COMMON CRIMINALS OR POLITICAL LAW-BREAKERS?
by Liam O Ruairc
‘Support Republican POWs’, ‘Restore Political Status’ are slogans that will be familiar to all those concerned about the plight of the close to one hundred republicans imprisoned today. At the same time there are ongoing attempts to criminalise Republicans still engaged in armed actions against the British state. (1) But what does the category of ‘Prisoner of War’ mean or that of ‘Political Status’ entail? Can they apply to Republican prisoners today? And are there any grounds to label Republican prisoners as ‘criminals’?
The category of ‘Prisoner of War’ is based on the 1949 Geneva Convention on the humanitarian laws of war and its amendments of 1977 known as Protocols I and II. The 1949 Convention could not be applicable to Republican prisoners as they are not engaged in conventional warfare. Its 1977 Protocol II deals with rebellions and guerrilla warfare, but it is unlikely that Republican prisoners would be recognised today as legitimate combatants under its provisions; particularly as they have no diplomatic recognition and in terms of international law as a consequence of the 1998 Belfast Agreement “the historical claims of alien occupation or a de facto war of national liberation are likely to be dismissed in the Northern Ireland context.” (2)
If Article 3 of the Geneva Convention could apply to Republicans as they have a certain degree of leadership and organisation, despite incidents like the one in Meigh last year, it would be difficult for them to prove today that they have effective control over parts of the territory and that they carry their weapons openly. (3) (Note that Loyalists could argue that they should be granted combatant status under Article 42 (Protocols 1&3) as a paramilitary force auxiliary to the British Army, but if granted they would then be liable to be prosecuted for war crimes, which is probably one of the reasons why aside from a handful of prisoners none opposed criminalisation.)
What about ‘Political Status’? (4) There is no recognition either in the jurisprudence of domestic courts or international courts of ‘Political Status’. It is worth looking at some legal precedents.
In 1978, four Republican prisoners initiated a case at the European Commission of Human Rights during the ‘dirty protest’ for granting of ‘Political Status’ and exemption from ordinary prison rules. (5) When the European Commission of Human Rights examined the merits of their case in 1980, it concluded that no right of special treatment accrued to them under international law. (6) Republican prisoners thus never had either ‘Prisoner of War’ or ‘Political Prisoner’ status and are unlikely to achieve either.
But Republicans often claim that between 1972 and 1976 they were officially recognised as political prisoners. (7) What Republican prisoners had during those years was ‘Special Category Status’: persons convicted and sentenced to more than nine months imprisonment for so-called ‘scheduled’ offences had a regime free of work and prison duties and were recognised as a group.
A study analysing the status of Republican prisoners noted that their claim for differential treatment was neither consistent nor unambiguous. At certain times they laid claim to the status of ‘prisoners of war’, at others they merely sought a recognition of ‘political status’; but primarily they sought to be distinguished from ‘ordinary convicted prisoners’. (8). The creation of ‘Special Category Status’ was a de facto recognition that prisoners engaged in politically motivated acts were distinguishable from ‘ordinary’ criminals.
