This includes the fact that some former IRA volunteers — individuals who were active during the period of Nairac’s abduction and death — now describe his fate, and events such as Kingsmill, as “war crimes.” Their adoption of this terminology invites scrutiny: they are now relying on definitions created and institutionalised by states whose own conduct has consistently raised grave humanitarian concerns.
The modern legal architecture of “war crimes” and “crimes against humanity” — the Geneva Conventions, the UN frameworks, and later the Rome Statute — was heavily shaped by dominant military powers, particularly the UK, the US, and allied states. These same powers have engaged in multiple conflicts where extensive civilian casualties have been documented by UN agencies, human-rights organisations, investigative journalists, and in some cases their own military inquiries. The wars in Iraq and Afghanistan, and Western-supported military operations in Gaza, have all resulted in significant civilian harm. These deaths are rarely denied; rather, they are reframed through bureaucratic terminology: “collateral damage,” “operational error,” or “proportionate use of force.”
This discrepancy between legal principle and political practice is further illuminated by a recent major development at the UN: the UN Security Council’s endorsement of Donald Trump’s 20-point Gaza peace plan, which authorises an international stabilisation force for Gaza and establishes a transitional “Board of Peace” potentially to be chaired by Trump himself and quite possibly Tony Blair as his subordinate.
This striking arrangement — whereby a former US president is centrally placed in the governance framework of Gaza — underscores how the institutions that claim to adjudicate and define “war crimes” and “justice” can themselves be instrumentalised by powerful states for political ends.
This pattern underscores a foundational asymmetry: although international humanitarian law exists in principle — embodied in the Geneva Conventions, the Rome Statute, and UN frameworks — its enforcement is contingent upon geopolitical power. States with overwhelming military and political influence can reinterpret, evade, or reject legal scrutiny. The United States’ refusal to accept International Criminal Court jurisdiction, the limited legal accountability for British military actions in Iraq and Northern Ireland, and the absence of prosecutions related to Western-backed operations resulting in large-scale civilian casualties all underscore this reality.
This does not imply that atrocities are morally insignificant, nor that suffering is somehow “equal.” Rather, it reveals that the labels “war crime” and “crime against humanity” are not applied according to universal standards but deployed selectively — most often against actors lacking the geopolitical capacity to resist or influence the legal regime.
Against this context, elevating Nairac’s disappearance as a singular moral outrage reflects selective moral reasoning rather than principled adherence to international law. The disproportionate focus on this individual case, contrasted with the relative silence surrounding far more extensive patterns of state violence, exposes whose suffering is recognised and whose is dismissed. This selective invocation of international law suggests a hierarchy of victims and perpetrators determined not by legal consistency but by political convenience.
When former combatants adopt the vocabulary of international criminal law — particularly when such law is constructed and applied by states they once opposed — it raises deeper questions about how definitions of “war crimes” are being understood, why they are being invoked, and which political narratives they ultimately reinforce.
Unlike powerful states that routinely deflect, reinterpret, or ignore accusations of wrongdoing, some former IRA volunteers have shown a far greater moral autonomy in how they use terms like “war crime.” Their willingness to apply this vocabulary even to their own former comrades demonstrates that they are not confined by the limitations or justifications of the organisation they once served. Instead, they appear guided by a deeper personal understanding of morality in war — one that allows them to call out actions they now consider wrong, regardless of loyalty or political allegiance. This stands in stark contrast to the behaviour of states that constructed the international legal system yet refuse to hold themselves to its standards.
Ultimately, the contemporary use of “war crime” is less a neutral legal classification than a reflection of power: who defines the law, who escapes its reach, and who is condemned by it. And until international humanitarian law is applied consistently — irrespective of political strength — its terminology will remain subject to selective deployment and contested meaning.
For my part, I do not regard either Kingsmill or the disappearance of Captain Nairac as “war crimes,” “crimes against humanity,” or moral equivalents of state-directed atrocities such as Bloody Sunday in Derry. This does not diminish the tragedy of the lives lost; rather, it reflects a deeper truth about both the nature of war itself, and the political origins of the terminology used to judge it.
