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Peace in Northern Ireland and the Remaining Issue of the “On-the-Runs”

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Abstract

The return of devolution to Northern Ireland in May 2007 marks an important turning point in the Northern Ireland peace process, but there remains the issue of the “on-the-runs”—a term used to describe persons suspected of committing a range of terrorist acts during the Troubles, who were never arrested, charged, prosecuted, or tried. It is thought that the On-the-Runs want to return to Northern Ireland, but determining the conditions for their return is a difficult and controversial issue, raising legal and moral concerns and causing strong and painful reactions among the victims of terrorist violence on all sides of the Northern Ireland conflict. It is also an issue that is complicated by the fact that while the Belfast Agreement of 1998 did not address expressly the situation of the On-the-Runs, it did provide for the accelerated release of a significant number of paramilitaries, both republican and loyalist, from prisons in both Ireland and Northern Ireland. This paper reviews the possible options in law for addressing the situation of the On-the-Runs, including extradition and prosecution, as well as trial and amnesty, and pardons. While the paper makes clear that the political offence exception to extradition is no longer the obstacle it once was, it also concludes that politics, rather than law, or simply the passage of time is more likely to offer the solution to the problem posed by the On-the-Runs.

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Notes

  1. As of 8 May 2007, the Northern Ireland Executive and Assembly are responsible for social and economic matters, but not policing and justice matters. The policing and justice powers will be transferred to the Northern Ireland administration when local politicians decide the time is right, with the St. Andrews Agreement suggesting that the implementation of that Agreement should build sufficient community confidence for the Assembly to request the devolution of the justice and policing functions by May 2008.

  2. Available from the website of the Northern Ireland Office at: <http://www.nio.gov.uk/st_andrews_agreement.pdf>. See also Northern Ireland (St. Andrews Agreement) Act 2006, (UK), 2006, c. 53.

  3. “Féin (2007). The Police Service of Northern Ireland (PSNI) is the successor to the former Royal Ulster Constabulary (RUC), a predominantly Protestant force that was a subject of controversy due to complaints of mistreatment by Catholic suspects and prisoners. Pursuant to the Belfast Agreement, an Independent Commission on Policing in Northern Ireland was established, chaired by former MP Chris Patten, which made extensive recommendations for reform, and in November 2001, the RUC was disbanded in favour of the creation of the PSNI under the Police (Northern Ireland) Act 2000, (UK), 2000, c. 32.

  4. Agreement Reached in the Multi-Party Negotiations, 10 April 1998, CM 3883, [2000] Ir. T.S. No. 18, (1998) 37 ILM 751 (also known as the Good Friday Agreement) [Belfast Agreement]. Intensive talks held in St. Andrews, Scotland in October 2006 have resulted in the modification of certain aspects of the Belfast Agreement: supra, note 2.

  5. Northern Ireland Act 1998, (UK), 1998, c. 47.

  6. Section 3 of the “Decommissioning” chapter provides: “All participants accordingly reaffirm their commitment to the total disarmament of all paramilitary organisations. They also confirm their intention to continue to work constructively and in good faith with the Independent Commission, and to use any influence they may have, to achieve the decommissioning of all paramilitary arms within two years following endorsement in referendums North and South of the agreement and in the context of the implementation of the overall settlement.”

  7. The crisis deepened in October 2002 when Sinn Féin’s legislative offices were raided as part of a major police investigation into intelligence gathering by republicans and the party’s head of administration was arrested for possessing documents likely to assist terrorists. Calls were made for the exclusion of Sinn Féin from the Executive and two DUP Ministers resigned in protest. The incident led to “a loss of trust on both sides”, in the words of Dr. John Reid, the Secretary of State for Northern Ireland, in his “Statement on Suspension of Devolution” (14 October 2002), available from the BBC News at: <http://news.bbc.co.uk/2/hi/uk_news/northern_ireland/2326185.stm>.

  8. Under direct rule, all powers of the Northern Ireland government are vested in the Secretary of State for Northern Ireland (a British Cabinet Minister) and primary legislation for Northern Ireland is carried out by the Orders-in-Council process.

  9. During suspension, members of the Assembly carried out constituency work and were paid a portion of their salary. Later, a shadow assembly was established to serve as a transitional arrangement.

