Alan Wickham is a practicing lawyer in the UK, he holds a LLM in Diplomacy and International Law from Lancaster University (2020).

Introduction

Since the result of the UK Brexit referendum was announced on 24 June 2016, the consequences for the Island of Ireland have remained unclear.

Northern Ireland, where 55.78% of votes cast were in favour of remaining in the EU, is the only part of the UK which shares a land border with the EU. As  part of negotiations between the UK and the EU, the oft-debated Northern Ireland Protocol was agreed.

The DUP argue that the Northern Ireland Protocol threatens the constitutional integrity of the United Kingdom. In a region perhaps best-known for its turbulent past, the consequences of inflammatory or sensationalised claims are dishearteningly clear. A 2021 report to the UK Parliament stated that the ‘reaction to Brexit, including the protocol on Ireland/Northern Ireland, has led to new complexities and increasing prominence around paramilitarism’ (IRC page 10).

In March 2021, the Loyalist Communities Council (LCC), which represents the Ulster Volunteer Force (UVF), Ulster Defence Association (UDA) and Red Hand Commando (RHC), sent a letter to the UK Prime Minister, Boris Johnson, stating ‘[t]he loyalist groupings are herewith withdrawing their support for the Belfast Agreement…’ (Reuters). The Belfast Agreement is also known as the “Good Friday Agreement” and was a multi-party peace agreement which signalled the end of “the Troubles”. The three groups represented by the LCC are all proscribed organisations by virtue of Schedule 2 of the Terrorism Act, which lists proscribed organisations that:

  • commit or participate in acts of terrorism
  • prepare for terrorism
  • promote or encourage terrorism (including the unlawful glorification of terrorism)
  • are otherwise concerned in terrorism

(UK Gov Policy Paper)

Responsibility of States for Internationally Wrongful Acts

Article 2 of the ILC Articles on State Responsibility (ARSIWA) stipulates that, ‘[t]here is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State’.

Importantly, no difference in principle exists between an omission and a positive act (ILC Article Commentaries page 35).  In United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) the ICJ found that the Iranian Government failed, in advance of the attacks, to take ‘“appropriate steps” to protect the premises, staff and archives of the United States… [and] that the failure of the Iranian Government to take such steps was due to more than mere negligence or lack of appropriate means’ (Tehran case para 63). The Court then went on to conclude that ‘[t]his inaction of the Iranian Government by itself constituted clear and serious violation of Iran’s obligations to the United States…’ (Tehran case para 67).

International obligation to prevent terrorism

Traditionally, the view is that a State is not responsible for the actions of a non-State actor unless the attribution requirements, best articulated in Nicaragua, are met. However, international law does not simply impute responsibility for a terrorist attack, it can also separately assign responsibility to the State for a failure to prevent that attack, if that failure, or omission, is a breach of an international obligation.

The UK is undoubtedly under an international obligation to curtail the activities of terrorists within its borders.

UNSC resolution 1373 was adopted on 28 September 2001 and ‘[d]ecides … that all States shall (a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups’ (UNSC resolution 1373 page 2).

Further, The International Convention for the Suppression of the Financing of Terrorism (ICSFT), which the UK signed on 10 January 2000, and then ratified on 7 March 2001 (ICSFT Chapter XVIII) contains Article 18, which requires that ‘States Parties shall cooperate in the prevention of [terrorism] by taking all practicable measures … to prevent and counter preparations in their respective territories for the commission of [terrorism] within or outside their territories’ (ICSFT page 10).

Threat to the Republic of Ireland

The threat that loyalist terrorist organisations pose to the Republic of Ireland is obvious.

Recently, Loyalist sources claim weapons which were hidden, rather than decommissioned after the Good-Friday Agreement, ‘could be used for attacks on properties associated with the Irish government and offices of politicians who “prop up the protocol”’ (Belfast Telegraph).