It is compounded by the fact that the modern legal architecture of “war crimes” and “crimes against humanity” was constructed by dominant military powers — chiefly the UK, the US, and their allies — who have repeatedly refused to abide by the standards they imposed on others. Their own actions in Iraq, Afghanistan, Gaza, and other theatres of conflict consistently contradict the moral authority claimed in defining such terms. Consequently, the legal architecture they created has been hollowed out, emptied of moral authority, robbed of credibility, denuded of meaning, and drained of ethical force by their own conduct, rendering these classifications morally and ethically redundant. They have become less legal principles and more political instruments — abstract words detached from consistent application. In many ways, these labels have become abstract terms with no consistent relationship to the actions they claim to describe — little more than empty, selectively applied words.
The reality is that war, by its very nature, is immoral. It is a situation in which human beings are authorised — even expected — to kill one another in pursuit of competing political objectives. Every protagonist in a war seeks victory, and historically, victory is pursued by whatever means are judged necessary. To then isolate specific brutal acts within that wider framework and label them as uniquely immoral presupposes that there is some acceptable, sanitised form of killing. But war does not function on morally coherent lines. The entire enterprise is a moral quagmire. Singling out particular acts as being “above” or “beyond” the normal brutality of war often tells us more about political narratives than about genuine ethical distinctions.
It is analogous to the courtroom dynamic during the conflict in the North: IRA volunteers often refused to recognise or cooperate with British courts as part of their political and moral stance and in some cases, courts appeared to treat that stance as relevant to the proceedings, without endorsing the republican refusal to recognise British authority. Loyalist defendants who accepted the court’s legitimacy were sentenced under its authority. The law’s meaning became contingent on selective recognition, not universal principle. The international vocabulary of “war crimes” functions similarly: it is invoked or ignored depending on political convenience, not moral clarity.
Beyond the terminology, the covert activities carried out by Nairac and other British state actors in Ireland were unlawful from the outset. Investigations, reports, and testimonies have alleged that elements of British intelligence and security forces directed and colluded with loyalist paramilitaries responsible for murdering civilians, with senior governmental awareness. The Glenanne network, in particular, has been linked by researchers to a deliberate strategy of provocation intended to escalate communal conflict. Within this context, the events leading up to Kingsmill cannot be reduced to the simplistic narratives often presented today. The only gunman who spoke at the scene reportedly had an English accent, and Nairac was already known to the South Armagh IRA at the time. Whether or not he was directly involved, it is undeniable that British covert units and loyalist collaborators helped create the very conditions that preceded Kingsmill, at a moment when the IRA leadership had previously restrained volunteers from retaliatory actions.
These complexities raise serious and unresolved questions about who was ultimately directing events on the ground and whether the violence formed part of a broader pattern of manipulation and engineered escalation. For these reasons, I cannot categorise Kingsmill or the disappearance of Captain Nairac within the same moral or legal framework as state-executed massacres like Bloody Sunday — nor within the hollow and debased, selectively applied vocabulary of “war crimes” and “crimes against humanity,” which fails to capture either the moral reality of war or the political realities that shape how these terms are used.
The modern legal architecture of “war crimes” and “crimes against humanity” — the Geneva Conventions, the UN frameworks, and later the Rome Statute — was heavily shaped by dominant military powers, particularly the UK, the US, and allied states. These same powers have engaged in multiple conflicts where extensive civilian casualties have been documented by UN agencies, human-rights organisations, investigative journalists, and in some cases their own military inquiries. The wars in Iraq and Afghanistan, and Western-supported military operations in Gaza, have all resulted in significant civilian harm. These deaths are rarely denied; rather, they are reframed through bureaucratic terminology: “collateral damage,” “operational error,” or “proportionate use of force.”
This discrepancy between legal principle and political practice is further illuminated by a recent major development at the UN: the UN Security Council’s endorsement of Donald Trump’s 20-point Gaza peace plan, which authorises an international stabilisation force for Gaza and establishes a transitional “Board of Peace” potentially to be chaired by Trump himself and quite possibly Tony Blair as his subordinate.
This striking arrangement — whereby a former US president is centrally placed in the governance framework of Gaza — underscores how the institutions that claim to adjudicate and define “war crimes” and “justice” can themselves be instrumentalised by powerful states for political ends.
This pattern underscores a foundational asymmetry: although international humanitarian law exists in principle — embodied in the Geneva Conventions, the Rome Statute, and UN frameworks — its enforcement is contingent upon geopolitical power. States with overwhelming military and political influence can reinterpret, evade, or reject legal scrutiny. The United States’ refusal to accept International Criminal Court jurisdiction, the limited legal accountability for British military actions in Iraq and Northern Ireland, and the absence of prosecutions related to Western-backed operations resulting in large-scale civilian casualties all underscore this reality.
