When the law is dragged into disrepute…

Interesting and thoughtful analysis from Eric Waugh, which argues that the pragmatic response of successive British government in dealing with paramilitaries, both during and after the conflict, has left it morally if not legally compromised in dealing with the last vestiges of Northern Ireland’s long internecine war.

The way is now cleared for the working out of a scene deeply traditional in Irish history: for when one grouping dares to seek a modus vivendi with the old enemy, as Redmond did over Home Rule in 1912 and as Collins did over the treaty of 1921, as O’Neill attempted in 1965 and Faulkner in 1973, they tend to be outflanked by shriller voices seeking to seize the abandoned ground. Informing these voices is a single quantity; and that quantity is political violence – or the threat of it.

Waugh argues that the root of the problem the government faces in tackling the current Loyalist feud lies deep within the history of the current troubles:

Faced with the sort of nascent revolution that surfaced in Northern Ireland in the late 1960s, Government had two choices: to confront it with matching force or to seek to police it by a mixture of cajolery, bribery and undercover intrigue. Of course the latter was the option chosen. Option one would have enforced the law; but it would also have threatened civil war and major international difficulty. Such was not to be entertained. The flaw lay in the consequent absence of law under option two. Violence, far from being confronted, was rewarded. The most heinous killers were released.

He goes on to argue that the government itself was compromised in it’s use of double agents in the Loyalist paramilitaries. He sees it’s legacy in the widely percieved inaction of the police in several current scenarios:

The community at large is left with the violent legacy, which includes the revolting, if pathetic, thuggery in Ahoghill. There, as elsewhere, the law is treated with contempt. On the border, security is wound down while extortion and the traffic in smuggled narcotics, which finances the terrorists, waxes beyond control. So the dilemma of the Government is that, of itself, it has destroyed the notion upon which good order subsists; and that notion is that lawlessness brings vengeance.

  • Henry94

    Meantime, its co-regulator in Dublin poses as an impartial adjudicator while its actions confirm that its only care is for nationalists; and it, too, finds itself, in mealy-mouthed incapacity, unable to arrest, let alone charge, three bail-jumping mischief-makers roaming the world on forged passports, bringing further disgrace on the name of the Irish.

    So in an article calling for the rule of “law” Waugh wants to see arrests without any legal basis whatsoever.

    The article is a fine example of the inability to reason that pervades journalism in Ireland.

  • fair_deal

    Henry94

    Is a Unionist commentator talking about how the conflict has morally corrupted every participant (i.e. no group was immune or above the conflict) not positive from a republican perspective?

    On the Columbia 3
    1. The irish government has a long history of form on this one e.g. the refusal to extradite for most of the Troubles. Also is it any wonder the Columbia 3 thought they would have safe haven considering recent events in Spain?

    As Sinn Féin TD for Louth Arthur Morgan freely admits the republican arrested in Spain on a valid German extradition warrant said:
    “This man has lived openly in Ireland for many years with his family. Reports indicate that he has been arrested in Spain whilst on holiday on the foot of an extradition warrant from Germany which relates to matters over a decade old.”

    The lack of a treaty or constitutional barriers may present a problem with Columbia but what excuse can be offered for inaction on a valid German warrant for years?

    2. The Columbia 3 are subject to an international arrest warrant. They were charged with using false documents. They were accused of terrorist training. They admit they used false documents. Whatever the arguments about the terrorist training they were convicted of the first charge and have admitted they broke Columbian law. Thus by their own admission they are legitimately wanted criminals.

  • groucho

    It’s Colombia, fair deal….or were they cehcking out eco tourism in Canada too?

  • Oin

    Fair Deal

    “On the Columbia 3
    1. The irish government has a long history of form on this one e.g. the refusal to extradite for most of the Troubles.”

    There was always a political exemption in extradition treaties, for obvious reasons. The Irish courts were just applying the law as it stood at the time.

    “2. The Columbia 3 are subject to an international arrest warrant. They were charged with using false documents. They were accused of terrorist training. They admit they used false documents. Whatever the arguments about the terrorist training they were convicted of the first charge and have admitted they broke Columbian law. Thus by their own admission they are legitimately wanted criminals.”

    They’re not. They served their time for the passport offence.

    Anyone who pretends to seriously thinking these three got a fair trial in having their acquittal overturned by a secret panel is only bluffing themselves and undermining much else of what they have to say.

    Colombia is a UN-certified basket case, though it’s fun watching all the usual suspects trying to pretend otherwise for their own local political reasons

  • Henry94

    fair_deal

    You are trying to make a legal argument and a moral one at the same time thereby confusing yourself.

