COUNTER-TERRORISM MEASURES AND INTERNATIONAL HUMANITARIAN LAW: A CASE STUDY OF THE “TROUBLES” IN NORTHERN IRELAND JULIANA VAN HOEVEN “In Northern Ireland, the past is the present. If we don’t deal with the past, I don’t want my grandchildren's rights to have to suffer this again. As injured people, we are living scars in society and we need to have it recognised that we have suffered.“ – Peter Heathwood, paralyzed victim of a gunshot wound delivered by suspected loyalist gunmen in September, 1979.1 1 Northern Ireland: Amnesty Slams Failure to Deal with Past, AMNESTY INT’L UK PRESS RELEASES (Sept. 12, 2013, 12:00AM), http://www.amnesty.org.uk/press-re- leases/northern-ireland-amnesty-slams-failure-deal-past [perma.cc/KN8B-TK9F] (last visited Feb. 4, 2016). 1091 Published by Penn Law: Legal Scholarship Repository, 2016 1092 U. Pa. J. Int’l L. [Vol. 37:3 TABLE OF CONTENTS 1. INTRODUCTION ........................................................................ 1093 2. BACKGROUND & HISTORY OF NORTHERN IRELAND ............ 1102 2.1. Paramilitaries as Terrorists and the Implications of the Geneva Conventions ......................................... 1108 2.2. The British Forces and International Human Rights Violations .................................................................. 1113 3. ATTEMPTS TO LITIGATE TROUBLES’ CASES ............................ 1123 3.1. Domestic Struggles .................................................. 1123 3.2. International Judgments: The European Court of Human Rights (ECtHR) and the Troubles ........... 1127 3.2.1. The Case of Patrick Finucane ............................. 1129 3.2.2. The Case of Pearse Jordan .................................. 1138 4. INTERNATIONAL HUMAN RIGHTS AND COUNTER-TERRORISM MEASURES IN THE UNITED KINGDOM ............................ 1142 5. IMPACTS OF LITIGATING THE TROUBLES’ CLAIMS ................ 1149 6. CONCLUSION ........................................................................... 1151 https://scholarship.law.upenn.edu/jil/vol37/iss3/6 2016] THE “TROUBLES” IN NORTHERN IRELAND 1093 1. INTRODUCTION Few outside of Northern Ireland realize that Belfast is a city still divided by “peace walls,” physical barriers that were originally constructed to divide the Catholic and Protestant neighborhoods from one another.2 Belfast is possibly the last city in Western Europe that does not preserve barrier walls solely for their allure as historical novelties or their draw as tourist attractions.3 Rather, nearly seventy percent of residents living near the Belfast walls want them to remain in place because they believe the structures are still necessary to prevent violence,4 though over two decades have passed since the Irish Republican Army (“IRA”) announced the end of its armed hostilities in Northern Ireland.5 Yet, although the period of horrific violence known as the “Troubles” has been declared over,6 the threat of aggression still looms in Belfast.7 2 Peter Geoghegan, Will Belfast ever have a Berlin Wall Moment and tear down its peace walls?, THE GUARDIAN (Sept. 29, 2015, 02:30 EDT), http://www.theguard- ian.com/cities/2015/sep/29/belfast-berlin-wall-moment-permanent-peace-walls [perma.cc/WS2G-QZ9N] (last visited Feb. 4, 2016); Henry McDonald, No end in Sight for Belfast ‘Peace Walls,’ THE GUARDIAN (Sept. 25, 2012, 19:04 EDT), http://www.theguardian.com/uk/2012/sep/26/belfast-peace-walls-republi- cans-loyalists [https://perma.cc/33PL-R2EP] (last visited Feb. 4, 2016); see also Henry McDonald, Belfast ‘Peace Walls’ Will Come Down Only by Community Consent, THE GUARDIAN (Dec. 3, 2013, 08:51 EDT), http://www.theguardian.com/ uk- news/2013/dec/03/belfast-peace-walls-dismantled-community-consent-minister [perma.cc/DDD4-GJQT] (last visited Feb. 4, 2016). 3 McDonald, Belfast ‘Peace Walls’ Will Come Down Only by Community Consent, supra note 2 (noting that Belfast’s peace walls are “highly unusual among such bar- riers around the world because most of those living closest to them continue to sup- port their existence in successive opinion polls, mainly because of fear of attack from the community on the other side”). 4 McDonald, No end in Sight for Belfast ‘Peace Walls,’ supra note 2. 5 Vincent Kearney, ‘It’s Over’: Reporting the IRA Ceasefire 20 Years Ago, BBC NEWS (Aug. 27, 2014), http://www.bbc.com/news/uk-northern-ireland-28957532 [https://perma.cc/T8F3-WWY6] (last visited March 24, 2016). 6 Brian Lavery & Alan Cowell, I.R.A. Renounces Violence, Vows to Disarm, N.Y. TIMES (July 29, 2005), http://www.nytimes.com/2005/07/29/world/europe/ira- renounces-use-of-violence-vows-to-disarm [https://perma.cc/N9T6-NP58] (last visited Feb. 4, 2016) (the phrase “the Troubles” loosely refers to the period of near constant violence as militant forces battled each other on the streets of Belfast from roughly 1969 to1980). 