My country (hard) right or wrong

by Maria on February 13, 2020

A united Ireland just got closer, but not in a good way. It looks like the only competent and respected SoS for Northern Ireland in I don’t know how long is being sacked by the PM today. Julian Smith, helped hugely by the NI electorate finally losing patience with Sinn Fein and the DUP, managed to get power-sharing and regional government functioning again. He put the effort in to understand his brief, and even managed to talk some sense to his peers in cabinet about why it’s a terrible idea for British soldiers to be impervious to criminal prosecution for ‘historic’ offences. (Conservatives who are usually so worried about moral hazard in other walks of life seem not to notice the huge incentive for the Ministry of Defence to stonewall investigations until prosecutions are difficult or impossible.)

So it was probably inevitable that in an era of ‘my country, right or wrong’, Johnson would sack the only NI SoS interested in or capable of ensuring a modicum of justice for civilian victims of the armed forces in NI. The main reason for sacking Smith seems to be to pander to the Sun/Mail newspapers, not the actual armed forces where discipline and consequences are sort of the point. Then again, the prime minister has lived his whole life without personal discipline, and ensuring that consequences are only for others.

The consequences for others this time are likely to be; power-sharing in Stormont falls apart again or staggers on so dysfunctionally it may as well not. The NI protocol, with its legal and quasi-constitutional consequences for Brexit, is probably breached. And the party whose central political strategy is based on the illegitimacy of the British state in NI will benefit perhaps even more than it just did in Ireland’s general election. And while I am viscerally, perhaps even genetically predisposed to shiver in disgust at everything Sinn Fein says and does, and to wish the left in Ireland had better to offer, I have to admit that, on this, they are not wrong.



Dan Hardie 02.13.20 at 2:49 pm

I tend to agree with you on most things on NI, but not entirely here. Yes, Smith’s sacking is a disgrace, because the man clearly was prepared to put in the work and talk to NI’s politicians, which notably was not the case with his recent predecessors. Johnson is a man of utter irresponsibility and cowardice who would be perfectly prepared to sacrifice Northern Irish stability for his own selfish political ends. Soldier F, accused of shooting many people on Bloody Sunday, is almost certainly a murderer and an unrepentant one, and should under normal circumstances face trial. It is quite likely that some of the other former soldiers being investigated for unlawful killing also have credible cases against them. The jabberings of the Tory press about these investigations being ‘vexatious prosecutions’ are pernicious rubbish.

But I think that there is a genuine case that these prosecutions are not being considered to uphold the rule of law. Further, I think the rule of law was thrown in the bin some time ago by a former British Government in regard to ‘historic’ killings in Northern Ireland by IRA members, and that ought to be a key consideration here.

Jonathan Powell wrote a letter assuring several hundred IRA ‘on the runs’-ie fugitives who were being investigated for serious crimes- that they were not going to be prosecuted for any offences including murder. The prosecuting authorities, including under Conservative governments, have since confirmed that this pledge will be respected: no prosecutions. Powell was not a judge, not an elected official, not someone who exercised any judicial or quasi-judicial powers by virtue of his office, but an advisor to Tony Blair.

There is no evidence that he did this because of factors related to the rule of law- because of doubts, say, about the accuracy of the evidence against the ‘on the runs’. There is plenty of evidence that Powell did this because if he hadn’t, there would be an increased likelihood of either the Provisional IRA returning to violence, or more support for ‘dissident Republicans’.

I happen to think Powell’s decision was the right one in very difficult circumstances, but it wasn’t taken because he was upholding the rule of law, or because all the fugitive IRA members accused of killings were in fact innocent. It was taken because the British government wanted to decrease the chances of a large-scale return to terrorist violence.

And that is surely relevant. Prosecute all the people against whom there is a strong evidential case of having committed murder in the Troubles, or prosecute none of them. The current policy is to not prosecute those who might return, or whose friends might return, to violence, and go after those for whom there are no such considerations. That surely has nothing to do with the rule of law.

Soldier F should have been prosecuted in 1972 or soon after. Instead, the British government of the time organised a disgraceful cover-up of the truth about the Bloody Sunday killings. And every subsequent government did the same until Blair announced the Saville inquiry. But the IRA members who- and this is a very incomplete list- bombed the village of Claudy and murdered civilians, or bombed Belfast town centre on Bloody Friday and murdered civilians, or bombed the La Mon hotel and incinerated eight diners, or machine-gunned Protestant linenworkers at Forkhill should also have faced prosecution. They didn’t for several reasons, one of which was because they belonged to an organisation that kept their identities secret and was prepared to murder anyone who bore witness against them. And if any of those killers were ‘on the run’, then they won’t now face prosecution, because an advisor to the then Prime Minister said so in a letter. Those are major injustices to set alongside any decision not to prosecute Soldier F.

