Should we appoint a head of State who could be liable to arrest for war crimes under international law?

Accepting something is not the same as welcoming it. Resignation is not enthusiasm. Setting aside the past for the sake of the future is not amnesia. Sinn Féin’s nomination of Martin McGuinness for the presidency suggests that it does not understand these distinctions.

Very few people would argue with the proposition that Martin McGuinness has been a crucial figure in the peace process. His personal transformation from diehard IRA leader to deputy first minister at ease with the Democratic Unionists is a remarkable story, requiring courage, skill and imagination.

That process, though, was one of getting the IRA out of a cesspit it had dug for itself. It has required of other people that they go along with a carefully poised act of moral evasion, an Irish version of “don't ask, don't tell”. The price of peace has been hypocrisy: keeping quiet when Sinn Féin (rightly) demands accountability for Bloody Sunday or the Ballymurphy massacre but not for Teebane Cross or Kingsmills, or contrasts its own moral purity to the deviousness of other parties.

It now seems, however, that this tacit arrangement has worked too well. Sinn Féin has taken uneasy resignation for complete compliance. It has decided to turn a quietly agreed reticence (don't talk about the war) into an explicit endorsement (the war was legitimate). It has posed a question that goes far beyond McGuinness’s personal qualities. The question, to put it starkly, is whether we should have a head of State who would, in principle, be liable to arrest for war crimes under international law.

The IRA’s “armed struggle” was what the fourth Geneva Convention defines as an “armed conflict not of an international character”. Under the convention, the parties to such a conflict are bound to respect certain standards in their treatment of “persons taking no active part in the hostilities”, including former or non-active members of opposing forces. Such people must not be subjected to violence, “in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular, humiliating and degrading treatment; the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilized peoples”.

It should go without saying that the IRA, partly under the leadership of Martin McGuinness, consistently breached every one of these provisions. But apparently, it does not, so let’s put it on record again. The IRA killed 644 civilians, by far the largest category of its victims (by contrast, and contradicting its self-image as defender of the Catholic community, it killed just 28 loyalist paramilitaries). It incinerated, for example, the members of the Irish Collie Club at the La Mon Hotel. It killed children, including Nicholas Knatchbull, Jonathan Ball, Tim Parry and Paul Maxwell.

It practised kidnapping, torture, and acts of naked sadism, such as forcing Patsy Gillespie to drive a van loaded with explosives at an army checkpoint. (Widespread revulsion did not stop the IRA from trying this tactic again.) It held kangaroo courts and imposed arbitrary sentences that included mutilation through so-called “knee-capping”. All of these are war crimes for which there is no statute of limitations. I don't know what personal role McGuinness may have played in any incident. However, what is clear is that he was, for almost the entire period of the conflict, in a position of authority within the IRA. Legally and morally, this makes him responsible.

He actively denied this responsibility. His line was consistent – where civilians were killed by the IRA, it was the fault of the British. For example, on August 31st, 1988, an IRA booby-trap bomb in Derry killed two civilians, Seán Dalton and Sheila Lewis. McGuinness’s reaction was that, while the IRA should try not to inflict civilian casualties, “sadly ... civilians will continue to suffer and die as long as Britain refuses to accept its fundamental responsibility for what is happening in our country.” He continued to portray himself and his comrades, not as perpetrators, but as victims of the conflict: “We are not the cause of this conflict; we are the victims of it. We are the product of decades of British tyranny and misrule.”

The IRA never stepped back from this line. Its parting statement in 2005 reiterated that “the armed struggle was entirely legitimate”. Entirely means the civilians, the children, the tortures, the mutilations – the lot. I would like to think McGuinness is haunted by some of the obscenities to which he was a party. But shouldn't that private grief manifest itself in a certain tact, a reticence about pushing things too far? Shouldn't he feel extraordinarily blessed to have been allowed to escape the consequences of the deeds he has been party to? Shouldn't gratitude for that blessing make him think twice about the hubris of putting himself forward as the leading citizen of this State, the embodiment of its better values?