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ACKNOWLEDGMENTS
This report is based on a mission conducted by Julia A. Hall, W. Bradford Wiley Fellow with Human Rights Watch, Hon. Robert M. Levy, United States Magistrate Judge in the Eastern District of New York, and Jonathan F. Fanton, president of the New School for Social Reseach, in November 1996. The report was written by Ms. Hall and edited by Holly Cartner, executive director of Human Rights Watch/Helsinki, Michael McClintock, deputy program director of Human Rights Watch, and Dinah PoKempner, deputy counsel with Human Rights Watch. Emily Shaw provided production assistance.
Human Rights Watch is grateful for the assistance of a number of colleagues in the preparation of the mission and the completion of this report, particularly Martin Flaherty, associate professor at Fordham University School of Law and consultant to the Lawyers Committee for Human Rights; Ann Gaughan, American Protestants for Truth about Ireland; and Halya Gowan, Amnesty International. We are especially indebted to Jane Winter of British-Irish Rights Watch in London, and Martin O'Brien, Paul Mageean, and Maggie Beirne of the Committee on the Administration of Justice in Belfast. Without their expertise and generosity, this mission would not have been possible. The writer also wishes to thank Chief Constable Ronnie Flanagan of the Royal Ulster Constabulary for his willingness to grant Human Rights Watch unprecedented access to RUC management, and for the careful attention paid by RUC staff in the chief constable's office to numerous requests for additional information in the months following the mission.
ABBREVIATIONS AND ACRONYMS
AI Amnesty International
BIRW British Irish Rights Watch
BRG Bogside Residents Group
CAJ Committee on the Administration of Justice
CLMC Combined Loyalist Military Command
DAAD Direct Action Against Drugs
DOE Department of Environment
DPP Director of Public Prosecutions
DRPA Dunloy Residents and Parents Association
DUP Democratic Unionist Party
ECHR European Convention on Human Rights
EPA Northern Ireland (Emergency Provisions) Act 1996
FAIT Families Against Intimidation and Terror
GRRC Garvaghy Road Residents Coalition
HMIC Her Majesty's Inspectorate of Constabulary
ICCPR International Covenant on Civil and Political Rights
ICHC Independent Commissioner for the Holding Centres
ICPC Independent Commission for Police Complaints
IRA Irish Republican Army
LOCC Lower Ormeau Concerned Community
MI5 British military intelligence
MP Member of Parliament
NIO Northern Ireland Office
PACE Police and Criminal Evidence (Northern Ireland) Order 1989
PANI Police Authority for Northern Ireland
PTA Prevention of Terrorism (Temporary Provisions) Act 1989
PUP Progressive Unionist Party
RUC Royal Ulster Constabulary
SACHR Standing Advisory Commission on Human Rights
SAS British Army Special Air Services Regiment
SDLP Social Democratic and Labour Party
STAC Stop Think and Change Program
UDA Ulster Defense Association
UDP Ulster Democratic Party
UDR Ulster Defense Regiment
UFF Ulster Freedom Fighters
UUP Ulster Unionist Party
UVF Ulster Volunteer Force
1. INTRODUCTION
This report is about policing, human rights and accountability in Northern Ireland. Police conduct throughout the long conflict in Northern Ireland has given rise to serious allegations of abuse. A range of such allegations, examined in this report, continue to center on the Royal Ulster Constabulary (RUC), Northern Ireland's police force. The report also examines abuses by the political armed groups operating in Northern Ireland-republican paramilitaries seeking to reunite Northern Ireland with the Republic of Ireland and loyalist paramilitaries seeking to maintain the union of Northern Ireland with the United Kingdom. This report is, in part, an extension of past work by Human Rights Watch on the human rights situation in Northern Ireland and on the treatment of children there.
The report is also a direct response to the final report of the International Body on Arms Decommissioning chaired by former United States Senator George Mitchell. In late 1995, the British and Irish governments tasked an independent international body with providing to the multi-party peace talks an acceptable plan for the full and verifiable decommissioning of paramilitary weapons. Released in January 1996, the report of the International Body on Arms Decommissioning was welcomed in many quarters as a blueprint for progress from preparatory talks to full peace negotiations. Notably, the International Body recognized that success in the peace process could not be achieved solely by focusing on the decommissioning of weapons. To create the necessary trust, it concluded, confidence-building measures would also be necessary, including the normalization of policing, a review of the use of plastic bullets, a more balanced representation on the police force, and the cessation of paramilitary intimidation. All of these issues are addressed in this report.
The recent course of events in Northern Ireland has forced the issue of police reform to the forefront of public discourse. On August 31, 1994, the Irish Republican Army (IRA) announced a unilateral cease-fire. On October 13, 1994, the Combined Loyalist Paramilitary Command (CLMC), the coordinating body representing loyalist paramilitary groups, followed suit and called for a cessation of "all operational hostilities." Questions arose immediately about the need for security policing and the continuation of emergency laws in the absence of political violence. Calls went out for the redress of the profound religious imbalance in the composition of the RUC, which is approximately 90 percent Protestant. Discussions in many quarters during the cease-fire period focused on police accountability and the need for reform of a "security dependent" system that appeared to leave the RUC accountable to virtually no one.
Although the report of the International Body recommended that the process for paramilitary arms decommissioning run parallel to the peace talks andopined that a total surrender of weapons prior to negotiations was not reasonable, the British government refused to allow Sinn Féin, which is generally viewed as the political arm of the IRA, to participate in the talks until the IRA decommissioned its weapons. In January 1996 the Northern Ireland (Emergency Provisions) Act (EPA) was renewed for another two years even though the cease-fires had held since late 1994. The Prevention of Terrorism (Temporary Provisions) Act (PTA) covering all of the U.K. was also renewed during the cease-fire period. Disagreements over decommissioning, the role of the Irish government in the preparatory talks, and the condition of Irish prisoners in British prisons plagued the multi-party talks. By late January 1996, there appeared to be a loss of confidence in the peace process.
On February 9, 1996, the IRA broke its cease-fire with the explosion of a bomb at Canary Wharf in London, killing two men and injuring more than 100 people. The IRA cease-fire was broken in Northern Ireland in October 1996 with a bombing at British army barracks at Lisburn, County Antrim. One soldier was killed and dozens of people were injured. In a New Year's statement published in An Phoblacht/Republican News, the IRA reaffirmed its "steadfast commitment" to reunifying Northern Ireland with the Republic of Ireland. This statement was widely perceived as the IRA's confirmation of the resumption of full-scale military operations in pursuit of this goal.
From December 1996 to April 1997, the IRA claimed responsibility for a number of attacks on RUC stations and police officers. One part-time policewoman was shot and seriously injured. A British soldier was shot and killed by an IRA sniper. As of May 15, 1997, the CLMC claimed that the loyalist paramilitary cease-fire was holding despite a number of bombings and shootings bearing the hallmark of loyalist paramilitary violence. Since December 1996, there has been an intensification in security measures causing many to compare the atmosphere in Northern Ireland to the tension-filled and violent years immediately preceding the cease-fires.
This report focuses on four areas of policing that are of immediate human rights concern: the draconian police powers enjoyed by the RUC under Northern Ireland's emergency regime, the policing of the summer 1996 marching season (when Protestant fraternal orders paraded through towns and city centers), the dramatic rise in paramilitary punishment assaults and expulsions, and the persistent allegations of collusion between members of the security forces and loyalist paramilitary groups.
The British government has responded to the conflict in Northern Ireland by imposing a draconian emergency regime that invests the RUC with expansive police powers to stop, question, search, arrest, detain, and interrogate personsmerely suspected of terrorist activity. For example, people can be stopped, questioned and searched without "reasonable suspicion" of criminal activity; detainees can be held for up to seven days without charge; access to counsel can be deferred for the first forty-eight hours of detention; and the common law right to silence has been effectively abrogated. In holding centers, specially designated places of detention for persons arrested under the emergency legislation, the intimidation and harassment of detainees and lawyers representing them is commonplace. Interrogations are not audio or video taped, and the EPA contains a permissive standard for the admissibility of confession evidence at trial.
In 1991, Human Rights Watch reported that the operation of the emergency legislation in Northern Ireland gave rise to systematic human rights violations and argued for the repeal of emergency laws that unduly infringed civil liberties and were used for harassment and intimidation. We renew that call for repeal in this report. Particularly with the planned resumption of multi-party talks in June 1997, we urge the government of the United Kingdom to recognize that emergency laws such as those in force in Northern Ireland often serve to sustain political violence by creating an environment in which individual human rights are routinely violated. Further inaction on the repeal of the emergency laws will sustain the historic climate of distrust and hostility between the government of the United Kingdom and certain segments of its citizenry. This is hardly a promising context within which to advance the peace.
While the emergency legislation provides the backdrop for routinely abusive police practices, the outbreak of serious violence during the summer 1996 marching season demonstrated how policing failures and the lack of accountability for RUC misconduct contributed to a serious breakdown in the rule of law. The apparent context for the disturbances of the summer of 1996 was the ongoing dispute between Protestant fraternal orders and predominantly Catholic nationalist communities that had organized to oppose Protestant marches through Catholic areas. The fraternal orders portray their processions as traditional marches that give expression to their religious and cultural heritage, and argue that their right to free assembly is unduly infringed by nationalist opposition. Nationalist groups characterize the marches as sectarian parades that often incite hatred by providing the traditionally privileged unionists-Protestants in favor of maintaining the union of Northern Ireland with the United Kingdom-with a forum in which to re-enact historic triumphs of Protestants over Catholics. Nationalists also argue that the heavy police presence accompanying the marches, which is often characterized by intimidating operational tactics, disproportionately disrupts the life of nationalist communities.
However, to cast the summer's events simply as a matter of intercommunal conflict fails to address the responsibility of state authorities in Northern Ireland to maintain the rule of law and to assure both communities the equal protection of their rights. This includes the grievous failure of the police, oversight agencies, and the British government to prevent the collapse of law and order. Despite RUC claims of being caught in the middle of disputes between nationalists and unionists over the "right to march," a series of police actions-sanctioned by the government-exacerbated the conflict. These actions resulted in the effective submission of state authorities to the threat of unionist violence and included the excessive use of force against peaceful demonstrators, the indiscriminate use of plastic bullets against both unionist and nationalist protesters, and a general failure to halt illegal activities such as the blockade of the airport and the establishment of illegal roadblocks.
