Formal declarations of war have long been out of fashion. But when a state of war . . . is recognized as such by all the countries involved in it, persons who kill innocent civilians (e.g., by bombing raids) are not regarded as murderers and may even be militarily decorated. If caught by the enemy they are entitled to be treated, not as criminals but in the special category of prisoners of war.
But what happens when one side holds that a state of war exists and the other does not? The IRA believe themselves to be at war with the United Kingdom and they use the language appropriate to a state of war, speaking of a "truce " or "renewed hostilities. " We on the other hand deny that a state of war exists and convict their bombers as murderers like anyone else who kills intentionally.
Who then is to decide when the parties themselves do not agree when a war is not a war? The reverse side of the coin is now apparent in a protest . . . against the privileged treatment of prisoners in Northern Ireland signed by a large number of offenders serving long sentences for "ordinary" crimes in one of our top security prisons. . . .
- Lady Wooton of Abinger1
WHEN THE BRITISH Government applied the counterinsurgency tactics it developed in the colonies to political violence in the 1970s during "The Troubles" in Northern Ireland, legal problems arose.2 The Irish Republican Army (IRA) claimed it was at war. Was it? And if so, what rights could the IRA claim and what duties did it owe? If The Troubles was not a war, what were the legal consequences, and who defined those consequences? Ultimately, the government's tactics were reviewed by the European Court of Human Rights.3 The Court's ruling, binding only on those states within its jurisdiction, serves as a benchmark to evaluate U.S. practices and emphasizes the gap between peacetime human-rights law and wartime humanitarian law. This gap is of particular importance to the U.S. military, which is fighting in ill-defined legal territory and has been criticized for not complying with the rule of law.
Each August the Protestant majority in Northern Ireland commemorates the victory at Londonderry over Catholic King James II's invading army in 1689. The culmination of The Marching Season of 1969 was marked on 12 August by the traditional appearance of a Protestant crowd on the ramparts of the city and the token tossing of pennies on the Catholic Bogside area below. That year the Catholics, whose traditional marches had been banned, responded with stones, bricks, and marbles propelled by catapults.4
Police attempts to break up the riot failed and by the following day similar Catholic demonstrations-earmarked by the erection of barricades, attacks on police stations, and disruption of traffic-occurred throughout the province. Subsequently troops were deployed to restore law and order as pitched battles took place between Catholic and Protestant mobs. The Catholic community originally welcomed the Army's intervention because the Army was seen to be politically neutral, unlike the Royal Ulster Constabulary, which was overwhelmingly Protestant and perceived to support the status quo.
The minority community's attitude toward the Army changed, however, when they realized its mission was to maintain the Protestant unionist government. Meanwhile, in January 1970, IRA members who supported violence left the main organization and formed the Provisional IRA. The Provos led violence against the government, the Army, and police. The Protestant community responded by forming vigilante groups. Violence escalated, climaxing on Bloody Sunday, 30 January 1972, when (under circumstances that remain controversial) paratroopers fired on a crowd in Londonderry's Bogside killing 13 persons less than 19 years of age and wounding 13 adults, including a woman. By 1984, when the Army withdrew from major operations in Northern Ireland, the number of dead included 377 Army soldiers, 146 from the Ulster Defense Regiment (similar to our National Guard). …