Why “Shoot to Kill” won’t go away

Rights NI is delighted to welcome this guest post from  Professor Fionnuala Ni Aoláin. Professor Ní Aoláin is concurrently Associate Director  at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland, and the Dorsey & Whitney Chair in Law at the University of Minnesota Law School. She is co-founder and associate director of the Transitional Justice Institute. She can be contacted at niaol002@umn.edu

Writing The Politics of Force: Conflict Management and State Violence in Northern Ireland in the late 1990’s I was aware that there was much I did not know about the conflict related deaths I was investigating.  Despite significant access to inquest files, court records, interviews with the families of those killed and with the lawyers representing them—there was much that was unknown about many of the deaths that took place during the conflict.  My book coined the phrase ‘set-piece’ killing to describe a form of pre-planned encounter between agents of the state and persons targeted by them as a form of conflict management in Northern Ireland.  My view at the time was that the state was utilizing lethal force as a form of conflict management and struggling to make the realities that followed ‘fit’ with a conventional criminal law model of explanation and accountability. In a parallel reality, despite a lack of recognition for what was arguably a low-intensity armed conflict taking place in Northern Ireland, the rules of combatancy were the de facto operational rules on the ground for both state and non-state military actors.  Neither the United Kingdom nor the non-state actors involved in the conflict were prepared to recognize the applicability of the 1949 Geneva Conventions eschewing for different reasons the constraints and legitimacy challenges that might follow from the law of armed conflict being applicable to the conduct of their military operations.

Recent revelations in a recent BBC Panorama program suggest that undercover British soldiers were involved in the targeting and killing of individuals in the early “militarization” phase of the conflict.  A number of those individual killed were civilians if one were viewing such deaths within a law of armed conflict frame.  Much of the media commentary to date has been concerned with the human rights and criminal law consequences that flow from these revelations.  My inquiry here poses a slightly different question.  What if the applicable law in this period was the law of armed conflict, do the quandaries now faced by the state have a different hue?  Are the liabilities of the soldiers any different?

The short answer is that the responsibility of the state does not lessen and may have graver consequences if the law of armed conflict is the legal framework of assessment.  At the heart of the modern law of armed conflict is the notion of civilian protection.  This flows from a central dichotomy in the law of war; namely that there is a clear distinction between the combatant and the civilian.  From this core value, follows the imperative that civilians are to be protected at all times, and that soldiers are required to make operational and practical distinctions between persons who are civilians and those who are not.

In the context of Northern Ireland, the most likely portion of the Geneva Convention applicable in the early 1970’s was Common Article 3.   The contemporary wisdom is that this Article binds both state and non-state actors, and simply requires that those persons hors de combat be treated humanely and that the principle of distinction be applied.  The events that have been placed in the public domain by the Panorama Program suggest routine non-observance and willful disregard for observance of the law of armed conflict, by soldiers who were required to obey it.  The consequence would suggest not only breach of the criminal law and applicable human rights law standards but more profoundly perhaps, breach of the law of armed conflict.  In particular, there is general agreement by military experts that the deliberate targeting of civilians may constitute a war crime.  This language of course has been deeply resonant in the recent Syrian conflict by the positions of the UN Secretary General amongst others.  This comment is not to intimate that the scale of the conflict in Northern Ireland at any point comes close to the intensity and threshold of civil war conflicts that have been experienced in other jurisdictions.  Rather, it is to remind us that legal and political observers should not forget that there may be another body of applicable legal norms to keep in mind, as we consider the legal consequences that follow from the revelations that soldiers consciously and with organizational perseverance targeted civilians in Northern Ireland during the course of the conflict.  Unforeseen legal and political consequences obviously follow.