The Historical Enquiries Team (HET) has just published its final report following a four-year investigation into the shootings of 10 Protestant workmen near Kingsmills (Northern Ireland), one of the worst atrocity carried out 35 years ago by the IRA.

On 5 January 1976, ten Protestant workers from a textile factory in Glenanne (County Armagh) were machine-gunned by a group calling itself the south Armagh Republican Action Force. On their way back home from the factory their bus was stopped. The IRA terrorists asked each worker his religion. One of them identified himself as Roman Catholic and the ten others as Protestants. The Catholic workman was told “to get out of the way” and to “run up the road”.

The Protestant workers were lined up and summarily executed by the terrorists with automatic weapons. The scene on the road where nine men lay dead was one of “indescribable carnage” according to a police officer. Only one of them survived, although he was hit 18 times. Ten years later, he described to the Belfast Newsletter what happened that day: “The talk on the minibus that night was no different than normal. There had been talk earlier in the factory that day about the killing of the young Reavey brothers from Whitecross. It horrified us all. We passed through Whitecross village shortly after 5.30 p.m. and when our minibus was stopped, a short distance up the road past Kingsmills crossroads, we thought it was the army. A group of about 12 armed men, unmasked but with their faces blackened and wearing combat jackets, surrounded the vehicle and ordered us all out on to the road. Even then few of us thought there was anything amiss. One man, with a pronounced English accent, did all the talking and proceeded to ask each of us our religion. Our Roman Catholic work colleague was ordered to clear off and the shooting started. It was all over within a minute and after the initial screams there was silence. I was semi-conscious and passed out several times with the deadly pain and the cold. A man appeared on the scene. He was in a terrible state and was praying loudly as he passed along the rows of bodies. He must have heard my groans and came across to comfort me. I must have been lying at the roadside waiting on the ambulance for up to 30 minutes. It was like an eternity and I can remember someone moving my body from one side to the other to help ease the pain”. He also stated “I remained in the Bessbrook area for a time, but as I left my young daughter to school every morning I was confronted by the orphans of men murdered in the massacre. It brought it all back on a daily basis and I decided to move to Scotland. Two years in Scotland helped me to adjust but I knew I had to return home to Bessbrook. Even now when I hear of an innocent person being killed the horror of the massacre all comes back and I can feel every bullet hitting me. Bessbrook lost its heart through that massacre. It was once a vibrant happy community full of life and enjoyment. What was done that night was a sheer waste, a futile exercise that advanced no cause.”

This odious massacre raises the issue as to whether it should be classified as a crime against humanity carried out by IRA terrorists. The offense of crime against humanity was first mentioned in 1915 by the Allied Powers to charge the Ottoman Government for committing the Armenian genocide. Since that time the requirements for establishing a crime against humanity have evolved in customary international law.

Case-law from the Nuremberg Tribunal and the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia have both contributed to the definition of what a crime against humanity is. The Rome Statute, which provides for the International Criminal Court (ICC) to have jurisdiction over crimes against humanity as well as genocide and war crimes, has probably given the most advanced definition of what a crime against humanity is.

Article 7 of the Statute gives a list of eleven acts that are crimes against humanity when committed as part of a widespread or systematic attack directed against any civilian population, including: murder; imprisonment; torture; persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender … or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in the same paragraph; enforced disappearance of persons, other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental and physical health. In the case of the Kingsmills massacre, the act of murder can also be described as one of persecution against civilians because of their Protestant religion.

The Commentary on the Rome Statute indicates two other elements that are required for a crime against humanity to be established: first, the act must be part of a widespread or systematic practice; and second, that practice must be tolerated or condoned by a government or a de facto authority.

As regards the act being part of a widespread and systematic practice, it can hardly be denied that the Kingsmills massacre was part of a widespread campaign of terrorism waged by the IRA and started in 1969. This campaign resorted to extreme violence that was carried out in most areas of Northern Ireland but particularly in the border regions with the Irish Republic. The wide practice of atrocities involved murders, tortures, abductions and enforced disappearances of people, intimidations, threats mainly against Protestant people and all those who were opposed to IRA violence and/or their political aims. The Kingsmills massacre, which was a most barbaric atrocity, was part of the widespread IRA terrorist campaign and was not an isolated or sporadic act.

The last element required for a crime against humanity to be established is that the practice or policy must be tolerated or condoned by a government or a de facto authority. Initially, the practice or policy had to be that of a State, as was the case in relation to Nazi Germany. However, since the Nuremberg Tribunal, customary international law has developed to take into account forces which, although not those of the legitimate government, have de facto control over a defined territory. The authority could be an entity exercising de facto control over a particular territory without the formal status of being the government of a de jure State, or it could be a terrorist organisation (Trial Chamber of the International Criminal Tribunal for the former Yugoslavia, Judgment 7 May 1997, paragraph 654). The issue that needs to be considered is whether or not the IRA had control over part or the whole of the territory of Northern Ireland. To answer that question one must examine the political aims and practice of the IRA. This terrorist organisation has always stated that they were opposed to the legal and legitimate authorities of the United Kingdom, which they wanted to eliminate. The IRA instituted itself as an authority controlling extended areas, as they demonstrated by taking control of the Bogside quarter of Londonderry in 1969. Since the beginning of the terrorist campaign, the IRA has developed as a de facto authority in Northern Ireland, ruling by fear and violence in pursuance of their political aim to destroy the recognised British authorities and eventually exercise control in their place. By means of terrorist activity, the IRA has indeed succeeded in accessing the government of Northern Ireland while maintaining the Army Council so as to retain their ability to return to widespread violence if necessary. Behind the appearance of a legitimate government, even today the IRA is exercising a de facto control over the territory of Northern Ireland.

If we apply the criteria of the developed customary international law with a clear understanding of the political objectives pursued and achieved by the IRA, the Kingsmills massacre can be described as a crime against humanity for which those responsible should be prosecuted.