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³⁰ Prior to the Northern Ireland (Emergency Provisions) Act 1973 (EPA), the test for the admissibility of confessions was that of ‘voluntariness’ contained in the pre-1964 Judges Rules. EPA substituted a test based on Art 3 ECHR (prohibition of torture and inhuman and degrading treatment), thus rendering admissible confessions that would otherwise have been excluded from evidence. See Walsh, Use and Abuse; Greer, DS ‘Admissibility of Confessions and the Common Law in Times of Emergency’ (1973) 24 Northern Ireland Legal Quarterly 199;Google Scholarand Greer, DS ‘The Admissibility of Confessions Under the Northern Ireland (Emergency Provisions) Act’ (1980) 31 Northern Ireland Legal Quarterly 205.Google Scholar

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³⁴ Arts 2 and 3 of the Constitution of the Republic of Ireland originally contained a somewhat ambiguously worded territorial claim to Northern Ireland. See Kelly, JMThe Irish Constitution (3rd edn by G Hogan and G Whyte Butterworths London—Dublin 1994),Google Scholarand Doolan, BConstitutional Law and Constitutional Rights in Ireland (Gill and Macmillan Dublin 1984). Following a referendum held in accordance with the Good Friday Agreement, Arts 2 & 3 have now been amended to stipulate that Irish reunification can only come about peacefully and with the consent of a ‘majority of the people, democratically expressed, in both jurisdictions in the island’ (revised Art 3).Google Scholar

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³⁶ Much of the material in relation to these interactions, at least from the Irish side, is reproduced in Irish Department of Foreign Affairs Ireland at the United Nations 1969 (Dublin 1969) (hereafter Ireland at the UN).Google Scholar See also O'Brien, Northern Ireland at 2–13 and Harvey, R ‘The Right of the People of the Whole of Ireland to Self Determination, Unity, Sovereignty and Independence’ (1990) 11 New York Law School Journal of International and Comparative Law 167–74 at 167.Google Scholar

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⁴³ The law in relation to ‘situations of disturbances and tensions’ is in a state of development. For a proposal for the elaboration of standards specific to such situations see HP Gasser ‘A Measure of Humanity in Internal Disturbances and Tensions: Proposal for a Code of Conduct’ (1988) 262 International Review of the Red Cross 38. An alternative approach which aims to elaborate norms applicable in these and all other crisis situations be traced from the adoption of the ‘Oslo Statement on Norms and Procedures in Times of Public Emergency or Internal Violence’ (1987) to the adoption of the ‘Declaration of Minimum Humanitarian Standards’ at Turku/Abo, Finland (1990) (sometimes referred to as the ‘Turku/Abo Declaration’).See Meron, T and Rosas, A ‘A Declaration of Minimum Humanitarian Standards’ (1991) 85 AJIL 375. In 1994 an amended version of the document was adopted which received a degree of validation from both UN and OSCE mechanisms.CrossRefGoogle ScholarSee Eide, O, Rosas, A, and Meron, T ‘Combating Lawlessness in Gray Zone Conflicts Through Minimum Humanitarian Standards’ (1995) 89 AJIL 215.CrossRefGoogle ScholarSee also Vigny, Jean-Daniel and Thompson, C ‘Fundamental Standards of Humanity: What Future?’ (2002) 20 Netherlands Quarterly of Human Rights 2 185.CrossRefGoogle Scholar

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⁴⁸ These insisted that a liberation movement bringing the Protocol into effect should be recognized as such by the appropriate regional intergovernmental organization, and that the degree of conflict required to trigger Protocol I should be at least as intense as that required under the (quite high) test in Protocol II. The text of the declaration and of the reservation made upon ratification can be found at the ICRC web site <www.icrc.org/>..>Google ScholarSee also Roberts, A and Guelff, R (eds) Documents on the Laws of War (Clarendon Press Oxford 1989) 467–8.Google Scholar

