August 1969: Ireland's Only Appeal To The United Nations
The 'Arms Trials' of September and October 1970 were a watershed in the political history of the Irish State.
A senior Cabinet Minister, Charles Haughey; a high-ranking Military Intelligence Officer, Captain James Kelly; a representative of the Catholic community in Northern Ireland, John Kelly, and a Belgian-born businessman, naturalised Irish, were charged with conspiracy to import arms illegally (for shipment to Northern Ireland). The charges against a second Cabinet Minister, Neal Blaney, were thrown out by the District Court. A trial was held in September 1970, but had to be abandoned when the Judge refused to continue it. A second trial was held in October. It ran its full course and resulted in a Not Guilty verdict.
Evidence at the trial hinged on the conduct of Captain Kelly. It was demonstrated, by the evidence of his military superior, Colonel Heffernan, that, in organising the purchase and importation of arms, he had acted under legitimate authority. Once that was demonstrated, any verdict other than 'Not Guilty' would have been a perverse verdict.
Captain Kelly acted on the instructions of Colonel Heffernan and was responsible to him. He also received direct instructions from Cabinet Ministers. If what he did was unauthorised by legitimate authority, and was therefore an illegal conspiracy, the illegality did not lie with him. He acted on the authority of his superiors, and his Colonel stated on oath that he had done so. It was not his business as a Captain to question the authority of his Colonel or of Cabinet Ministers.
If, after the evidence given by Colonel Heffernan regarding Captain Kelly, the political authorities still maintained that there had been an illegal conspiracy to import arms—and they did maintain it—then it was their business to bring a prosecution at the level at which the conspiracy existed. And that meant either Colonel Heffernan or the Minister to whom he was responsible. But it was not suggested that Colonel Heffernan acted without legitimate authority in the orders he gave to Captain Kelly. No prosecution was brought against him. Nor was a prosecution brought against the Minister for Defence.
The chain of legitimate authority was Cabinet Minister, Colonel and Captain. The reasonable presumption in each case—and it was in fact an obligatory presumption—was that the superior had legitimate authority for the instruction which he issued. It was not for the Captain to question the authority of his Colonel, or for the Colonel to question the authority of the Minister placed over him by the civil power.
The State did not, at the Trial, question the authority of Colonel Heffernan to give the instructions which he did to Captain Kelly. But, even if it had done so, and if it had been alleged that Colonel Heffernan had acted without authority, that would not have implicated Captain Kelly in illegal conspiracy.
Since the State did not question Colonel Heffernan's authority to issue his instructions to the Captain in the months after August 1969, it tacitly accepted that James Kelly had acted legitimately under the authority of the civil power. And if it presumed that Colonel Heffernan would give evidence that Captain Kelly acted on official instructions, the prosecution of Captain Kelly appears as perverse and irrational.
The Irish Army (or Defence Force) had ever since the mid-1920s been an orderly institution, diligently obedient to the civil authority. It was not an autonomous body, accustomed to supervising the civil power, or questioning the authority of the Minister of the Government placed in command of it. Indeed, the structure of the Army was such that it had no integrated existence as a corporate body, and was inherently incapable of concerted action independently of the civil authority.
The Cabinet took a close interest in military affairs and the Minister for Defence and his Department had a closer executive involvement in detailed military decision-making than might be expected. That is how it could come about that an Army officer could receive instructions directly from Cabinet Ministers: the Minister for Finance (Charles Haughey) and the Minister for Defence (James Gibbons) and the Minister for Agriculture (Neal Blaney, who had extensive contacts in Northern Ireland)—all of whom were acting on the authority of the Cabinet.
Captain Heffernan gave evidence at the Trials that Captain Kelly had reported directly to the Minister for Defence. Consequently, as the Minister had the legal authority to give orders to Army officers, as well as to arrange for importation of arms, the prosecution seemed bizarre.
That is how it appeared to the jury, which brought in a unanimous Not Guilty verdict.
But that was not the end of the matter. In some ways it was only the beginning.
While the prosecution must appear perverse to anybody who goes into the detail of the matter, the State treated the verdict as perverse. The suggestion was that the jury, in the grip of strong nationalist passion inspired by events in Northern Ireland, brought in a verdict which conflicted with the evidence presented in Court. The leaders of Government and Opposition, aided and abetted by the media, conspired to treat Captain Kelly as Guilty, and to dismiss the court verdict as being of no account. Even 30 years later Dr. Garret FitzGerald insisted on expressing this view—and had to pay hefty libel damages for it—or the Irish Times had to pay them for him.