    The Irish govenment has no role in deciding who gets arrested or charged. As there is no basis in Irish law for the arrest of the Colombia Three that is the end of the matter.

    Claims of an “international arrest warrant” are nonsense. An Interpol Red Notice is not an international arrest warrant. It is simply a notice that a warrant exists in a member country.

    As for Germany they too are careful to protect there own citizens.

    Tuesday July 19, 2005
    The Guardian

    The pan-European fight against terrorism was thrown into crisis yesterday when Germany’s highest court blocked the extradition of a suspected al-Qaida financier to Spain after rejecting an EU arrest warrant.

    Mamoun Darkazanli, who has been charged in Spain with belonging to al-Qaida, walked free after the federal constitutional court ruled that the warrant was incompatible with the German constitution.

    The ruling immediately raised doubts about the controversial EU arrest warrant which is opposed by eurosceptics but valued by many governments in the fight against terrorism. The warrant, one of the main counter-terrorism measures introduced in the wake of the September 11 attacks, is intended to give EU member states the right to extradite citizens charged with serious offences.

    Mr Darkazanli, who holds joint Syrian and German nationality, was freed after the court in Karlsruhe said that German citizens could only be extradited in exceptional circumstances. Article 16 of the German constitution declares that a German national cannot be extradited in all but the most exceptional circumstances because the accused would be unfamiliar with the law and language of the other land and could therefore not sufficiently defend himself.

  • middle-class taig

    H94

    I agree entirely. Either you have rule of law or you don’t. You can’t have rule of law which we can disregard when it comes to state killing of republicans, and then disregard again when it comes to republicans’ right to legal process. Waugh certainly isn’t calling for the former, but he hints at the latter.

    fd

    “The irish government has a long history of form on this one e.g. the refusal to extradite for most of the Troubles.”

    For the same reason – the courts of the requesting country were considered unfair. Nice company to keep.

    Do you reckon the Bap Hardy thing is “the Brits” getting their own back for the C-3 reappearing? “We can pull fast ones as well lads, and we’ve got harder mates than youse!”

    I thought the C-3 had already served more than their sentence for the passport charge.

  • fair_deal

    Oin

    1. I criticised the Irish government on extradition not the courts. Once they gained a political deal to their liking they had no problem making the changes. Also the ‘political’ was not the only reasoning given for refusal to extradite. Of the 80 warrants issued between 1971-1980 only one person was extradited and 15 refused because there was no comparable offence (e.g. escape from custody, planting incendiary devices) not political. Furthermore, as the irish Student Law review points out on the political exception.
    “A fundamental characteristic of the Irish case law is that there has been little consistency in the approach taken by the judiciary.”
    2. Also a unwillingess to embrace the international fight against terrorism during that period is further exemplified when the Republic of Ireland refused to sign the European Convention on the Suppression of Terrorism 1977.
    3. Any comment on the case of the German extradition warrant the irish government didn’t act upon either?

    Colombia 3 (Groucho Thanks, it was college in NY I was thinking of.)

    “They served their time for the passport offence”

    1. Not all of them had (each received different lengths of sentence for the false documentation charge). Depending on when they absconded, one possible two of the Colombia 3 left while serving probation and all were bailed while the prosectution appeal was being heard. Is that not an offence too?
    2. They did not seek the full legal recourse at their disposal in Colombia. They still have a further right to extraordinary appeal to the Supreme Court to exercise, the lower court cleared them the Supreme court could clear them too.

  • fair_deal

    Henry94

    1. The European governments revised the definition of the political exception in the 1970’s. The RoI government did not do so for another decade.
    2. A nice try to divert from the central point but whatever the rules of the German constitution the fact remains the barriers offered to the extradition of the Colombia 3 did not apply in the case of the German extradition warrant. Yet the Irish authorities were inert. Why? Is this not evidence of a blind eye making others think they could do the same?
    3. Also the post-Omagh anti-terrorism laws could be possibly be applied to the Colombia 3. If a senior member of the Garda believes them to be members of the IRA then they can be brought before the courts and charged.

    “The Irish govenment has no role in deciding who gets arrested or charged”

    1. Incorrect in regards the present system of extradition between the UK and RoI. The Attorney General plays a key role in proceedings – the AG must be satisfied by a number of documents presented by HMG for a case to proceed.

    MCT

    “For the same reason – the courts of the requesting country were considered unfair. Nice company to keep.”

