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Home Articles posted by Shane Darcy

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…

 

Collective Punishment Receives a Judicial Imprimatur

Published on August 21, 2014        Author: 

In her recent book on the application of international humanitarian law by national courts, Sharon Weill describes the “apologist role” that is sometimes played by domestic judicial bodies, whereby decisions of courts serve to legitimise unlawful state policies. Last week’s judgment by the Israeli Supreme Court (sitting as the High Court of Justice) upholding the orders of a military commander to destroy and seal a number of Palestinian houses in the West Bank is an exemplary case in point.

The judgment in Qawasmeh et. al.is significant for it provides judicial approval for the recent reinstatement of Israel’s punitive house demolition policy after a “decade-long hiatus”. The judges condone practices of collective punishment, despite the existence of a clear prohibition of such practices under international humanitarian law. The approval is not inadvertent, for the judgment shows that the Court is fully aware of the harm caused to persons other than the perpetrator by the practice of demolishing or sealing the houses of those responsible for criminal or hostile acts.

The background facts of the case are well-known, given that the kidnapping and murder of three Israeli teenagers in the West Bank in June 2014 served as the trigger for a violent escalation leading to ‘Operation Protective Edge’ in Gaza. The Israeli authorities identified the alleged perpetrators of this crime and ordered the demolition or sealing of their homes “in view of the need to deter others from the recurrence of similar actions” (although one residence was already destroyed once the individual was identified). At the time of the judgment, two of the suspects had not been arrested and the third had not yet been tried. Since then, the demolition and sealing orders have been carried out, with a statement by the Israeli military expressly referring to the Supreme Court’s affirmation of the orders and its rejection of the petitioners’ appeals.

Read the rest of this entry…

 

Military force against Syria would be a reprisal rather than humanitarian intervention, but that doesn’t make it any more lawful

Published on September 1, 2013        Author: 

Dr Shane Darcy is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway.

The anticipated use of military force against Syria in reaction to the use of chemical weapons does not meet the permitted exceptions to the prohibition on the use of force under the United Nations Charter. Security Council authorisation has not been forthcoming, while self-defence is obviously not applicable. Although British MPs have blocked a United Kingdom military intervention, the United Kingdom government had relied up on humanitarian intervention as the legal basis to justify the use of force. The doctrine is controversial and as Dapo Akande has shown, it at best has weak legal standing in international law. But the type of limited military intervention envisaged bears all the hallmarks of a reprisal, rather than humanitarian intervention, and this concept is equally problematic in modern international law.

 Reprisals are a traditional means of law-enforcement, involving the unilateral use of force in response to breaches of international law. The Institut de Droit International defined reprisals involving the use of armed force in a resolution passed in 1934:

Reprisals are measures of coercion, derogating from the ordinary rules of international law, decided and taken by a State, in response to wrongful acts committed against it, by another State, and intended to impose on it, by pressure exerted through injury, the return to legality.

 The purpose of military intervention against Syria seems to be both punitive and deterrent; to punish Syria using chemical weapons in breach of international law and to deter any further use.  Such military action would be prima facie unlawful, in that it fails to meet the terms of the United Nations Charter. But might it be lawful as an armed reprisal?

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