Any amnesty for crimes of torture in the Government’s new Troubles Act undermines the entire legal system, the High Court heard on Thursday.
Counsel for the sister of an IRA member abducted and murdered on suspicion of being an informer insisted there is an obligation to prosecute perpetrators of an offence described as “one of the most evil practices known to man”.
Gemma Gilvary is among victims and bereaved relatives mounting a major challenge to the Northern Ireland Troubles (Legacy and Reconciliation) Act.
The fiercely opposed law provides a conditional immunity to those accused of wrongdoing during more than 30 years of sectarian violence if they provide a truthful account.
It will also end future civil litigation and inquests into conflict-related deaths not completed before the cut-off date of May 2024.
Ms Gilvary’s brother, Maurice, was abducted and shot dead by the IRA in January 1981.
He had been interrogated and tortured by the organisation’s internal security unit over his alleged role as a police agent, according to her legal team.
With Ms Gilvary seeking a full investigation and criminal charges brought against those responsible, she claims the Act is aimed at protecting state agents and employees from prosecution.
Her lawyers argued it is untenable to grant immunity from prosecution to those who commit the “abhorrent” offence of torture prohibited by the European Convention on Human Rights.
Barrister Hugh Southey KC stressed that parliamentary sovereignty would never extend to decriminalising acts of genocide.
“If it’s not lawful to legalise genocide, the question becomes whether it’s lawful to legal torture.” he said.
The prohibition on torture predates and formed part of the constitutional settlement which resulted in the modern Parliament, the court heard.
But according to Mr Southey the legal system would be undermined and “infected” without anything in place to deter perpetrators.
“The prosecution of torturers is so important because by indicating (they do not) enjoy impunity it upholds the integrity of the administration of justice,” he said.
Mr Justice Colton was told that by introducing an amnesty the UK is failing to comply with its legal duties to other states.
“Once torture becomes tolerated it undermines the legal system,” counsel added.
“The prohibition on torture has an enhanced status under international law, it is higher than a treaty and roughly equivalent to genocide, and it includes an obligation to prosecute torturers.”
The case continues. Ends