You are right that HMG shouldn’t create incentives for the MoD to slow-pedal inquiries into suspicious deaths at the hands of British troops. But tackling that problem needs genuine reform because most conflicts the British military has been involved in, or will be in future, will not be comparable to Northern Ireland. There won’t be much chance of something like the PSNI inquiries into historic killings, let alone the Saville inquiry, taking place in Iraq, say, anytime soon. The solution might be to create an independent investigative body, outside the Royal Military Police and RAF/RN equivalents, to look at allegations of serious wrongdoing by British troops. That will not happen under the lying nationalist who is our current Prime Minister, of course, but it’s something to think about for future Labour governments.


Stephen 02.13.20 at 7:45 pm

Dan Hardie: I would not disagree with your description of Boris Johnson, but surely something can be true even if Johnson says it’s true.

With regard to the extra-legal failure to prosecute several hundred IRA murderers, to appease Sinn Fein and alternative republican groups, as compared to the desire of Sinn Fein to prosecute British soldiers who (I agree) would in other circumstances be considered guilty of murder, I would suggest that there are a couple of other factors to be considered.

One, the numerous IRA murders – of which you, indeed, gave a very incomplete list – were carried out in obedience to premeditated orders from the leaders of the IRA Army Council, who overlapped remarkably with the leadership of Sinn Fein. But to prosecute in the 1990s the Sinn Fein leadership, who by then were seriously trying to end the conflict, would have been inexpedient. By contrast, people like Soldier F who shot civilians on Bloody Sunday were not obeying orders from above: indeed, his whole unit were disobeying orders. Prosecuting Ted Heath as well as Gerry Adams would not have been justifiable, however tempting. But if Adams and McGuiness had for very good reasons to be left unprosecuted, surely their underlings should have been too?

Two, there is a reasonable argument that soldiers deliberately advancing towards the enemy and expecting to be shot at are doing something that, by normal peacetime civilian standards, is clearly insane and should be treated as such. The Saville Report leaves no doubt that (unidentified) IRA members had started shooting at soldiers well before Soldier F and others went forward hoping to arrest rioters. Most of them kept their heads: how much leniency should be shown to the few who did not?


Stephen 02.13.20 at 8:13 pm

With regard to investigations into events in Iraq, you call for “an independent investigative body … to look at allegations of serious wrongdoing by British troops”. Well, we’ve had one. There was of course the Iraq Historical Investigations Team, shut down in 2017 after collapsing under the weight of its own internal contradictions.

You may call to mind the case of Phil Shiner of Public Interest Lawyers (Liberty’s Human Rights Lawyer of the year, 2004: Law Society’s Solicitor of the Year, 2007) who claimed that British soldiers there had captured, tortured, murdered and mutilated innocent Iraqi civilians. He was responsible for about 65% of the allegations received by the Historical Investigations Team, investigated at a cost of at least £30 million. He was struck off the rolls by the Solicitors Regulation Authority in 2017 after being found guilty in that respect of 22 charges of dishonesty and lack of integrity. He declared himself bankrupt, owing almost £7 million including the cost of proceedings against him; having sold his house and two commercial properties into a family trust, that allows him to go on living in his house. Lawyers. eh?

Another set of human rights lawyers were acquitted by the SRA of misconduct even though they had concealed from the investigations team evidence which, if made known, would have completely discredited their clients. This was blamed on the incompetence of an inexperienced junior member. For all I know, that may have been true.

Moral: be very, very careful about investigations.


Hidari 02.13.20 at 9:24 pm


Chetan Murthy 02.14.20 at 5:59 am

Dan Hardie @ 1:

First, I’m an -American: I have no dog in this fight, and since I’m not of Irish descent, my relatives have none either. So my reactions to your comment will be couched in terms of the fight wherein I -do- have a dog: America’s foreign wears.

In America’s foreign wars, we hear (from Don Bedsore among others) that “they” do horrible things, and so our soldiers should do horrible things. That it’s the only way. But this is wrong on two counts:
(1) if we’re no better than “them”, then we cannot claim any moral right. It’s just red-in-tooth-and-claw. And (at least ostensibly) that’s not what America (or The West) stands for.
(2) we cannot control what the Taliban (or ISIS) do. We *can* control what our soldiers do, and there is good reason (reading, e.g., Martin van Creveld) for thinking that it matters that our soldiers conduct themselves in “a manner becoming …”
(3) Last, we make peace with enemies, not with friends. To pretend that we cannot discipline our own soldiers, because our enemies did not discipline theirs …. is just wrong-headed.
(4) there’s also George Washington’s argument for the good treatment of prisoners and such, which I won’t reiterate.

