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Home Posts tagged "Northern Ireland"

The Human Cost of Using Informers in Conflict and the Ambivalence of International Law

Published on October 17, 2019        Author: 

In early October, the Guardian reported that former members of the IRA and British Army commanders may face criminal charges arising from serious offences connected with the use of informers for the purpose of gathering intelligence during the conflict in Northern Ireland. As part of the police inquiry ‘Operation Kenova’, files have been sent to the Public Prosecution Service in Belfast providing evidence of crimes of “murder, kidnap, torture, malfeasance in a public office and perverting the course of justice” associated with the activities of alleged former head of internal security for the IRA and British army agent Freddie Scappaticci.

Scappaticci is said to be linked directly to some 18 murders of IRA members accused of being informers. The families of a number of those killed have made formal complaints to the Police Ombudsman of Northern Ireland claiming that his military intelligence handlers failed to prevent those killings. Even more than the trial of “Soldier F” for two murders arising from Bloody Sunday in 1972, such proceedings could shine an uncomfortable light on how the dirty war was waged by state authorities in Northern Ireland. It also prompts the question of how law addresses the practice of using informers during conflict. 

The use of informers within non-state armed groups by British military, police and security forces was a common practice during the conflict in Northern Ireland. It is estimated that the IRA executed around 85 individuals accused of being informers during the course of the Troubles. Such practices are not unprecedented, as the recruitment and deployment of informers has been a perennial feature of armed conflicts, not to mention the frequently brutal treatment that has usually been meted out to such collaborators. As has been the case with the Scappaticci affair, authorities have at times gone to great lengths to secure and retain the services of high-level informers, including by tolerating or acquiescing in their involvement in criminal activities.

In terms of the law applicable to the use of informers, very often there has been limited or no national legislation governing the use of so-called covert human intelligence sources. The Chief Constable of the Police Service of Northern Ireland George Hamilton has acknowledged that in the context of the Troubles, “[t]here were no rules. There was no regulatory framework for handling of informants at that time”. Given the regularity of the practice during situations of armed conflict, it is appropriate to consider how applicable international law might be addressed to the deployment of informers, as well as its consequences.

On its face, international law applicable to armed conflict, including both international humanitarian law and international human rights law, has little to say about the use of informers. Read the rest of this entry…

 

Brexit, the Northern Irish Backstop, and Fundamental Change of Circumstances

Published on March 18, 2019        Author: 

If, dear readers, you have any doubts that the parliamentary politics of Brexit have emerged from the fever dream of some demented game theorist, I would just ask you to take a very quick look at the events of last week. In their second meaningful vote on Theresa May’s Brexit deal, British MPs voted it down by 391 votes to 242, a majority of 149. This was an improvement of sorts on the first meaningful vote, which May lost by a majority of 230. MPs also voted to reject a no-deal Brexit and to instruct the government to ask the other EU states for an extension to the Article 50 withdrawal period. At the same time, by a majority of only 2 votes they defeated the Benn amendment, which would have allowed Parliament to express its preferences as to the outcome of the Brexit process in a series of indicative votes, and thus overcome the current impasse.

This week Theresa May seems poised to take her deal to the Commons for a third meaningful vote, most likely on Tuesday or Wednesday, before the EU Council meets on Thursday. She has worked furiously over the past few days to lobby the Northern Irish DUP and the hard-core Brexiteers within her party to vote for her deal, or risk either a very long extension to Article 50 or the UK remaining in the EU after all. This fear is of course the main incentive to bring the various pro-Brexit factions within Parliament and the Tory party to support May’s deal, and it is growing in power as the Article 50 deadline approaches. But because some of these factions have effectively painted themselves into a corner over the supposed downsides of May’s deal, they need something more than fear itself to justify a change of mind to their electorate. They need, well, a fundamental change of circumstances, like re-revised legal advice from the UK Attorney-General, Geoffrey Cox QC. And they may well eventually find that in the customary rule on fundamental change of circumstances, rebus sic stantibus, codified in Article 62 of the Vienna Convention on the Law of Treaties.

Now, if even after two full years into this whole MCFoHP someone told me that Brexit could ultimately depend on Art. 62 VCLT, I would have been perplexed, to put it politely. This is, for all its Roman pedigree, a rule that has never successfully been applied in real life, I would have said. Its requirements are almost impossibly strict. How could something as important as Brexit depend on an international law doctrine of such relative obscurity that even international law textbooks standing at more than a thousand pages devote it less than two? To paraphrase the late Ian Brownlie’s pithy assessment of jus cogens, the rule on fundamental change of circumstance is a car that has never left the garage.

But – but – over the past week the garage doors have creaked open, with a whiff of something tart and pungent. The stillness of things has become disturbed.

Read the rest of this entry…