This threat is perhaps best highlighted by the events of 25 March this year. Irish Foreign Minister Simon Coveney was giving a peace-building talk in Belfast, when armed members of the UVF hijacked a van, placing a “device” into it, and forcing the driver to drive to the location where Mr Coveney was giving his speech. ‘[T]he [driver] believed at this point he was driving a van containing a live bomb and that his family were being threatened’ (BBC). In the aftermath it was announced, ‘[t]he security alert in March involving Mr Coveney has been blamed on the UVF and loyalist opposition to the Northern Ireland Protocol’ (BBC).

In the wake of that incident, the UVF issued a stark warning, stating that they intend to ‘escalate’ actions against the Irish Government (Independent). Separately from the UVF, the UDA has claimed that violence is one of the strategies for opposing the protocol (Independent).

How is the UK meeting its obligation to curtail the activity of loyalist terrorists?

Despite the well-documented and growing tensions in Northern Ireland in response to Brexit, the new UK Prime Minister, Liz Truss, during her campaign for the leadership of the Conservative and Unionist Party was accused of stoking tensions for political benefit (Washington Post). This included, in the face of unionist concerns about the constitutional integrity of the UK post-Brexit, making remarks such as ‘[i]n Northern Ireland, Sinn Fein [the Party with the most seats in the Northern Ireland Assembly] remain eager to drive a wedge between Northern Ireland and Great Britain and push themselves further and further away…’ (The Telegraph).

This is not a recent development in the UK’s approach to Northern Ireland. In 2021, the USA took the extraordinary step of issuing a diplomatic démarche, rarely done between allies, to the UK, specifically because it believed the UK government ‘was “inflaming” tensions in Ireland…’ (Politico).

In addition, UK Government Ministers met with a delegation from the LCC in May 2021 ‘to discuss Brexit concerns’ (ITV). This is the same LCC whose membership includes no fewer than three organisations who find themselves on the Terrorism Act’s list of proscribed organisations. Additionally, this is the same LCC who issued a warning that Irish Government officials were no longer welcome in Northern Ireland (Belfast Telegraph), which is perhaps more ominous given one of the organisations it represents was behind the hijacking of a vehicle and bomb hoax against the Irish Foreign Minister.

In the Tehran case, the ICJ placed great emphasis on inflammatory statements as a cause for the attacks on US Government buildings in Iran (Tehran para 59). The Court went on to find that these statements could not amount to a direct authorisation by the State for the actions of the militants (Tehran para 59). However, the Court also declared that simply because the cause of the attacks could not be imputed to the State, did not mean that the State was free of responsibility (Tehran para 60). This is in clear contrast to the situation in Northern Ireland, where the UK itself has been criticised for inflaming tensions. Further, the ICJ in Tehran stressed that it was the cumulative effect of Iran’s breaches, which included failures to oppose militants at an earlier stage which gave rise to State responsibility.

Conclusion

Although this remains only a potential threat, the warning signs are there. While it cannot be said that the UK is passively supporting loyalist terror organisations, if the threats of the UVF or UDA were to materialise, at what stage will the UK have been expected to take “appropriate steps”? Even at this stage, it is extremely doubtful that the UK could presently claim that it has taken ‘all practicable measures … to prevent and counter [terrorist] preparations in their respective territories for the commission of [attacks] within or outside their territories.’

There is already international recognition that the UK is partly responsible for inflaming tensions, despite the warnings. Further, although the UK’s engagement with the LCC might not be considered “passive support,” it may be perceived as sympathy. This sympathy, in light of the growing tensions, could be seen as encouragement, as in Tehran; a belief amongst the militants that the State supported their actions, without official clarification or rebuttal, was a factor the court considered in support of State responsibility (Tehran para 70).

One would think, considering the explicit threats from loyalist terror groups, that appropriate steps may include strong condemnations, rather than “discussions”; that they may include a policy of de-escalation rather than of inflammation, and that preventing and countering the preparation of attacks may require practicable measures, not silence.

While the UK may, in the wider context of Brexit, see rising tensions as a method of generating political capital, it also ultimately bears responsibility for the fruits of those labours.