Counter-Insurgency and Human Rights in Northern Ireland

Abstract

This article challenges traditional dualist thinking concerning the balancing of counter-insurgency tactics against a commitment to human rights. It argues that, far from being forces which weigh against each other, they can be made to pull in the same direction, for the betterment of society as a whole. The article goes on to consider particular counter-insurgency practices used in Northern Ireland and maintains that they did not take proper account of human rights, thereby prolonging rather than shortening the conflict. The courts, even in Strasbourg, were slow to protect human rights in line with developing international standards on accountability.

Key Words:

• Counter-Insurgency
• Human Rights
• Northern Ireland

Notes

¹As of 12 May 2009. The UK has yet to ratify the Convention.

²Council of Europe, The Fight Against Terrorism – Council of Europe Standards, 4th ed. (Strasbourg: Council of Europe 2007).

³Ian Cobain, Richard Norton-Taylor and Jeevan Vasagar, ‘MI5 decided to stop watching two suicide bombers’, The Guardian, 1 May 2007.

⁴Benjamin Weiser, New York Times, 11 Sept. 2003.

⁵There is a comparable list in Art. 2 of Protocol 4 to the Convention, which protects freedom of movement.

⁷Para. 114.

⁶App No 37201/06, decision of 28 Feb. 2008.

⁸Paras. 117–23.

⁹(1997) 23 EHRR 413.

¹⁰Art. 3 provides: ‘(1) No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. (2) For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.’

¹³Para. 139.

¹¹Paras. 137–49. The text above is largely derived from those paragraphs.

¹²Para. 138 Art. 32 says Contracting States must not expel a refugee who is lawfully in their territory save on grounds of national security or public order. Art. 33 says Contracting States must not return a refugee to the frontiers of territories where his life or freedom would be threatened but that this prohibition does not apply if there are reasonable grounds for regarding the refugee as a danger to the security of the country in which he is.

¹⁴Unfortunately a majority of the judges in the UK's highest court, the House of Lords, has recently been satisfied by assurances supplied to the UK government in this respect by Algeria and Jordan: RB (Algeria) v Secretary of State for the Home Department[2009] UKHL 10.

¹⁵See e.g. Art. 2 (2) of the European Convention.

¹⁶UN Charter, Arts. 39, 41, 42 and 51.

¹⁷Fernando Tesón, ‘The liberal case for humanitarian intervention’, in J.L. Holzgrefe and Robert O. Kehane, Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge: CUP 2003), 93–129.

¹⁸‘Doctrine of the International Community’ delivered at the Economic Club in Chicago, 24 April 1999; ‘Global Terrorism’ delivered in his UK constituency of Sedgefield, 5 March 2004.

¹⁹Paddy Ashdown, Swords and Ploughshares: Bringing Peace to the 21^st Century (London: Weidenfeld 2007).

²⁰Available at <www.iciss.ca/pdf/Commission-Report.pdf> (last visited 12 May 2009).

²¹Para 139. ‘Responsibility to Protect’ is sometimes abbreviated as ‘R2P’.The full UN document is available at <www.responsibilitytoprotect.org/index.php/united_nations/398?theme=alt1> (last visited 12 May 2009).

²²European Convention on Human Rights 1950, Art. 15; International Covenant on Civil and Political Rights 1966, Art. 4; American Convention on Human Rights 1969, Art. 27. The African Charter on Human and People's Rights 1981 does not contain such a provision allowing for derogations, but in Art. 27(2) it provides that the rights and freedoms of each individual must be exercised with due regard to the rights of others, collective security, morality and common interest. The Charter also imposes various duties on individuals, including the duties not to compromise the security of the State whose national or resident the individual is (Art. 29 (3)).

²³Helen Duffy, The ‘War on Terror’ and the Framework of International Law (Cambridge: Cambridge UP 2005).

²⁴ R (Corner House Research) v Director of the Serious Fraud Office[2008] EWHC 714 (Admin), decision of 10 April 2008.

²⁶Ibid., para. 98, citing the Attorney's speech to the Cour de Cassation in June 2004 and the final communiqué issued after the G8 St Petersburg Summit: ‘Fighting High Level Corruption’, July 2006, 874.

²⁵Ibid., para. 119.

²⁷[2008] 3 WLR 568.

²⁸Peter Neumann, Britain's Long War: British Strategy in the Northern Ireland Conflict, 1969–98 (Basingstoke, UK: Palgrave Macmillan 2003), 51–8.