The serious violence that erupted during the summer of 1996 demonstrated the volatile circumstances in which the people of Northern Ireland negotiate the annual, tension-filled marching season. In addition, both nationalist and unionist communities must daily confront the brutal violence of paramilitary punishment beatings and assaults. Both republican and loyalist paramilitary organizations have assumed a quasi-policing role in their respective communities by meting out "punishments" for perceived or actual offenses, such as drug trafficking, burglary, assault, wife abuse, glue sniffing, public intoxication, joyriding and other "anti-social" activities. These non-political offenses, which would be addressed through routine policing by a traditional police force, have instead been effectively delegated to irregular, paramilitary "law enforcement." Paramilitary punishments take a variety of forms, including summary executions (murders), crippling shootings, and brutal beatings. They are carried out by paramilitary volunteers against members of their own communities. Paramilitary organizations also issue "expulsion orders" to force an alleged perpetrator to leave a particular city or all of Northern Ireland for a designated period under threat of being shot or beaten.
The IRA and loyalist paramilitary groups such as the Ulster Defense Association (UDA) and the Ulster Volunteer Force (UVF) operate parallel unofficial criminal justice systems in the vacuum left by the police. Throughout "the troubles" in Northern Ireland, the police have concentrated their efforts on the suppression of political violence by paramilitary groups. This anti-terrorist campaign has been waged to the exclusion of many traditional policing functions in some areas. For example, in many nationalist communities, routine foot patrols were rare and RUC land rover patrols were often backed up by British military vehicles. Both nationalists and unionists allege that in some areas the RUC does notrespond to calls requesting assistance with ordinary crimes or, if the police do respond, officers often pick up "suspects" only in an attempt to persuade them to serve as political informers while ignoring the reported crime. The expansive police powers enjoyed by the RUC under Northern Ireland's emergency legislation further contributes to the notion that the RUC is not a traditional police force and it need not bother with such quotidian duties as responding to common crime. Research undertaken by Human Rights Watch confirmed that in many communities in Northern Ireland normal policing functions have been abandoned. Moreover, in the post-cease-fire period, many of the policing initiatives cited by the RUC as attempts to "normalize" policing have been sacrificed to intensified anti-terrorism security measures.
In the absence of normal policing, paramilitary organizations act as investigator, prosecutor, judge and jury, and they carry out their own sentences. Warnings are sometimes given before shootings or beatings but even crude due process guarantees are generally dispensed with in favor of summary proceedings. The paramilitaries euphemistically label "community policing" what in fact are brutal punishments applied in an often arbitrary manner.
The final issue addressed in this report is the persistent allegations of collusion between members of the security forces in Northern Ireland and loyalist paramilitary groups. Security forces allegedly engage in such collusion by conspiring directly with loyalist paramilitaries to carry out acts of violence or by facilitating the commission of violent loyalist paramilitary activities. The failure to prevent or deter violent acts for which there is reliable advance intelligence or to investigate rigorously such acts and punish those responsible can also constitute collusion. Those who allege collusion charge that members of the security forces routinely engage in a variety of illegal activities to assist loyalist paramilitary groups to target suspected republican "terrorists" or alleged "terrorist" sympathizers for harassment and assassination. In addition to allegations of direct involvement in the planning and execution of assassinations, security forces have been accused of passing on security information such as photo montages to loyalist paramilitaries who use the information to target suspected republican "terrorists," facilitating the commission of loyalist paramilitary killings by diverting law enforcement resources away from crime scenes immediately prior to and after paramilitary shootings, failing to provide adequate protection to persons warned by the security forces that they are under paramilitary threat because their security files "accidentally" went missing or were "lost," and failing to investigate rigorously loyalist paramilitary killings by overlooking critical and easily accessible forensic evidence.
Human Rights Watch is particularly concerned with allegations of collusion against the police force in Northern Ireland. Because the RUC is invested with primary responsibility for identifying, gathering and securing information on suspected paramilitaries and investigating acts of paramilitary violence, the bulk of the allegations of collusion are made against the RUC. This is particularly true in cases where legitimately collected official information finds its way into the hands of loyalist paramilitaries.
Collusion, by definition, is difficult to prove. Human Rights Watch makes no conclusions regarding the evidence of collusion by the RUC in any of the cases highlighted in this report. However, the factors suggesting the possibility of collusion associated with these cases compel us to call for a variety of immediate official responses to determine whether collusion has occurred. In some cases an independent inquiry with full investigative powers, including the power to subpoena witnesses and documents, is recommended. In other cases, we call on the RUC to take specific steps to ensure that factors suggesting collusion are adequately addressed. General recommendations for the effective redress of possible collusion include: a reassessment of the procedures for the handling of identification information for security breaches; vetting the police force for members with illicit associations to loyalist paramilitary groups; commitment to rigorous investigations of paramilitary killings in conformity with international standards; and a review of inquest procedures in Northern Ireland which at present appear designed to deny families access to information about possible security force involvement in the killing of a family member.
The recent change of government in the United Kingdom may open a new chapter in Northern Ireland's troubled history. Newly appointed Secretary of State Dr. Marjorie Mowlam has promised to join the people of Northern Ireland in confronting the obstacles that remain to achieving a new political settlement. To that end, the new government has promised a number of new initiatives to build confidence throughout Northern Ireland including the expansion and reinforcement of individual rights and the reform of policing. Labour's commitment to confidence-building measures, particularly its express reference to the promotion of human rights, is most welcome. Human Rights Watch seeks to capitalize on the moment by contributing directly to a fuller understanding of how the erosion of human rights and civil liberties has exacerbated the conflict in Northern Ireland.
2. RECOMMENDATIONS
Human Rights Watch makes the following recommendations to the government of the United Kingdom:
The Emergency Regime
* The emergency regime in Northern Ireland should be dismantled, beginning immediately, with the repeal of provisions of the Northern Ireland (Emergency Provisions Act) 1996 (EPA) and the Prevention of Terrorism (Temporary Provisions) Act 1989 (PTA) that unduly infringe civil liberties and are used by the police to harass and intimidate people.
* A "reasonable suspicion" of criminal activity should be required for the police to exercise the powers to stop, question and search people. The U.K. government should take immediate steps to end random street stops and searches and to ensure that all searches are conducted without degrading or harassing measures.
* The EPA's search and entry powers should be repealed. A judicial warrant should be required for house searches and for examining or seizing documents.
* The U.K. government should withdraw its derogation to article 5(3) of the European Convention on Human Rights which allows the police to detain persons arrested under the emergency legislation for up to seven days without charge.
* Detainees should be brought before a court within at least forty-eight hours of arrest.
* Castlereagh Holding Centre should be closed immediately in compliance with the recommendations of the U.N. Human Rights Committee and the U.N. Committee Against Torture. These U.N. bodies and the U.K.-appointed Independent Commissioner for the Holding Centres have found the conditions of detention in Castlereagh "unacceptable" due to tiny cells with no natural light, the absence of exercise areas, lengthy and frequent interrogations, and persistent allegations of intimidation and harassment during interrogations.
* The U.K. should immediately take the following steps to comply with the 1996 decision of the European Court of Human Rights in Murray v. United Kingdom which held that the abrogation of the right to silence in combination with restrictions on access to counsel amount to a violation of the fair trial provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR):
1) The Criminal Evidence (Northern Ireland) Order 1988, which permits a court to draw adverse inferences from a suspect's refusal to answer questions asked by police during interrogations and at trial, should be rescinded as an unjustified infringement of the privilege against self-incrimination.
2) Detainees should have prompt and regular access to counsel of their choice and detainees should be allowed to have their lawyers present during interrogations.
* The Independent Commissioner for the Holding Centres' (ICHC) proposal for the establishment of a legal advice unit at holding centers, which would modify the present legal aid system in Northern Ireland by granting legal aid only to those detainees arrested under the emergency legislation who choose a government-appointed solicitor from a unit of lawyers associated with the holding centers, should be rejected. Detainees should have prompt access to a lawyer of their choice.
* Detainees should be able to notify family members or friends immediately following arrest.
* The RUC should take immediate effective measures to prevent the physical and psychological ill-treatment of detainees. Officers who carry out such abuses should be disciplined and criminally prosecuted.
* All interrogations should be audio and video taped. Detainees' attorneys should have access to all audio and video tapes of interrogations.
* The permissive EPA standard for admitting at trial confession evidence procured by psychological pressure, deprivation, or other non-violent forms of coercion should be abolished. The standard for admittingconfession evidence should conform to the ordinary criminal law, the Police and Criminal Evidence (Northern Ireland) Order 1989 (PACE), which excludes confession evidence that was obtained by oppression or "in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made. . . in consequence thereof."
* The juryless Diplock courts, established to try political violence cases, have caused a loss of confidence in the justice system and should be abolished. The common law right to trial by jury should be restored in Northern Ireland involving, if necessary, measures to protect jurors.
Police Accountability
* The current tripartite structure responsible for policing in Northern Ireland-involving the inter-relationship of the U.K. government, the RUC, and the civilian oversight Police Authority for Northern Ireland-should be reformed to provide for greater public accountability for the RUC. The Police Authority, in practice excluded from participation in the determination of policies related to security policing and the operational aspects of policing in Northern Ireland, should be consulted on security and operational matters and its recommendations taken into consideration.
* The U.K. government should establish an independent unit to investigate complaints against police officers as recommended by Dr. Maurice Hayes, independent reviewer of the police-complaints system appointed by the U.K. government.
* All RUC officers should be required to take instruction in basic human rights guarantees which the force is obliged to respect in compliance with the U.K.'s international obligations, including the International Covenant on Civil and Political Rights (ICCPR), the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the Convention Against Torture (CAT), the Convention on the Elimination of Racial Discrimination (CERD), and international codes of conduct for law enforcement officials and the use of firearms.
Composition of the RUC
* Progressive measures should commence immediately to rectify the religious imbalance in the RUC. RUC management should develop a strategy for attracting and securing positions on the force for qualified Catholic applicants. The Police Authority for Northern Ireland should be consulted in this process and its recommendations taken into consideration.
Policing Parades and Marches
* An independent body should make determinations concerning conditions on marches and parades.
* Decisions taken by the secretary of state for Northern Ireland to ban marches should be judicially reviewable.
* The police should take measures to ensure that the right to peaceful assembly is protected to the greatest possible extent. Assemblies that pose a threat of violence should be restricted only to the extent necessary in a democratic society in the interest of public safety.
* The police should take measures to ensure that the rights to freedom of movement and privacy in the communities through which marches pass are protected. If restrictions on movement are required, they should be proportionate to the interest advanced by state authorities.
* The use of plastic bullets should be banned because they have killed fourteen people in Northern Ireland, including seven children, and severely injured hundreds of others. Alternative methods of crowd control should be developed and employed.