Yes, in a better world, our former adversaries would punish their soldiers’ worst atrocities. But then, it’s not like we actually punish our soldiers’ atrocities EITHER. So it’s not like we have much of a leg to stand on.

Again, all of this is about America, but I think the implications for what goes on in NI are obvious. Maybe I’m wrong.


Maria 02.14.20 at 2:48 pm

Dan, apologies – connectivity crisis yesterday, otherwise I’d have responded more speedily.

In order to get and keep the peace process moving and ultimately deliver the GFA, Powell, Blair et al could have declared a general amnesty on all Northern Ireland killings by terrorists, paramilitaries, RUC and the armed forces, but afaict they chose not to, and instead gave assurances to both republican and loyalist paramilitaries that they would not be prosecuted. I think this was because they didn’t want the precedent and moral hazard that amnesty for the armed forces would have created for all future conflicts, though I’m open to correction on that.

Around the same time, after two decades of campaigning by not just the Bloody Sunday families, but by the Irish government and a range of human rights organisations, Blair launched the Saville inquiry with, I seem to remember, a fair bit of wrangling on terms-setting beforehand that it would not foreclose the possibility of prosecutions but in fact potentially open the way to them by producing evidence that had long been withheld by the MoD in particular.

What I believe Powell and co were trying to do was establish a sufficient quid pro quo in multiple dimensions, not just the one you mention; opening the limited possibility to right a significant past wrong while also providing an incentive for paramilitaries of all stripes to lay down arms while also containing what had clearly been a culture of impunity in a segment of the BA and preventing it from setting a wider precedent for the future. It was an on the fly solution to a dynamic set of problems, as you say. I think the reasons a general amnesty was not declared are the same reasons rule of law still has to apply to the military, wherever they are but perhaps especially within the UK.

There are many atrocities that were not wrapped up in non-prosecution by the peace process. Added to your list, as well as Omagh, obv, I’d add the Miami Showband killings, another one where stonewalling by the British state on links to loyalist paramilitaries has meant justice is still not served, despite an ongoing campaign. Which is to say that the peace process did not draw a line under everything.

I think it’s important to say that Bloody Sunday is sui generis in several ways. The British armed forces opening fire on civilians is qualitatively different to, say, the Provos or even the UVF doing it. We rightly hold agents of the state to a higher standard than we do mere criminals with weapons and bombs, whatever political ideology the latter may have. Soldiers operate within rules of engagement, and those come ultimately from the legal basis that justifies their deployment. (And I know RoEs have changed since then, and depend on the environment and operation – but they’re not loose in the sense of varying from one day to the next. They’re fundamental.) A lot of the Mail/Sun anger comes from the idea that the bad guys don’t have RoEs so our guys shouldn’t, either, but of course without them, our guys (for some function of our!) are just the same as the provos, AQ, whoever.

Sorry, this is way too long and belabouring.

But Bloody Sunday is sui generis not just because we should exercise the rule of law over the military all the way down to RoEs, but also because its cover-up was and still is endemic and went across every part of the British state, and BJ saying none of that now matters gives carte blanche for the next one and the next one. There’s a lot more at stake than just ‘the provos weren’t prosecuted for X, therefore the BA shouldn’t be for Y.’

TBH I only started paying proper attention to this after I spent an evening at the Law Society with the then head of the Army Legal Service and a couple of his colleagues around the time of the Marine A case in Iraq. (Here, for those unfamiliar with it: It’s also been a huge impetus to BJ and the tabloids’ campaign for military impunity.) Naively, I’d thought the army’s own lawyers would generally be in favour of soft-pedalling – it was quite an education over a couple of pints to hear the absolutely sickened anger they had over what had happened and attempts from sources you can guess to make it all go away.

Anyway, that is all way too long and involved. Your comment is better than the squib of a post that gave rise to it. I think where we definitely agree is that while there are trade-offs and grey areas where people of principle may differ, none of that is relevant to how this government will weaponise the issue as a quick culture war spat but with far-reaching consequences for both NI and the military.


Cian 02.14.20 at 3:13 pm

And while I am viscerally, perhaps even genetically predisposed to shiver in disgust at everything Sinn Fein says and does, and to wish the left in Ireland had better to offer, I have to admit that, on this, they are not wrong.

I have to confess I’ve never understood this position on Sinn Fein, as this seems to essentially hold that such is the original sin of Sinn Fein that they must always be beyond the pale. Which is certainly a position you could hold, but it would also apply to Fine Gael and Fianna Fail.