This does not imply that atrocities are morally insignificant, nor that suffering is somehow “equal.” Rather, it reveals that the labels “war crime” and “crime against humanity” are not applied according to universal standards but deployed selectively — most often against actors lacking the geopolitical capacity to resist or influence the legal regime.
Against this context, elevating Nairac’s disappearance as a singular moral outrage reflects selective moral reasoning rather than principled adherence to international law. The disproportionate focus on this individual case, contrasted with the relative silence surrounding far more extensive patterns of state violence, exposes whose suffering is recognised and whose is dismissed. This selective invocation of international law suggests a hierarchy of victims and perpetrators determined not by legal consistency but by political convenience.
When former combatants adopt the vocabulary of international criminal law — particularly when such law is constructed and applied by states they once opposed — it raises deeper questions about how definitions of “war crimes” are being understood, why they are being invoked, and which political narratives they ultimately reinforce.
Unlike powerful states that routinely deflect, reinterpret, or ignore accusations of wrongdoing, some former IRA volunteers have shown a far greater moral autonomy in how they use terms like “war crime.” Their willingness to apply this vocabulary even to their own former comrades demonstrates that they are not confined by the limitations or justifications of the organisation they once served. Instead, they appear guided by a deeper personal understanding of morality in war — one that allows them to call out actions they now consider wrong, regardless of loyalty or political allegiance. This stands in stark contrast to the behaviour of states that constructed the international legal system yet refuse to hold themselves to its standards.
Ultimately, the contemporary use of “war crime” is less a neutral legal classification than a reflection of power: who defines the law, who escapes its reach, and who is condemned by it. And until international humanitarian law is applied consistently — irrespective of political strength — its terminology will remain subject to selective deployment and contested meaning.
For my part, I do not regard either Kingsmill or the disappearance of Captain Nairac as “war crimes,” “crimes against humanity,” or moral equivalents of state-directed atrocities such as Bloody Sunday in Derry. This does not diminish the tragedy of the lives lost; rather, it reflects a deeper truth about both the nature of war itself, and the political origins of the terminology used to judge it.
It is compounded by the fact that the modern legal architecture of “war crimes” and “crimes against humanity” was constructed by dominant military powers — chiefly the UK, the US, and their allies — who have repeatedly refused to abide by the standards they imposed on others. Their own actions in Iraq, Afghanistan, Gaza, and other theatres of conflict consistently contradict the moral authority claimed in defining such terms. Consequently, the legal architecture they created has been hollowed out, emptied of moral authority, robbed of credibility, denuded of meaning, and drained of ethical force by their own conduct, rendering these classifications morally and ethically redundant. They have become less legal principles and more political instruments — abstract words detached from consistent application. In many ways, these labels have become abstract terms with no consistent relationship to the actions they claim to describe — little more than empty, selectively applied words.
The reality is that war, by its very nature, is immoral. It is a situation in which human beings are authorised — even expected — to kill one another in pursuit of competing political objectives. Every protagonist in a war seeks victory, and historically, victory is pursued by whatever means are judged necessary. To then isolate specific brutal acts within that wider framework and label them as uniquely immoral presupposes that there is some acceptable, sanitised form of killing. But war does not function on morally coherent lines. The entire enterprise is a moral quagmire. Singling out particular acts as being “above” or “beyond” the normal brutality of war often tells us more about political narratives than about genuine ethical distinctions.
It is analogous to the courtroom dynamic during the conflict in the North: IRA volunteers often refused to recognise or cooperate with British courts as part of their political and moral stance and in some cases, courts appeared to treat that stance as relevant to the proceedings, without endorsing the republican refusal to recognise British authority. Loyalist defendants who accepted the court’s legitimacy were sentenced under its authority. The law’s meaning became contingent on selective recognition, not universal principle. The international vocabulary of “war crimes” functions similarly: it is invoked or ignored depending on political convenience, not moral clarity.