* Lethal force should be used in Northern Ireland only when necessary to meet an imminent threat to life and only in proportion to the actual danger presented in conformity with international standards.
* Police should be adequately trained to defuse tense situations non-violently.
* Policing of marches and parades should be conducted impartially and professionally. Officers should not use sectarian language in the courseof any police operation. Disciplinary measures should be taken against those who violate these principles.
* The death of Dermot McShane, who was killed after a British army armored personnel carrier ran over him under suspicious circumstances during the summer of 1996 disturbances, should be investigated in conformity with the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.
Punishment Shootings, Assaults, and Expulsions
* The IRA and loyalist paramilitary organizations should immediately halt punishment shootings, beatings, and expulsions.
* The RUC should perform normal policing functions in all areas of Northern Ireland. The U.K. government should provide adequate training, resources and protection for police officers carrying out such duties.
* Political parties in Northern Ireland should not support the creation of alternative "justice" systems in communities.
Allegations of Collusion
* The police force should be vetted thoroughly to identify and exclude recruits, officers, and reservists with illicit connections to paramilitary groups.
* Procedures for the handling of security information should be reassessed with a view to eliminating security breaches such as the leaking of photo montages.
* Measures should be taken by the U.K. government to afford persons under threat from paramilitary organizations the greatest possible protection, including the approval of home security grants.
* In areas where paramilitary killings have occurred or killings have been threatened, security measures should be implemented on routes into and out of those communities to ensure that they receive adequate protection from incursions by paramilitaries.
* The RUC should rigorously investigate paramilitary killings, including by using good forensic practices.
* Allegations that detectives conducting interrogations threaten to pass a detainee's security information to paramilitary organizations should be investigated rigorously. Officers found guilty of such an abuse should be punished.
* Special efforts should be made to protect lawyers who represent suspects charged under the emergency legislation from interference, harassment, intimidation, or death threats from RUC detectives. Allegations of intimidation of defense lawyers should be investigated, and offending officers should be punished.
* An independent, public inquiry into the killing of Catholic criminal defense lawyer Patrick Finucane, with powers to administer oaths and to subpoena witnesses, should be convened.
* The U.K. government should permit the discovery of information relevant to the murder of Patrick Finucane for use in Geraldine Finucane's civil action and application to the European Court of Human Rights (ECHR).
* The RUC should investigate the murder of Patrick Shanaghan, who suffered years of official harassment and threats before being killed by loyalist paramilitaries, in compliance with the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.
* The complaints of Patrick Shanaghan's mother, Mary Shanaghan, to the Independent Commission for Police Complaints (ICPC) should be investigated rigorously and appropriate action should be taken against any officers found to have acted in violation of RUC policy or of British law.
* The Coroners' Law and Rules for Northern Ireland should, at a minimum, be brought in line with the law and rules for England and Wales; for example, coroner's juries should have the power to reach a full verdict, such as "unlawful killing by unnamed person(s)."
* Persons suspected of causing the death at issue should be compelled to testify in person, but should not be required to answer questions that might incriminate them.
* Families of victims and their attorneys should have access to all the evidence to be introduced at an inquest and adequate time to prepare for their interventions.
3. POLICING NORTHERN IRELAND
The British government seems to have refused to learn the obvious lesson which the past twenty years should have taught it so clearly: if emergency powers which are open to abuse are created, the pressure of the emergency is such that these powers will be abused.1
Introduction
Policing in Northern Ireland must be set within the context of the extraordinary measures taken by the United Kingdom to address the civil unrest and paramilitary violence that have characterized "the Troubles." The security policies pursued by the U.K. have resulted in the imposition of draconian emergency legislation which invests the Royal Ulster Constabulary (RUC), the Northern Ireland police force, with expansive police powers to stop, question, search, arrest, detain, and interrogate persons suspected of "terrorist" activity. The emergency regime co-exists with criminal laws that govern so-called "normal" criminal activities, that is, crimes of a non-political nature such as ordinary burglary or domestic violence. This dual criminal justice system creates a category of offender-the "suspected terrorist"-whose human rights are subordinate to the pursuit of the state's security policies.
It is undisputed that individual human rights suffer in situations of public emergency.2 In 1991, Helsinki Watch reported that the operation of the emergency legislation in Northern Ireland had given rise to systematic human rights violations and we argued for the repeal of emergency laws which unduly infringed civil liberties and were used to harass and intimidate people.3
The paramilitary cease-fires4 gave human rights groups renewed impetus to advocate for the repeal of emergency legislation based on the near absence of political violence in Northern Ireland.5 To the dismay of many local groups and international bodies, the government did not use the cease-fire period to evaluate genuinely the need for emergency laws.6 Indeed, the cease-fire period saw not only the renewal of emergency legislation in January 1996 but a strengthening of some provisions in these laws. The Labour Party, a traditional opponent of renewal, abstained in the 1996 vote leaving the Prevention of Terrorism Act (PTA) renewal to pass with virtually no debate. The failure of the government to build confidence in the rule of law and the administration of justice by initiating a process for dismantling the emergency regime had a profoundly negative effect on confidence in the peace process.
This background chapter is not a comprehensive evaluation of the operation of the emergency legislation at this time. It reviews the emergency police powers currently in use by the RUC and notes recent jurisprudential and procedural developments with respect to these powers. Structures for police accountability in Northern Ireland and the composition of the RUC are also discussed.
The Emergency Regime in Northern Ireland
Emergency powers provide the backdrop for many of the events described in this report. There has been an intensification of security measures under the emergency legislation in Northern Ireland since the IRA bombing of British army headquarters at Thiepval barracks in Lisburn in October 1996 and the escalation of paramilitary violence beginning in December 1996. It is regrettable that, with the exception of a reduction in widespread physical abuse in detention centers, most of the conclusions and recommendations from our 1991 report with respect to the emergency legislation remain relevant. With the resumption of multi-party talks in June 1997, we urge the government of the United Kingdom to recognize that emergency laws such as those in force in Northern Ireland often serve to perpetuate political violence by creating an environment in which individual human rights are routinely violated. Further inaction on the repeal of the emergency laws will sustain the historic climate of distrust and hostility between the government of the United Kingdom and certain segments of its citizenry. This is hardly a promising context within which to advance the peace.
Emergency legislation has been in force in Northern Ireland since the partition of the island of Ireland in 1922. The emergency regime consists of a set of laws which, taken in combination, give the RUC extraordinary police powers. The Northern Ireland (Emergency Provisions) Act 1996 (EPA) applies only in Northern Ireland. This law, the latest in a series of amended versions to a 1973 act, replaced the Civil Authorities (Special Powers) Act (Northern Ireland)1922. The EPA was renewed in January 1996 for two years commencing in August 1996. The Prevention of Terrorism (Temporary Provisions) Act 1989 (PTA), first passed in 1974, applies across the United Kingdom, is renewable annually, and was extended for another year in March 1997.
In addition to specific pieces of anti-terrorism legislation, the emergency regime is fortified by regressive developments in the ordinary criminal law. Of particular concern is the Criminal Evidence (Northern Ireland) Order 1988 which effectively abrogates the common law right to silence.
The EPA and PTA are subject to periodic government-sponsored reviews which the government claims as measures of accountability for the oversight of the emergency regime. In October 1996, Lord Lloyd of Berwick issued a two volume Inquiry into Legislation Against Terrorism. The government's terms of reference for the inquiry instructed Lord Lloyd to "consider the future need for specific counter-terrorism legislation in the United Kingdom if the cessation of terrorismconnected with the affairs of Northern Ireland leads to a lasting peace."7 Although Lord Lloyd's recommendations included a number of positive steps toward dismantling the emergency regime as it existed during the course of his inquiry, with the resumption of IRA violence in February 1996, the government made no effort to implement any of the recommendations. Lord Lloyd himself stated that his recommendations "seem somewhat inapposite" in light of the end of the IRA cease-fire.8 Unfortunately, Lord Lloyd's inquiry made the same presumption as past government-sponsored reviews-that emergency laws are necessary until peace is achieved. Human Rights Watch/Helsinki believes that the dismantling of the emergency regime now can contribute directly to achieving that peace.
Police Powers Under the Emergency Regime
Special powers enjoyed by the RUC under the emergency regime in Northern Ireland include:9
* Stop, Question and Search: Under section 25 of the EPA, the police may stop any person or vehicle "for so long as is necessary" to ascertain "that person's identity and movements" and what a person may know "concerning any recent explosion or any other recent incident endangering life or concerning any person killed or injured in any such explosion or incident." There is no requirement of reasonable suspicion. Under section 20(6)(a), an officer may search a person who has been stopped to determine if the person is carrying a weapon or transmitter.
* House Searches: Section 20 of the EPA allows the police to enter and search residences without a judicial warrant if they have reasonable grounds to believe that explosives, weapons or other terrorist contraband is present. Occupants of a house being searched may be required to stay in one part of the house for up to four hours with an extension of another four hours upon the recommendation of a police officer of the rank ofsuperintendent or above. This practice can amount to a form of house arrest.
* Arrest Powers: The arrest powers under the EPA are rarely used because the police enjoy broader authority to arrest and wider investigatory powers under the PTA. PTA section 14 permits a police officer to arrest without a warrant a person whom she or he has reasonable grounds to suspect of being guilty of an offense under certain provisions of the PTA which prohibit membership in or support of proscribed organizations or who is or has been concerned in the commission, preparation or instigation of acts of terrorism.
These powers allow the police to stop, question, and search people without any suspicion of criminal activity. Moreover, given the vague definition of terrorism ("the use of violence for political ends, including any use of violence for the purpose of putting the public or any section of the public in fear"), police have the authority to arrest on the most limited suspicion, information or intelligence. The RUC is invested with special powers to detain and interrogate "suspects" under the emergency regime. These powers have been subject to criticism by various human rights bodies and in some important cases have been found to be in violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The right to silence, a cornerstone of the English common law, has been seriously eroded by developments in the ordinary criminal law in the United Kingdom. Moreover, persons charged under the EPA or PTA are tried in Diplock courts by a single judge sitting without a jury.10 The civil liberties and human rights of people in Northern Ireland have been compromised severely in the following areas under the emergency regime:
* Extended Police Custody: Section 14 of the PTA permits a person who has been arrested to be detained for up to forty-eight hours. This initial detention period can be extended for up to five days upon authorizationby the secretary of state. Thus, a detainee can be held for up to seven days without charge. In a 1988 case, the European Court of Human Rights held that a detention under the PTA for four days and six hours violated the fair trial provisions of article 5(3) of the ECHR.11 In response, the United Kingdom entered a derogation under article 4 of the International Covenant on Civil and Political Rights (ICCPR) and article 15 of the ECHR in order to retain the seven day detention power. These articles permit a state signatory to suspend certain treaty obligations during an emergency which poses a "threat to the life of the nation."