  10. In November 2003, as part of the Saville Inquiry into the Bloody Sunday shootings of 1972, the Deputy First Minister Martin McGuiness confirmed that he had served as the Provisional IRA’s commanding officer in Derry. On 28 July 2005, the Provisional IRA announced that it had ordered an end to its armed campaign. On 26 September 2005, General John de Chastelain, as chairman of the Independent Commission on Decommissioning, issued a report announcing that the IRA had completed its decommissioning of arms.

  11. There are no official figures on the number of people exiled from Northern Ireland as a result of paramilitary intimidation as not all incidents are reported. One study in 2003 estimated that around four people per month were exiled from Northern Ireland to Great Britain: The Legacy: A Study of the Needs of GB Victims and Survivors of the Northern Ireland Troubles (Warrington: Tim Parry Johnathan Ball Trust, 2003) at para. 8.2.8.

  12. The former Irish Taoiseach, Bertie Ahern TD, has stated expressly that the two categories cannot be equated: Taoiseach (2000). But 5 months later, he did make a connection between the OTRs and the exiled, stating: “If the OTR issue were fully dealt with, all people who have been threatened, abused or forced out of Northern Ireland or who live in unsafe circumstances should be totally free of any threat, particularly people who left Northern Ireland a long time ago and have never been able to return to their families.” Taoiseach (2001).

  13. One of the most well-known On-the-Runs is Rita O’Hare, Sinn Féin’s representative to the USA, resident in Washington, and a former editor of the republican newspaper An Phoblacht. O’Hare was arrested in 1972 for the attempted murder of a British Army officer but later absconded to Dublin. A warrant for her extradition was later refused by a Dublin court in 1978 by reason of the political offence exception. Other On-the-Runs include the mastermind behind the 1987 Enniskillen Remembrance Sunday bomb, which killed 11 people and wounded 63: see further, Knight (2005).

  14. McKay (2002) 15 (“several seasoned commentators have suggested figures of between 40 and 60”). The Irish Taoiseach suggested in 2002 that there were 50 to 60 cases that could not be dealt with by administrative action and thus might require a new system: Taoiseach (2002b).

  15. The PSNI is said to have received 200 applications when an amnesty plan was discussed in 2002: McKay (2002).

  16. McKay, supra note 14, quoting Sinn Féin’s Gerry Kelly, a former IRA prisoner and current MLA.

  17. Ibid.

  18. In 1997, the US Attorney General announced the suspension of removal proceedings for six IRA members as a measure “to advance the ongoing peace process”: United States, Department of Justice, “Statement Regarding Suspension of Removal Proceedings for Six Irish Nationals,” Press Release No. 376 (9 September 1997), available at: <http://www.usdoj.gov/opa/pr/1997/September97/376ag.html>.

  19. When asked whether any of the OTRs were living in Ireland, the Taoiseach replied: “There would be people on the OTR list and some prominent people who had not been able to return to Northern Ireland that would live either permanently or semi-permanently in this jurisdiction but they are not people who are wanted by our authorities. Some of them might have had convictions in the past or had dealings with the authorities but they are not currently wanted; they are Sinn Féin people….Most of the people on the list now are people long gone from these islands or people who would be around and prominent enough and who would be seeking to get their position here.” Taoiseach (2002c). In 2004, he stated: “I cannot be sure who has OTR status. I have explained before, but people did not focus on it, that I understand from what is known by the Garda Síochána that there would not be that many cases of OTRs, persons on the run, but who can be certain of who is living in the jurisdiction?”: Taoiseach (2004).

  20. See further, Belfast Agreement, supra note 4 at ch. 10, s. 1. This commitment was implemented within Britain by the passage of the Northern Ireland (Sentences) Act 1998, (UK), 1998, c. 35 and within Ireland by the passage of the Criminal Justice (Release of Prisoners) Act 1998, (Ir.), No. 36 of 1998. By mid-2001, 444 qualifying prisoners had been released in the North and 57 in the South, according to a paper jointly published by the governments of Ireland and the United Kingdom entitled “Achievements in Implementation of the Good Friday Agreement” (July 2001), available at: <http://www.nio.gov.uk/achievements_in_implementation_of_the_good_friday_agreement.pdf>.