Beyond the terminology, the covert activities carried out by Nairac and other British state actors in Ireland were unlawful from the outset. Investigations, reports, and testimonies have alleged that elements of British intelligence and security forces directed and colluded with loyalist paramilitaries responsible for murdering civilians, with senior governmental awareness. The Glenanne network, in particular, has been linked by researchers to a deliberate strategy of provocation intended to escalate communal conflict. Within this context, the events leading up to Kingsmill cannot be reduced to the simplistic narratives often presented today. The only gunman who spoke at the scene reportedly had an English accent, and Nairac was already known to the South Armagh IRA at the time. Whether or not he was directly involved, it is undeniable that British covert units and loyalist collaborators helped create the very conditions that preceded Kingsmill, at a moment when the IRA leadership had previously restrained volunteers from retaliatory actions.
These complexities raise serious and unresolved questions about who was ultimately directing events on the ground and whether the violence formed part of a broader pattern of manipulation and engineered escalation. For these reasons, I cannot categorise Kingsmill or the disappearance of Captain Nairac within the same moral or legal framework as state-executed massacres like Bloody Sunday — nor within the hollow and debased, selectively applied vocabulary of “war crimes” and “crimes against humanity,” which fails to capture either the moral reality of war or the political realities that shape how these terms are used.
⏩ Cam Ogie is a Gaelic games enthusiast.
Yes, the powers that drew up the Geneva Conventions of 1948 (there were others before that) have systematically violated them. That does not mean that they are not war crimes. They are. Forced disappearances by states, particularly in Latin America have been the subject of legal proceedings to try the leaders of the country, with varying degrees of success in the matter. It is also a matter of fact that common murder is a crime in law, even though the rich routinely get lesser and in some cases suspended sentences. How, such laws are applied is a matter of debate, but disappearances are war crimes and it was the use by Latin American dictatorships that helped define it further in law. Other war crimes were considered as such long before the Conventions. The US Civil War saw the Lieber Code, but even ancient civilisations had rules about war and their violation.
ReplyDeleteIf Kingsmill wasn't a war crime then Bloody Sunday was just a confused military unit mistakenly believing they were under fire and panicking.
ReplyDeleteMy fucking hole.
And Nairac despite being a moron wouldn't be a sticking point if his body was located. As far as I know the Brits didn't hide the bodies of those they killed and allowed their families a decent burial.
Which should lead people to ponder what actually happened to his body and if this came out would it actually be repulsive to any decent Catholic as he himself was a devout one? Particularly in the more devout rural areas? People know and aren't saying.
I think this is a work in progress.
ReplyDeleteA good thought provoking piece, it seems unable to sidestep the trap of a hierarchy of victims. It suggests that some people are victims of war crimes but not others when the exact same thing happens to them. in the same war. Human rights advocates more so than governments are responsible for the definition of war crimes. As Gearoid points out disappearing people is a war crime, which can't be shrank away from just because the side we favour perpetrates them.
I recall Gerry Adams once trying to argue that the fate of Jean McConville was not a war crime even though he said it was wrong and could not be justified. I saw nothing of merit in the argument.
Pieces like this inject more nuance into the discussion but I doubt there is any getting away from Nairic being the victim of a war crime.
There is a lot of other points raised by Cam which merit further discussion. The main failing in the piece is that it risks reducing war to some form of nihilism where rules are for dreamers. I am always drawn by to Camus when this type of argument arises: "even in destruction, there's a right way and a wrong way—and there are limits."
This is a thoughtful piece, but for me it blurs two different things: the emotive use of ‘war crime’ / ‘crime against humanity’ and their precise legal meaning. In modern international law those terms only really ‘bite’ under the Rome Statute and at The Hague. That framework sharply distinguishes, for example, between war crimes (serious violations of the laws of war) and crimes against humanity (widespread or systematic attacks on civilians). Because of jurisdictional limits, complementarity and temporal scope, many acts that we may perceive as war crimes or crimes against humanity will never be officially recognised or prosecuted as such, which is a different problem from the concepts themselves being empty or redundant. But that reflects limits of enforcement and power politics, not that the underlying legal concepts are empty or redundant. The examples the author relies on largely fall outside the Rome Statute’s temporal and/or jurisdictional reach, which may help explain his sense of “empty or redundant” associations.
ReplyDeleteCam. Do you think that the Nuremberg and Tokyo war crime trials after World War II were examples of victor's justice? I am not trying to be controversial.
ReplyDeleteCam Ogie comments - Part one
ReplyDeleteA number of responses correctly note that enforced disappearance is recognised in contemporary international humanitarian law as a serious violation. That is true. Under the Rome Statute, the “enforced disappearance of persons” is expressly defined as a crime against humanity, and customary international humanitarian law prohibits both the disappearance of detainees and the mistreatment of the dead. I am not disputing the existence of those legal categories, nor am I suggesting that kidnapping, killing, or concealing a body is morally trivial.