* Access to Counsel: Section 47 of the EPA provides a detainee with the right to counsel if arrested under emergency provisions. However, access may be delayed for the first forty-eight hours of detention upon authorization by a senior police officer. Lawyers have not been permitted by the RUC to be present during interrogations.12 In January 1996, a detainee, Christopher Hanley, sought judicial review of this policy. Before the case was heard, the RUC changed its policy stating that every request for counsel to be present during interrogations would be considered on the particular merits of each application. Hanley's request was reviewed anew and denied.13 It has been reported that the RUC routinely denies applications for lawyer access to interrogations.14
* Notification of Arrest: EPA section 46 provides that persons detained under the emergency laws have the right to have a friend or relative informed of his or her arrest. However, notification may be delayed for up to forty-eight hours upon the authorization of an RUC superintendent. Members of the U.N. Committee Against Torture have expressed concern that deferral of notification of arrest coupled with deferral of access to counsel in the first forty-eight hours amounts to detention "incommunicado, thereby creating conditions which might lead to abuses of authority by agents of the State."15
* Right to Silence: The Criminal Evidence (Northern Ireland) Order 1988 has severely eroded the common law right to silence by permitting a judge to draw adverse inferences from a detainee's silence when he or she refuses to account for his or her presence at a particular place or to explain certain forensic evidence. Adverse inferences can also be drawn when a defendant, having been called to give evidence at trial, refuses to do so, or when a defendant offers for the first time at trial an explanation which a judge determines should have been offered during interrogation. In 1996, the European Court of Human Rights held in Murray v. United Kingdom that the power to draw adverse inferences from silence, coupled with the deferral of access to counsel in Northern Ireland, violated fair trial provisions of article 6 of the European Convention.16 The government of the United Kingdom currently is "considering" the implications of the decision.17
The physical conditions under which detainees are held and interrogated under the emergency legislation further emphasize the potential for police abuse. Moreover, standards for the admissibility of confession evidence under the EPA afford police detectives an extraordinary measure of protection against allegations of abuse during interrogations:
* Holding Centers: Suspects are kept in "holding centers," detention facilities for questioning persons arrested under the emergency laws. Three holding centers are currently in use in Northern Ireland: Castlereagh in Belfast, Gough Barracks in Armagh, and Strand Road in London/Derry.18 In 1995, the U.N. Human Rights Committee recommended the closing of Castlereagh as a "matter of urgency" due to "unacceptable" conditions of detention, including tiny cells with no opening to natural light, the absence of exercise areas, lengthy and frequent interrogations, and persistent allegations of intimidation and harassment during interrogations.19 The U.N. Committee Against Torture also recently expressed concern that interrogations at Castlereagh may breach the U.N. Convention Against Torture.20 Notably, the government-appointed Independent Commissioner for the Holding Centres (ICHC), has called for the immediate closure of Castlereagh stating: "Each day that passes, the Government is in breach of its obligations to comply with the minimum standards for prisoners."21
* Monitoring Interrogations: Currently, interrogations at holding centers are monitored by a closed circuit television network supervised by RUC officers who are responsible for viewing a bank of screens simultaneously.22 There is no recording of any sort.23 The Independent Commissioner for the Holding Centres, the Standing Advisory Commission on Human Rights (SACHR),24 and numerous human rights organizations have called for the audio and video recording of all interrogations.25 In January 1996, the secretary of state introduced plans for the silent video recording of interrogations.26 To date, silent video recording has not been implemented in any of the holding centers. Expressing concern about persistent allegations of verbal abuse, intimidation and harassment by RUC detectives during interrogation, the Independent Commissioner for the Holding Centres has stated that silent video recording is insufficient because "[w]ithout accompanying words,the silent picture defies any possibility of drawing meaningful conclusions about what is being said by way of question and answer."27
* Confessions: Under section 12 of the EPA, confessions are admissible unless the defense presents prima facie evidence that the accused was subjected to "torture, to inhuman or degrading treatment, or to any violence or threat of violence (whether or not amounting to torture), in order to induce [an accused] to make the statement." The prosecution must disprove this defense beyond a reasonable doubt. The Lawyers Committee for Human Rights has argued that "this standard means that physical deprivation or psychological pressure short of outright violence is permissible. It also means that nothing prevents the introduction of involuntary confessions. This test, moreover, remains in tandem with the obvious problems a defendant faces in obtaining evidence of coercion in a setting where the only others present are the ones who would have the opportunity and the incentive to coerce a confession in the first place."28 In the absence of audio and video recording, coupled with the denial of counsel in interrogations, the ability of a detainee to obtain prima facie evidence of violent coercion is seriously undermined.
* Legal Advice Unit: Under the current legal aid scheme in Northern Ireland, detainees choose their own attorneys who may apply for legal aid fees to fund the representation. In 1994, the Independent Commissioner for the Holding Centres proposed the establishment of a legal advice unit managed and operated by the Law Society of Northern Ireland and funded by the government.29 Detainees were to have immediate access to counsel, but the government would fund such counsel only if the detainee chose representation from the legal advice unit of lawyers associated with the holding center. The Independent Commissioner argued that an on-site unit would prevent undue delays in access to counsel. Opponents arguedinter alia that the right to counsel was two-fold under international standards: prompt access coupled with counsel of one's choice.30 The Law Society firmly rejected the Independent Commissioner's proposal.31 Despite assurances that the proposal had been scrapped,32 the Independent Commissioner's most recent report gives Human Rights Watch/Helsinki cause for serious concern. In response to the European Court of Human Rights decision in Murray v. U.K., the Independent Commissioner argues that an on-site lawyer could immediately brief a detainee on the implications of remaining silent: "any other solution to meet the situation posed by Murray would be less than satisfactory."33 Currently, the Independent Commissioner is encouraging the Law Society to "review its hardened position...and contemplate establishing a pilot project" at Gough Barracks.34 Human Rights Watch/Helsinki remains in strong opposition to the proposal because it is a regressive measure which will further erode confidence in Northern Ireland's legal system. In fact, no solution to the problem posed by Murray would be satisfactory without the full restoration of the common law right to silence or the implementation of a policy delaying the interrogation of a detainee until she or he has had access to counsel.
Police Accountability
There is a tripartite administrative structure responsible for policing in Northern Ireland which rests on the inter-relationship of the secretary of state, the Police Authority for Northern Ireland (PANI),35 and the chief constable of the RUC. Police complaints procedures involve primarily the RUC and the Independent Commission for Police Complaints (ICPC).36 Since 1994, there has been a series of reviews, consultations and evaluations related to the reform of policing in Northern Ireland and the need for greater public accountability.37 In light of issues discussed in this report-severe international criticism of the substance and operation of the emergency regime, the serious widespread violence that accompanied the summer 1996 marching season, the marked rise inpunishment assaults, and ongoing allegations of security force collusion in loyalist paramilitary activities-the need for police reform is a matter urgency.
Human Rights Watch/Helsinki is particularly concerned that under the current structure, there is little accountability for the decisions and conduct of the RUC. A sample of the problems we encountered and discussed in meetings with the government, the Police Authority, the Independent Commission for Police Complaints, and the RUC includes:
* Independence: While the Police Authority and the Independent Commission for Police Complaints claim that they are independent bodies separate from the government and the police, all their members are appointed by the Northern Ireland secretary of state. The Police Authority particularly is widely perceived to be merely an extension of the secretary of state's role in policing thus severely undermining the principle of independent civilian oversight.
* Accountability: There is no formal requirement that the RUC answer to the government. Although the chief constable is supposed to be accountable to the Police Authority, there has been considerable tension between the RUC and the authority with respect to the chief constable's accountability, especially since the Police Authority has no say in police operational matters. It appears also that responsibility for security policing is exclusively within the domain of the secretary of state and the RUC. The Police Authority de facto does not participate in the consideration of policing issues related to special police powers under the emergency legislation. Thus, security policies and police operations fail to take into account the impact of the emergency regime-or any operational decision such as those taken by the police during the 1996 marching season-on the community. According to Police Authority member Professor Herbie Wallace, the authority has no input when it comes to the "operational independence" of the RUC but "we can ask for an explanation afterward."38
* Complaints: Currently, complaints against the police can be lodged either directly with the RUC or through the Independent Commission for Police Complaints. The commission cannot initiate investigations but can supervise the investigation of complaints referred to it by the RUC, thesecretary of state, and the Police Authority. The RUC is responsible for conducting the investigation. The problem of the police investigating the police is self-evident. In 1995, the complaints commission considered 1,373 cases for disciplinary action, involving 2,385 separate allegations. Of the total number of cases, 1,061 were referred by the police to the director of public prosecutions (DPP). The DPP directed fourteen criminal charges. In only sixteen cases, involving twenty-two separate charges, were formal disciplinary charges leveled against offending officers in 1995. Of the twenty-two charges, only five were substantiated.39 Of 234 allegations against police officers by persons arrested under the emergency legislation, no officer was found guilty of a breach of discipline.40 In January 1997, Dr. Maurice Hayes, the government-appointed independent reviewer of the police complaints system, recommended the appointment of a police ombudsman for Northern Ireland who would receive all complaints against police officers first and decide how such complaints would be handled, including the investigation of complaints. In cases of deaths in police custody or under pursuit, allegations of serious assault by a police officer or other serious abuse of power, the ombudsman would be required to conduct an independent investigation.41 Following the Labour Party's electoral victory in May 1997, these recommendations must now be considered by the new secretary of state for Northern Ireland, Dr. Marjorie Mowlam.
