The Government's Priority Should be the National Interest, Not The Nebulous Concept of International Law
Having a former radical lawyer as Prime Minister (and another as Attorney General) is a recipe for disaster.
It’s been an awkward week for complex relationship between the public, the electorate and the law.
Firstly a coroner has ruled that SAS soldiers did not need to use lethal force in an operation in which four IRA terrorists were killed in 1992 , in an inquest that opened last year. Secondly, it has emerged that we’re giving the Chagos Islands to Mauritius because International Law might mean that the UN’s International Telecommunications Union might decide that radios being used there are unlawful. Both cases illustrate the problem that the vital rule of law can often descend into the rule of lawyers.
Politicians are elected by the people to create laws that further the interests of the electorate. Those draft laws are enacted, usually after much debate, discussion and amendment, receive Royal Assent and become statute. Their effect is then implemented by juries, judges and coroners weighing the evidence and arguments of the cases before them and coming to a decision. In doing this one of the factors to be considered in common law is previous decisions about similar cases – precedents are important in English Law.
The rules of engagement for soldiers in Northern Ireland came from Parliament were known as “The Yellow Card” after the card carried and learned by rote by every soldier in the province. Soldiers in Northern Ireland had no more rights than a private citizen, so the provisions of the Yellow Card were pretty clear. Essentially soldiers were allowed to open fire on terrorists who were about to commit, were committing or had recently committed a terrorist act AND there was no other way to stop them. Warnings were mandatory “before opening fire unless… to do so would increase the risk of death or grave injury to you or any other person”. The Yellow Card never had statutory authority; soldiers who killed terrorists were subject to arrest and interrogation by police to determine whether they had committed a crime.
The fundamental question for the soldier was “Do I shoot or not?” If, as was almost inevitable, the terrorist was armed the soldier was making this decision under mortal peril and quite possibly with little time to act. While in a court room it might seem possible for a soldier to make an arrest, that possibility might not be as obvious to the soldier in a dynamic situation, with his life on the line and carrying the weight of responsibility for the lives of others. Arresting an armed terrorist – also in fear of his life – is far from straightforward (answers on a postcard, please). There is no requirement in common or military law for a soldier to recklessly risk his life, so taking the shot is usually the right answer for the soldier who must decide. (At one time during the Troubles soldiers were so concerned about the immediate consequences of arrest and interrogation that they were not taking what would have been lawful shots. Terrorists survived to kill, bomb and main the public.)
As an aside, counter terrorism is an intelligence led operation. The IRA collapsed because the British Intelligence operations utterly penetrated the organisation, meaning that the mutual trust vital for terrorist cells collapsed. It is therefore preferable to capture terrorists alive and either turn them into double agents or interrogate and then incarcerate them. A dead terrorist has zero value to interrogators and intelligence. They merely pose no further threat to public or security forces.
As it turned out this action (in 1992) was the last in what the press had ludicrously labelled the “shoot to kill” campaign. (Has anyone, ever, been shot to improve their wellbeing?). The families of the dead terrorists had campaigned for an enquiry which the British Government had resisted, being satisfied that the action was lawful. (One get-away driver, who was unarmed but wounded, received compensation of £75,000 in 2011). The inquest opened last year and the coroner, who is also a high court judge, ruled that lethal force was unjustified.
That is, of course, a highly experienced lawyer’s conclusion on the basis of the evidence and arguments laid before him, interpreted with regard to common law. Unfortunately, as has been demonstrated in other cases, common law struggles to cope with the confused, terrifying and fast moving realities of a firefight. There is no doubt that the men killed were terrorists, nor that there were ten IRA men present of whom only the four who had performed the armed attack were killed. There is evidence that some of the dead were killed at close range when they were on the ground, having already been hit by multiple bullets. The evidence supplied by the government was, inevitably heavily redacted. But that’s all by the by.
The salient point is whether the twelve SAS soldiers opening fire believed they could find any way of arresting 10 IRA men, at least four of whom were armed, at night in hostile territory. Clearly they thought not, hence they engaged. The coroner thinks differently, as is his right – indeed his duty. Last year he found that a similar action in 1991 that killed three IRA men was lawful His independence is not in question, it’s the law itself that is wrong.
Consequently, 33 years after the action, the SAS men potentially face a criminal trial. Notwithstanding the coroner’s expert opinion, that result seems wrong – 96% of those polled on the Telegraph opposed it. At the time there was little sympathy for the IRA men outside of the Irish Republican and Nationalist movements.
The soldiers were sent by the State to Ulster to fight the IRA and uphold the rule of law. They were not given adequate legal protection, but somehow made it work and defeated the IRA (and assorted other terror groups along the way). The Belfast Agreement that ended the Troubles failed to protect service personnel, although it granted ex terrorists freedom in one of Tony Blair’s more shameful failures. This Labour government is in the process of repealing Tory legislation that would have belatedly protected them now.