If you have a problem with the currently existing form Sinn Fein obviously that’s a different position (and I’d be interested to see that argument), but that doesn’t seem to be what you’re actually saying here.


novakant 02.14.20 at 8:00 pm

Regarding UK war crimes in Iraq / Afghanistan this Panorama episode is very informative:


Dan Hardie 02.14.20 at 11:58 pm

Stephen: I agree with some of your points. But this one doesn’t wash with me: ‘Two, there is a reasonable argument that soldiers deliberately advancing towards the enemy and expecting to be shot at are doing something that, by normal peacetime civilian standards, is clearly insane and should be treated as such.’

It doesn’t wash precisely because I’ve been a soldier who advanced towards the enemy expecting to be shot, and I didn’t fire at civilians who were in the area- in some cases, I can remember stopping civilians on car or on foot literally a couple of minutes after I’d been lying on the floor under fire. Advancing towards likely enemy fire, or towards areas likely to have IEDs buried underfoot, is not something one encounters in civilian life (hopefully), but it’s not a circumstance that can excuse any and every subsequent action. Frankly, the language of ‘insanity’ isn’t what combat veterans need: it bolsters the false and harmful belief that we are all ticking timebombs, about to erupt from our long-buried PTSD.

Soldiers from the armies of democratic countries can and should be trained to and then expected to comply with the relevant law, even in the highly stressful conditions of combat. Again, I speak from personal experience when I say that that is both possible and vitally necessary. Something I have said to people who say soldiers should be excusing atrocities is that the law doesn’t just protect civilians in a conflict zone, it protects combatants. I found coming home from Afghanistan very hard in some ways, but it would have been a hell of a lot harder if I’d been running round murdering civilians or serving with people who did. The British Army now has three official ‘standards’, of which one is indeed lawful behaviour. And Soldier F came nowhere near that standard, and nor, say, did the American soldiers who carried out the My Lai massacre.

Shiner was a vile conman, and some of those who were associated with him seem to have been similar. It’s possible that he started off as sincere, representing the family of Baha Mousa- who was indeed unlawfully kicked to death by British soldiers- or that he was always a chancer who just happened to take one legitimate case. The people who sung his praises when he was on the up- like Shami Chakrabarti- should have received far more criticism for it. But it should not be impossible to find arrangements that miss both the worst abuses of the investigations prompted by Shiner and his like, and the deliberate cover-up that greeted Bloody Sunday or a great many American actions in Vietnam.


Dan Hardie 02.15.20 at 12:25 am

Maria, thanks very much for your reply.

Firstly, this is inaccurate, isn’t it? ‘afaict they chose not to, and instead gave assurances to both republican and loyalist paramilitaries that they would not be prosecuted’. There were surely no such general assurances. Instead there were specific assurances to the ‘on the runs’ that they could return home without being arrested and prosecuted. Other former IRA (and INLA, UDA/UFF, UVF etc) members who were suspected of ‘historic’ offences but who were not ‘on the run’ at the time of the Powell letter didn’t get any such assurance.

The main form of reassurance to those not covered by the ‘on the run’ letter was that, so long as their organisations held to their ceasefires, they would be released on license from jail.

I’d take issue with the second part of this as well: ‘But Bloody Sunday is sui generis not just because we should exercise the rule of law over the military all the way down to RoEs, but also because its cover-up was and still is endemic and went across every part of the British state..’ Still is endemic? Really? After literally the longest and most expensive judicial inquiry in British history? That’s surely not a credible argument.


Collin Street 02.15.20 at 6:22 am

but also because its cover-up was and still is endemic and went across every part of the British state

The reason they wrote the comfort letters is ’cause they realised any trial would lead to RUC members being cross-examined on their involvement in loyalist violence, and they didn’t have enough other evidence to support convictions. That’s what you do when you know you don’t have enough evidence, you write a letter saying so.

Also, of course, there’s more to rule of law than process: I could jump through all the procedural hoops any person could want me to, but the court-of-collin still won’t reflect any sort of rule of law. Rule of rules, sure, but law requires authority and I have none… and nor did the government of northern ireland, on account of being an apartheid state. Which also would have come up in any sort of trial.

And even further… lots of IRA people did go to jail, of course. Lots of entirely innocent people as well, but let’s focus on the actually guilty. Lots of them. And rather fewer loyalist militapeople, and even fewer police officers, and… four? soldiers. For murder, the wikipedia says, serving a total of about ten years between them. IRA people have been convicted at an insane percentage higher than soldiers and serving much longer sentences and it’s still not good enough.


Collin Street 02.15.20 at 6:28 am

No RUC members convicted! Not a single damned one. Now that’s some genuine unfairness to Soldier F for Dan to bitch about, but it’s IRA-all-the-way, innit.


bad Jim 02.15.20 at 8:37 am

Gay marriage and abortion came later to Northern Ireland than to the Republic and the rest of the UK. Now that the 21st century has arrived, who knows what else might ensue?

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