90 SUBCOMMITTEE ON INTERNATIONAL OPERATIONS AND COMMITTEE ON INTERNATIONAL RELATIONS Chairman Smith and members of the subcommittee, thank you for inviting me to testify today. I appreciate the opportunity to be a part of this hearing and to share with you our perspective on these important issues. The Lawyers Committee for Human Rights is an independent, non-governmental organization. Since 1978, the Committee has worked to protect and promote fundamental human rights, - holding all governments accountable to the standards contained in the International Bill of Human Rights and related international human rights instruments. In its efforts to provide workable solutions to human rights problems, the Lawyers Committee brings a principled legal focus drawn on international norms. In addressing the issue of human rights in Northern Ireland, the Lawyers Committee is mindful of the context in which these issues arise. We oppose the use of violence for political ends, and are deeply disturbed by the breakdown of the cease-fire and the return to violence in Northern Ireland. The killing last week of two policemen, members of the Royal Ulster Constabulary, by the IRA is the latest example of such tragic violence. In recent weeks there have also seen violent incidents perpetrated by loyalists, including the beating to death of two young men, one a policeman. As these and other incidents continue to occur, we recognize the United Kingdom's right -- indeed, its obligation — under international law to take steps to restore public order and to maintain security in the territories under its control. As an organization concerned solely with internationally recognized human rights, the Lawyers Committee takes no position on the form that such a settlement should take. Nevertheless, the Lawyers Committee is deeply concerned that significant violations of well established rules of international law continue to occur in Northern Ireland and that these violations cannot be justified. Therefore, what we do advocate is that the Clinton Administration and members of Congress pay greater attention to human rights violations in Northern Ireland, and underscore the importance of these issues in bilateral discussions with United Kingdom officials. TUN-23-1997 15:22 FROM LCHR DC TO 2257485 P. 04 Chairman Smith, we greatly appreciate your interest in the human rights situation in Northern Ireland. It is consistent with your longstanding concerns about human rights problems throughout the world, and your efforts to seek concrete ways to address these problems. It is our hope that today's hearing will serve as a catalyst to encourage the Clinton Administration and Senator Mitchell to incorporate human rights issues more centrally into the Northern Ireland peace process. Today's hearing takes place at a time when, despite the recent violence, there is a unique window of opportunity with respect to Northern Ireland. The United States is now playing a vital role in the peace process and Senator Mitchell's ongoing involvement and the President's own interest and involvement are part of why the window of opportunity now exists. The recent election of a Labour government has provided impetus to the process. Prime Minister Blair's government has signaled its own strong commitment to human rights generally, and with respect to Northern Ireland in particular. We are mindful that many people have argued that respect for human rights in Northern Ireland will come only after larger political issues have been resolved. We disagree. Human rights are not mere side issues to be addressed when constitutional structures have been agreed and negotiated. The denial of human rights has been and continues to be at the heart of the conflict. By the same token, it is only by reasserting the centrality of rights that peace can be achieved. By addressing longstanding human rights concerns such as the repeal of emergency legislation, the authorities in Northern Ireland can build confidence on both sides. By taking concrete measures to build an independent legal system, and by strengthening the rule of law, both Protestants and Catholics will scc tangible benefits associated with the peace process. By addressing issues such as more humane and just treatment of detainees, both sides will be able to achieve mutually desired objectives. In two reports following extensive fact finding missions, the Lawyers Committee has focused on the emergency law framework, constraints on the judiciary, and the intimidation of lawyers as important human rights problems that need to be addressed promptly and aggressively. I wish to outline our concerns in cach of these arcas. In our view, efforts to address these problems will serve as confidence-building measures on both sides of the conflict, and serve to advance the peace process. The primary emergency laws currently in force in Northern Ireland are the Northern Ireland (Emergency Provisions) Act 1996 (EPA) and its counterpart, the Prevention of Terrorism (Temporary Provisions) Act 1989. The EPA has evolved from a piece of legislation first passed in 1973. Together, these