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¹¹² Public hearings in the case concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (request for advisory opinion) concluded on 25 Feb 2004. On 9 July 2004, The International Court of Justice ruled that the separation fence being built by Israel in the West Bank was in breach of international law. See <www.icj-ij.org/icjwww/idocket/imwp/imwpframe.htm>..>Google Scholar

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¹¹⁴ Art 2 ECHR provides: ‘1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a.) in defence of any person from unlawful violence; (b.) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c.) in action lawfully taken for the purpose of quelling a riot or insurrection.’Google Scholar

¹¹⁵ Para 149.Google Scholar

¹¹⁶ In Ní Aoláin's view, the case ‘signalled an equality approach, whereby the status of the victims, in this case as terrorists, was not a means to lessen the value of the right [to life] to them per se’, Aolá, F Níin ‘Truth Telling, Accountability and the Right to Life in Northern Ireland’ EHRLR [2002] at 576 (hereafter, Ní Aoláin, Truth Telling).Google Scholar

¹¹⁷ In Stewart (1985) 7 EHRR 453, a claim arising from a plastic bullet death was found to be manifestly ill-founded. Likewise in X v UK, a case taken by security force families, a claim that the state had failed adequately to protect their right to life were rejected as ill-founded. An indication of potentially a more stringent approach came in Farrell (1983) EHRR 466) when a case involving the killing of a suspected terrorist who was later discovered to have been a non-politically motivated bank-robber, was declared admissible. But owing to a friendly settlement being reached, no ruling was given on the merits. That this case did not represent the a new beginning was confirmed by the rejection as ‘manifestly ill-founded’ of the Kelly case (application no 17579/90, decision of the Commission of 13 January 1993) 16 EHRR 20, in which the victim was a non-political ‘joyrider’ who had driven a car through an army checkpoint.Google Scholar

¹¹⁸ For a good example of the ‘big fish’ argument (though one with limited applicability to Northern Ireland), see Akhavan, P ‘Justice in the Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal’ (1998) 20 Human Rights Quarterly 4 737.CrossRefGoogle Scholar

¹¹⁹ Jordan v UK (2003) 37 EHRR 2 McKerr v UK (2002) 34 EHRR 20, and Kelly and others v UK, application no 30054/96, all judgments of 4 May 2001.Google Scholar

¹²⁰ In McShane v UK (2002) 35 EHRR 23, a breach of the procedural obligations of Art 2 was found because of flaws in the inquest process, because of lack of independence of the police officers investigating the incident from those implicated, and because of a lack of expedition in the police investigation.Google Scholar

¹²¹ Shanaghan v UK, Appl no 37715/97 (4 May 2001).Google Scholar

¹²² Finucane v UK (2003) 37 EHRR 29.Google Scholar

¹²³ The documents drawn upon by the European Court in Jordan and the other cases of May 2001 included the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, the UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, and the Minnesota Protocol (Model Protocol for a legal investigation of extra-legal, arbitrary and summary executions, contained in the UN Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions). The Court also made reference to the work of the European Committee on the Prevention of Torture in relation to the need for independent investigation of police wrong-doing in the UKGoogle Scholar

¹²⁴ In 1998 a detailed report by the UN Special Rapporteur on the Independence of Judges and Lawyers which followed a fact-finding mission to the UK, raised serious concerns about allegations of security force collusion in the murder of Pat Finucane, a leading defence lawyer, and called for an independent judicial inquiry to investigate the matter. See Report on the Mission of the Special Rapporteur to the United Kingdom of Great Britain and Northern Ireland, which formed an addendum to the annual report of the Rapporteur to the Commission on Human Rights, UN Doc E/CN.4/1998/39/Add.4, 5 Mar 1998.Google Scholar

¹²⁵ The Human Rights Committee listed the implications of Jordan and the other right to life cases of May 2001 (which it explicitly referred to), as an issue which it wished to raise with the UK in its consideration of the state's fifth periodic report under the ICCPR in 2001. See List of Issues: United Kingdom of Great Britain and Northern Ireland, 25/7/2001, CCPR/C/L/UK, para 12.Google Scholar