  21. Webster (2002). See also Féin (2005).

  22. See Blakesley (1981).

  23. Re Arton, [1896] 1 QB 108 at 111.

  24. Brownlie (2003) at 313.

  25. See Shearer (1971). See also O’Higgins (1958, 1965), Hogan and Walker (1989).

  26. The State (Quinn) v. Ryan, [1965] IR 70.

  27. R v. Metropolitan Police Commissioner, ex parte Hammond, [1965] AC 810.

  28. Backing of Warrants (Republic of Ireland) Act, 1965 (UK), c. 45. For commentary, see Harris (1966), Jackson (1966, 1967).

  29. Shannon v. Ireland, [1984] IR 548 at 565.

  30. No. 17 of 1965, subsequently amended by the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, No. 1 of 1987, the Extradition (Amendment) Act, 1987, No. 25 of 1987, the Extradition (Amendment) Act, 1994, No. 6 of 1994, and the Extradition (European Union Conventions) Act, No. 49 of 2001, in force on 20 March 2002 as per Extradition (European Union Conventions) Act 2001 (Commencement) Order 2002, S.I. No. 85 of 2002.

  31. Extradition Act, ss. 43 and 45.

  32. Extradition Act, s. 47(2).

  33. Extradition Act, ss. 44(2), 50(2)(a) and 50(2)(b).

  34. Writing in 1988, Colm Campbell stated that “considerable unease existed about the correctness of the convictions in a number of cases in which Irish people in the United Kingdom had been tried for IRA offences” and that there was concern “that the Royal Ulster Constabulary might use the extradition process to engage in so-called ‘fishing expeditions’…”: Campbell (1988). See also Warbrick (1988).

  35. See Sections 8 and 9 of the Extradition (Amendment) Act, 1987, adding new section 44(2)(c)(ii) and 50(2)(bb) to Part III of the Extradition Act.

  36. See section 2(1)(b) of the Extradition (Amendment) Act, 1987, adding new section 50(2)(bbb) to Part III of the Extradition Act which provided for a direction for release to be issued if “by reason of lapse of time since the commission of the offence…and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious” to surrender the extraditee. It had previously been held that delay could not be a ground for refusing extradition: Hanlon v. Fleming, [1981] IR 489.

  37. See Extradition (Amendment) Act, 1987, s. 2, adding new sections 44A, 44B, 44C and 44D to Part III of the Extradition Act. This power differed from those given to the Justice Minister, who holds a separate office. The Irish Attorney General is, by constitutional imperative, independent and exercises a high degree of prosecutorial autonomy: see further, Casey (1996). Nevertheless, it has been noted that the Attorney General is a political appointment and could be subject to political pressures: Hogan (1992), Campbell (1989). In Wheeler v. Culligan, [1989] IR 344, however, the High Court upheld the constitutionality of the new power on the grounds that it was procedural rather than judicial in nature.

  38. The UK had previously sought Ryan’s extradition from Belgium where he had been arrested on suspicion of being involved in terrorist activities on behalf of the IRA. For reasons not clearly explained, the Belgian government overruled a court decision favouring extradition and instead deported Ryan immediately to Ireland, thereby requiring the UK to make a second extradition request: see Gilbert (1992). The Belgian court decision can be found in (1988) 108 Journal des Tribunaux 125, 100 ILR 616.

  39. The Attorney General took the unprecedented step of giving elaborate reasons for his decision and made these reasons public. The full text of his decision was published in The Irish Times on 14 December 1988. According to Ireland’s leading constitutional expert, the decision was ultra vires in light of the terms of the 1987 amendments and a usurpation of the jurisdiction of the courts: Hogan (1992) at 136–8.

  40. European Arrest Warrant Act, 2003, No. 45 of 2003 [EAW Act], giving effect to Framework Decision 2002/584/JHA of 13 June 2002, OJ L190 (18 July 2002). Section 47 of the Act also extends the EAW scheme to territories such as the Isle of Man, which are not covered by the Framework Decision, but were covered by the Anglo-Irish special arrangement. For the British incorporation, see Extradition Act, 2003 (UK), c. 41, Part 1.

  41. This point finds support in the recent decision of the Irish Supreme Court in Minister for Justice, Equality and Law Reform v. Stapleton, [2007] IESC 30 and Minister for Justice Equality and Law Reform v. Puta, [2008] IESC 30.

