Former Provisional Shane Paul O’Doherty argued in this newspaper last week that republican inmates didn’t qualify as prisoners of war. Here, historian Dieter Reinisch says O’Doherty’s view is at odds with British Government policy throughout the 20th century.
In an article published in this newspaper on January 5, Shane Paul O’Doherty argued that “captured (IRA) combatants could never qualify as prisoners of war” because they “did not conduct military operations according to the laws and customs of war”.
He then goes on and uses an appeal by republicans to the European Court of Human Rights as evidence that the “entire republican movement - political and militant - was effectively recognising the jurisdiction of the international humanitarian laws and associated Geneva Conventions”.
However, one cannot take an isolated episode of the Troubles to explain the policy surrounding as controversial a term as “prisoners of war”.
The status of the prisoners, both republican and loyalist, is arguably one of the most controversial topics of Northern Ireland’s recent past.
The debate is politically loaded, as is O’Doherty’s article.
While he discusses a legal term, he falls into the trap of making a moral argument, hence, making use of a barbaric IRA attack and even the 1916 signatories to strengthen his argument.
Instead, I suggest a more sober look at the term “prisoner of war”.
In the context of the Troubles, the term “prisoners of war” is often used for particular political purposes and is, therefore, mystified.
In order to demystify the term, we need to ask what was meant by Irish republicans using this term and what did they want to achieve by using it.
As we answer these questions, we realise that republicans did not aim for “prisoner of war” status under the Geneva Convention, but for a status that distinguished them from ordinary criminal prisoners.
This status is usually referred to as “special category status”, or “political status”.
By demanding this status, republicans did not seek “prisoners of war” status under the Geneva Convention, but a moral distinction of their struggle from the crimes of criminal convicts.
British governments have granted exactly this status to republicans through various phases of history.
Starting with 1916, republicans suspected of participating in the Easter Rising were held in Frongoch internment camp under the same conditions as German First World War prisoners of war.
Following the outbreak of the Troubles and a hunger strike at Belfast’s Crumlin Road Gaol, again, special category status was granted (until March 1, 1976).
This status was eventually phased out and all prisoners arriving in the newly-built H-Blocks were treated as ordinary criminals, while those held in the Long Kesh camp retained their special status.
This led to the situation that merely a fence and a few yards separated members of the same paramilitary organisations enjoying special category status, on the one hand, and the Blanket protest and, eventually, hunger strikes in the fight to re-achieve this status on the other - even though both groups of prisoners were imprisoned for the same reasons, namely, paramilitary activities.
About a year after 10 republicans died on hunger strike for special status, the prisoners were gradually granted some of their demands, resulting in the fact that, in 1983, they had again achieved some form of special category status - this lasted until the closure of HMP Maze in 2000 and continues today in Maghaberry Prison.
In his new book, Sunningdale: The Search for Peace in Northern Ireland, Noel Dorr writes that when Philipp Woodfield, then Deputy Secretary of the Northern Ireland Office, met IRA representatives Daithi O Conaill and Gerry Adams on June 20, 1972, his response to their demand for “political status” of IRA prisoners was, “though unwilling to accept the term ‘political status’, (…) the substance of what they sought was already virtually the case” (pp 154-5).
The IRA delegation was happy with that and dropped this demand.
In sum, during various periods of the Troubles, British governments were willing to grant some sort of special status to republican prisoners. All these categories, no matter if it was before 1976, or after 1983, stopped short of the official “prisoner of war” status under the Geneva Convention.
Nonetheless, republicans were happy to accept it as long as it distinguished them from ordinary prisoners and, therefore, gave them moral justification for their struggle. Prisoner of war status is a flexible and fluid concept, on both sides of the Troubles.
Shane Paul O’Doherty tries to make a case that IRA prisoners should not be “entitled to claim the term ‘prisoners of war’”.
Instead, I argue that one can, indeed, make a case that might not entitle them to use the term under the Geneva Convention, but certainly the term “special category prisoners”.
In a recently published article in the Duke Journal of Comparative & International Law, Samantha A Caesar writes that the British Government should have continued to grant special category status to republican prisoners after 1975.
She writes: “A deeper look at international law and relations between Ireland and the United Kingdom during the late-1970s and early-1980s reveals that there is a strong case for treating the conflict in Northern Ireland as an international, rather than a non-international, conflict under international law. Therefore, whether the denial of PoW status to IRA prisoners during this time was lawful is questionable at best” (p326).
Moreover, by introducing internment and Diplock prosecutions, the British Government prosecuted republicans differently from ordinary prisoners; consequently, they should have allowed them to be treated differently inside prison, as well.
In the introduction to the volume Prisons, Terrorism and Extremism: Critical Issues in Management, Radicalisation and Reform, Professor Andrew Silke explains that “terrorism is not the same as other types of crime and terrorists are not typical criminals”.
According to Silke, the common characteristic of extremist offenders is firstly, the political dimension, which is not normally seen among criminal offenders; secondly, their offending is primarily a group phenomenon; and thirdly, these offenders rarely radicalise and act in isolation.
Analysing the UN framework, Silke concludes that, under this framework, most extremist prisoners can be “reasonably referred to as political prisoners, though, not surprisingly, most governments prefer to avoid this term out of fear that it might transfer some apparent legitimacy to the terrorists and their cause” (p5).
To conclude, the status of prisoners in Northern Ireland is a politically loaded topic - this applies to both republican and loyalist ex-prisoners. Over the past decades, the use of the term has been fluid and flexible on all sides of the conflict.
War is brutal and terrible things happen that would and should never happen in normal societies. Nonetheless, the debate on former paramilitary prisoners needs to be unchained from moral prejudices.
Only if we achieve a sober analysis of events can we learn from the past and move forward to the future.
This article has initially been published in the Belfast Telegraph on 11 January 2018.