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"Sovereign immunity" defence planned if British government sued

(by Ed Moloney and Lin Solomon , Sunday Tribune)

The British government privately considered using the defence of "sovereign immunity", the legal doctrine which protects states from being prosecuted for criminal acts, to prevent relatives of some of the 33 people killed in the 1974 Dublin-Monaghan bombings from suing it in the Dublin courts, according to confidential Whitehall letters and memos which have been obtained by the Sunday Tribune.

Discussions about using the defence, between the British Foreign Office, the Treasury Solicitors Department - which acts as the British government's lawyer - and a firm of solicitors in Dublin which had been asked to represent the British, took place in September 1999, not long after lawyers for the Monaghan-Dublin relatives had formulated plans to sue the British for damages arising out of the bombings.

The content of the documents, which the Sunday Tribune is publishing in full, raises important questions about the British motives for contemplating this legal strategem. On the worst interpretation, the use of such a defence could be be seen as an implicit admission of guilt in the bombings, which still rank as the worst day of carnage during the Troubles, while the most favourable construction was that it was being considered so as to block efforts to force the British to hand over papers and documents relating to the bombings. Either way, say human rights advocates and lawyers for the victims' relatives, the documents smack of a government which has something to hide rather than the action of a wrongly accused party loudly proclaiming innocence.

The two sets of bombings took place within hours of each other on the evening of May 17, 1974 during the midst of the Loyalist strike against the ill-fated Sunningdale deal, which had set up a Council of Ireland and a power-sharing Cabinet involving Unionist, SDLP and Alliance ministers. Three car bombs exploded in central Dublin during the rush hour killing twenty-two and over a hundred were injured while a car bomb in the centre of Monaghan killed five and wounded twenty. The death toll eventually rose to thirty-three.

Although Loyalist paramilitaries were blamed for the blasts there have been persistent allegations since of some form of British intelligence involvement in the bombings. Over the years relatives of the dead and injured organised protests and tried to build support for a fuller probe of the incidents, often against a background of official hostility and public indifference. Eventually in late 1999 the government announced a private inquiry into the bombings by Mr Justice Henry Barron whose eventual report may pave the way for a fully fledged public inquiry, although there have been complaints of lack of co-operation with Barron on the part of the British.

The fact that the British considered employing the "sovereign immunity" defence is all the more remarkable for the fact that at the time the saga of General Pinochet was still causing controversy in Britain, not least because he had also employed the defence of "sovereign immunity" to resist attempts by Spain, France, Belgium and Switzerland to extradite him to face charges of murder and torture committed after the Chilean armed forces coup of 1973.
Pinochet, who was arrested in London while attending a Harley St clinic in October 1998, was initially granted "sovereign immunity" by the High Court in London on the grounds that the "disappearing", murder and torture of hundreds of Chilean political activists had happened while he was head of state. But in a series of extraordinary twists and turns the British House of Lords first removed that immunity and then restored it, albeit in a limited form which still left the former Chilean dictator liable for extradition.

Formal and final extradition proceedings against Pinochet began on September 27th, 1999, a week or so after the Foreign Office and the Treasury Solicitors department had begun discussing using the Pinochet defence to prevent legal action in the Republic's courts in the Dublin-Monaghan case. Six months later however, the British Home Secretary, Jack Straw allowed Pinochet to return, unscathed, to Chile after a medical examination had found he was suffering from "extensive brain damage".

The correspondence between the British government departments had been sparked by a letter written in early September by Brophy & Co,, lawyers for the Dublin-Monaghan relatives, to the British embassy in Dublin threatening a suit to recover damages in relation to the bombing deaths and injuries. Following the establishment of the Barron investigation two months later, the lawyers suspended legal action and reserved their position on the matter.

Asked for his reaction to the documents, Greg O'Neill, solicitor for the relatives said: "The man in the street might well ask that if the British government had clean hands, why would it rely on such a device and defence in an action taken by the injured citizens of a friendly neighbour?"

British-Irish Rights Watch director, Jane Winter called the documents "truly startling", adding: "What seems to be crystal clear is that the British government has something to hide about the Dublin and Monaghan bombings, and was prepared to consider claiming state immunity in order not to have to reveal it."

There are four documents altogether dealing with the subject of "sovereign immunity" and the Dublin-Monaghan bombings. The first, dated September 20, 1999, is a note of a telephone conversation between an unnamed Treasury Solicitor's official and a Foreign Office official, Elizabeth Wilmshurst. The note appears to have been generated by a request from the Treasury Solicitor's office to the Foreign Office about the previous possible use of "sovereign immunity" defence in Irish cases.

The second document is dated September 21, 1999 and is another account of a 'phone conversation, this time with a Foreign Office lawyer, Paul Burman in which the lawyer suggests that, depending "upon the nature of the alleged involvement of the security forces", either the Northern Ireland Office or the Ministry of Defence would take the lead in the case rather than the Foreign Office. The Foreign Office official also advised that a firm of Dublin solicitors be consulted about whether the "sovereign immunity" defence could be employed in Dublin, given that Ireland is not a signatory to the European Convention on State Immunity.

The third document, dated September 24, 1999 is a minute written by a Treasury Solicitor's official called Sean Martin dealing with another conversation with the Foreign Office lawyer. This notes a concern on the part of the Foreign Office that the Treasury Solicitor's department should not nominate lawyers in Dublin to answer the Brophy action "until we have received advice that acceptance of service would not prejudice our ability to claim a state immunity defence."

The fourth document, also dated September 24, 1999, is a letter from Sean Martin in the Treasury Solicitor's office to the British government's Dublin lawyers formally instructing them and seeking advice on whether the "soverign immunity" defence can be employed in Ireland.

April 22, 2002

This article appeared in the April 21, 2002 edition of the Sunday Tribune.