    I believe you are mistaken. The reasons for non-extradition in the 80 cases were in order of frequency
    1. Political crime
    2. No such similar offence existed in the state
    3. Withdrawal of warrant
    4. Habeaus corpus granted
    The fairness of the judicial system was not mentioned.

  • middle-class taig

    fd

    “The fairness of the judicial system was not mentioned.”

    And I’m sure it won’t be mentioned this time.

  • aquifer

    Violence pays he says. The NIO certainly pulled up the electoral drawbridge once the gun gangs were in. No more province-wide PR now.

  • Jimmy_Sands

    FD,

    I don’t think that’s right. The political offence exception has never been universally defined. Common law jurisdictions used the Castioni or “incidence” test which stressed the nature of the conflict rather than of the act. Other countries took a different approach. During the 80s the Council of Europe introduced the Terrorism Convention which disapplied the exception from certain specified violent crimes. This pattern has been repeated in a number of bilateral treaties. IIRC Ireland signed up pretty much along with everyone else.

  • fair_deal

    Jimmy Sands

    I have three sources for the RoI not signing the Convention on the Prevention of Terrorism in 1977

    1. The treaty as registered with the UN
    http://untreaty.un.org/English/Terrorism/
    Conv15.pdf
    If you go to the end you will see two countries did not sign it Ireland and Malta.

    2. An Irish Student Law review article on extradition which states

    “When the European Convention on the Suppression of Terrorism, 1977 was intro-duced, significantly qualifying the scope of the political offence exception, Ireland was one of only two western European states to refuse to sign”

    Source
    http://www.islr.ie/Reviews/1999/extradition.php

    3. And finally and pretty conclusively the Council of Europe website on treaty signatories

    Ireland
    Signed it on 24/2/1986
    Ratified it on 21/2/1989
    Came into force on 22/5/1989

    Source
    http://conventions.coe.int/Treaty/EN/
    CadreListeTraites.htm

    (Sorry for having to cut up two of the web addresses didn’t wnat to ruin the threads frame and can never get hyperlinks to work)

  • Jimmy_Sands

    FD,

    I stand corrected. I haven’t looked at this stuff for a while (years in fact) and for some reason thought that the convention was later than that.

  • Dandyman

    FD,

    I posted this before, on two different threads, yet got absolutely no response from anyone, either from those who want to see the C3 extradited back to Colombia or from people who would like to see them carried shoulder-high through the streets of Dublin. Nevertheless, I’ll attempt to elicit someone – anyone -‘s point of view one more time on the following:

    How can people argue that the C3, having stood trial for the charges that were brought against them and subsequently acquitted of said charges, should be extradited back to Colombia when nobody when therer is no similar call for the extradition of Margaret Thatcher’s son Mark back to Equatorial Guinea, where he is wanted on charges of conspiring to facilitate a military coup against the government, having been arrested there last year?

    And do you honestly – HONESTLY – believe that if it weren’t for the fact that his Mummy used to be prime minister, that he wouldn’t have been able to just walk away from that situation as easily as he did?

  • fair_deal

    Dandyman

    “How can people argue that the C3, having stood trial for the charges that were brought against them and subsequently acquitted of said charges, should be extradited back to Colombia”

    1. Your portrayal of the situation is inaccurate. The C3 were not acquitted of all charges. The Colombian justice system had not finished going through its processes when the C3 left the country illegally nor is their conviction on appeal the final decision (they have one right of appeal remaining).
    2. I might suggest the reason no one gave you an answer is the pointless whataboutery of your question.

    “back to Equatorial Guinea, where he is wanted on charges of conspiring to facilitate a military coup against the government, having been arrested there last year?”

    1. Again your portrayal of the situation is wrong. Mark Thatcher was not in Equatorial Guinea nor was he arrested there. He was arrested, tried and convicted by the South African justice system and received a suspended sentence and fine over financing two helicopters.
    2. He also answered the 43 questions submitted to the South African authorities by the Equatorial Guinea government.

  • Dandyman

    FD

    I’ve a feeling we’re going to disagree anyway but check it out:

    http://news.bbc.co.uk/1/hi/world/africa/3597450.stm

    – he pleaded guilty to a charge in SA and was fined and given a suspended sentence. But it was EG who were calling for his extradition so he could face the charges there. And even though he admitted his involvement, he was given a light slap on the wrist and allowed to skip back to the UK while others were thrown in jail. But the point is, no-one is calling for his extradition and I repeat: the C3 were tried and acquitted. IN Colombia.

    Personally, after all the excitement calms down in the aftermath of the silly season, I suspect that an arrangement will be arrived at and that the C3 will face a similar ‘punishment’ for the crime of being caught in a FARC guerilla camp. The facts are that insufficent evidence was produced in court to warrant their conviction for the charges brought against them and it made the Govt look weak, hence their subsequent interference in the ‘process’ of the ‘justice’ system.