  42. EAW Act, s. 38.

  43. EAW Act, s. 10 as amended by Criminal Justice (Terrorist Offences) Act, 2005, (Ir), No. 2 of 2005, s. 71.

  44. EAW Act, s. 40.

  45. EAW Act, s. 41.

  46. EAW Act, s. 42 as amended by Criminal Justice (Terrorist Offences) Act, 2005, (Ir), No. 2 of 2005, s. 83.

  47. EAW Act, s. 39.

  48. EAW Act, s. 22.

  49. EAW Act, s. 24.

  50. 4 November 1950, 213 UNTS 221, ETS No. 5, [1953] Ir TS No. 12 (in force 3 September 1953; ratification by Ireland 25 February 1953).

  51. Article 40.3.1° of the Irish Constitution, the Bunreacht na hÉireann of 1937, provides that: “The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.” The protection of “personal rights” allows the Irish Constitution to contain a constantly evolving Bill of Rights, the malleability of which can provide a fruitful ground for challenging the acts and decisions of the Irish state.

  52. “Even murder…if carried out by or on behalf of an organisation which seeks to overthrow the government of its country by force is a political offence”, according to Finlay P, then of the High Court, in the unreported decision of McLoughlin v. Attorney General (5 December 1974), as cited in Delany and Hogan (1993).

  53. [1971] IR 205 [Magee].

  54. Ibid. at 211 (Ó Dálaigh CJ) and 215 (Budd J).

  55. As noted in the dissenting opinion of FitzGerald J with whom Teevan J concurred: ibid. at 216.

  56. [1972] IR 36 [Bourke]. For commentary, see O’Higgins (1971) and Osborough (1972).

  57. Bourke, supra note 56 at 61.

  58. Ibid. at 63.

  59. Ibid. at 67.

  60. [1982] IR 154 [McGlinchey].

  61. Fusco v. O’Dea (No. 2), [1998] 3 IR 470 at 492.

  62. Dominic “Mad Dog” McGlinchey was one of the most notorious of republican gunmen, best known as the leader of the Irish National Liberation Army (INLA), a rival guerrilla group that had split from the IRA in the late 1970s because of the latter’s “soft” approach: Ellis (1994).

  63. Not that McGlinchey had waited for the decision, having escaped again from custody. On his recapture in 1984, the Supreme Court held a special evening session on a Bank Holiday to ensure that McGlinchey was in custody in Northern Ireland by sunrise: McGlinchey v. Attorney General (ex tempore; 17 March 1984) as reported in The Irish Times (19 March 1984) at 9. He was then detained for a considerable period of time before being brought to trial, where he was acquitted on grounds of insufficient evidence, leading to suspicions that his extradition had been sought to facilitate his interrogation: Warbrick, supra note 38 at 419 and 422. He was later convicted for his part in a gun battle with Irish police and spent the years 1986–1993 in Portlaoise prison in Co. Kildare. A year later, he was shot to death: Ellis (1994).

  64. McGlinchey, supra note 60 at 159.

  65. Ibid.

  66. Ibid. at 159–60.

  67. Ibid. at 160.

  68. [1984] IR 569 [Shannon].

  69. The victims were Sir Charles Stronge, the former Speaker of the Northern Ireland House of Commons, then 84-years-old and long-since retired, and his son, James Stronge, a member of the Northern Ireland Assembly. Sir Charles was also a prominent member of the Unionist Party, the Royal Black Preceptory and the Orange Order, while his son served in the Royal Ulster Constabulary Reserve: ibid. at 590.

  70. Shannon, like McGlinchey, would later be acquitted by a court in Northern Ireland: Warbrick (1988) at 419.

  71. Shannon, supra note 68 at 588.

  72. Ibid. at 587.

  73. Ibid. at 597.

  74. Ibid.

  75. [1985] IR 322 [Quinn].

  76. As described in paragraph 11 of Quinn’s affidavit: ibid. at 328.

  77. Ibid. at 337.

  78. Ibid.

  79. Ibid.

  80. See note 111, with reference to the view that the extradition of political offenders was unconstitutional, and Hogan and Walker (1989) at 289.

  81. [1988] IR 505 [Russell].

  82. This escape was a huge blow to the British, with 38 IRA inmates escaping from a prison thought to be secure. Its effect is still celebrated in republican circles as illustrated by the holding of a dinner-dance on the 20-year anniversary: McKittrick (2003).

  83. Russell, supra note 81 at 531.

  84. The Oireachtas is the term used for the Irish Parliament as a whole, consisting of the President, a House of Representatives (the Dáil Éireann), and a Senate (the Seanad Éireann): Constitution of Ireland, Article15.

