Memorandum by William P. Fay, with covering note, to Seán Nunan (Dublin)
'International responsibility of the State for subversive activities against
other States'

As already promised verbally, I am submitting herewith, filed opposite, a short memorandum on the International Responsibility of the State for such subversive activities against other States as are involved in the recent raids on barracks in the Six Counties. You will see that, on the whole, I feel we should have a good answer to any protests likely to be made.

In particular, the various suggestions that have been made from time to time that we should conclude an extradition agreement with the Six Counties leave out of account altogether the fact that all extradition arrangements are almost universally subject to an exception in favour of the non-extradition of political offenders. It is true that there is no rule of international law which positively forbids the surrender of political offenders; our own Supreme Court decided this recently in the case of State (Duggan) v. Tapley. But the universal practice of civilised states is such that there would be no need for us to justify our refusal to hand over such offenders. Britain herself is one of the strongest supporters of the practice and for centuries refused even to contemplate an extradition arrangement of any kind.

It may be of interest to know that in July 1952 the Secretary¹ and Legal Adviser of the Northern Department of Home Affairs² visited the Department of Justice and suggested, amongst other things, to Mr. Coyne³ that we should conclude an extradition arrangement with them. No question of political offences arose in this case. For motives of policy it was decided at that time after consultation with the then Taoiseach that we could not agree to such an arrangement. I must confess I fail to understand the raison d’etre of this refusal and if this Department had been consulted at the time, I should have recommended that we should agree to some such arrangement for ordinary common crimes having no political element. The suggestion that, because we do not recognise the Six County régime de jure, we cannot recognise the fact of the administration of justice therein, does not seem to be a very strong argument. As you are aware the procedure under the Petty Sessions (Ireland) Act, 1859, whereby British warrants, backed by the Commissioner of the Garda Síochána, are enforceable in this country in cases of common crime, does not apply to the Six Counties. I feel it would be in accord with the useful collaboration recently referred to by the Minister in relation to the Erne Hydro Electric Scheme etc. to consider a scheme for a modest enforcement of judgments between the two parts of the country. We have already considered this matter in relation to the enforcement of maintenance orders. It would, of course, be necessary to make clear at the start that we should retain an absolute discretion in relation to political offences or offences connected even remotely with political offences.

If you think fit we might perhaps send copies of the memorandum, filed opposite, to the Attorney General and to the Minister for Justice.

[Memorandum]

International responsibility of the State for subversive activities against other States

1. The raids upon the barracks in Armagh and in Omagh⁴ raise the question how far the activities of the persons who carried them out may involve the responsibility of the Irish Government in international law. This is so because:
   1. The relations of Britain and Ireland are now relations of international law. So long as Britain regarded this country as a member of the Commonwealth, Britain herself refused to accept the international character of Anglo-Irish relations; but this has decisively changed since the recognition of the Republic on the 18 April 1949;
   2. Although Article 2 of our Constitution includes the Six Counties in the national territory, a declaration of this kind is not effective in international law unless it is recognised by other States. It seems quite clear that in international law, as revealed by the practice of states, Northern Ireland is recognised as part of the United Kingdom and it must be admitted that the practice of this State shows that, at least de facto we recognise that situation;
   3. Although the participants in the first raid were unknown, it seems clear that in the recent raid on Omagh some at least of the participants may have been Irish citizens.

2. What does international law say on this subject? On the one hand, it has been pointed out that international law is not a mutual insurance system for established governments and, therefore, there is no rule of law which would oblige a government to suppress revolutionary activity directed against another government within its territory, so long as this activity is confined to propaganda by private persons; although, of course, any state which allows such activities would have to consider the effect of them on its relations with the state against which they were directed. On the other hand, it is said that there is a rule of customary international law whereby a state is bound to use its best endeavours to prevent the commission of criminal acts directed against the government of another country and involving criminal attempts on life or property. Thus, the Supreme Court of the United States in 1887 enunciated this principle:

   ‘It is well settled that a State is bound to use due diligence to prevent the commission of criminal acts within its territory against another nation or its people’.

   (US v. Arjona 120 US 479)

   This principle was admitted and accepted as valid by Judge J. Bassett Moore⁵ delivering judgment as a Member of the Permanent Court of International Justice in the Lotus Case, 1927⁶ (Collection of Judgments, Series A. No. 10 pages 88-89).

   Again, after the assassination in 1934 of King Alexander of Yugoslavia at Marseilles, when it was discovered that the assassination was the work of a group of terrorists apparently operating on Hungarian territory, the Council of the League of Nations adopted a resolution of the 10 December, 1934, to the following effect:-

   ‘That it is the duty of every state neither to encourage nor tolerate on its territory any terrorist activity with a political purpose; that every state must do all in its power to prevent and repress acts of this nature and must for this purpose lend its assistance to Governments which request it’.

   The Yugoslav Government, which was naturally greatly incensed by the assassination, moved The League to have the whole matter of terrorism examined by an international committee of experts which presented their report in 1936. As a result of this report two conventions were adopted on the 16 November, 1937, by an international conference called for the purpose. The first of these conventions concerned the Prevention and Repression of Terrorism and the other provided for the Creation of an International Criminal Court. Article 1 of the first of these Conventions is as follows:

   ‘The High Contracting Parties re-affirming the principle of international law, according to which it is the duty of every state to avoid any action tending to favour terrorist activities directed against another state and to prevent acts arising from such activities, undertake in the terms hereafter expressed to prevent and repress activities of this kind and to assist each other therein.