    Incidentally, interesting NI connection in the Mark Thatcher case: one of his old schoolchums, Simon Mann, who is currently rotting in jail in Zimbabwe for his part in the plan, had a small part in that 2003 film about Bloody Sunday.

  • Dandyman

    What about the Whataboutery? {:>)

  • fair_deal

    Dandyman

    “the C3 were tried and acquitted. IN Colombia”

    1. No they weren’t acquitted they were convicted of false document charges.
    2. The Colombian justice system had not completed its processes so the final verdict had not been determined (it still hasn;t as one right of appeal remains). By your logic if they had been convicted by the Colombia court of all charges then they would have no right of appeal. A justice system has multiple levels and processes you can’t just pick the verdict you prefer.

  • Dandyman

    ‘You can’t just pick the verdict you prefer’

    Unless you’re the government that is – in which case you can not only do exactly that; you can also instruct the judiciary to change the verdict if you don’t like it, without even having a proper re-trial.

    ‘The Colombian Justice System’

    That would be the Colombia where a goalkeeper was murdered for fumbling a backpass in the 1994 world cup, yeah? Did the Govt make sure & chase up the perpetrators of that particular dispensation of ‘Colombian Justice’?

    The C3 have already served over 3 years in custody, that should have taken care of the false documents charge.

  • Dandyman

    Sorry, my apologies. Having checked my facts, it turns out Andres Escobar was not the Colombian goalkeeper but a central defender. And it wasn’t a fumbled backpass, he was attempting to cut out a cross and ended up turning the ball past his own goalkeeper and into his own goal.

    Admittedly not the only fact I’ve gotten wrong but I stick to my point…prisoners on both sides of the conflict in NI have been released and had long sentences commuted for some disgustingly heinous acts, and these 3 men have already served 3 years in a Colombian prison. I see no reason why they should be extradited/sent back to prison. They have been picked up by the Guards here and questioned about entering the country illegally. I would have no problem with charges being brought against them on that score.

  • fair_deal

    Dandyman

    For the third time the C3 still have a right of appeal they can exercise. The reversal of the lower courts decision is not the final decision. The Colombian system allows the state to appeal a verdict that was known all along (and that is open to further appeal by the defendents to the Supreme Court).

    “That would be the Colombia where a goalkeeper was murdered for fumbling a backpass in the 1994 world cup, yeah? Did the Govt make sure & chase up the perpetrators of that particular dispensation of ‘Colombian Justice’?

    1. It was a Colombian defender who was murdered not the goalkeeper. Your persistent ignorance of basic facts makes me think your posts are just a piss-take
    2. Your defence of the Colombia 3 has now descended into plain farce. The decision to murder the goalkeeper had nothing to do with the Colombian justice system.
    3. You seem to be arguing that unless everyone is made amenable to the courts then no one can. Bollix to be be perfectly blunt.

    “The C3 have already served over 3 years in custody, that should have taken care of the false documents charge.”

    Again your show an ignorance of the facts.
    1. They served 32 months in jail (Please note that they survived in this prison and were not physically harmed despite the claims that the Colombia prison system was so bad they were going to end up dead). Two of the C3 received sentences longer than that 36 months and 44 months – they were released on probation for the remainder of their sentence (This is the “cruel unfair justice system” of Colombia that let them go on probation).

  • fair_deal

    Dandyman

    One person was caught for the murder of the footballer. Humberto Muñoz Castro was found guilty of Escobar’s murder in June 1995 and sentenced to 43 years in prison.

  • Dandyman

    FD

    1.Why do so many people on this site number-mark their points – do they think it lends extra weight/credibility/authority to their arguments?

    -413.’Your defence of the C3 has now descended into plain farce’

    So has the credibility of the ‘Colombian Justice system’ as you so hilariously put it.

    FD,You know perfectly well their ‘appeal’ system is an insult. As I’ve already said (you don’t mind repeating the same points over & over so I won’t)the Govt in Colombia didn’t like the verdict of the original trial. It made them look weak in a country where the Govt cannot afford to be made to look weak. The original trial, which was extremely thorough, went on for about 6 months (sorry now if I’m out by a week or two), was held in public, under the watchful eye of the world’s media. The judiciary were ‘requested’ to go back and ‘re-consider’ the evidence. They came out after a short period and hey, presto, the decision is duly reversed..they went from being found innocent (of the main charges, i.e. training terrorists) to being found guilty and sentenced to 17 years.

