TERRORISM AND HUMAN RIGHTS - COUNTER-INSURGENCY AND NECESSITY AT COMMON LAW

• NCJ Number: 61891
• Journal: NOTRE DAME LAWYER Volume: 53 Issue: 49 Dated: (OCTOBER 1977) Pages: 49-89
• Author(s): D R LOWRY
• Date Published: 1977
• Length: 41 pages
• Corporate Author: Notre Dame Lawyer
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE LEGAL FRAMEWORK UNDER WHICH NORTHERN IRISH URBAN GUERILLA WARFARE AND COUNTER-INSURGENCY TACTICS OPERATE IS EXAMINED, AND COUNTER-INSURGENCY THEORIES ARE IDENTIFIED AND ANALYZED.

Abstract

FROM ITS BEGINNING AS A STATE IN 1920, NORTHERN IRELAND HAS RETAINED EMERGENCY POWERS. THE PARTITIONING OF SIX NORTHEASTERN COUNTIES OF IRELAND BY THE BRITISH PARLIAMENT ENSURED THAT PROTESTANTS, A MAJORITY IN THE SIX COUNTIES BUT A MINORITY IN IRELAND AS A WHOLE, WOULD OCCUPY THE CENTER OF POWER OVER CATHOLICS, A ONE-THIRD MINORITY IN NORTHERN IRELAND. ELEMENTS OF THE MINORITY HAVE REGULARLY RESORTED TO VIOLENCE IN PURSUIT OF INCORPORATING NORTHERN IRELAND INTO THE REPUBLIC OF IRELAND. THE BRITISH GOVERNMENT COUNTER-INSURGENCY TACTICS ADOPTED TO DEAL WITH THE PROTRACTED GUERILLA CAMPAIGN OF THE IRISH REPUBLICAN ARMY. CURRENT BRITISH THEORIES OF COUNTER-INSURGENCY, FOUND IN THE WRITINGS OF SIR ROBERT THOMPSON AND BRIGADIER FRANK KITSON, REVOLVE AROUND BREAKING THE RELATIONSHIP BETWEEN THE GUERILLA AND THE FRIENDLY POPULATION. FOR THOSE ACCUSED OF GUERILLA ACTIVITY, THE GOVERNMENT INVOKES THE COMMON LAW PRINCIPLE OF 'NECESSITY' AND AMENDS THE NORMAL JUDICIAL PROCESS IN THE AREAS OF PROCEDURE AND EVIDENCE TO PERMIT THE IMPLEMENTATION OF EXTRAORDINARY REPRESSIVE LAWS. THERE IS NO PROVISION FOR JUDICIAL SCRUTINY OF SUCH EXECUTIVE ACTION IN BRITISH COMMON LAW. THE NORTHERN IRISH EXPERIENCE SHOWS THE NEED TO DEVISE A SYSTEM IN WHICH EXECUTIVE ACTION AFFECTING HUMAN RIGHTS IS JUSTICIABLE. A PREFERABLE CRITERION IS THE AMERICAN 'CLEAR AND PRESENT DANGER' TEST, FOR WHICH THE EXECUTIVE MUST JUSTIFY TO THE JUDICIARY BY TEST OF LAW THE ASSUMPTION OF WIDE EXECUTIVE POWER. SUCH A TEST COULD ALSO CONTRIBUTE TO THE JUDICIAL DEFINITION OF LIMITATIONS ON THE USE OF DRAGNET ARREST, SEARCH, INTERROGATION, AND DETENTION WITHOUT TRIAL, FAVORED BY CONTEMPORARY COUNTER-INSURGENCY THEORISTS. FOOTNOTES ARE PROVIDED. (RCB)