Where I part company with some critics is in the assumption that these legal labels stand outside politics—that they represent a neutral and universally applied moral code. My argument is not that disappearances or civilian killings are morally insignificant. It is that the system defining and enforcing “war crimes” has been constructed and administered by states that have repeatedly exempted themselves from the very rules they helped to draft.
This is where the work of Caroline Elkins is indispensable. In Britain’s Gulag and Legacy of Violence, Elkins shows, with exhaustive archival and testimonial evidence, that the British Empire operated through what she calls “legalised lawlessness”—a system in which emergency regulations, special tribunals, and the suspension of due process allowed British authorities to torture, disappear, and kill while insisting these acts were legally sanctioned and morally constrained.
In Kenya, tens of thousands were beaten, tortured, raped or killed in a detention regime that held more than a million people. British officers concealed graves, destroyed evidence, and maintained a façade of legal order while overseeing systematic brutality. This pattern was not unique to Kenya: similar methods were used in Malaya, Palestine, Cyprus, and Aden. The very state that later stood at the centre of the post-1945 “laws of war” had, for decades, pioneered the bureaucratisation of violence behind a screen of legality.
And this pattern did not end with empire.
The Baha Mousa Inquiry in Iraq uncovered the “appalling episode of gratuitous violence” that caused his death, and confirmed that banned interrogation techniques long thought abandoned were in routine use.
The ongoing Afghanistan Special Forces inquiry is investigating allegations that UK units carried out extrajudicial killings of civilians and children, followed by institutional efforts to suppress or destroy evidence.
The ICC itself concluded there was a reasonable basis to believe British forces committed war crimes in Iraq, yet declined to act because domestic processes—highly criticised for failing to hold anyone meaningfully accountable—technically existed.
Cam Ogie comments - Part Two
DeleteThese are not fringe accusations. They are documented by official inquiries, courts, human rights bodies, investigative journalists and, in the case of Kenya, ultimately acknowledged by the British government itself.
Against this backdrop, the recent UN Security Council endorsement of the U.S./Trump 20-point Gaza plan is not a footnote but a revealing example. The plan, which includes an international stabilisation force and a transitional “Board of Peace” widely understood to be structured around Trump’s leadership, was adopted by a global body ostensibly charged with upholding an impartial international order. Whatever one thinks of the plan’s merits, its passage illustrates how the institutions that define and adjudicate “war crimes” are themselves shaped by the geopolitical power of those who sit atop them.
This is the core of my argument:
the international legal vocabulary we use—“war crime,” “crime against humanity”—is not a morally neutral tool. It is a language created by powerful states, enforced selectively, and consistently evaded by its authors.
Some critics suggest that by highlighting this, I’m creating a “hierarchy of victims” or drifting into nihilism. I do not accept either claim.
Every victim of political violence—whether at Kingsmill, Bloody Sunday, Ballymurphy, or in a Kenyan detention camp—is of equal human worth. Nothing I wrote diminishes the grief or suffering of any family. But recognising the asymmetry of power between a state armed with an army, intelligence agencies, and global diplomatic influence, and a non-state actor like the IRA, is not creating a hierarchy of victims. It is acknowledging a hierarchy of responsibility.
A state can reshape law, define legality, hide evidence within institutions, and control international narratives. A small insurgent organisation cannot. That is why the violence of a state carries a different structural weight, even when the human tragedies look similar.
Nor am I rejecting the idea that even in war, there should be limits. I agree entirely with the Camus line quoted by one commenter: “even in destruction, there are limits.” My point is simply that the existing international system does not embody those limits impartially. It embodies the interests and moral self-presentation of the states powerful enough to write the rules.
So when former IRA volunteers apply the label “war crime” to actions committed by their own comrades, I don’t question their sincerity. In some cases, there may even be admirable moral independence in doing so. My concern is with the categories themselves. When we uncritically adopt terminology designed and selectively enforced by states with long histories of “legalised lawlessness,” we risk internalising their perspective—one in which the violence of the powerful is administrative, tragic, unfortunate, and the violence of the weak is criminal, barbarous, or uniquely depraved.
That is not a defence of any killing or disappearance. It is a call for consistency. Either the law applies to all, including the powerful, or it becomes a set of moralised labels deployed against those without the geopolitical means to resist them.
