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16 January 2017 Edition

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‘Magical legalism’: How the British disguise their illegality as legal

The 1972 killing of ‘Official IRA’ leader Joe McCann and the fightback against Para prosecutions

• 10 August 1971: Joe McCann silhouetted by the flames in the Markets (inset)

‘The key question for the political system was to find ways to ensure the protection of state agents in conducting counter-insurgency operations by making, if required, what might otherwise be illegal, legal’

THE REACTION of Tory politicians and their media mouthpieces to the news of two British paratroopers being charged with the 1972 killing of ‘Official IRA’ leader Joe McCann has exposed the colonial mindset of the British Right.

In an extraordinary attack on the North’s Director of Public Prosecutions, Barra McGrory, Tory MP and former Defence Minister Sir Gerald Howarth described the DPP’s decision to press charges against the soldiers as an “unjust and immoral decision taken by a man who represented ex-IRA commanders . . . potentially with blood on their hands [who] are in government and enjoy immunity from prosecution”.

Howarth, who represents the primary British Army garrison of Aldershot, where the Parachute Regiment has its HQ, made his comments in a letter to British Prime Minster Theresa May and published in the Daily Mail. He demanded that “these prosecutions be stopped” and that McGrory be “removed from office”. 

Howarth and fellow Tory MP Sir Henry Bellingham, in highlighting the fact that McGrory had represented Martin McGuinness and Gerry Adams while practising as a solicitor, were clearly finding the senior law officer ‘guilty by association’ as they set out to discredit him and his office. 


It has emerged that two former British paratroopers (identified only as “Soldier A” and “Soldier C”) were to face charges of “murder” over the killing of McCann, who was unarmed when he was shot repeatedly at close range near the Markets area of Belfast in April 1972.

Since then, the reaction of the British Right and Northern unionists has been fierce in its demand for the British Government to intervene, in the words of DUP MP Ian Paisley Junior, “to prevent a witch-hunt against former soldiers”. 

As with Howarth and others of a similar mindset, Paisley is clearly demanding a political intervention from the British Government that will trump the rule of law.

Ulster Unionist Party MLA Doug Beattie, a former British Army officer who holds the Military Cross for active service in Afghanistan, wrote an opinion piece in the Belfast News Letter. The politician gave a hat-tip to the principle that “anyone who broke the law should face the law” but – in applying the Kitsonian view of the law in counter-insurgency situations (see below) – the career soldier went on to write that “there is absolutely no account taken of context or the conditions under which the security forces were operating”.

The reaction of the British Right to the decision to proceed with charges against the two former paratroopers is linked to the wider campaign against investigations into the actions of British troops in Afghanistan and Iraq as well.


• UUP MLA Doug Beattie and DUP MP Ian Paisley Jnr

Reflecting this, Defence Secretary Michael Fallon told a Commons Defence Sub-Committee that probes into the actions of British soldiers in the North of Ireland, Afghanistan and Iraq conflicts would not be allowed to turn into witch-hunts.

And, in a worrying example of an influential Tory MP playing fast and loose with the Fresh Start Agreement, Kris Hopkins, a junior minister in the Northern Ireland Office, speaking at a debate in Westminster Hall on 13 December, claimed that historic investigations in the North had focused “disproportionately on the security forces instead of the terrorists” but this would change with the new Historical Investigations Unit set up under the Fresh Start Agreement.

The one certainty in this is that British and unionist politicians are determined to ensure that their narrative of the conflict is the dominant one, with the actions of British armed forces – including the shooting dead of unarmed individuals – portrayed as being within the law as defined by counter-insurgency mastermind Brigadier Frank Kitson.

The Kitson doctrine


BRIGADIER FRANK KITSON, who served in the North of Ireland in the early 1970s and commanded the Parachute Regiment based in Holywood Barracks, County Down, advocated the distortion of the law and legal system to defeat “insurgents”.

In his essay Collusion, Counter-insurgency and Colonialism: The Imperial Roots of Contemporary State Violence, Mark McGovern of Edge Hill University outlines how this was applied in the North.

He quotes Kitson’s own words in his manual, Low-Intensity Operations: Subversion, Insurgency & Peacekeeping:

“The law should be used as just another weapon in the Government’s arsenal, and in this case it becomes little more than a propaganda cover for the disposal of unwanted members of the public.”

McGovern explains how this was “entirely in keeping with a ‘peculiarly British way’ of counter-insurgency” and “the key problem was to ensure the civil authorities generated a juridical order that allowed state agents to do ‘what was necessary’ to preserve its interests. 

“The key question for the political system was to find ways to ensure the protection of state agents in conducting counter-insurgency operations by making, if required, what might otherwise be illegal, legal.” 

McGovern also uses the phrase “magical legalism” from Stanley Philip Cohen’s States of Denial: Knowing About Atrocities and Suffering as a way of describing how the British and unionists hold themselves up as committed to the rule of law yet, when it comes to the crunch (as in the case of the killing of Joe McCann), they blur if not erase the lines to justify the shooting dead of an unarmed man.


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