²⁹Fionnuala Ní Aoláin, The Politics of Force: Conflict Management and State Violence in Northern Ireland (Belfast: Blackstaff Press 2000).

³⁰Lord Widgery, Report of the Tribunal of Inquiry into the Events in Londonderry on 30th January 1972, HC 220 (London: HMSO 1972).

³¹<www.bloody-sunday-inquiry.org.uk>.

³²Frank Kitson, Low Intensity Operations: Subversion, Insurgency and Peacekeeping (London: Faber 1971).

³³Ed Moloney, A Secret History of the IRA (London: Allen Lane 2002).

³⁴Peter Taylor, Brits: The War Against the IRA (London: Bloomsbury 2001).

³⁵No official report has been able to verify the existence, formally or informally, of such a policy, but the Police Ombudsman is currently re-investigating the circumstances surrounding the murder of Gervaise McKerr, supposedly by undercover army agents, in 1982. This is one of the murders which the European Court of Human Rights, and the Council of Europe's Committee of Ministers, have insisted needs to be more fully investigated (see notes 49 and 50 below).

³⁶ Ireland v UK (1979–80) 2 EHRR 25.

³⁷See <www.roberthamillinquiry.org>; <www.billywrightinquiry.org; www.rosemarynelsoninquiry.org>.

³⁸The Ombudsman's ‘statement’ following her investigative report into this case is available on the office's website, <www.policeombudsman.org>. The site also holds her press statement of 22 Jan. 2007 on the related ‘Operation Ballast’. The report links police informants to the deaths of 10 people.

³⁹Taylor, Brits, Ch. 26. Brian Nelson died of a brain haemorrhage in Canada in April 2003.

⁴⁰ No. 3 (1979–80) 1 EHRR 15.

⁴¹Brian Doolan, Lawless v Ireland (1957–1961): The First Case Before the European Court of Human Rights (Aldershot: Ashgate 2001).

⁴² Marshall v UK App No 41571/98, decision of 10 July 2001.

⁴³(1985) 7 EHRR CD453.

⁴⁴App No 17579/90, decision of 31 Jan. 1993.

⁴⁵(1996) 21 EHRR 97.

⁴⁶App Nos 57947/00, 57948/00 and 57949/00, decisions of 19 Dec. 2002.

⁴⁷(2000) 29 EHRR 245.

⁴⁸William Stobie, a loyalist informer who was suspected of involvement in the murder of the solicitor Pat Finucane in 1989, was himself murdered by loyalists in Dec. 2001. His efforts to secure state protection against such an attack (which most people would surely have thought likely) did not come to fruition in time.

⁴⁹ Kelly et al. v UK, decision of 4 May 2001. See too Taylor, Brits, Ch. 24. The other cases decided on the same day are McKerr v UK (2002) 34 EHRR 20, Jordan v UK (2003) 37 EHRR 2, and Shanaghan v UK.

⁵⁰Resolution (2007)73 of the Committee urged the UK authorities ‘to take all necessary investigative steps in these cases in order to achieve concrete and visible progress without further delay’.

⁵¹ In re McKerr[2004] 1 WLR 807.

⁵²E.g. R (Amin) v Secretary of State for the Home Department[2004] 1 AC 653.

⁵³Judge H. Bennett, Report of the Committee of Inquiry into Police Interrogation Procedures in Northern Ireland, Cmnd 7497 (London: HMSO 1979).

⁵⁴ R v Chief Constable of the RUC, ex p Begley[1997] 1 WLR 1475.

⁵⁵ Cullen v Chief Constable of the RUC[2003] 1 WLR 1763.

⁵⁶(2001) 31 EHRR 35.

⁵⁷In this case the House of Lords upheld a British soldier's murder conviction for shooting the driver of a car which broke through a vehicle checkpoint. For an analysis of how Britain's top court changed its approach to cases emerging from the conflict in Northern Ireland see Stephen Livingstone, ‘The House of Lords and the Conflict in Northern Ireland’ (1994) 57 MLR 333 and Brice Dickson, ‘The House of Lords and the Conflict in Northern Ireland – A Sequel’ (2006) 69 MLR 383.

⁵⁸[2008] 1 AC 153.

⁵⁹App No 52207/99, decision of 12 Dec. 2001.

⁶⁰App Nos 71412/01 and 78166/01, decisions of 2 May 2007.

⁶¹[2008] 2 WLR 31.