Something to come back to later as I have to rush off.
DeleteWhere if fails in my view is that the whole thrust of your critique is against application but does not address definition in any substantive way. It is not that state bodies make these laws of their own volition from the top down. Over the years they have responded to pressure from below to spell out what constitutes war crimes; then they seek to avoid being held accountable for the war crimes they commit.
Did the British murder then hide bodies during the Troubles, and deny knowledge for decades?
DeleteDid the British stop workmen on their way to their jobs, single them out by asking them their religious persuasion then murder them for it?
The former IRA commanders who know what exactly this was are correct in calling it out. Much like I have no issue calling Bloody Sunday for what it was. But your article strays into shinner revisionism via a convoluted path, the destination remains the same.
Anthony,
"It suggests that some people are victims of war crimes but not others when the exact same thing happens to them. in the same war."
Yes, it's called hypocrisy.
Steve, The Brits didnt to hide bodies -they could kill with impunity -Soldier F bragged he killed 5 in Derry --wounded several others. But that doesn't justify the IRA disappearing people. And Nairac is suspected to have been involved in the murder of 6 Nationalist workmen the night before Kingsmill atrocity.
DeleteCam
Something to watch -did the Americans commit war crimes killing suspected?alleged drug smugglers? Personally --no war = no war crime --so it is straight up murder -which is worse actually than war crime in this instance. --But here is what to watch -if the Americans air crew claim they shot the second time to finish the boat off --good chance they might get away with it. The benefit of the doubt goes to the accused.
Christy,
DeleteI agree, that's my point. All of these are war crimes.
Steve
DeleteI know you view Soldier F as many do --these comments confused me:
"Did the British murder then hide bodies during the Troubles, and deny knowledge for decades?
Did the British stop workmen on their way to their jobs, single them out by asking them their religious persuasion then murder them for it?"
I took from that that you were suggesting the Brits were less culpable because they did not disappear victims or kill workmen.
Sorry Christy fuck no!
DeleteCam Ogie comments
DeleteAM,
I think you may be drawing a line between definition and application that the historical record doesn’t support. Civil society absolutely pushed from below — but the authority to draft, refine, ratify, limit, suspend, or exempt state behaviour from these definitions always rested with states, and overwhelmingly with the most powerful ones. That means the definitions themselves were shaped inside a political structure where dominant states could ensure that the legal categories constrained others while rarely constraining them.
Caroline Elkins’s research demonstrates this clearly. The same states that later helped codify the modern laws of war had already developed legal and administrative systems designed to authorise, sanitise, or conceal forms of violence — from torture to disappearance to mass detention — that would now fall under those definitions. That history makes it impossible to treat the categories as morally neutral or detached from geopolitical power.
So my critique isn’t limited to how these laws are applied. It concerns the political origins of the definitions themselves, and the asymmetry built into the very structure of international humanitarian law: powerful states shape the norms, revise them when necessary, and exempt themselves from their reach. Non-state actors have no such ability.
Until the states that constructed these definitions are held fully accountable within their own framework, the legal categories cannot be treated as universal moral truths.
The question isn’t whether the act was wrong — it’s who had the power to shape the category that tells us what ‘wrong’ is supposed to look like.
Cam Ogie comments
DeleteSteve R,
Listing individual atrocities doesn’t touch the argument I’m making. I’ve already acknowledged that these acts were wrong. The question I’m raising is not whether they were wrong but why certain wrongs become ‘war crimes’ while others — including Bloody Sunday — are institutionally protected from that classification.
The British state didn’t need to hide bodies because it had legal, political, and institutional mechanisms that made concealment unnecessary. Widgery shows how the state could publicly kill, investigate itself, and clear itself. That’s the exact asymmetry I’m analysing.
Calling this ‘Shinner revisionism’ is simply avoiding the structural point: the definitions we reach for were built by a state that has never applied them to its own violence.
Saying ‘they’re all war crimes’ simply repeats the conclusion without addressing the question of how that category was constructed, who had the power to define it, and why it is applied unevenly.
Bloody Sunday meets the legal criteria for a war crime — yet the state responsible was able to avoid that classification entirely through legal architecture and institutional control. That’s precisely why the definition cannot be treated as morally neutral or universally applicable.
Repeating the label doesn’t answer the argument about the political origins of the label.
