Academic journal article Duke Journal of Comparative & International Law

Captive or Criminal? Reappraising the Legal Status of Ira Prisoners at the Height of the Troubles under International Law

Academic journal article Duke Journal of Comparative & International Law

Captive or Criminal? Reappraising the Legal Status of Ira Prisoners at the Height of the Troubles under International Law

Article excerpt

TABLE OF CONTENTS  INTRODUCTION                                                         324 I. BACKGROUND: A HISTORICAL OVERVIEW OF THE CONFLICT                 326    A. The Struggle for Independence                                  326       1. 1916 Easter Rising and the Proclamation of          the Irish Republic                                          328       2. War of Independence and Partition, 1919-1921                329    B. The Northern Ireland Conflict Begins                           330    C. The Troubles                                                   332       1. The Parties to the Conflict                                 332       2. The Troubles Begins                                         333       3. Special Category Status                                     334 II. INTERNATIONAL LAW                                                337    A. Classifying Armed Conflicts                                    337    B. The Geneva Conventions and Additional Protocols                338       1. The Law in International Armed Conflicts                    340       2. The Law in Non-International Armed Conflicts                341 III. APPLICATION                                                     342    A. An International or a Non-International Armed Conflict?        342       1. A National Liberation Movement?                             344       2. The Third Geneva Convention                                 346       3. The Law Pertaining to Non-International Armed Conflicts: A          Reprieve                                                    347 CONCLUSION                                                           348 

INTRODUCTION

The most well-known and most broadly adopted treaties in the international community revolve around war and peace. At the end of World War II, nation states across the globe recognized the need for universal rules limiting and regulating the armed conflict. In the opening lines of the United Nations Charter, a treaty centered around the maintenance of international peace and security, all Member States commit themselves to refrain from using armed force whenever possible. (1) At the same time, the international community has accepted the inevitable reality that states will nevertheless resort to the use of force for various reasons. Therefore, the majority of United Nations Member States have also signed agreements governing the use of force in armed conflicts. The most prominent of these treaties is the Geneva Conventions, first signed in 1949. (2) The Geneva Conventions and their Additional Protocols are a series of international agreements governing the protection and treatment of non-participants in armed conflicts. As discussed below, (3) the Geneva Conventions contemplate two types of armed conflict: those of an international character and those not of an international character. (4) The line between these two types of armed conflict began to blur after World War II, and has become increasingly vague due to a proliferation of activity by non-state actors. Unfortunately, the haziness of the line between international and non-international armed conflicts comes with serious legal consequences. One such consequence is illustrated by the conflict in Northern Ireland.

Much of the literature on the conflict, also known as "The Troubles," (particularly regarding the status of potential human rights violations) has either presupposed that the conflict is a non-international conflict, or too quickly dismissed the idea that the conflict is indeed an international one. One particular issue these hasty, preliminary conclusions have affected is the evaluation of the political status granted by the British government to arrested and imprisoned members of the Irish Republic Army ("IRA") during the late-1970s and early-1980s. During this period, the British government refused to recognize IRA detainees as prisoners of war ("POWs"). (5) While the British granted IRA prisoners a distinctive political status ("Special Category Status") at the outset of The Troubles, this policy was rescinded by 1975. …

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