The case against the other defendants also collapsed in the light of the clear and undisputed evidence given by Col. Hefferon in the case of Captain Kelly.
The laying of charges for criminal conspiracy which could not be made good in Court, and the persistence of both Government and Opposition in maintaining those accusations administratively, despite the failure to carry them through judicially, had profound consequences both for the body politic within the Republic and for the course of events in Northern Ireland.
The series of adjectives which Charles Haughey himself applied to another event many years later might be applied with even greater force to the vagaries of his own at this point: grotesque, unbelievable, bizarre, and unprecedented—GUBU for short. He was charged with criminal conspiracy against the State by the Taoiseach who was his party leader, Jack Lynch. (It is inconceivable that such a charge might have been brought against a senior Cabinet Minister in those circumstances without the authority of the Taoiseach.) Lynch did not accept the Not Guilty verdict of the Court as being in accordance with the facts of the matter. He could not have done so without calling his own conduct into question. He continued to act as if a conspiracy against the state had existed and Haughey had been part of it. But he did not act to remove the conspirator from the Parliamentary Party or Fianna Fail membership. Haughey returned to the Lynch team in 1975, as shadow Minister for Health, becoming the Minister two years later. And Haughey replaced Lynch as Party Leader and Taoiseach just nine years after the Arms Trials.
Haughey can hardly be regarded as a victim of an act of injustice by the State of which he became Prime Minister, but there can be no doubt that the affair blighted his capacity to serve the nation. The Fianna Fail Party was badly damaged by the affair, and fractured by feuding connected with it. The most serious split was after Desmond O'Malley, who was made Minister for Justice by Lynch at the critical moment in 1970 and played a part in the prosecutions, failed to gain the leadership of the party when Lynch retired. He could not settle down under the leadership of Haughey—to be seen to serve under a man who, if the prosecutions were soundly based, had got away with criminal conspiracy against the state before going on to become Taoiseach; or conversely, to admit having been associated with a malicious prosecution. Following a series of attempts to overthrow Haughey, he resigned from Fianna Fail and founded a rival party, the Progressive Democrats.
John Kelly, following his acquittal, became involved in a new development in the affairs of Northern Ireland. He had grounds for seeing his prosecution as a betrayal by the Dublin Government of a movement which it had encouraged from August 1969 to April 1970. The movement known as the Provisional IRA blossomed as an independent force in the Summer of 1970 as a consequence of the basic change of front by the Dublin Government signified by the arrest of Haughey, Blaney, John Kelly and Captain Kelly.
The SDLP was founded in the Summer of 1970. Its founders had been engaged in negotiations with the Dublin Government in the Autumn of 1969 for the supply of arms for defensive purposes to representative organisations of the Catholic community along with Defence Committee leaders such as John Kelly. That development was aborted by the change of policy in Dublin, and particularly by the abrupt and shocking way the change was announced.
The covert arms imports, which were the subject of the Arms Trials, were intended for use by the Defence Associations of the Catholic community in the North. Those Defence Associations had been made effective in August 1969 with the help of British ex-servicemen—Catholics who had served in the British Forces, and who had no general hostility towards Britain, but were not prepared to sit idly by while their community was maltreated by the devolved regime. Also involved were republicans, most of whom—like John Kelly—had put aside the gun years before, and an array of religious, community and political leaders.
The possibility of forming a new constitutional party of the Catholic community, which was connected with the Defence Associations, was blown away by the Arms Trials.
A new Republican movement, which was not limited to the defensive purposes of the Defence Associations, was brought into being and given powerful impetus by the combined shocks of the pogroms of August 1969 and the Arms Trials of 1970. The Defence Associations withered away. The SDLP was formed as a merely electoral body in a situation where the normal framework for electoral politics did not exist. Although many of its founders had been involved in negotiating for arms, it began to strike pacifist attitudes and its leader, Gerry Fitt, adopted the practice of issuing libel writs against publications that hinted at his attempt to procure arms.