The withdrawal of the Special Category Status was a direct consequence of the British government's so-called 'criminalisation' policy. The Northern Ireland Secretary of State described the security problem in 1976 in the House of Commons as involving only “small groups of criminals”. (Hansard, Vol 913, 14 June 1976, col.44) A similar policy exists in 2010:
"The authorities are said to be concerned the use of the word "republican" gives dissidents a degree of credibility. The Sunday Times said the NIO is set to introduce the measures for members of groups such as the Continuity IRA, Real IRA and Oglaigh na hEireann (OnH) amid the severe threat they pose to the security forces. This includes ‘rebranding’ aimed at removing the word republican to distinguish dissidents from Sinn Fein and influencing opinion in nationalist community. The step has been devised in consultation with civil servants, police chiefs and MI5.A spokesman for the NIO told the paper: "Calling these disparate criminal groups dissident republicans gives them a status that they don’t deserve. "They are the enemies of peace and political progress and the language used to describe them should reflect this."One term which may be used is "criminal paramilitary gangs". (9) The policy of criminalisation had politically defined the actions of republican organisations as deviant criminal behaviour. However, there is no serious empirical warrant for labelling Republicans as criminals. (10) Despite the official criminal label, the British Army’s 1978 Glover Report itself stated:
‘Our evidence of the calibre of rank and file terrorists does not support the view that they are mindless hooligans drawn from the unemployed and the unemployable.’ (11)Surveys of republican offenders coming before the courts found that the data ‘beyond reasonable doubt’ established that the bulk of them were people
‘without criminal records in the ordinary sense, though some have been involved in public disorders (but) in this respect and their records of employment and unemployment they are reasonably representative of the working class community of which they form a substantial part (and) do not fit the stereotypes of criminality which the authorities have from time to time attempted to attach to them.’ (12)Studies show that application to join the IRA are directly linked to political events rather than to criminal opportunities. (13) Famously, IRA volunteers have been resistant to prison management techniques that ‘ordinary criminals’ generally accept without organised protest. (14)
Contrary to the image of ‘psychopathic killers’, there is no evidence that IRA recruits are psychologically abnormal, rather they are ‘normal’ –- that is representative of their social base. Studies comparing political killings as opposed to non-political murders in Northern Ireland confirm this appraisal. (15)
Finally, to date rates of recidivism, political or criminal, among ex-IRA prisoners have been strikingly low, indicating further evidence against the criminal motivation thesis. Of the 447 prisoners (241 republicans, 194 loyalists and 12 non-aligned) released under the Belfast Agreement, ten years after only 20 have had their licences revoked, and 16 of these were for scheduled offences. This compares to a general re-offending rate of 48 per cent within two years for ‘ordinary’ prisoners in the North. (16)
It is possible to make the objection that all the above evidence applies to Republican prisoners in the 1968-1998 period, but does not apply to so-called ‘dissidents’ today. A problem is that so far, no similar studies have been made of the estimated three hundred republicans opposed to the Belfast Agreement imprisoned between 1999 and 2009. (17) But as Danny Morrison already pointed long ago, there is no such thing as the “good old IRA”. (18)
Whether in 1976 or in 2010, the British government might claim that it has no political prisoners, only common criminals in need of punishment, yet the subtelties of its legal system show otherwise. In effect, there is a dual system of criminal justice at work.
First, the law under which Republicans are arrested does not define them as ‘ordinary criminals’. The political nature of the republican struggle is acknowledged in the Prevention of Terrorism Act which defines ‘terrorism’ as ‘the use of violence for political ends’. The ‘scheduled offences’ of the Emergency Provisions Act equally distinguishes a certain class of offences from the criminal norm by isolating the trial of their perpetrators to special courts. The Terrorism Act 2000 similarily recognises the political nature of ‘terrorism’. As Mike Tomlinson points out: "they are considered as political in the court room but criminal for the purposes of punishment". (19)
Second, there is a separate system of criminal justice for those charged with scheduled offences compared with those charged with ‘ordinary’ crime: they are arrested under emergency powers (Offence Against The State Act for example) and convicted in radically modified courts (Green Street Special Criminal Court for example). Modification of the criminal justice system and the constitutional framework is indicative that ‘scheduled offences’ are not merely criminal.
Republicans are tried before special courts where the rules are different from those reserved for persons accused of ‘ordinary’ crimes, and if scheduled offences indeed constituted ‘ordinary’ crime it follows that one court with one set of legal rules should suffice.
Third, the labelling of Republicans as criminals (whether in 1976 or 1998) has been arbitrary and inconsistent. At the end of 1982, well over a year after the hunger strikes had ended, there were still some 233 prisoners with Special Category Status in the six counties, the last two of which were released in 1992.
As part of the politics of the Belfast Agreement, Republican prisoners were released whereas persons imprisoned for other offences such as rape and drugs were not included under the Agreement’s prisoner release scheme, thus de facto recognising that prisoners engaged in politically motivated acts were distinguishable from ‘ordinary’ criminals. And when the first republican prisoners arrived in Maghaberry in January 1999, they were forced into a new regime from which the prisoners in HMP The Maze were exempt. While the people on the outside were segregated, there was forced integration in the prison.