¹²⁶ Kaya v Turkey (1999) 28 EHRR 1; Salman v Turkey (2002) 34 EHRR 17; Cakici v Turkey (2001) 31 EHRR 5; Ertak v Turkey, Application no 20764/92 (May 9 2000); Timurtas v Turkey (2001) 33 EHRR 6; Yasa v Turkey (1999) 28 EHRR 408.Google Scholar

¹²⁷ These and the other statistics in this paper on conflict fatalities come from Malcolm Sutton, ‘An Index of Deaths from the Conflict in Ireland’, covering the years 1969–2001. This is available on the CAIN website at <cain.ulster.ac.uk/suttoiVtables/OrganisationJ5ummary.html> last visited 16 Aug 2004.+last+visited+16+Aug+2004.>Google Scholar

¹²⁸ In response to the Art 2 judgments of the European Court, the Government presented a package of proposals to the Committee of Ministers of the Council of Europe which, under Art 46(2) ECHR has responsibility for supervising execution of Court judgments. These fell short of plans for full reinvestigations. The Committee of Ministers in an interim resolution of 23 Feb 2005 reiterated its position that ‘…there is a continuing obligation [on the UK] to conduct…investigations inasmuch as procedural violations of Article 2 were found in these cases’. Committee of Ministers Interim Resolution ResDH (2005) 20.Google Scholar

¹²⁹ In a test case exploring the implications of the recent Art 2 rulings of the European Court, the House of Lords rejected an application for an order compelling the Secretary of State for Northern Ireland to hold an effective investigation into one of the deaths in question. In Re McKerr (AP) (Respondent) (Northern Ireland) [2004] 2 All ER 409. See also decision of the Northern Ireland Court of Appeal in PSNI v McCaughy & Grew [2005] NICA 1.Google Scholar

¹³⁰ See Hegarty, Aop cit.Google Scholar

¹³¹ In the 2001 ‘Weston Park’ discussions, the British and Irish Governments agreed to ‘appoint a judge of international standing from outside both jurisdictions to undertake a thorough investigation of allegations of collusion in the [named] cases.’ The text of the Weston Park statement of 1 Aug 2001 can be found at <www.cain.ulst.ac.uk>..>Google Scholar

¹³² On 1 Apr 2004, the Secretary of State Paul Murphy announced the British Government's response to the Cory Reports. See <www.nio.gov.uk/media-detail.htm?newsID=8547>. On 16 Nov 2004, the British Government announced the terms of reference and the panel members for three inquiries. The inquiries into the murders of Nelson, Rosemary and Hamill, Robert will be held under Section 44 of the Police (Northern Ireland) Act 1998, and the inquiry into the murder of Billy Wright will be held under section 7 of the Prison Act (Northern Ireland) 1953. For a full text of the announcement see ;<www.nio.gov.uk/media-detail.htm?newsID=10521>..+On+16+Nov+2004,+the+British+Government+announced+the+terms+of+reference+and+the+panel+members+for+three+inquiries.+The+inquiries+into+the+murders+of+Nelson,+Rosemary+and+Hamill,+Robert+will+be+held+under+Section+44+of+the+Police+(Northern+Ireland)+Act+1998,+and+the+inquiry+into+the+murder+of+Billy+Wright+will+be+held+under+section+7+of+the+Prison+Act+(Northern+Ireland)+1953.+For+a+full+text+of+the+announcement+see+;.>Google Scholar

¹³³ For a full text of the statement, made by Secretary of State Paul Murphy on 23 Sept 2004, see <www.nio.gov.uk/media-detail.htm?newsID=10299>. On 25 Nov 2004 an ‘Inquiries Bill’ providing for restrictions on public access to inquiries was introduced..+On+25+Nov+2004+an+‘Inquiries+Bill’+providing+for+restrictions+on+public+access+to+inquiries+was+introduced.>Google Scholar

¹³⁴ See ‘Police Chief Calls For Truth and Reconciliation in Ulster’ The Guardian 23 02 2004.Google Scholar

