterns of CRSV;
• Examine CRSV within the home, communities and State-run settings;
• Establish a channel of investigation into the intersection between conflict-related abuse and historical institutional abuse;
• Consider and seek to remedy the historical barriers that prevented women, girls, men and boys from reporting such crimes;
• Investigate and identify the truth about cultures of impunity amongst State and non-State actors;
• Provide detailed victim-centred feedback on what may constitute appropriate reparations.

In this respect, the Labour Party would do well to return to their manifesto commitment to revisit the principles of the Stormont House Agreement (SHA). The SHA was signed by all Northern Ireland’s major political parties in 2014 and provides a four-pronged approach to legacy. Reflecting the need to harness different forms of truth and the differing needs of victims and survivors, the SHA proposed the creation of: a Historical Investigations Unit, ‘an independent body to take forward investigations into outstanding Troubles-related deaths’; an Independent Commission on Information Retrieval ‘to enable victims and survivors to seek and privately receive information about the deaths of their next of kin’; an Oral History Archive ‘to provide a central place for people from all backgrounds to share experiences and narratives related to the Troubles’; and an Implementation and Reconciliation Group ‘to oversee themes, archives and information recovery’.

Both the Oral History Archive and the Implementation and Reconciliation Group, or variants thereof, have the potential to respond to the needs of victims of CRSV. Appropriately constituted, an Oral History Archive would provide space for victims and survivors of CRSV to record their experiences (if so wished) that would counter the legalistic approach of many of the existing approaches to dealing with the past. By definition, the type of testimony gathered by an Oral History Archive would also allow for greater narrative complexity and the incorporation of personal experience than what is required in a legal or police-led historical investigation. For victims and survivors, contributing to an Oral History Archive would therefore not only counter the silencing of victims of CRSV but act as a form of truth telling and acknowledgment.

Equally, an Implementation and Reconciliation Group or similar form of thematic investigation would provide a prime site in which to address many of the outstanding questions identified above. Thematic investigation could range, for example, from documenting the different patterns of CRSV, to an examination of the intersection between conflict-related CRSV and historical abuse, to exposing the level of impunity for these crimes. The very nature of many of these issues requires an interdisciplinary perspective which thematic investigations — as opposed to the narrow confines of criminal investigations — would be well placed to facilitate. Moreover, identifying a particular harm, in this case CRSV, as a site of thematic investigation, would provide official acknowledgement of the gravity of the offence and make victims and survivors experiences visible in the public domain.

Perhaps most fundamentally, the encompassing nature of a thematic investigation would conclusively ‘narrow the range of permissible lies’ around CRSV. Individual cases of CRSV or other harms such as bereavement, collusion or displacement can become lost in the ‘wilderness of single instances’ and are easier for detractors to deny and denounce. The collective nature of a thematic investigation and the breadth and depth of such an approach would provide precisely the bulwark against the denial of the reality and effects of CRSV that is required.

The upcoming consultation on how best to deal with the past presents a vital opportunity to revisit the legacy of CRSV in Northern Ireland and to re-centre the experiences and needs of victims and survivors.

It is an opportunity that should not be wasted.

• Cheryl Lawther is a professor in Queen’s University Belfast School of Law and a Fellow of the Senator George J. Mitchell Institute for Global Peace, Security and Justice. This article first appeared on QPOL.