Composition of the RUC
Police accountability within some of the communities served by the RUC is severely hampered by the composition of the force. According to the 1991 census, the population of Northern Ireland is 1,577,836. Approximately 50 percent of the population is Protestant and 38 percent is Catholic.42
These proportions are not reflected in the composition of the RUC. According to RUC statistics for 1996, 88.67 percent of regular officers and 88.12 percent of full-time reserve officers are Protestant. Catholic officers comprise 8.16 percent of regular officers and 6.49 percent of full-time reserve officers. Part-time reserve officers are 93.62 percent Protestant and 5.02 percent Catholic respectively. These percentages have not varied by more than one percent in any category since 1991.43
Statistics for recruits are marginally better. In 1996, 76.11 percent of regular recruits and 73.08 percent of full-time reserve recruits were Protestant. Catholics represented 15.93 percent of regular recruits and 15.38 percent of full-time reserve recruits. The percentage of Catholic recruits rose 4 percent from 1995 to 1996 in the regular force and more than doubled from 1995 to 1996 in the full-time reserve force.44 There has been a 9.3 percent increase in Catholic regular recruits from 1994 to 1996.45 There was no recruiting undertaken in 1996 in the part-time reserve forces, but Catholic recruits were 9 and 10 percent in 1994 and 1995 respectively.46
It is also instructive to review the actual numbers of Catholic applicants offered positions on the police force. For example, in 1992, Catholics comprised 231 of the 2,317 applicants for positions. The RUC accepted a total of 326 applicants. Only twenty-six of those accepted were Catholic. In 1993, eighty-six of 733 applicants were Catholic. Out of sixty-five applicants accepted, only three were Catholic. There were 5,999 applicants-954 of them Catholic-in 1994, a dramatic increase over 1993. Of 187 acceptances, twenty-six were Catholicapplicants. In 1995, 906 out of 4,458 applicants were Catholic. Of 223 acceptances, thirty-five were Catholic.47
The imbalance in religious representation on the force has been acknowledged by the Police Authority and the RUC. On October 18, 1994, the authority requested that the RUC chief constable submit a report on the measures being taken to redress religious imbalance in the force. It then recommended that the RUC establish a "working party" to consider how best to progress the aim of achieving religious balance.48 RUC Chief Constable Ronnie Flanagan told Human Rights Watch/Helsinki that republican paramilitary threats were "a major stumbling block" to recruiting Catholics but that the RUC acknowledged the problem:
There is a major threat from the IRA to new recruits and their families. There is also a class dimension. It is difficult to recruit from West Belfast. However, during the cessation of violence, applications from Catholics leapt from 12 percent to 22 percent. After the end of the cease-fire, it went back down to 16 percent. But we realize that it's not enough to say, "Oh, it's a threat." We must take positive action to encourage under-represented groups to apply.49
A religious imbalance of the proportions represented above-in the context of the Northern Ireland conflict-presents a profound challenge to RUC claims of impartiality. Human Rights Watch/Helsinki urges the government of the United Kingdom, the RUC and the Police Authority to take immediate steps to redress the imbalance in order to demonstrate that the RUC is representative of the entire community.
4. THE POLICING OF PARADES AND MARCHES
Introduction
The violence that erupted in the summer of 1996 marked the worst episode of civil unrest in Northern Ireland since the hunger strikes of the early 1980s.50 In July 1996 two men were killed, hundreds of people suffered physical injuries, access to the international airport was severely curtailed, civilian roadblocks seriously impeded movement, and damage to property ran into millions of pounds sterling. By all accounts, there was a serious breakdown in the rule of law resulting in grave consequences for the administration of justice in Northern Ireland.
The apparent context for these disturbances was the ongoing dispute between loyalist fraternal orders and local communities organized in strong opposition to loyalist marches through predominantly nationalist areas.51 The fraternal orders portray their processions as traditional marches giving expression to their religious and cultural heritage, and argue that their right to free assemblyis unduly infringed by nationalist opposition.52 They also claim that many march routes originally were populated predominantly by unionists53 and that shifting demographics do not make the routes any less traditional.54 Nationalist groups characterize the marches as sectarian, providing the traditionally privileged unionists with a forum in which to re-enact historic triumphs of Protestants over Catholics, often to the point of inciting hatred. They also argue that the heavy police presence accompanying the marches, characterized by intimidating operational tactics, disproportionately disrupts the life of nationalist communities.55 Attempts at accommodation between residents and marchers routinely failed in the run-up to the 1996 marching season as the loyal orders asserted their "right to march" where and when they wanted and many residents' groups demanded a "right to consent" to marches proceeding through their communities.
To cast the summer's events simply as a matter of intercommunal conflict, however, fails to address the responsibility of state authorities in Northern Ireland to maintain the rule of law, thus assuring both communities equal protection oftheir rights. The marching season of 1996 must be placed in a broader context which recognizes and confronts the grievous failure of the police, state agencies invested with responsibility for the oversight of policing, and the government of the United Kingdom, to prevent the collapse of law and order. Despite RUC claims of being caught in the middle of disputes between nationalists and unionists over the "right to march,"56 a series of police actions-sanctioned by the government- exacerbated the conflict resulting in the effective submission of state authorities to the threat of unionist violence, the use of excessive force against peaceful demonstrators, the indiscriminate use of life-threatening plastic bullets57 against both unionist and nationalist protesters, and a general failure to halt illegal activities such as the blockade of the airport and the establishment of illegal roadblocks. State authorities are responsible for the summer's events by acts of omission and acts of commission.
Police actions during the summer of 1996 led to a serious crisis in public confidence in the police force. The Committee on the Administration of Justice commented that these actions "have all contributed to significant sections of Northern Ireland society questioning whether the state and its agencies are able or willing to give concrete expression to the rule of law."58 The Standing Advisory Commission on Human Rights (SACHR) called for an independent inquiry into the summer's events, stating publicly:
The Commission considers that the failure to maintain the supremacy of the rule of law during this period has resulted inwidespread abuse of human rights. The Commission is firmly of the view that the failure to set up a comprehensive inquiry will make it almost impossible to restore the confidence in and acceptance of the institutions of the State which are essential for a just and stable society.59
The government of the United Kingdom failed to establish an independent inquiry. In late July 1996, the secretary of state for Northern Ireland, Sir Patrick Mayhew, established a general review body to evaluate the "current arrangements for handling public processions and open-air public meetings and associated public order issues in Northern Ireland."60 Mayhew also requested that the annual review by Her Majesty's Inspectorate of Constabulary (HMIC) include an evaluation of plastic bullet use during the summer of 1996.61 While the recommendations resulting from these inquiries failed to address adequately the core elements responsible for the breakdown in the rule of law, the appointments of HMIC and the review body clearly signaled the government's recognition that the summer's events led to a level of violence which threatened to destabilize efforts to bring peace to Northern Ireland. It is Human Rights Watch/Helsinki's hope that the government will take responsibility for its own role, and the role of state policing agencies, in creating the environment within which last summer's violence occurred.
Public Order Legislation in Northern Ireland
The domestic law governing public processions in Northern Ireland is the Public Order (Northern Ireland) Order 1987.62 The order sets forth requirements for those wishing to hold a parade or march and enumerates powers granted to the police and the government with respect to public processions. This discussion focuses on specific provisions of the legislation in force in 1996 and thus governingthe summer 1996 marching season. The domestic legal regime governing marches is reviewed and critiqued here to facilitate an understanding of the authority for policing decisions taken with respect to the events described in this report.
Article 3 of the order requires organizers of a public procession to give the police written notice of the date, time, route and number of participants within seven days of the event. If seven days notice is "not reasonably practicable," notice can be given at a later date thus allowing for spontaneous demonstrations and counter-demonstrations.63
The RUC retains significant decision-making powers under the legislation, including the power to impose conditions such as rerouting, if public order is threatened. Article 4 states:
4.-(1) If a senior police officer, having regard to the time or place at which and the circumstances in which any public procession is being held or is intended to be held and to its route or proposed route, reasonably believes that-
(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community; or
(b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do,
he may give directions imposing on the persons organising or taking part in the procession such conditions as appear to him necessary to prevent such disorder, damage, disruption or intimidation, including conditions as to the route of the procession or prohibiting it from entering any place specified in the directions.
If a senior police officer reasonably believes that (a) or (b) above might occur, under article 4(2) he may also
give directions imposing on the persons organising or taking part in the meeting such conditions as to the place at which themeeting may be (or continue to be) held, its maximum duration, or the maximum number of persons who may constitute it, as appear necessary to him to prevent such disorder, damage, disruption or intimidation.
Police powers are not limited to those enumerated. An RUC senior officer can impose any "such conditions as appear to him necessary" to prevent disorder. Theoretically, the imposition of conditions by the police (or lack thereof) can be challenged by march organizers or residents through the process of judicial review. The courts in Northern Ireland, however, have proven reluctant to interfere with police operational decisions unless the senior officer has ignored statutory criteria or has reached what the court determines is a demonstrably unreasonable decision. The judiciary appears to have adopted a uniform position to remain uninvolved in the phenomenon of contentious marches, and it is rare for an application for judicial review related to marches or parades to succeed.64
The secretary of state for Northern Ireland, in consultation with the RUC chief constable and, "wherever practicable" with the Police Authority, alone has the power to ban a march or parade. The secretary of state may make an order prohibiting a public procession if conditions imposed by the police under article 4 are insufficient to prevent "disorder, damage, disruption or intimidation;" or
5.-(1) (b) the holding in any area or place of any public procession or any open-air public meeting is likely to cause-
(I) serious public disorder;
(ii) serious disruption to the life of the community; or
(iii) undue demands to be made upon the police or military forces.
The power to ban is absolute and not subject to judicial review. According to article 5(3), the secretary of state's "opinion and the information upon which that opinion was formed shall be conclusive evidence of the matters stated therein." The secretary of state's decision to ban is thus not reviewable even if his facts are wrong or if the "outcomes he envisages are unlikely to transpire."65
A series of public order offenses are created under articles 9 to 22, including the intentional or likely stirring up of hatred or arousal of fear through words or behavior or the publication or distribution of threatening or abusive written material. Additional offenses include riotous or disorderly behavior, provocative conduct, obstructive sitting, and carrying an offensive weapon in a public place.
The Public Order (Northern Ireland) Order has been criticized primarily for the dual role in which it places the police with respect to contentious parades and marches. The police are responsible not only for making decisions about the conditions under which marches proceed, they are responsible also for enforcing their decisions. The RUC also has been criticized for unreasonable delay in making decisions on rerouting or the imposition of other conditions on marches. Critics argue:
Waiting until the last minute before announcing whether a parade is to go ahead or not inevitably leads to an increase intension and confusion both amongst marchers and those opposed to the march. It often appears that the police tactic is to wait until the last minute to determine who appears likely to cause the most disruption if the decision goes against them-in other words, who can assemble the largest number of supporters. This is clearly not an appropriate way to exercise the powers afforded to the police in the Public Order Order.66
The exercise of police powers under the order should not be a simple consideration of which side can demonstrate the greater show of force. According to this calculus, one group threatens the police with massive public disorder if it does not get a favorable decision. The real possibility in Northern Ireland of carrying out this threat creates an environment in which mob rule is rewarded with a decision by the RUC favorable to the threatening group. Such decisions are then justified by the police as taken in the interest of maintaining public order, preserving life and protecting property. The RUC tactic of delaying decisions to the last moment contributes to creating the very conditions of threat it claims to be avoiding. This "wait and see" strategy makes the RUC beholden to whichever group strategically uses the time allotted to gather the numbers necessary to create a credible threat. RUC delays-wittingly or unwittingly-create the conditions which allow the threat of one group to become a decisive factor in its own decision-making process.