¹³⁵ In his monthly press conference at Downing Street on 1 Apr 2004. See <www.number-10.gov.uk/output/Page5606.asp>..>Google Scholar

¹³⁶ Blair's, Tony view of the 19th Century Irish Famine (when all of Ireland was part of the UK) delivered in a public message in 1997 was: ‘That one million people should have died in what was then part of the richest and most powerful nation in the world is something that still causes pain as we reflect on it today. Those who governed in London at the time failed their people through standing by while a crop failure turned into a massive human tragedy…’ The full text of Prime Minister Blair's message is available at <www.britainusa.com/nireland/articles_show.asp?SarticleType=21&Article_ID=179>..>Google Scholar

¹³⁷ provisions allowing access by a detainee to a lawyer to be deferred for up to 48 hours at a time are to be found in s. 15 EPA 1987, s 47 EPA 1996, and Schedule 8, para 8 of the Terrorism Act 2000.Google Scholar

¹³⁸ The Criminal Evidence (Northern Ireland) Order 1988 (which applied in both terrorist-type and ordinary cases), permitted a court to draw such inferences as it thought fit (including adverse inferences) in four sets of circumstances: from the failure of the accused to testify when called upon to do so by the court; or from the accused's earlier failure during police questioning to explain marks on clothing; or to account for his or her presence at the arrest location; or to mention ‘a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention….’.Google Scholar

¹³⁹ Committee Against Torture, Summary Record of the 92nd Meeting, para 62, UN Doc CAT/C/SR.92Google Scholar

¹⁴⁰ Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, UN Doc A/50/40 3 Oct 1995, para 24.Google Scholar

¹⁴¹ See para 17, Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, 5 Nov 2001, UN Doc CCPR/CO/73UK, CCPR/CO/73/UKOT.Google Scholar

¹⁴² See ‘Report on the Mission of the Special Rapporteur to the United Kingdom of Great Britain and Northern Ireland’, which formed an addendum to the annual report of the Rapporteur to the Commission on Human Rights, UN Doc E/CN.4/1998/39/Add.4, 5 Mar 1998.Google Scholar

¹⁴³ Para 66. See generally, Campbell, C ‘Two Steps Backwards: The Criminal Justice (Terrorism and Conspiracy) Act 1998’ 1999 Criminal Law Review 941–59.Google Scholar

¹⁴⁴ Magee v UK (2001) 31 EHRR 35.Google Scholar

¹⁴⁵ Brennan v UK (2002) 34 EHRR 18.Google Scholar

¹⁴⁶ John Timidly & Sons Ltd and Others and McElduffand Others v UK (1999) 27 EHRR 249.Google Scholar

¹⁴⁷ Section 42 Fair Employment (Northern Ireland) Act 1976.Google Scholar

¹⁴⁸ In Tinnelly the European Court of Human Rights made explicit reference to the judgment of the European Court of Justice in Johnstone v Chief Constable of the RUC [1986] ECR 1663 in which, in a preliminary reference, the ECJ had taken the view that the then existing security exemption provisions in relation to sex discrimination (which paralleled those complained of in Tinnelly) were incompatible with Community law (paras 46–8).Google Scholar

¹⁴⁹ ‘Amnesty and NI Truth Commission Proposed’ Irish Times 19 02 2004.Google Scholar

¹⁵⁰ Cohen, S ‘State Crimes of Previous Regimes: Knowledge, Accountability and the Policing of the Past’ (1995) 20 Law and Social Inquiry 7.CrossRefGoogle Scholar

¹⁵¹ Ní Aoláin, Truth Telling at 573.Google Scholar

¹⁵² UN Security Council Resolutions passed in the aftermath of the 11 September attacks include UNSC Res. 1368 12 Sept 2001, UNSC Res 1373 (establishing the Counter Terrorism Committee), 28 Sept 2001, UNSC Res 1377 12 Nov 2001.Google Scholar

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¹⁵⁴ Toope, S ‘Powerful but Unpersuasive? The Role of the United States in the Evolution of Customary International Law in Byers and Nolte, Hegemony at 287.Google Scholar