The law, as created by a selection of politicians of all parties over almost half a century, is failing. It’s not just the elite SAS that are being failed, it’s every serviceman and indeed the society they seek to defend. The deficiencies in the legal status of the combatants in the Ulster Troubles has were known since it began. The failure to find an end to the arguments when peace came was rank moral cowardice that is all too typical of Westminster.
Given the problems Parliament and this government have with common law it is depressingly unsurprising that it’s got itself into a mess with international law. It apparently believes that adhering to the (alleged) letter of international law more important than protecting the UK’s national interest or cooperating with our closest ally and largest export market, the United States of America, which happens also to be the world’s superpower and trading hegemon. Which is the consequence of the absurd intention to pay Mauritius to take ownership of the Chagos Islands, also know as the British Indian Ocean Territories.
Prior to 1814 the islands and Mauritius, which are over 2,000 kilometres from the Chagos archipelago, were under Portuguese, French or British colonial ownership as part of the race to colonise India. Both territories became British colonies at the end of the Napoleonic Wars, and remained that way until 1968, when Mauritius was granted independence but the Chagos Islands were retained by Great Britain, although that was disputed at the time. That dispute has been smouldering on, and in 2019 the International Court of Justice – one of the UN’s six principal organs – ruled that the British should return the Chagos Islands to Mauritius.
The ICJ’s ruling was an advisory opinion rather than a binding judgment and was rejected by the Foreign Office and the then PM, Theresa May (finally I’ve found something she did right!). The then leader of the opposition, Jeremy Corbyn, fulminated about the need for respect for international law. His successor, Starmer, seems to have been persuaded that this ruling and a subsequent UN General Assembly resolution means that electronic communications from the base at Diego Garcia might therefore be found unlawful, so better to capitulate and at considerable expense lease the base back to protect a vital UK (and US) interest.
Starmer, like Corbyn, thinks that compliance with International Law is more important than the UK’s vital national interests. To him, and idealistic lawyer, the supremacy of the law is more important that the rights of the country that appointed him leader. I suspect President Trump doesn’t see it that way and will simply continue to occupy Diego Garcia, suggesting that the not-so-mighty armed forces of Mauritius stay at home and survive.
The harsh reality is that international law is far from clear, far from fixed and far from universal. Some may think there is an image problem associated with ignoring a finding or ruling, but the reality is that many of the ICJ’s rulings are ignored. Similarly, resolutions of the UN General Assembly have few teeth.
In any case the UK has seat in the more important UN Security Council. We would be able to use our veto so no adverse security council resolution could be passed. The whole edifice of “international law” is largely a sham – unsurprising in a world comprising nation states, each of whom pursue their national interest. Except, it seems, the UK under its current management, who have greater reverence for the illusory “international order” than the interest of their people. They apply similar arguments for refusing to leave the European Convention on Human Rights – usually adding that Russia isn’t a member. (Neither is the United States, Australia, Canada, New Zealand or many other pleasant places – that they’re not in Europe doesn’t make them human rights abusers.)
Much as I despise the members of the current government, this belief in the primacy of the international order is not confined to them. It has infected many well educated and intelligent people who, with varying levels of justification, think themself part of an elite. They believe that their superior education and jobs in the heart of the establishment give then greater insights into what the people need. They are the equivalent of the Soviet Nomenklatura - the inner circle who were, or aspired to be, members of the Politburo – whose policies ultimately destroyed the Soviet Union.
Davosman (or woman) is on the cusp of achieving the same disastrous outcome for the west, and not just in economics. In the UK the reliance on immigration has done massive, perhaps irreparable, damage to British culture. Alongside that, the destruction of the nation’s finances by belief in the magic money tree and Rachel from accounts attempting to generate growth though taxation is a mere bagatelle.
We’re led by politicians who put the nebulous concept of international law above national interest and who fail to make even the simplest, most basic common law work to the public’s satisfaction. The one thing a politician does is pass laws, yet they’re failing at that. The entire edifice of the state isn’t working for us and those currently running it neither understand nor care. Why should we vote for them?
That’s why the US voted for President Trump. That’s why Reform is surging – put simply, the people have had enough of being taken for fools.
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There's an excellent article on Substack by Lorenzo from Oz basically saying that International Law is a chimera because there is no body that can enforce them.
So if the UK had diplomatically said Eff Off to the machinations of the International Court, nobody could actually do anything apart from fulminate and say rude words about us.
I laughed when I read that the EU said that Trump's tariffs on steel were "illegal". Do they really think he cares?
Indeed, the writing is on the wall.
Yet, the majority of the electorate seem unaware of many things, and willing to vote - if they can be bothered- for what seems right on the day. So be it - this is democracy in action.
The international 'issue of the day' that MSM shrieks about is used to distract from major issues here - a tax system openly abused both by MG Gov as well as certain 'sectors', an energy policy that isn't, the world's highest energy costs for the public, and State that knows no bounds. That's before we get to having roads that are not dirt tracks or enough houses / hospitals and so on.
Time to say we have given too much away, we have made ourselves poor, and need to stop this madness. Now. Immediately.