The UK-US relationship is currently experiencing tension in the context of Northern Ireland, arising from the UK Government's approach towards "dealing with the past" in Northern Ireland. The UK Government has introduced legislation which would introduce a de facto Statute of Limitations upon the investigation and prosecution of Troubles-related deaths in the jurisdiction. Such a proposal raises questions as to the UK's compliance with international human rights standards in the area of the right to truth and justice. In this article, Leah Rea examines the concerns raised by the UK Government's legacy legislation, the interventions made by US actors, and the considerations to be faced by the Biden Administration.
This article was previously posted in 2023.
It was less than three weeks into the 25th anniversary year of the signing of the Good Friday / Belfast Agreement 1998 that the United States once more raised the post-conflict state of Northern Ireland with the United Kingdom, marking the continuation of a potentially significant intervention within US foreign policy. The seminal peace agreement, which formally ended the conflict in Northern Ireland, had been brokered by the American negotiator, Sen. George Mitchell, and the United States has since remained a close observer of peace process in Northern Ireland - and a critical observer on the role of the United Kingdom as a co-guarantor of the agreement. On 20th January 2023, the British Prime Minister Rishi Sunak was the recipient of correspondence signed by representatives of the US Congress on the subject of the peace process, and the UK’s legislative agenda which may undermine it. The US-UK relationship, which has been strained on matters such as the Northern Ireland Protocol and the prolonged EU-UK negotiations to reform it, is set to experience further tensions over the UK’s proposal to address the legacy of the Troubles in Northern Ireland through contentious legislation which arguably undermines the UK’s obligations under international and regional human rights frameworks.
The crux of the strongly-worded, bipartisan letter was the Northern Ireland Troubles (Legacy and Reconciliation) Bill, the draft legislation progressing through the House of Lords which the US representatives described as “dangerous”. The Bill is the deeply controversial legislative footing of the British Government’s proposal to “deal with the past” in Northern Ireland. The Bill would introduce a de facto Statute of Limitations, applicable to all conflict-related incidents not yet adjudication upon, representing an effective ban on all criminal investigations and prosecutions related to the Troubles. The proposal, arising from a 2021 UK Government white paper, was condemned by organisations representing victims and survivors of the conflict, on the grounds of its potential to prevent the realisation of justice. It further united all NI political parties, most notably within a formal vote in the NI Assembly to reject the proposals. This domestic opposition stems from the UK Government’s political manoeuvring around commitments under both national and international frameworks, a trajectory with possible consequences for the UK’s international standing at a time of renewed institutional focus on the rule of law and the rules-based order.
In Northern Ireland, the UK Government is obliged to support addressing the past via the criminal justice process under the Stormont House Agreement 2015, which envisaged a new, independent Historical Investigations Unit to investigate Troubles-related deaths - and importantly, to operate on a victims-centred basis, which the Bill’s proposals fail to achieve. Further, the UK Government is also required under international law to uphold the right to truth and justice, as well as comply with its commitments under Article 2 of the European Convention on Human Rights, and the role of such international obligations is outlined clearly within the 1998 Agreement, demonstrating the clear connection between human rights and the peace process. The collisions between international human rights norms and state diplomacy were thus set once the Government white paper was implemented in Bill form. What, then, will be the consequences for the US-UK relationship, especially given the latter’s ambition to secure a trade deal with the former?
The United States has already criticised the approach of the UK towards safeguarding the peace process in the initial phases of the EU-UK talks on the Northern Ireland Protocol, with the United States having reportedly issued a diplomatic demarche in 2021 due to concerns that the UK’s hostile position would “inflame tensions” in Northern Ireland. Such criticism has also served to emphasise the United States’ positioning on a US-UK trade deal, with the White House perceiving the UK’s upholding of the Northern Ireland Protocol a condition for trade discussions: the White House Press Secretary has previously warned the UK Government’s attempts to “undo” the Protocol would not be “conducive” to a trade deal. The Biden Administration had been deemed an important offside player in the EU-UK negotiations, with President Biden staunchly opposed to any outcome which could undermine the 1998 peace agreement. The matter of the legacy of the Troubles, and the UK’s legislative pathway which violates international human rights norms, may yet see the offside player adopting a more central, significant role. The Biden Administration’s natural close relationship with Ireland, and the longstanding diplomatic relations between the two countries, will be important, particularly as the Irish Government has expressed concern at the political agenda of the UK Government.