Cam,
DeleteMy apologies, I got the wrong thrust of your piece. I take it you mean in a purely 'legalese' sense? In that case I agree, no nation state will ever charge itself with a 'war crime' for obvious reasons ( I actually count Bloody Sunday as being something worse along with the others noted).
It's a fraught path you walk with this piece though but I'm happy I was wrong in how I took it originally.
Cam,
Deletethe historical record shows that the definition of war crimes is generally shared rather than merely imposed by the state. Is there anybody other than the perpetrator who think combatants disappearing people during war is not a war crime? Do you see the human rights agencies and institutions lining up to have disappearing people exempted from the war crimes category?
the authority to draft, refine, ratify, limit, suspend, or exempt state behaviour from these definitions is about application, not definition. International law is not limited in identifying disappearing people as a war crime. It is limited in its enforcement/application of that definition.
the definitions themselves were shaped inside a political structure where dominant states could ensure that the legal categories constrained others while rarely constraining them.
Then you would be able to show where states have been able to proclaim that their disappearing of people is not a war crime. It is not the legal categories that are a constraint. The constraint lies in the ability of states to evade the legal categories.
Caroline Elkins has not demonstrated that disappearing people is not a war crime. I imagine the whole ethical thrust of her
work would implode were she to insist on exemption.
So my critique isn’t limited to how these laws are applied.
But it is. And you have yet to show why the definition rather than the application is incorrect.
Even with the asymmetry, what is the origin of the definition of disappearing people as a war crime that makes the definition wrong?
Non-state actors have no such ability.
Non-state actors have the ability and indeed have been to the fore in pushing for having disappearances of people during war classified as a war crime. Where they come up short is in having that applied, not defined.
Until the states that constructed these definitions are held fully accountable within their own framework, the legal categories cannot be treated as universal moral truths.
The legal category as application is not a universally practiced truth but in its defining of disappearing as a war crime it is very much a universal moral truth.
The question isn’t whether the act was wrong — it’s who had the power to shape the category that tells us what ‘wrong’ is supposed to look like.
That is a postmodernist take on the matter. People know that disappearing people is wrong; they don't need to be told by the state that it is wrong. How many states can you name who will tell you that it is right?
I think it is very difficult to find compelling terra firma to support the argument that Nairac was not the victim of a war crime. For the IRA his disappearance was an act of war carried out during a war which transgressed the rules of war. Apart from Gerry Adams, I have not yet heard anybody from the IRA camp deny that disappearances are a war crime.
Cam
ReplyDeleteGenocide has been used for millennia but it never had a name until Rapheal Lemkin defined it in 1944. In the modern age, war crimes and crimes against humanity were not codified into enforcible international law, until the Rome Statute (post 2002). Nairac (1977) and Kingsmill (1976) predate the jurisdiction of the Rome Statute so the ICC can't apply, regardless of fit.
However, contrast my pieces on war criminal Lisa Smith: Ireland could have prosecuted her under Irish law ICC Act 2006 (Secs. 7-12), at minimum for ancillary CAH/war crimes as ISIS "housewife" (aiding genocide via support/plunder)—non-state. So there was domestic law to put her on trial for her crimes and set an example. Even though Ireland failed to live up to the expectations of ISIS victims --my articles prove there is working legal scope—not and not just hollow rhetoric as you believe.
https://www.thepensivequill.com/2019/04/lisa-smith-irish-isis-war-criminal.html
https://www.thepensivequill.com/2023/04/lisa-smith-citizenship-of-war-criminal.html
Cam Ogie comments
DeleteChristy,
You’re actually reinforcing my point. States don’t need to disappear bodies when they already possess legal and institutional systems capable of sanitising their violence. In fact, the British state has used disappearance and clandestine burial in its colonial conflicts — in Kenya, for example, detainees were killed in custody and secretly buried in unmarked graves at Hola and elsewhere, and Elkins and the British archives litigation show that bodies were concealed, files were destroyed, and deaths were systematically erased. Similar patterns occurred in Malaya and Aden, where deaths in detention and covert disposal of bodies were facilitated by emergency regulations and special security units.
In Northern Ireland, the dynamic was different not because the British state was more restrained, but because it didn’t need to resort to concealment. It had courts, inquiries, emergency powers, intelligence control, and a compliant legal framework capable of absorbing, reframing, or legally neutralising its own violence. Widgery makes this plain: the state could kill unarmed civilians in broad daylight, investigate itself, and exonerate itself. The mechanism of impunity was legal and institutional, not clandestine.