The circumstances of life in Northern Ireland, characterized by the divisions between the nationalist and unionist communities, require more active consideration of the other relevant criteria provided by the public order legislation, such as serious disruption to the life of the community. The RUC's single focus on serious public disorder, in the context of the conflict in Northern Ireland, is a recipe for hardening community divisions thus making the police a partner in the perpetuation of violence.
The Standoff at Drumcree: July 7 to 11, 1996
On Saturday, July 6, 1996, the RUC notified the Orange Order that a march scheduled to proceed from Drumcree Church the following day would be rerouted away from the Garvaghy Road, a predominantly Catholic nationalist areain Portadown.67 This decision was taken after attempts at accommodation between the residents of Garvaghy Road and the Portadown District Lodge of the Orange Order failed. RUC management clearly perceived a major threat of violence if the march was not rerouted.68
On Sunday, July 7, 1996, Orangemen began to converge on Drumcree and commenced a stand-off with the police, who by then had called in backup support from the British army. The Orangemen demanded to march down the Garvaghy Road and threatened to stand against the police until their demand was met. By the end of the day, an estimated 5,000 Orangemen and unionists in support of the Orange Order had gathered at Drumcree. A report by three Labour Party TDs69from the Republic of Ireland who served as observers at Drumcree described the scene:
On Sunday morning [July 7] the area around the Church of Ireland Church at Drumcree and its Roman Catholic graveyard resembled a battlefield. Razor wire was stretched along the fields and meadows; armoured vehicles positioned on the bridge blocked the road leading from Drumcree Church to the Garvaghy Road; RUC in full riot gear and fully armed were deployed behind their vehicles and in the surrounding fields and laneways. The army was deployed further back in a second line of defense. It was a strong position.70
The stand-off lasted for four and one-half days. In the period from July 7 to 11, 1996, unionist protests against the police decision to reroute the march broke out across Northern Ireland resulting in a serious crisis in public order. Many of these protest actions were illegal and some were violent:
* Unionist protesters established and manned numerous roadblocks, severely impeding movement across Northern Ireland. Protesters blocked access to roads leading to Belfast's international airport effectively shutting it down.71
* An armored vehicle was stolen by unionists and conveyed to Drumcree where it remained throughout the stand-off. A number of vehicles were hijacked.72
* The Housing Executive reported numerous applications for emergency housing from Catholics forced to evacuate their homes under threat of violence from unionist protesters.73
* Property damage, losses to businesses, and a virtual halt in tourism resulted in the loss of tens of millions pounds sterling.74
* On July 11, 1996, the RUC reported 758 attacks on the police with sixty-five officers injured.75
Although the overwhelming majority of plastic bullets fired in July 1996 were directed at the nationalist community (see section below titled "Plastic Bullets"), some unionists complained about indiscriminate and excessive plastic baton round use during the Drumcree stand-off:
* Yvonne Robinson, a resident of Portadown's unionist Brownstone housing estate, called for a ban on plastic bullets after her nineteen-year-old, mentally disabled son, Daniel, was hit in the chest and critically wounded when disturbances erupted between police and unionist protesters at Drumcree on July 8, 1996. Daniel Robinson's spleen was ruptured and he suffered lung damage. Mrs. Robinson noted that, despite the RUC's mandate to "aim low," Daniel had been shot in the chest.76
* John Taylor, deputy leader of the Ulster Unionist Party (UUP), charged the RUC with shooting plastic bullets "at random." He stated, "Some members of the RUC are quite trigger-happy. I'm sure RUC officers have been attacked. I'm not sure any have been attacked at Drumcree. The RUC are not applying the principle of the minimum use of force."77
At the beginning of the stand-off, 2,000 police officers were deployed as reinforcements to Portadown. Despite the use of plastic baton rounds in some instances, the massive police and army presence, and the quasi-military geography of the police operation at Drumcree itself, the RUC appeared reluctant to intervene to halt many of the illegal activities which allowed the mass of protesters at Drumcree to grow to an estimated 10,000 by the end of the week. Eamon Stack of the Garvaghy Road Residents Coalition told Human Rights Watch/Helsinki:
Drumcree was an illegal demonstration. But the RUC never tried to keep people from coming. There were attacks on the RUC. The rest of the town was completely under the control of the Orange Order. Orangemen were allowed to walk about freely. They drove in cars with Union Jacks. The Orange men actually gave policemen's names out over the loudspeakers. The people here saw no action by the RUC to prevent the illegal activity that was going on. When the RUC left, they had to go through roadblocks manned by loyalists. That digger had to be driven past the RUC and the British army and was on display at Drumcree. At no stage did they attempt to take that digger. It was an artificial stand-off.78
According to Éamon Ó Cuív, a parliamentary observer from the Republic of Ireland, the police made no attempt to cease the flow of unionist protesters into Portadown and the area around Drumcree Church:
There's no doubt in my mind that there was no effort to stop people from coming. On Sunday evening, Orangemen were directing traffic in and out of Portadown. They were streaming in on Sunday evening. We saw the cars. And there was no attempt to stop them.79
Other members of parliament from the Republic of Ireland who served as observers corroborated this account and charged that the RUC had effectively ceded control of Portadown to the Orange Order:
That night [Sunday, July 7] as the Labour Group drove out the Moy Road heading for Armagh they encountered no RUC roadblocks. However, they did encounter the Orange Order patrolling the Moy Road and directing traffic in and out of Portadown...[T]he Orange Order controlled access to Drumcree. The RUC were deployed strategically to prevent the Orange Parade through Garvaghy Road but were not deployed to monitor or restrict the movement of the Orange Order into or around Drumcree.80
The apparent reluctance of RUC officers to intervene and halt illegal protest activities was widely perceived to be a result of the religious composition of the force and the affiliations of its officers, as well as the fear of reprisals if the police interfered.81 According to RUC statistics, roughly 90 percent of its officers are Protestant.82 Furthermore, it has been reported that a large number of RUC officers hold membership in the Orange Order or one of the other fraternal orders.83 In January 1996 an officer appealed a decision by the RUC to punish him for marching with the Orange Order and the Apprentice Boys. The court held that the RUC could place certain restrictions on the private activities of its officers in orderthat the RUC be viewed as even-handed.84 RUC Chief Constable Ronnie Flanagan told Human Rights Watch/Helsinki:
We concentrate on officers' behavior. We do not look at membership per se. The RUC is currently considering a policy of disclosure where officers declare their memberships openly. But there is a fear of chilling; every officer has freedom of association.85
As Orangemen and their supporters continued to engage in illegal and often violent protest activities, charges were leveled against the leadership of the Orange Order and the Ulster Unionist Party, the entire leadership of which holds membership in the Orange Order, for encouraging their members to engage in illegal activities. The Rev. Martin Smyth, then Grand Master of the Orange Order and Ulster Unionist MP for south Belfast, told Human Rights Watch/Helsinki:
I was accused of calling people out in violent protest. My comments were taken out of context. I was asked at a press conference, "Are you not asking people to break the law?" Throughout history people have had to break the law when a law was unjust; people must be willing to pay the penalty ... Any roadblock is illegal but it's been used as a means of protest by strikers. A permanent blockade would be removed by police immediately. Regularly where strikers use it as a means ofprotest, the police would reroute. Roadblocks were always used as a protest mechanism.86
The final report of the Independent Review of Parades and Marches, invested with responsibility for evaluating the handling of marches in the aftermath of Drumcree, concluded that many of the roadblocks established by the Orange Order and its supporters "were of a more permanent nature with some lasting for days" and that blocking access to roads was accompanied by "the hijacking and destruction of vehicles, the felling of trees, and other criminal acts, including damage to property."87 Rev. Smyth's claim that the RUC would be responsible for rerouting traffic away from a "protest" roadblock is untenable. The Orange Order itself put out a call to its members to "stretch the police as much as possible."88 It is safe to assume that many of the roadblocks were established in response to this call.
In the midst of the stand-off at Drumcree, Michael McGoldrick, a thirty-one-year-old Catholic taxi driver, was killed near Lurgan in County Portadown. It was reported that an Ulster Volunteer Force (UVF) leader in the Portadown/Lurgan area active in organizing unionist protests against the RUC decision to reroute the Orange Order march was responsible for the murder.89 Although no loyalist paramilitary group actually claimed responsibility for the murder, the killing put the status of the loyalist paramilitary cease-fire in doubt.90 To date, no one has been charged with Michael McGoldrick's murder.
On Thursday, July 11, then RUC Chief Constable Hugh Annesley reversed the original decision to reroute the Orange Order march away from theGarvaghy Road. According to press reports, Annesley justified the reversal "by effectively admitting that loyalist violence and the sheer weight of numbers they could command had paid off and the real danger of loss of life had become too high."91 According to Ronnie Flanagan, current RUC chief constable and one of the RUC's primary strategists at Drumcree:
By Wednesday, things were getting more dangerous. What options were open to us? We considered a range of options. Had we set-up roadblocks, people would have simply taken to the fields and more fronts would have been created. What would have happened if these numbers overran the police lines? There would have been a shift from policing to military language: "We'd have had to shoot them." There was a very sinister loyalist paramilitary influence. There was a real, imminent, pressing threat to life which was my first priority. Heartbreaking though it was, the question became how to get the thing [the march] down as quickly as possible.92
These statements by RUC management strongly suggest that the police succumbed to the Orange Order and its supporters under threat of violence. Sir Patrick Mayhew insisted there had been no political interference in Annesley's reversal and allowing the march to proceed was solely an operational decision.93 John Steele of the Northern Ireland Office told Human Rights Watch/Helsinki:
There was no government interference in the decision at Drumcree. Lots of people tell me that they can't believe that because it was such a political moment. The decision wasproperly the chief constable's and the secretary of state was kept informed.94
According to Ronnie Flanagan, however, "Northern Ireland was at as dangerous a position as at any time in thirty years."95 It is, therefore, an extraordinary admission by the government of the United Kingdom that it opted out of full participation in any decision involving a crisis in public order of this magnitude. The public order legislation in force in Northern Ireland specifically contemplates situations in which the government, that is, the secretary of state, would be responsible for imposing a political-as opposed to an operational- decision in an attempt to resolve a public order crisis. The government's assertion that it remained uninvolved in the Drumcree reversal despite RUC claims that Northern Ireland was virtually on the brink of civil war begs the question of how extreme a situation must become before the government fulfills its mandate under the Public Order order, particularly when the protection of the minority population of Northern Ireland is at issue.