The January bipartisan letter has directly appealed for the British Government to recall its role as a guarantor of the peace process, to “return” to the values of the 1998 peace agreement. The letter followed the tabling of a bipartisan resolution within the US House of Representatives, which calls for the “full implementation” of the Good Friday / Belfast Agreement 1998. One of the resolution’s sponsors noted the United States has a “responsibility” to support the reconciliation process for victims and survivors - a marked reference to the British Government’s Bill. The Ad Hoc Committee to Protect the Good Friday Agreement, which expressed its concern regarding the proposal in 2021 and predicted it would become a source of contention in US-UK relations, has previously written to US Secretary of State Antony Blinken. The Ad Hoc Committee described the Bill as violating both international law and the Good Friday / Belfast Agreement 1998, and requested the Secretary of State use all diplomatic channels to “protect” the peace agreement. At a time of ongoing fractured politics in the United States, it is significant that there remains unity across the aisles in the US Congress in support of the peace process.
In expressing “grave concern” that Sunak’s Government was standing over the Bill, the US Congressmen’s letter is the latest in a series of issued warnings to the UK, particularly in the context of institutional perceptions of the ramifications for human rights in Northern Ireland should the UK Government continue to pursue its legislative agenda. In 2021, UN Experts Fabián Salvioli (the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence) and Morris Tidball-Binz (the UN Special Rapporteur on extrajudicial, summary or arbitrary executions), issued a statement outlining their “serious concern” about the proposal and branded the actions of the British Government as violations of its obligations under international law. A further joint statement was issued in 2022, urging for the revision of the draft legislation on the grounds it fails to comply with the UK’s obligation to investigate serious violations and prevents truth and remedy for victims. To date, however, the UK has persisted with its direction of travel. This demonstration of rejection of international intervention on human rights concerns should, in turn, raise questions as to the UK’s commitment to the implementation of the Northern Ireland Protocol, given its provisions pertaining to the safeguarding of the peace process, and specifically, ensuring there will be no diminution of human rights standards across the island of Ireland - another reason for the United States to scrutinise the UK’s legacy proposals. The Biden Administration has previously made marked interventions in the EU-UK relationship in the context of Northern Ireland, namely indicating agreement with the EU position towards the region. It is not unlikely further commentary may yet follow in the sphere of human rights safeguarding as a means to signify discontent with the UK Government’s legacy proposals. It is therefore significant that President Biden appointed Joe Kennedy III as the U.S. Special Envoy to Northern Ireland on 19 December 2022, and made reference to the ongoing diplomatic endeavours of the United States to “resolve differences” on the Northern Ireland Protocol. The appointment conveys the genuine interest of the Biden Administration at a tense time in transatlantic relations, and the geopolitics of Northern Ireland / UK. The connection with an Irish American dynasty and the timing of the appointment demonstrates the United States will continue to closely observe, monitor, and critique the UK’s oversight of the peace process.
The political situation in Northern Ireland is fraught. The region remains without a sitting government or a functioning legislature since its national election in May 2022, with the second largest party, the DUP, refusing to enter government until the Northern Ireland Protocol is reformed to better reflect the constitutional status of Northern Ireland within the UK. Amid warnings about the status of the health service, reduced expenditure for public services, and poverty levels, the threat of paramilitary-related violence remains. Loyalist paramilitary activity has heightened over Brexit-related tensions, with the former Irish Minister for Foreign Affairs subjected to a bomb scare in Belfast in 2022. The need for the restoration of devolved government is evident, and the UK Government has sought to liaise with all political parties to facilitate this, citing its commitment to the peace agreement. This however raises questions as to why the UK Government is continuing to stand by its legacy proposals, which as the United States asserts, marks a diminution of the UK’s domestic commitments and international obligations on human rights. With a possible deal between the EU and the UK on the subject of the Protocol and correspondingly political instability on the horizon, the UK may need the brokering services of the United States once more and can ill-afford further strain. Whether the Biden Administration commits to a direct intervention, or opts for indirect pressure, remains to be seen.
Leah Rea is a PhD researcher in international human rights law, constitutional law, and parliamentary procedure at the Transitional Justice Institute, School of Law, of Ulster University.