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‘WARS ON TERROR’ AND VICARIOUS HEGEMONS: THE UK, INTERNATIONAL LAW, AND THE NORTHERN IRELAND CONFLICT

Published online by Cambridge University Press:  17 January 2008

Colm Campbell
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Abstract

The hegemonic position of the United States, and its implication for international law, are rapidly emerging as sites of intense scholarly interest.1 It is a truism that the fall of the Berlin wall has been followed by a period of unprecedented American predominance in the military, economic, and political spheres. Replacing the bi-polar certainties of the Cold War is a world in flux, dominated, to a significant extent, by one remaining superpower, or, in the words of the former French Foreign Minister, Hubert Vedrine, by a ‘hyperpower’. 2 Some though, have emphasised the continuing importance of other loci of (lesser) power in a ‘uni-multipolar’ world.3 That this domination posed critical questions for international law was obvious well before the 9/11 atrocities, as the debate over NATO's use of force in Kosovo illustrated. Since the invasions of Afghanistan and Iraq, and with the global ‘war on terror’ reaching into ever-increasing spheres, the debate has intensified significantly.

Type
Research Article
Information
International & Comparative Law Quarterly , Volume 54 , Issue 2 , April 2005 , pp. 321 - 356
Copyright
Copyright © British Institute of International and Comparative Law 2005

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References

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112 Public hearings in the case concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (request for advisory opinion) concluded on 25 Feb 2004. On 9 July 2004, The International Court of Justice ruled that the separation fence being built by Israel in the West Bank was in breach of international law. See <www.icj-ij.org/icjwww/idocket/imwp/imwpframe.htm>..>Google Scholar

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114 Art 2 ECHR provides: ‘1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a.) in defence of any person from unlawful violence; (b.) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c.) in action lawfully taken for the purpose of quelling a riot or insurrection.’Google Scholar

115 Para 149.Google Scholar

116 In Ní Aoláin's view, the case ‘signalled an equality approach, whereby the status of the victims, in this case as terrorists, was not a means to lessen the value of the right [to life] to them per se’, Aolá, F Níin ‘Truth Telling, Accountability and the Right to Life in Northern Ireland’ EHRLR [2002] at 576 (hereafter, Ní Aoláin, Truth Telling).Google Scholar

117 In Stewart (1985) 7 EHRR 453, a claim arising from a plastic bullet death was found to be manifestly ill-founded. Likewise in X v UK, a case taken by security force families, a claim that the state had failed adequately to protect their right to life were rejected as ill-founded. An indication of potentially a more stringent approach came in Farrell (1983) EHRR 466) when a case involving the killing of a suspected terrorist who was later discovered to have been a non-politically motivated bank-robber, was declared admissible. But owing to a friendly settlement being reached, no ruling was given on the merits. That this case did not represent the a new beginning was confirmed by the rejection as ‘manifestly ill-founded’ of the Kelly case (application no 17579/90, decision of the Commission of 13 January 1993) 16 EHRR 20, in which the victim was a non-political ‘joyrider’ who had driven a car through an army checkpoint.Google Scholar

118 For a good example of the ‘big fish’ argument (though one with limited applicability to Northern Ireland), see Akhavan, P ‘Justice in the Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal’ (1998) 20 Human Rights Quarterly 4 737.CrossRefGoogle Scholar

119 Jordan v UK (2003) 37 EHRR 2 McKerr v UK (2002) 34 EHRR 20, and Kelly and others v UK, application no 30054/96, all judgments of 4 May 2001.Google Scholar

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121 Shanaghan v UK, Appl no 37715/97 (4 May 2001).Google Scholar

122 Finucane v UK (2003) 37 EHRR 29.Google Scholar

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124 In 1998 a detailed report by the UN Special Rapporteur on the Independence of Judges and Lawyers which followed a fact-finding mission to the UK, raised serious concerns about allegations of security force collusion in the murder of Pat Finucane, a leading defence lawyer, and called for an independent judicial inquiry to investigate the matter. See Report on the Mission of the Special Rapporteur to the United Kingdom of Great Britain and Northern Ireland, which formed an addendum to the annual report of the Rapporteur to the Commission on Human Rights, UN Doc E/CN.4/1998/39/Add.4, 5 Mar 1998.Google Scholar

125 The Human Rights Committee listed the implications of Jordan and the other right to life cases of May 2001 (which it explicitly referred to), as an issue which it wished to raise with the UK in its consideration of the state's fifth periodic report under the ICCPR in 2001. See List of Issues: United Kingdom of Great Britain and Northern Ireland, 25/7/2001, CCPR/C/L/UK, para 12.Google Scholar

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127 These and the other statistics in this paper on conflict fatalities come from Malcolm Sutton, ‘An Index of Deaths from the Conflict in Ireland’, covering the years 1969–2001. This is available on the CAIN website at <cain.ulster.ac.uk/suttoiVtables/OrganisationJ5ummary.html> last visited 16 Aug 2004.+last+visited+16+Aug+2004.>Google Scholar

128 In response to the Art 2 judgments of the European Court, the Government presented a package of proposals to the Committee of Ministers of the Council of Europe which, under Art 46(2) ECHR has responsibility for supervising execution of Court judgments. These fell short of plans for full reinvestigations. The Committee of Ministers in an interim resolution of 23 Feb 2005 reiterated its position that ‘…there is a continuing obligation [on the UK] to conduct…investigations inasmuch as procedural violations of Article 2 were found in these cases’. Committee of Ministers Interim Resolution ResDH (2005) 20.Google Scholar