The Garvaghy Road Residents Coalition had been in contact with both the police and representatives of the Northern Ireland Office during the stand-off.96 Despite this contact, the decision to allow the Orange Order down the Garvaghy Road was not communicated formally to the residents' group. Brendan MacCionnaith told Human Rights Watch/Helsinki that at 1:00 or 2:00 a.m. on Thursday morning, all the land rovers turned and pointed toward nationalist areas and there was a major redeployment of RUC vehicles. On Thursday morning, July 11, when the Residents Coalition realized the march would proceed, its leadership called for a peaceful demonstration on the Garvaghy Road. Residents sat in the middle of the road and linked arms. According to MacCionnaith:
The police came in in full riot gear with shields and batons drawn and began pulling people off the road. It was clear fromthe way they were dressed that the RUC was going to use force. The RUC made no attempt to inform the crowd. The road was cleared of 200-300 people in ten minutes. Some people were trying to get off the road and RUC officers were pushing them back on. There was a wall around the protesters.97
Human Rights Watch/Helsinki spoke with dozens of residents about police response to the protest on the Garvaghy Road. According to residents, the first phase of the implementation of the RUC decision to get the march down "as quickly as possible" involved removing protesters from the road. The residents fully expected to be cleared from the road but claim that the RUC unnecessarily batoned people, brutally assaulted a number of protesters, and used throughout the operation sectarian language-slurs based on the presumed Catholicism and nationalist views of the demonstrators:98
Joe Duffy: The land rovers were starting to come down the road and form up. I went up to see what was happening and I was hit with a police baton on top of my head. I was stunned blind and pulled behind a land rover and charged with assaulting a police officer. It was an unprovoked attack.
Rosaleen McNally, age fifty-six: I said to a lady that the first word to move from the RUC and I would be away. I was scared stiff. All of a sudden all hell broke loose as the police closed in and pushed me from behind with a large shield. The police didn't say a word. I tried to get off the road and on to the footpath [sidewalk] as I panicked but the police kept pushing. I felt a blow to my head from behind and I fell to the ground. My legs were caught by the police walking over me and I was pushed to the right as the police hit out at the people in the next row. I lay there unable to move and put my left arm up to try and protect my head and face and got another blow to my upraised arm. All I could see were RUC boots.
Eileen McNally, age thirty-three: I saw Joe Duffy approaching the police. As he began to talk, a policeman drew his baton and began to beat him around the head. As Joe lifted his hands toward his head, the officer continued to hit him while two other officers grabbed him by his arms. I begged another police officer to stop them but he ignored me; he didn't say anything. I couldn't watch it any longer. As I walked away, I met my mother. The police suddenly surrounded everyone. There was a lot of confusion. A line of police formed where I was standing. They then surged into the crowd hitting with their shields. With the force, my mother, my self and Claire Griffin fell to the ground. We were trapped. I got hit on my head, I don't know where it came from; from behind. As I tried to protect my mother, I got hit on my right arm. We were desperately trying to get to our feet, we were terrified. The police were trampling over us to get to people at the front.
John McCook, age forty-four: I was sitting on the road. I was approached by four policemen who proceeded to kick, punch and pull at me. One officer grabbed me by the nose from behind with a knee in my back. One said, "Break the fucker's arm!" because I wouldn't let go of the person next to me. They beat at me with batons. I didn't offer physical resistance. They broke the link with the person on one side then it was easy enough to physically lift me off the road. The assault continued as I was carried off the road. The policemen carrying me would stop intermittently to give me another kick or punch. I was then thrown onto the road in front of Churchill Park and kicked and punched further. Why didn't they read the riot act to give people warning? The police just moved in and that was the end of it.
Katrina Cusack: Three RUC officers grabbed me by the neck and legs and threw me on the foot path. They screamed, "get up off the road you fucking Fenian bastard!"99 Then one kicked me on the lower back. I was already off the road. As I was getting up, two RUC officers lifted me off my feet and threw me against a land rover face first.
Ruairi Dignam, age eight: I was worried about my mum who was on the road. I was on my way down when an RUC man came around the side of a land rover. He kicked me on the leg very hard. All I was looking for was my mum.
Claire Dignam, age thirty: I was sitting on the road roughly ten minutes. I heard an RUC inspector saying, after lifting his baton over his head, "get into the scum!" I was dragged off the road by the upper part of my body. The officer put his two fingers in my mouth to wrench open my mouth. He pushed his finger and thumbs into my neck under my chin before dragging me off the road. I was thrown on the side of the road. When I got up, another RUC officer in riot gear pushed his shield into my chest and pushed me aside screaming and shouting into my face. When I finally got away from the screaming officer, I seen a person being dragged off the road and he was placed in front of a land rover. The land rover revved up and tried to run over the person. I screamed for people to come over and stop the land rover. It was meant for that land rover to go over him. He would've been dead only I seen him. The RUC officer who placed him there signaled the one in the jeep. I couldn't believe that.
Bernadette Tennyson: They were telling us to go home, calling us "Fenian bastards." They were just disgusting. We had children with us. My wee girl was in hysteria. I witnessed a lady getting beaten by a number of RUC officers. They lifted her and then one RUC officer twisted her arm up her back and another RUC officer was punching her on the middle part of her body. Another RUC officer was beating her around the back with a baton. I was standing just a few feet away.
James Griffin, age sixteen: The police lifted me to a standing position and dragged me to Churchill Park. Both my hands were engaged by two RUC officers. A third came around to my front and smacked me with a baton right across the face. I wasn't trying to get back on the road. As they were dragging me between two land rovers, my head was beaten off the side ofone. Only the efforts of my mother and other people pulled me from the hands of the policemen. My nose was broken.
Donna Griffin, mother of James Griffin: To my right hand side I got a glimpse of my son James being led off the road by two policemen; his arm was up his back. As they got to the opening of the two land rovers, one started banging my son's head off the land rover. I pushed forward, grabbed James by his jumper, and with the help of other people got him away from the police. I noticed his nose was bleeding and had already started to swell.
Rita Trainor: I saw my niece Claire Griffin, seventeen years old, being knocked to the footpath by at least ten officers. I went to help her up. At the same time, Mrs. Rosaleen McNally, who is an elderly lady, was knocked down on her face beside us. I was trying to help them to their feet, when I was hit by a baton at the right back of my head. There were only officers behind me. As I rose up another baton hit me on the right upper back of my arm. As I stood to tell the officer a young girl and an elderly lady was on the foot path, the police officer raised his baton to hit me on the face but I got my hand up to cover my face in time so I got the full force on the tips of my open fingers. While all this is going on, the verbal abuse from all the officers was outrageous. They called us "bitch," "cut," and "Fenian bastards." It was very clear to these officers we were not on the road but on the footpath and they continued to beat, push and verbally abuse children, old women and those that tried to help the injured. They were just out of control. It was as if they just wanted to get into you. The abuse was so horrific that everybody was stunned.
Patrick Skelton, age sixty-nine: I was standing on the edge of the footpath and because I was unable to move, owing to my age, as fast as the police wanted, I was struck with a police shield on the face and pushed very hard down the slope at the edge of the footpath. I was off the road, on the edge of the road. I was in a state of shock for a time afterwards.
The second phase of police response to nationalist protests involved the firing of plastic bullets. (See also section below titled "Plastic Bullets.") Protesters were cleared from the Garvaghy Road and corralled into Churchill Park. Churchill Park faces the Garvaghy Road on one side; the opposite side is enclosed by the building walls of a housing estate. There are narrow alleyways leading from the park into the housing estate.100 A number of residents protesting on the Garvaghy Road on Thursday, July 11, told Human Rights Watch/Helsinki that as soon as the road was cleared, the police formed a double line of RUC officers in front of a row of land rovers that lined the Garvaghy Road. The land rovers were behind the police, close to the march route; the double line of police officers faced outward toward the protesters. According to Eamon Stack, policemen with plastic bullet guns were placed about every fifth officer in the double lines.
As the parade turned the corner, the baton charge [against those protesting the march] began. Both lines of officers charged. They were firing at a rate of ten bullets a minute. The crowd is doing nothing! The press was mingling with the crowd. . . I saw an officer point a gun at close range at a crowd standing peacefully. I approached him and asked him why he was doing that as it was extremely dangerous and unnecessary. He just laughed at me. The police line moved parallel to Churchill Park. As the line advanced, the crowd dispersed into alleyways and into the estate.101
Protesters in Churchill Park and the surrounding area allege that the RUC fired plastic bullets indiscriminately and many officers hurled sectarian abuse at the protesters as they fired. Martin Beattie told Human Rights Watch/Helsinki that he was holding his child in his arms when he was hit in the back with a plastic bullet.102 Donna O'Hara reported that she was "as close to the RUC as you are now to me"-approximately three feet-when they began firing plastic bullets:
Then when they got us into Churchill Park, they opened up with plastic bullets. I saw the RUC start shooting. There were plasticbullets everywhere. People were hit with these in broad daylight. They called us "Fenian scum," "Fenian bastards." They enjoyed it. I could see the hatred. We ran. We had to hide beneath cars and whatnot.103
Sister Laura Boyle told Human Rights Watch/Helsinki that she "saw plastic bullets flying in all directions."104 Many residents described the scene as police shooting plastic bullets on a peaceful crowd. Some residents who were hit by plastic bullets were not involved in the protests at all:
Gerald Mario Donnelly: I decided to head into Churchill Park to see if any of my sons were out in the trouble. As I was heading across the road, I felt a sharp pain going up my right arm. I fell on one knee, but I got straight up and kept running into Churchill Park. It was at that stage I realized I was hit by a baton round. I was in so much pain, I decided to head back for home.
Jeanette Livingstone: Running into the 12th morning, I was going around to my friend's house who was babysitting for me. As I turned around and passed the alleyways, the next thing I knew I was on the ground and people came and lifted me up and brought me around to my friend's house. I was hit by a plastic bullet on the knee. I didn't see the officer who shot it. I was told by people not to go near the hospital because the police would lift [arrest] anyone who was hit by plastic bullets.
Donna Griffin: Women were screaming, plastic bullets were being fired and I got separated from my son. The RUC shot at nothing. They seemed to get a target and fire.
Eileen McNally: I tried to get to my car but as I reached it a long line of police which had formed started firing plastic bullets. There were thirty or more officers. It was continuous. They seemed to be standing relaxed. I crouched for safetybehind another car. I could see people running for safety towards the Ashgrove Shopping Centre so I ran with them. Many people were shouting and crying. I could hear many plastic bullets being shot. The police were two widths of the Garvaghy Road away. Their guns were at shoulder height. When the situation began to calm, I ran to my car where I discovered the rear window smashed by a plastic bullet.