There are thus strong arguments to support a differential treatment for Republican prisoners today. "Political law-breaking" and crime are two different things. (20)
The Portlaoise regime in the 26 counties de facto recognises the validity of their case: it allows inmates to wear their own clothes, to associate at times, defines prison work in broad terms and gives implicit recognition to the command structure of Republican organisations.
The movement to support the struggles in the prisons today should always highlight that it is primarily a political issue, not a humanitarian one – it is about the right to a differential treatment and for politically motivated offenders to be recognised and distinguished from ‘ordinary convicted prisoners’.
(This article is a revised and extended version of an article which originally appeared in The Sovereign Nation, September-October 2010)
(1) Danny McBrearty, Why label disillusioned Republicans as criminals?, The Guardian, 13 August 2010
(2) Fionnuala Ni Aolain, The Politics of Force: Conflict Management and State Violence in Northern Ireland, Belfast: The Blackstaff Press, 2000, 237
(3) Malachi O Doherty, Checkpoint, The Belfast Telegraph, 26 August 2009 and also John Mooney, Gardai ‘know identity’ of dissident terrorists, The Sunday Times, 24 May 2009 on CIRA ‘no go’ zones in Fermanagh
(4) See the arguments made for ‘political status’ by prisoners of fighting communist organisations such as the Rote Armee Fraktion in the Federal Republic of Germany. Cfr. Michael Schubert, Political Prisoners in West Germany: Their Situation and Some Consequences Concerning Their Rights in Respect of the Treatment of Political Prisoners in International Law, in Bill Rolston and Mike Tomlinson (eds) The Expansion of European Prison Systems, Working papers in European Criminology No 7, Stockholm: The European Group for the Study of Deviance and Social Control, 1986, 184-193. See in particular the statement prepared by the defence lawyers during the trial of RAF prisoners Christian Klar and Brigitte Monhaupt pp.188-191. See also in the same volume Helmut Janssen, Political Prisoners: Some Thoughts on the Status of Politically Motivated Offenders in Europe, pp.194ff. All these are directly relevant to the question of ‘Political Status’ in Ireland today.
(5) The legal case in question is: McFeeley and Others v. United Kingdom, Application 8317/78 (1980) 3 EHRR 161.
(6) Liam Clarke, Broadening the Battlefield: The H-Blocks and the Rise of Sinn Fein, Dublin: Gill and Macmillan, 1987, 114-115
(7) For example: Gerry Adams, The Politics of Irish Freedom, Dingle: Brandon, 1986, 71
(8) Clive Walker, Irish Republican Prisoners – Political Detainees, Prisoners of War or Common Criminals?, The Irish Jurist 189, 199 (1984)
(9) New drive to rebrand dissidents 'criminals', The Belfast Telegraph, 2 August 2010
(10) For evidence of this see: Brendan O’Leary, Mission Accomplished? Looking Back at the IRA, Field Day Review, Issue One, 2005, 230-232
(11) Quoted in Gerry Adams, op.cit., 67
(12) Kevin Boyle, Tom Hadden and Paddy Hillyard, Ten Years On in Northern Ireland, London: 1980, 19
(13) Robert White, From Peaceful Protest to Guerilla War – Micromobilization of the Provisional Irish Republican Army, American Journal of Sociology, 94 (1989) 1277-1302
(14) Cfr. Kieran McEvoy, Paramilitary Imprisonment in Northern Ireland: Resistance, Management and Release, Oxford University Press, 2001
(15) H Lyons and H Harbison, A Comparison of Political and Non-Political Murderers in Northern Ireland 1974-1984, Medicine, Science and the Law, 26 (1986), 193-198
(16) Dan Keenan, Ex-prisoners ‘helped resolve conflict’, The Irish Times, 1 March 2008
(17) Estimation source: Panorama, The Gunmen Who Never Went Away, BBC One, 30 March 2009
(18) Danny Morrison, The Good Old IRA, Republican Publications, 1986
(19) Liam O Dowd, Bill Rolston, Mike Tomlinson, Northern Ireland: Between Civil Rights and Civil War, London : CSE, 1980, 193
(20) Bill Rolston and Mike Tomlinson, Spectators at the ‘Carnival of Reaction’? Analysing political crime in Ireland, in M Kelly, L O Dowd, J Wickham (eds), Power, Conflict & Inequality, Dublin: Turoe Press, 1982, 36