statutes help to obtain convictions in cases involving those suspected of See Lawyers Committee for Human Rights, Human Rights and Legal Defense in Northern Ireland: The Intimidation Defense Lawyers, The Murder of Patrick Finucane, (1993). See Lawyers Committee for Human Rights, At the Crossroads: Human Rights and the Northern Ireland Peace Process, (1995). Tel-23-1997 15:23 FROM LCHR DC ΤΟ 2257485 P.05 paramilitary activity, based on confessions often following prolonged detention and intense interrogation. Government-sponsored reviews of this legislation occur regularly, but these reviews have been limited in scope, taking as their starting point the view that emergency legislation is needed. This point was underscored by the decision of the Secretary of State for Northern Ireland to renew the EPA in August 1996, a move that arguably placed the United Kingdom in default of its international legal obligations. In Northern Ireland, the criminal justice structure has served as the primary vehicle to effect state policy since the emergency regime's creation. The use of the criminal justice structure has a number of distinct advantages for the state in responding to the crisis. First, it has a useful symbolic effect, allowing the state to claim that the crisis is under control while maintaining the appearance of a normal process. – even though the ordinary criminal justice system may be severely modified. Second, legitimacy is maintained by the use of legal sanction as opposed to extralegal measures. Nevertheless, this approach is scriously flawed. Among our concerns are these: derogation of Article 5(3) of the European Convention on Human Rights, and failure to close Castlereagh holding center, as has been recommended by the criminal Evidence (Northern Ireland) Order of 1988 and Section 34 of the Criminal Justice and Public Order Act 1994, which allows a judge to draw an adverse inference to silence of the accused during police questioning and trial testimony; the use of exclusion orders under the PTA, permitting the Secretary of State to deny the right of persons to travel between England and Northern Ireland without meaningful explanation, hearing, or right to appeal. Unnecessary reliance on emergency powers limits the opportunity for a society in transition to learn to function with all the key legal protections for the rights of its citizens in place. In a society where lack of rights protection has been one of the leading causes of strife, the development of a stronger rights culture is of paramount importance for social progress and accommodation. There is little doubt that confidence building measures focused on dismantling the emergency regime would aid the process of social reconciliation, as well as satisfying the international legal obligations by which the United Kingdom is bound. 42-396 97-4 JUN-23-1997 15:24 FROM LCHR DC B. Judges and the Judicial Framework ΤΟ 2257485 P.06 The judiciary of Northern Ireland confronts a predicament typical of permanent “emergency" states. On one hand, judges in Northern Ireland must implement the basic guarantees of due process amidst the demonstrated threat of danger from paramilitary violence. On the other hand, the Northern Ireland judiciary must also do its job in the face of domestic legislation that too often derogates from the standards of fairness that international law charges judges to ensure. The Lawyers Committee believes that even if parliament has enacted legislation contrary to international human rights principles, or permits the creation of a system such as the Diplock courts, the judiciary nevertheless has leeway to interpret domestic laws as fairly as possible and attempt to ensure an impartial tribunal as stipulated in international law. Specific problems include the following: the absence of jury trials for some crimes listed under the EPA; the willingness of the judiciary to admit confessions obtained as a result of abusive police tactics during prolonged detention; the willingness of the judiciary to draw inferences of guilt from a defendant's the reluctance on the part of the judiciary to question uncorroborated police the disparaging comments made by some members of the judiciary in reference to defendants, particularly those who appear before non-jury Diplock Courts; the lack of transparency in the process by which members of the judiciary are the narrow interpretations of ambiguous domestic laws drawn by the judiciary the reluctance of the judiciary to enforce Article 2 of the European Convention on Human Rights with respect to protection of persons against the unnecessary use of lethal force by the security forces. The Lawyers Committee recognizes that an independent judiciary functions under considerable stress when subject to chronic political instability, personal threats and the continued suspension of rights by the executive. Individual judges have demonstrated patience and courage. However, it is the core function of an independent judiciary to correct swiftly any abuse of authority by the executive and to strive to protect the rights guaranteed to each citizen by national |