7 Henry McDonald, Northern Ireland Drafts in Police Reinforcements After More Violence, THE GUARDIAN (July 17, 2014, 07:00 EDT), http://www.theguard- ian.com/uk-news/2013/jul/17/northern-ireland-police-belfast [https://perma.cc/BB9F-69QD] (detailing five consecutive nights of violence in Published by Penn Law: Legal Scholarship Repository, 2016 1094 U. Pa. J. Int’l L. [Vol. 37:3 When the period of armed conflict officially drew to a close, the death and destruction it rendered left many questions of blame and reparations. In particular, some citizens of Northern Ireland wanted to know more about the role of the police, the national army, and their government in implementing counter-terrorism strategies during the Troubles. Decades later, many of these questions remain unanswered. Further, much of the civil and criminal litigation that arose from these questions in the immediate aftermath of the Troubles also remains unresolved, due, in large part, to the actions, or lack thereof, of the British government. Through strategic inactivity, as well as affirmative measures taken to ensure that the cases are not investigated, the government has stymied efforts of victims and their families to uncover the truth about the government’s role in the Troubles. Why has this occurred? The United Kingdom is an advanced Western nation with the resources and ability to give all of its citizens access to judicial remedies. Further, the United Kingdom does not lack the resources needed to establish a large-scale public inquiry or to launch a truth commission to address the resolution of Troubles-related violence. It has the organizational capacity to install these or other mechanisms of transitional justice, which many scholars have argued could result in healing for post-conflict Northern Ireland.8 Transitional justice mechanisms are popular and innovative ideas aimed at solving complex problems that have often raged for centuries. The United Nations defines transitional justice as “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve Belfast during the Marching Season of 2013. Rival political and sectarian groups confronted each other all over the city, lighting cars on fire and throwing petrol bombs. Five hundred additional police officers from overseas were called in to as- sist in calming the hostilities.). 8 Christopher K. Connolly, Living on the Past: The Role of Truth Commissions in Post-Conflict Societies and the Case Study of Northern Ireland, 39 CORNELL INT’L L.J. 401, 402 (2006) [hereinafter Connolly, Living on the Past] (arguing that “the implementa- tion of a transitional justice mechanism that confronts the legacy of the Troubles is crucial for the future of the peace process”); see Brandon Hamber, Rights and Rea- sons: Challenges for Truth Recovery in South Africa and Northern Ireland, 26 FORDHAM INT’L L.J. 1074, 1074 (2002-2003) (observing that “[c]urrently . the possibility of holding public hearings, advancing societal and individual healing, and taking part in or promoting a process of reconciliation (however defined) has opened wide the question [of how best to gather information concerning transitional societies] . .”) (quotation omitted). https://scholarship.law.upenn.edu/jil/vol37/iss3/6 2016] THE “TROUBLES” IN NORTHERN IRELAND 1095 reconciliation.”9 Mechanisms to achieve these goals include truth commissions, prosecutorial initiatives, institutional reform and national consultations.10 These practices, or a combination of them, are often specifically tailored to meet the needs of the individual country or region that has suffered violence. Typically, however, all transitional justice mechanisms feature concurrent themes of honesty and truth telling in the hope of healing past wounds and reestablishing trust so that the citizens of a wounded region or nation can begin to move forward. The study of transitional justice has blossomed in the last decade.11 Many academics posit that, as a land in transition, inquests, truth commissions, or other mechanisms designed to resolve the trauma experienced by post-conflict societies should be applied in Northern Ireland.12 Currently, many questions about the British government’s involvement in the violence still remain. Thus, some feel that an organized process through which those involved can acknowledge responsibility for the past conflict and perhaps even apologize for the losses inflicted, will allow the still-divided sectarian neighborhoods to begin to heal.13 9 Transitional Justice, UNITED NATIONS RULE OF LAW, http://www.un- rol.org/article.aspx? article_id=29 [perma.cc/2DGB-DVB2]