  85. Ibid. at 530.

  86. A point also made by Hogan and Walker (1989) at 290.

  87. Russell, supra note 81 at 537.

  88. Ibid. at 539.

  89. Ibid. at 537.

  90. Ibid. at 541.

  91. Ibid. at 546.

  92. Ibid. at 546–7.

  93. Ibid. at 554.

  94. Series A, No. 161, esp. paras. 86–91, reprinted in (1989) 11 EHRR 439, (1989) 28 ILM 1063, (1994) 98 ILR 270 [Soering]. Russell’s case was first heard in the High Court on 27 January 1986 (ibid. at 508) whereas the Soering decision was not released until July 1989.

  95. Prison Officer Ferris was stabbed during the escape but the direct cause of death was later determined to be heart failure: R v. Burns, (1988) 7 NIJB 50 (CC). Many prison officers, however, still held the Maze escapees responsible for bringing on the heart attack.

  96. These were the findings of HM Chief Inspector of Prisons, as cited in Finucane v. McMahon, [1990] IR 165 at 187–8 [Finucane].

  97. Russell, supra note 81 at 531, with McCarthy J implicitly dissenting at 555.

  98. Ibid. at 531, later cited with approval in Finucane, supra note 96 at 203.

  99. Ibid.

  100. According to affidavit evidence later tendered in Finucane, supra note 96, 55 civil actions for damages for mistreatment in the Maze were launched in 1988.

  101. Russell, supra note 81 at 532.

  102. [1989] IR 530 [Ellis No. 1].

  103. Ibid. at 537–8 (Walsh J).

  104. Section 3 of the Extradition Act defines “political offence” so as to exclude the taking or attempted taking of the life of a head of state or a member of his or her family.

  105. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277 (in force 12 January 1951).

  106. Section 3 of the Extradition (Amendment) Act, 1994 amended the definition of “political offence” to exclude an offence within the scope of Article 3 of the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1998, 1582 UNTS 164 (in force 11 November 1990).

  107. See the views of the Irish Commissioners in the Report of the Law Enforcement Commission to the Secretary of State for Northern Ireland and the Minister for Justice of Ireland, Cmnd 5627 (HMSO, 1974), also published as Prl. 3832 (Stationery Office, 1974), at 14–26 and the judgment of Maguire CJ in The State (Duggan) v. Tapley, [1952] IR 62. See also: Connelly (1982), Symmons (1973).

  108. 15 November 1985, [1985] UKTS No. 62, [1985] Ir. T.S. No. 2. See generally: Hadfield (1986); Hadden and Boyle (1989).

  109. 27 January 1977, 1137 UNTS 94, ETS No. 90 (in force 4 August 1978, ratification by Ireland 21 February 1989) [European Terrorism Convention].

  110. Extradition (European Convention on the Suppression of Terrorism) Act, 1987, s. 3(3)(a).

  111. Extradition (European Convention on the Suppression of Terrorism) Act, 1987, s. 3(3)(a)(v).

  112. An omission, with consequences in Sloan v. Culligan, [1992] 1 IR 223, that was rectified in 1994. The omission of conspiracy was also rectified in 1994: Quinlivan v. Conroy (No. 2), [2000] 3 IR 154 at 164.

  113. See Extradition (European Convention on Suppression of Terrorism) Act, 1987, s. 4, giving partial effect to the optional provisions found in Article 2 of the European Terrorism Convention, supra, note 113.

  114. See section 2 of the Extradition (Amendment) Act, 1994 and paragraph 1 of the associated explanatory memorandum, now bolstered by Criminal Justice (Terrorist Offences) Act, 2005, (Ir), No. 2 of 2005, s. 58 for extradition to states parties to the European Terrorism Convention.

  115. See Convention relating to extradition between the Member States of the European Union, [1996] OJ C313/02. For commentary, see Mackarel and Nash (1997) and Vermeulen and Vander Beken (1997).

  116. Extradition (European Union Conventions) Act, 2001, s. 12. See also the explanatory memorandum accompanying the Bill’s introduction in the Dáil on 7 November 2001.

  117. Extradition (European Union Conventions) Act, 2001, s. 27.

  118. 15 December 1997, 2149 UNTS 284 (in force 23 May 2001).

  119. 9 December 1999, 2178 UNTS 229 (in force 10 April 2002).