Whether we look at Derry, Basra, Iraq more broadly, or U.S. security operations abroad, the pattern is consistent: powerful states categorise their own violence as ‘security operations,’ ‘emergencies,’ or ‘mistakes,’ while non-state violence is immediately funnelled into the criminal category.
I’m not denying any wrongdoing — I’m questioning why the moral and legal categories we reach for were created within a system that has consistently shielded the powerful from the standards it applies to everyone else. That asymmetry, not the specific method of killing or concealment, is the core issue.
I’m not comparing moral responsibility; I’m explaining why certain acts are legally insulated while others are legally condemned. That asymmetry is built into the very definitions we use.
Invoking the Rome Statute’s temporal limits doesn’t address the structural point: the most powerful states either exempted themselves from ICC jurisdiction or ensured that their own past violence was outside its scope. The fact that the Statute only applies post-2002 is itself a product of political negotiation, not moral principle.
Your example of Lisa Smith actually reinforces my argument: domestic prosecutions succeed most easily against marginal non-state actors. That is not evidence of universal enforcement — it’s evidence of structural selectivity.
My critique is not that the law never works. It’s that it works unevenly, and that the definitions themselves reflect the interests of the strongest states.
Stevie,
ReplyDeleteAs far as I know the Brits didn't hide the bodies of those they killed and allowed their families a decent burial.
That's a vegan argument. You have to remember what is known as "The Battle of the funerals".....Open the link and watch the YouTube video about the funeral of IRA Vol Larry Marley. And then watch the footage of these Republican funerals----- Brendan Burns and Brendan Moley------- Francis Hughes'------- Edward McShaffrey and Patrick Deery .
Now throw into the mix this.......A member of the British Army opened fire point- blank into a crowd of mourners at a Republican funeral, and if you compare how both the Irish and British states handled the bodies of the Gibraltar 3 and Michael Gaughan---they blocked the bodies getting back to their loved ones, in the case of Michael Gaughan--He had to be re buried because of what the Irish State done...
That's an outrageous slur and I've never been more insulted in my life! You take that back right now! Nobody has ever dared call me vegan and I simply won't stand for it, you bounder!
DeleteSeriously though, it ties in with what Cam said. I get the legal side of his point and yours.
All contributors on this thread would do well to take several steps back and consider where were the hidden hands, and who for the greatest part did those hands belong to? Much of what happened was orgastrated through the use of touts and agents. I have recently listened to several YouTube pieces about the Enniskillen bombing, some from Times Radio and others by Peter Taylor, and have come to believe that its very possible that that calamity has the hidden hand of Brit Intelligence type manipulations all over it. How could that operation have been sanctioned by the IRA whilst Sinn Féin were in control of Fermanagh District Council?
ReplyDeleteStevie,
ReplyDeleteNobody has ever dared call me vegan ....
I said your argument is---not you.
I know frankie, I wasn't being serious!
DeleteCam Ogie comments
ReplyDeleteAnd my final general comment on this subject,
Saying ‘a war crime is a war crime’ sounds like moral clarity, but it assumes the category itself is neutral and universally applicable. The entire point I’m making is that the definition of ‘war crime’ was created and institutionalised within a political system where the most powerful states shaped the category and exempted themselves from it.
Bloody Sunday is a clear example: it meets the legal criteria for a war crime, yet the British state was able to kill unarmed civilians, investigate itself through Widgery, revise the narrative decades later through Saville, and still avoid legal accountability. That isn’t moral universality — that’s structural selectivity.
Caroline Elkins’s research shows that Britain built elaborate legal and administrative systems in its colonies (Kenya, Malaya, Aden) to authorise, conceal, or sanitise violence that would now fall squarely within the definition of war crimes. Critical international law scholars like Koskenniemi, Anghie, and Orford have demonstrated the same pattern: the laws of war were shaped inside an imperial and geopolitical framework, not a neutral moral space.
So repeating the phrase ‘they’re all war crimes’ simply reasserts the conclusion without engaging the argument about who created the definition, whose interests it reflects, and why it has never been applied to the powerful in the same way it is applied to non-state actors.
If the category itself was built in a system where powerful states could kill openly while legally insulating themselves, then appealing to the abstract universality of that category avoids the very issue under discussion.
Ah, that the scales may fall from mans' eyes!
DeleteOr, leave them with their comfort blanket - and silently weep.