The ineffectual SDLP, formed in place of the more robust body envisaged by the Dublin Government from August 1969 to Spring 1970, might be regarded as a victim of the traumatic change of policy signified by the Arms Trials.
But the one undisputed victim was Captain Kelly, the diligent Army officer who had served the State faithfully for twenty-one years and was blackguarded by it until his death, because it was found expedient to change policy and find a scapegoat.
But, though victimised, James Kelly did not break under pressure. He defied the State which had betrayed him. He published an account of the affair despite Government intimidation of publishers and booksellers. And, in the end, he discovered documents demonstrating how the prosecution had tried to rig the case against him. At the time of his sudden death he was bringing a legal action against the state for false prosecution.
The State has no defence against his indictment of it other than the use of its power. It refuses to apologise for its action. One of the reasons it cannot do so is that the party founded by his prosecutor, Desmond O'Malley, is a long-term partner with Fianna Fail and holds the Ministry of Justice, which was O'Malley's Ministry in 1970. The rehabilitation of Kelly would mean the disgrace of O'Malley, and the current Minister for Justice, Michael McDowell, is determined that the founder of his party will not be subjected to disgrace while he has the power to block it. That is what Justice has come to mean in the Republic. The monarchical principle that the King can do no wrong appears positively honourable by comparison.
But much more is at stake in the Captain Kelly affair than the honour of Desmond O'Malley and Jack Lynch. The prosecution signified a change of direction in the conduct of the state which led to the general unravelling of its national culture.
This is the first of a series of reviews of the situation in 1969-70 in the North and the Republic with the purpose of showing how the Lynch Government responded to the Northern crisis in the first instance in the spheres of foreign policy, propaganda, and military arrangements; how it arranged the fiasco of the Arms Trials; and how the consequences worked themselves out.
This pamphlet deals with the Irish approach to the United Nations after August 1969. It shows that the confusion at the heart of the appeal enabled Britain to easily block the initiative. The appeal to the UN was made on the grounds of a 'threat to peace' but, while bringing its military forces to the Border, the Irish Government failed to go to the rescue of nationalists under RUC/Protestant attack. There was therefore no international crisis and the threat to peace was theoretical, rather than real. Moreover, other grounds on which an appeal to the United Nations could have been made were not followed through.
Using much archive material and newspaper reports, this pamphlet follows the course of events from the Irish Cabinet's urgent private approach to Britain on 1st August 1969 to prevent a conflagration in Derry; the subsequent attempt to bring about a joint Governmental response; and the appeal to the United Nations for a peace-keeping force.
It is shown how Ireland failed to make a hard choice on what ground to pitch its appeal to the United Nations, with the consequence that there was neither a full-blooded challenge to Partition, nor a factual presentation of the intolerable position of Northern Ireland Catholics.
This confusion, which fissured the Irish response to the crisis, enabled Britain to wipe the floor with the External Affairs Minister—first dismissing warnings given in good faith and offers of help; then preventing Northern Ireland being put on the agenda of the Security Council or of the General Assembly. At the same time Imperial guile enabled Ireland to save face by finding a formula which concealed the true meaning of what had happened. At a crucial point, when Dr. Hillery had the option of forcing a vote on General Assembly inscription, his nerve failed him—and he allowed the issue to be fudged. Instead of hard policy, he contented himself with old-fashioned rhetoric in a speech to the General Assembly. Having been broken by Lord Caradon, he was never quite the same man again. In November 1969 he made a self-demeaning admission of futility to British officials.
While all this make-believe was going on at one level, there was also another prong to Irish Government policy—one firmly based in reality. The Cabinet was assisting Northern Catholics in providing for their own defence. Intelligence officers—including Captain Kelly—were assigned to liaise with them, military training was provided, and financial help expedited through the Irish Red Cross. At the unofficial level a wave of sympathy swept the country and help in all forms was sent North from every quarter. This open approach towards the North was to continue until May 1970.
But the seeds of Lynch's abrupt change of line were sown with the failure to internationalise the Northern Ireland problem in August to September 1969, and the consequent moral collapse. The result was that Irish policy towards the North came under increasing British influence. Towards the end of that eventful year, the Dublin Ambassador, Sir Andrew Gilchrist, was able to suggest that the British team could allow themselves "a smirk of… satisfaction" at the way the British interest had been served
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