129 In a test case exploring the implications of the recent Art 2 rulings of the European Court, the House of Lords rejected an application for an order compelling the Secretary of State for Northern Ireland to hold an effective investigation into one of the deaths in question. In Re McKerr (AP) (Respondent) (Northern Ireland) [2004] 2 All ER 409. See also decision of the Northern Ireland Court of Appeal in PSNI v McCaughy & Grew [2005] NICA 1.Google Scholar

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131 In the 2001 ‘Weston Park’ discussions, the British and Irish Governments agreed to ‘appoint a judge of international standing from outside both jurisdictions to undertake a thorough investigation of allegations of collusion in the [named] cases.’ The text of the Weston Park statement of 1 Aug 2001 can be found at <www.cain.ulst.ac.uk>..>Google Scholar

132 On 1 Apr 2004, the Secretary of State Paul Murphy announced the British Government's response to the Cory Reports. See <www.nio.gov.uk/media-detail.htm?newsID=8547>. On 16 Nov 2004, the British Government announced the terms of reference and the panel members for three inquiries. The inquiries into the murders of Nelson, Rosemary and Hamill, Robert will be held under Section 44 of the Police (Northern Ireland) Act 1998, and the inquiry into the murder of Billy Wright will be held under section 7 of the Prison Act (Northern Ireland) 1953. For a full text of the announcement see ;<www.nio.gov.uk/media-detail.htm?newsID=10521>..+On+16+Nov+2004,+the+British+Government+announced+the+terms+of+reference+and+the+panel+members+for+three+inquiries.+The+inquiries+into+the+murders+of+Nelson,+Rosemary+and+Hamill,+Robert+will+be+held+under+Section+44+of+the+Police+(Northern+Ireland)+Act+1998,+and+the+inquiry+into+the+murder+of+Billy+Wright+will+be+held+under+section+7+of+the+Prison+Act+(Northern+Ireland)+1953.+For+a+full+text+of+the+announcement+see+;.>Google Scholar

133 For a full text of the statement, made by Secretary of State Paul Murphy on 23 Sept 2004, see <www.nio.gov.uk/media-detail.htm?newsID=10299>. On 25 Nov 2004 an ‘Inquiries Bill’ providing for restrictions on public access to inquiries was introduced..+On+25+Nov+2004+an+‘Inquiries+Bill’+providing+for+restrictions+on+public+access+to+inquiries+was+introduced.>Google Scholar

134 See ‘Police Chief Calls For Truth and Reconciliation in Ulster’ The Guardian 23 02 2004.Google Scholar

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136 Blair's, Tony view of the 19th Century Irish Famine (when all of Ireland was part of the UK) delivered in a public message in 1997 was: ‘That one million people should have died in what was then part of the richest and most powerful nation in the world is something that still causes pain as we reflect on it today. Those who governed in London at the time failed their people through standing by while a crop failure turned into a massive human tragedy…’ The full text of Prime Minister Blair's message is available at <www.britainusa.com/nireland/articles_show.asp?SarticleType=21&Article_ID=179>..>Google Scholar

137 provisions allowing access by a detainee to a lawyer to be deferred for up to 48 hours at a time are to be found in s. 15 EPA 1987, s 47 EPA 1996, and Schedule 8, para 8 of the Terrorism Act 2000.Google Scholar

138 The Criminal Evidence (Northern Ireland) Order 1988 (which applied in both terrorist-type and ordinary cases), permitted a court to draw such inferences as it thought fit (including adverse inferences) in four sets of circumstances: from the failure of the accused to testify when called upon to do so by the court; or from the accused's earlier failure during police questioning to explain marks on clothing; or to account for his or her presence at the arrest location; or to mention ‘a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention….’.Google Scholar

139 Committee Against Torture, Summary Record of the 92nd Meeting, para 62, UN Doc CAT/C/SR.92Google Scholar

140 Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, UN Doc A/50/40 3 Oct 1995, para 24.Google Scholar

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142 See ‘Report on the Mission of the Special Rapporteur to the United Kingdom of Great Britain and Northern Ireland’, which formed an addendum to the annual report of the Rapporteur to the Commission on Human Rights, UN Doc E/CN.4/1998/39/Add.4, 5 Mar 1998.Google Scholar

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144 Magee v UK (2001) 31 EHRR 35.Google Scholar

145 Brennan v UK (2002) 34 EHRR 18.Google Scholar

146 John Timidly & Sons Ltd and Others and McElduffand Others v UK (1999) 27 EHRR 249.Google Scholar

147 Section 42 Fair Employment (Northern Ireland) Act 1976.Google Scholar

148 In Tinnelly the European Court of Human Rights made explicit reference to the judgment of the European Court of Justice in Johnstone v Chief Constable of the RUC [1986] ECR 1663 in which, in a preliminary reference, the ECJ had taken the view that the then existing security exemption provisions in relation to sex discrimination (which paralleled those complained of in Tinnelly) were incompatible with Community law (paras 46–8).Google Scholar

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152 UN Security Council Resolutions passed in the aftermath of the 11 September attacks include UNSC Res. 1368 12 Sept 2001, UNSC Res 1373 (establishing the Counter Terrorism Committee), 28 Sept 2001, UNSC Res 1377 12 Nov 2001.Google Scholar

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