  120. Criminal Justice (Terrorist Offences) Act, 2005, (Ir), No. 2 of 2005, s. 57.

  121. See the discussion supra note 51.

  122. Supra note 100. For commentary, see Delany and Hogan (1993) at 99–101 and 108–14; Gilbert (1992) at 81–4; Humphreys (1990), Zander (1990).

  123. Humphreys, (ibid. at 128–30), points out that in McGlinchey, Shannon, Quinn and Russell at least one member of the Court was absent, a factor that might explain the change in judicial direction since the views of a three-member bench may not reflect those of a majority of the full Court.

  124. Although Finlay CJ and Griffin J gave their concurrence grudgingly on this ground in the interests of certainty and precedent: Finucane, supra note 96 at 206 and 221.

  125. See note 95.

  126. The “Hennessy Report” prepared by HM Chief Inspector of Prisons at the request of the Northern Ireland Secretary and presented to the House of Commons on 26 January 1984.

  127. In a civil action brought by one of the assaulted prisoners, Hutton LCJ held that there was some evidence of a concerted failure by the prison officers to cooperate with enquiries and awarded exemplary damages to mark the court’s disapproval: Pettigrew v. Northern Ireland Office, [1989] 3 BNIL 83 (QBD).

  128. Finucane, supra note 96 at 205.

  129. Ibid. at 203.

  130. Ibid.

  131. Ibid. at 206.

  132. Ibid.

  133. Ibid.

  134. Delany and Hogan (1993) at 112.

  135. Ibid. at 113–4.

  136. See text associated with note 99.

  137. Finucane, supra note 96 at 209.

  138. Northern Ireland, at the time, being defined by Article 2 of the Irish Constitution as part of Ireland’s national territory. This provision has since been removed, following commitments made in the Belfast Agreement.

  139. Finucane, supra note 96 at 216.

  140. Ibid. at 210.

  141. Ibid. at 214.

  142. Ibid. at 216.

  143. Ibid. at 216–7.

  144. Walsh J sat concurrently as a member of the Irish Supreme Court and as the Irish judge on what was then a part-time European Court of Human Rights.

  145. Finucane, supra note 96 at 217.

  146. [1990] 1 IR 228 [Clarke].

  147. Clarke had abandoned his political offence claim, presumably because his earlier conviction for the attempted murder of several civilians at a Northern Ireland farmhouse met the McGlinchey test.

  148. Clarke, supra note 146 at 237.

  149. Ibid. at 236.

  150. [1990] 1 IR 239 [Carron]. See also Loughman (1992).

  151. Owen Carron was in fact the election agent for Bobby Sands, the IRA prisoner elected to Parliament while participating in the famous hunger strike of 1981. When Sands died, Carron was elected in his place, serving as MP for Fermanagh-South Tyrone until 1983.

  152. Carron, supra note 150 at 266–7.

  153. Ibid. at 267.

  154. Ibid.

  155. Supra note 109.

  156. Ibid. This stands in stark contrast with the British Suppression of Terrorism Act, 1978, c. 26 which allows for retroactive application.

  157. [1991] 1 IR 251 [Ellis No. 2].

  158. Ibid. at 260.

  159. [1994] 1 IR 500 [Magee].

  160. Ibid. at 510–3.

  161. Quinlivan v. Conroy (No. 2), [2000] 3 IR 154 at 180–6. See also Coleman v. O’Toole, [2003] 4 IR 222 at 232–3.

  162. As averred in O’Neill v. Governor of Castlerea Prison, [2004] 1 IR 298 at 304.

  163. See, for example, Fusco v. O’Dea (No. 2), [1998] 3 IR 470 and Martin v. Conroy, [2002] 1 ILRM 461 (HC).

  164. See note 36.

  165. See Kwok Ming Wan v. Conroy, [1998] 2 IR 527 and MB v. Conroy, [2001] 2 ILRM 311.

  166. Fusco v. O’Dea (No. 2), supra note 163 at 497 (Hamilton CJ).

  167. Quinlivan (No. 2), supra note 161 at 186–9; Martin, supra note 163 at 478–9. See also O’Neill, supra note 162.

  168. Martin, ibid. at 473; Mallows v. Governor of Mountjoy Prison, [2002] 2 IR 385 at 393 (SC).

  169. Martin, ibid. at 476.

  170. Mallows, supra note 168 at 395.

  171. [1995] 2 IR 485 [Larkin].