Bernadette McGeown: The police were firing plastic bullets at no end. I saw officers shooting at people. They were hit face high.
RUC Chief Constable Ronnie Flanagan told Human Rights Watch/Helsinki that plastic bullets are used "to keep petrol bombers back and to keep cover from gunmen."105 According to Professor Herbie Wallace, a member of the Police Authority, "Plastic bullets are the most effective and least dangerous way to control crowd violence here. The problem is the widespread use of petrol bombs."106 RUC guidelines for plastic bullet use require the gunner to target a specific individual from at least twenty meters away and aim below the waist.107 The police have presented no evidence that the crowd in Churchill Park was exhibiting violent behavior or that petrol bombs threatened either life or property at Churchill Park when the RUC began shooting. The Committee on the Administration of Justice noted that police on the Garvaghy Road "were at no obvious risk" when they started firing.108 Testimony taken from protesters and residents indicates that the police were not, in fact, responding to any danger. Some residents who were shot were not involved in the protests, some were shot in the back, and many were shot at while standing peacefully in Churchill Park. Indeed, the random and indiscriminate nature of the shooting resulted in damage to parked cars.
After the protesters were cleared from the Garvaghy Road, corralled into Churchill Park, and then fired upon with plastic bullets, the Orange Order march proceeded down the Garvaghy Road unconfronted by any protest activity or counter-demonstration. Most of the residents were scattered about the Churchill Park housing estate, fearful of returning to the road after the baton charge.
In the aftermath of Drumcree, Pat Armstrong, the chairperson of the Police Authority, argued that while serious damage was done to the reputation of the RUC, the chief constable and the police force were "being cast as scapegoats:"
The policing of the recent disorder following the stand-off at Drumcree has called into question the integrity and impartiality of the RUC. It has also raised doubts about the ability of Government to protect the community as a whole, through the maintenance of law and order. As a result, there have been claims from all sides that the RUC's standing has never been lower in recent years. Let there be no mistake, the RUC did not create the situation. The responsibility for the disorder, violence and wanton destruction, which erupted at different times across the province and from both communities falls squarely on the shoulders of those who organised parades and those who sought unlawfully to avert them. Responsibility also lies with those political and community leaders who whipped up sectarian emotions and orchestrated or failed to contain law-breaking and violence.109
Human Rights Watch/Helsinki cannot subscribe to this incomplete formulation for calculating blame for the events at Drumcree. Both the government of the United Kingdom and the RUC must be held accountable for their respective roles in these events. Sir Patrick Mayhew cannot escape responsibility by simply stating that he did not influence the police decision. Indeed, if the situation was as tense as the RUC asserted, the government either knew or ought to have known that this was the case, particularly in light of the government's claim that it was in close contact with and fully briefed by Chief Constable Hugh Annesley. The government is thus responsible for the decision to reverse the initial determination to reroute the march whether or not it participated in or formally approved it. The reversal atDrumcree was clear evidence that the RUC was not up to the task conferred upon it by the government. Police indiscretion and bad judgment merely fueled the mob tactics of the Drumcree unionist protesters. Under the public order legislation in force in Northern Ireland, it would have been appropriate for the government to intervene to stabilize a situation that had degenerated over time into mob rule. Furthermore, the RUC's failure to intervene to halt the violent and illegal acts of the marchers and their supporters, coupled with police officers' response to the protesters on the Garvaghy Road, raise profound questions about the force's impartiality and professionalism. The evidence reviewed by Human Rights Watch/Helsinki indicates that the police response to the Garvaghy Road protesters was characterized by police brutality, sectarian abuse, and the indiscriminate use of plastic bullets resulting in widespread violations of the residents' human rights. Residents who had sought RUC protection from sectarian violence at the hands of Orange Order marchers were ultimately brutalized by the RUC itself.
Events at London/Derry: July 11 to 14, 1996
The reversal at Drumcree and the treatment of protesters on the Garvaghy Road spawned nationalist protests across Northern Ireland. In London/Derry, the nationalist Bogside Residents Group called for a protest march to commence at 7:00 p.m. on July 11, 1996. An estimated 5,000 people turned out and the march proceeded without incident. Some time shortly after midnight on July 12, 1996, the city erupted in violence which left one man dead, hundreds of persons injured, and massive property damage. The accounts of when the violence started, at what time and under what circumstances vary. What remains clear is that many people who were not involved in rioting and who did not pose any threat to life or property were shot with plastic bullets and suffered serious injuries. One man was killed when he was run over by a British army armored personnel carrier. There is also strong evidence to suggest that RUC officers intimidated people trying to gain access to treatment at a local hospital resulting in the drawing and use of batons in an emergency room.
The RUC maintains that the first plastic baton rounds were fired at approximately 1:00 a.m. on July 12, 1996, on Butcher Street:
A crowd of about 100 persons attacked commercial premises in the area and then threw a barrage of petrol bombs and other missiles at Police. Police responded by firing 6 plastic baton rounds at identified petrol bombers. Extensive damage wascaused to the Heritage Center, a building site and other commercial premises by the petrol bombs.110
It is undisputed that serious riots took place in London/Derry on the nights of July 11, 12, and 13, 1996. In April 1997, Human Rights Watch/Helsinki requested information from the RUC about petrol bomb use at London/Derry from July 11 to 14, 1996. We were told that since the summer of 1996, the RUC had revised its methodology with respect to quantifying petrol bomb use and now considered not the total number of petrol bombs thrown but the number of incidents during which petrol bombs were used. Subsequently, we were sent a letter informing us that an estimated 4,000 petrol bombs were thrown.111
It is unclear why the RUC decided to provide us with this information instead of the number of incidents of petrol bomb use, but this reversal might reflect the same confusion over gathering and accurately analyzing statistical information that appeared to characterize the summer 1996 marching season. For example, some petrol bomb statistics varied dramatically from day to day and were revised several times in July and August 1996 according to a number of official sources. One police federation official estimated that petrol bombs "probably in excess of 20,000" were thrown by nationalists.112 The RUC reported a total number of petrol bombs thrown at anywhere from 800 to over 4,000.113 A different problem applied to the calculation of plastic bullets fired. The RUC initially estimated that 6,002 plastic bullets were fired from July 7 to 14, 1996, in the whole of Northern Ireland.114 The revised figure as of March 1997 was a total of 6,921plastic bullets fired by police and army over that week.115 The RUC attributed this variation to an extensive analysis and validation of disaggregated information received following the summer's events.116 The latest revision in the number of plastic bullets fired accounts for 900 rounds that were not included in the earlier statistics. While Human Rights Watch/Helsinki appreciates that keeping statistics in situations of public disorder can be difficult, the use of numbers to justify the RUC's claims that it was embattled-and thus had a legitimate reason to respond with great force-requires a more careful and immediate analysis than that performed in the summer of 1996.117 The variation in statistics and changes in methodology post fact appears to point to either sloppy inventory and recording practices or to a deliberate attempt to deflate or inflate numbers in order to justify RUC actions.
Problems with keeping track of the number of plastic bullets fired also may have been a result of the indiscriminate shooting of a massive number of plastic baton rounds. Testimony taken by Human Rights Watch/Helsinki indicates that plastic bullets were fired indiscriminately at London/Derry in situations where the police were not in any danger. People were shot in the back, shot as they rounded corners, and targeted despite reports that no rioting was occurring around them. The indiscriminate use of plastic bullets led to the escalation of violence by causing unnecessary and often severe injuries, and by contributing to a general climate of tension, fear and confusion.
Human Rights Watch/Helsinki interviewed many people who testified that they were not rioting nor was rioting going on around them when they were hit with plastic bullets. Michael McEleney told us that he was going to pick up his sister, at his mother's request, on the night of July 11 to 12, when he was struck in the face with a plastic bullet. He believes the shot came from the top of a parking garage:
I walked up to go to Henry J.'s [pub]. I heard bullet shots and I put my head around the corner. There was nothing happening down the street. The RUC were at Castle Gate, on the top andjeeps were parked at the archways. I was hit at Waterloo and Castle. Two guys carried me away. I knew it was bad because I was losing a lot of blood. There was constant shooting. I had to keep bowing my head because of the shooting. No taxis would take me over to Altnagelvin [Hospital]. The taxis were afraid to go to the hospital. I finally got a taxi but it left me off outside the hospital. As I was coming into the hospital, I saw the police and the Brits. They were standing with dogs at the doorway and they laughed at me. I don't know what they found so funny. I had a disconnected jaw. My jaw, sinus bone and palate were all broken. The bullet went through all the layers of skin. I spent two days in hospital and then had surgery. They stitched it, put wire in the jaw, wired my teeth and I was on a liquid diet. I lost about a stone. There is permanent paralysis in my mouth.118
A sample of testimony from other victims includes:119
William Noel Nash, age twenty-four: Thursday evening [July 11 to 12] I was in the Strand Bar for a drink about 1:00 a.m. We tried to get out the front door on to the Strand Road. We had to go out the back entrance. We were standing by the gate waiting for the shooting of plastic bullets to die down. Once it died down, we tried to walk through the lane from the bar to Sackville Street. I heard a bang and was hit in the back of the head. They all fired at one time. There were five in my group; one got hit on the leg, one on the kneecap, and one in the stomach. We thought the RUC had gone! I didn't see them; they fired at us from behind. I passed out and was carried to the corner of Russell Street. The guys who were trying to carry me were hit, too. My brother and mom took me to Letterkenny Hospital. I had a fractured skull.
Darren Large, age eighteen: [July 13] People were dropping, lying on the ground, getting carried everywhere. Some RUCmen were bouncing bullets off the wall so they wouldn't hit people full force. Some were aiming them in the air, straight up so they dropped down on the crowd. I was just standing there watching then I felt this big shot on my leg and I blacked out. I woke up on Russell Street where they were putting people in taxis to help. I was not throwing stones or petrol bombs. I've never been in a riot before.
Martina Hagerty, age twenty-nine: [Early hours of July 13] Both army and RUC were shooting. I saw them. I took an alleyway behind the Pilots Row Community Center. I got to the other side of the street, my back was toward the police. The RUC were a good bit away. The rioting was happening down beside the RUC. Where I was, people were just standing outside watching. I was standing with my back to the whole lot. I got hit in the side of the right foot and had a fractured heel. There wasn't anyone beside me or next to me who was doing anything for them to shoot.
Caoimhghin O'Murchadha, a member of the Bogside Residents Group, also claimed that plastic bullets were shot at people trying to leave bars and clubs on