   In the present Convention, the expression "acts of terrorism" means criminal acts directed against a state the nature of which is to provoke terror in specific persons or in groups of persons or in the public.’

3. It would seem, therefore, from the foregoing that a rule of customary international law does exist on the lines of the rule stated in the Convention just quoted. Nevertheless, when relying upon general statements to support a rule of customary international law, it is always necessary to have regard to the practice of states. On that criterion, the rule is not nearly so clear, and it has been well pointed out (KUHN: American Journal of International Law, 1935 p. 89) that

   ‘The extent to which a government is responsible for preventing or repressing subversive or revolutionary activities by persons or groups within its territory directed against the peace and order of a foreign state is not well settled in international law’.

   Admittedly, the latter statement was made before the conference which produced the Conventions referred to in the foregoing paragraph had been called and before the Conventions were adopted; and Mr. Kuhn himself admits that it would be a good thing if the League of Nations succeeded in clarifying international law on the subject. But the practice of states in this respect is decisive and shows, in my submission, that they do not regard international law as imposing any such rule as that referred to. This can be shown in two ways:

   1) By an examination of national legislation on the subject;

   2) By the fate which has attended the two Conventions.

4. With regard to national legislation, it can be said generally that subversive attempts even of a criminal character against foreign countries or their citizens are not recognised to be criminal as such by any civilised country. It is true that the French Penal Code (Articles 84 & 85) provides for the punishment of persons who, by hostile acts, expose the French State to a declaration of war by another country or to reprisals against France or a French citizen. It will be immediately apparent, however, that it is a purely self-defensive provision and is analogous to Articles contained in the Criminal Codes of the United States and Switzerland providing for the punishment of unneutral acts which might expose the neutrality of the country to danger. The former German Penal Code (Article 102) made punishable acts committed against a foreign state which would be punishable as treason if committed against the Reich; but it is significant that this provision is conditional on reciprocity. This fact alone shows that the German Government did not think that they were bound as a matter of international law to have such a provision in their Criminal Code. The legislation of Britain and America is completely silent on the subject and it was admitted by the British delegates to the Conference on the Prevention and Repression of Terrorism that, before they could adopt the Convention, it would be necessary to change British law. The fact that Britain is not prepared to change her law, shows that she did not regard the so-called rule of international law as obligatory on her.
5. More significant than the silence of national legislation, however, is the fact that the two Conventions mentioned in paragraph 2 have never come into force. In the case of the Convention with which we are most concerned here – that for the Prevention and Repression of Terrorism – of 23 counties which signed it there has been only one ratification (that made on behalf of India by the British Government). It is quite clear in fact from the speeches made by the principal delegates during the debates in the conference, that none of the great countries was prepared to give effect to the changes in their law which would be needed if the Convention was to be given international force. The attitude of the British Government was stated by Sir John Fischer Williams,⁷ a distinguished international lawyer, to be that, though they had sympathy with the objects of the Convention, they were unable to sign for reasons which he stated as follows:

   ‘Before the United Kingdom could ratify a convention on the lines proposed, it would have to make important changes in its criminal law and such changes would no doubt not be accepted readily by the British people. The changes in the law would relate especially to the freedom of expression of opinion, which had been dear to the British people for centuries. The same difficulties would arise as regards the proposals relating to the export of arms and to extradition for political offences. The United Kingdom Government would, therefore, have to scrutinize the provisions adopted by the Conference carefully when it had ended, in order to consider whether it was possible to become a Party to the future convention.’

   The attitude of the Irish Government to these Conventions is also illuminating. The advice of the Attorney General – at that time Mr. Patrick Lynch, KC⁸ – was sought and his opinion is stated on the attached file flagged A.⁹ Prophetically he notes that –

   ‘These conventions might well cause serious embarrassment in their operation on our land frontier and it would be necessary to carefully consider the police point of view before any decision is taken’.

   The Irish Government did not in fact sign the Convention although we were represented at the conference by an observer.

6. It will be seen from the foregoing that it is unlikely that any protest could effectively be made against this country for or in respect of the raids on barracks in the North. The best answer to any protest from the British Government would be a reference to their own attitude as stated in the foregoing paragraph. Moreover, it is important to observe that even those who were most enthusiastic about the Convention for the Prevention and Repression of Terrorism, such as Monsieur Pella,¹⁰ Rumanian delegate, were careful to observe that they were anxious to repress terrorism as therein defined, which, in their view, meant terrorist acts where the terror inspired by the ordinary criminal character thereof was more apparent than the political motive. M. Pella was clear on the subject that his Convention would not interfere with the right of states not to extradite political offenders. Various statements made by politicians in the Six Counties (one was made today by Mr. Henderson, MP),¹¹ suggesting that this country was lacking in its international obligations by not having an extradition arrangement with the Six Counties are, therefore, clearly wide of the mark. Whatever extradition arrangements we might adopt with the Six Counties would relate only to ordinary crimes; there could never at any time be any question of extraditing political offenders and it is difficult to imagine persons who come more clearly within that definition than those who have carried out the raids in question.