  172. Ibid. at 504–5 (Hamilton CJ) and 508 (Denham J).

  173. Ibid. at 508–9 (Denham J with the concurrence of Costello P and O’Flaherty and Blayney JJ).

  174. Ibid. at 500 (Hamilton CJ) and 507–8 (Denham J).

  175. Dundon v. Governor of Cloverhill Prison and Minister for Justice, Equality and Law Reform, [2006] 1 IR 518.

  176. See Minister for Justice, Equality and Law Reform v. Johnston, [2008] IESC II.

  177. Minister for Justice, Equality and Law Reform v. Dundon, [2005] IESC 13 at para 12.3.

  178. Minister for Justice, Equality and Law Reform v. Ollsen, [2008] IEHC 37.

  179. Joint Declaration by the British and Irish Governments (dated April 2003, released 1 May 2003), available at <http://www.nio.gov.uk/joint_declaration_between_the_british_and_irish_governments.pdf>, at para. 13.

  180. In March 2007, former Northern Ireland Secretary Peter Mandelson confirmed that Prime Minister Tony Blair had signed a secret letter to Gerry Adams in 1999 to provide partial amnesties for fugitives to return to Northern Ireland. See: Watt et al. (2007).

  181. “Proposals in relation to the on the runs” (April 2003), available from CAIN (Conflict Archive on the Internet) at: <http://cain.ulst.ac.uk/events/peace/docs/bi”On-the-Runs”010503.pdf>.

  182. SDLP, “The Joint Declaration SLDP Analysis” (May 2003), available at: <http://www.sdlp.ie/assets/uploads/the%20joint%20declaration%20sdlp%20analysis834.doc>.

  183. Ibid.

  184. See Northern Ireland Offences Bill (Bill 81of 2005–06). See further, Peck and Gay (2005).

  185. Peter Hain grew up in South Africa and was aware of the criticism and court challenges brought by victims’ families to the amnesties that were provided as part of South Africa’s Truth and Reconciliation Commission process.

  186. BBC News, supra note 21.

  187. Constitution of Ireland, Article 13(6).

  188. As discussed further by the Taoiseach (2005a).

  189. It was thought that the provisions of the Irish Constitution dealing with the trial of offences stood in the way of establishing such a tribunal: Taoiseach (2005b).

  190. Ibid.

  191. This statement was made in connection to the IRA killing of Detective Garda Jerry McCabe during a failed bank robbery in 1996. See also Taoiseach (2005c). Two of the six men considered responsible remain “on the run”. On 16 May 2007, one of the four men who had pled guilty to manslaughter rather than murder was released from prison after serving eight years, having earned the standard remission of a quarter of his sentence for good behaviour: “Freed McCabe killer should be in jail for 40 years” The Irish Independent (16 May 2007).

  192. Emotions run high, with some of the victims having challenged the legality of prisoner release unsuccessfully in the courts.

  193. It is estimated that from 1966–1999, 3,636 individuals died as a result of political violence in Northern Ireland, with 3,189, being killed by either republican or loyalist paramilitary organisations and 367 deaths being attributed to the police and security forces: McKittrick et al. (1999).

  194. The British government has made this point, most recently in a Written Answer provided by the Secretary of State for Northern Ireland, Woodward (2008). This answer confirmed that: “The Government’s policy on “on the runs” remains unchanged. We recognise the anomalous position of individuals who are still “on the run” for offences committed before the Belfast Agreement. This anomaly still needs to be addressed. But, as my right hon. Friend the Member for Neath (Mr. Hain) made clear when he withdrew the Northern Ireland (Offences) Bill two years ago, this issue is one that needs to be considered in the broader context of how we deal with the legacy of past.”

  195. Criminal Justice (Terrorist Offences) Act, 2005, (Ir), No. 2 of 2005, s. 43.

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  1. Faculty of Law, University of Alberta, Edmonton, Canada

    Joanna Harrington

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Correspondence to Joanna Harrington.

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I am grateful for the helpful comments received on an earlier version of this paper at the Cross-Purposes? International Law and Political Settlements conference organised by the Nationalism and Ethnic Conflict Research Group at the University of Western Ontario in June 2007.

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Harrington, J. Peace in Northern Ireland and the Remaining Issue of the “On-the-Runs”. Hum Rights Rev 10, 5–34 (2009). https://doi.org/10.1007/s12142-008-0095-x

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