    Crikey, that’s some turnaround. What the hell were all those judges and witnesses and lawyers in the first trial about? How did THEY get it so wrong, eh? Now you’re on here arguing that the Colombian ‘appeal’ system can be trusted. Are you serious??

    I’ll concede that you may have a more accurate grasp of the small details in terms of factual content in these threads than I do, but I simply don’t believe you’d be arguing so passionately on behalf of the virtues of the Colombian Justice System unless you had some sort of an axe to grind.

    By the way, I’m not ‘defending’ the Colombia 3, and I’m no fan of SF, I just think this is a typical case of N.I. ‘us’uns & them’uns’ bullshit. That’s why I brought up the example of Mark Thatcher. And to be honest I feel genuine sympathy for that Simon Mann dude who’s now languishing in a prison cell in Zimbabwe,
    when he probably had less to do with organising the coup in EG than Thatcher had, but ended up paying the price because his mummy never held the post of prime minister. At least Mann was a self-declared mercenary and knew what he was getting into. Is anyone in Britain apart from the families of the accused even interested in getting them sent Back to Britain to do their time at home? Yet the Colombia 3 case is SOOO important…yeah right.

  • Dandyman

    Everyone knows perfectly well the Colombian ‘appeals system’ is an insult. As I’ve already said the Govt in Colombia didn’t like the verdict of the original trial. It made them look weak in a country where the Govt cannot afford to be made to look weak (what Govt can?). The original trial, which was extremely thorough, went on for about 6 months, was held in public, and under the watchful eye of the world’s media. The judiciary were then ‘requested’ to go back and ‘re-consider’ the evidence. They came out after a short period and hey, presto, the decision is duly reversed..they went from being found innocent (of the main charges, i.e. training terrorists) to being found guilty and sentenced to 17 years.

    Crikey Mikey, that’s some turnaround! What the hell were all those judges and witnesses and lawyers in the first trial about? How did THEY get it so wrong, eh? Now some people are on here arguing that the Colombian ‘appeal’ system can be trusted. Are you serious??

    I’m no fan of SF or the C3, I just think this is a typical case of N.I. ‘us’uns & them’uns’ bullshit. That’s why I brought up the example of Mark Thatcher. And to be honest I feel genuine sympathy for that Simon Mann dude who’s now languishing in a prison cell in Zimbabwe,
    when he probably had less to do with organising the coup in EG than Thatcher had, but ended up paying the price because his mummy never held the post of prime minister. But at least Mann was/is a self-declared mercenary and knew what he was getting into. Is anyone in Britain apart from the families of the accused even interested in getting them sent Back to Britain to do their time at home?

    Yet the Colombia 3 case is SOOO important…yeah, right lads.

  • fair_deal

    Dandyman

    “The judiciary were then ‘requested’ to go back and ‘re-consider’ the evidence.”

    The attorney-general of Colombia appealed. Appeals re-consider the evidence that is what appeals do. There is nothing sinister about an appeal re-considering the evidence and verdict. How can you expect a court of appeal to assess a verdict without looking at the evidence?

    “They came out after a short period”

    Yet again you demonstrate a shocking lack of knowledge of the facts. The first verdict was in April 2004. The appeal was ruling was delivered in December 04. The appeal took 8 months, 2 months longer than you say the ‘thorough’ trial took.

    “I feel genuine sympathy for that Simon Mann”

    I have sympathy for his wife and family but if you get involved in coups and get caught you have to expect to face a penalty (his sentence was reduced too at the same time as Thatcher’s plea bargain). As Mann was caught on route leading a number of mercs to meet up with the key organiser de Toit I do not think his role can be considered minor.

    As for Thatcher, the EG questions showed they had lots of suspicions (plenty of legitimate suspicions as far as I can see) but lacked hard evidence. This lack of hard evidence is why the SA offered the plea bargain.

    “the Colombia 3 case is SOOO important”

    You will also see from my earlier posts I highlighted the case of the RoI government ignoring a German extradition warrant and their reluctance to keep to common anti-terrorist practices so I haven’t restricted myself to the Colombia 3.

  • Dandyman

    FD – Ok, I give up. I agree with everything you say now.

    Hang the Bastards!

  • martin

    John Deasey a Waterford TD–yes the one who broke the smoking ban in the Dail bar on the second day of its implimentation—is advocating citizens taking the law into their own hands if their houses are being broken into–on Waterford radio Deasy said he would not rule out the use of guns–is Fine Gael now going to campaign for the legalisation of punishment beatings in the south.