Executions During The Irish Civil War - Legal Basis For The Executions

Legal Basis For The Executions

On 27 September 1922, three months after the outbreak of war, the Free State's Provisional Government put before the Dáil an Army Emergency Powers Resolution proposing legislation for setting up military courts. This had the effect of instituting martial law for the duration of the conflict. The legislation, commonly referred to as the Public Safety Bill, allowed for the execution of men captured bearing arms against the state and aiding and abetting attacks on state forces.

A motion was put to the Dáil by the Minister for Defence on 26 September to amend the army's Emergency Powers Order, that stated:

"(IV.) The breach of any general order or regulation made by the Army authorities; and the infliction by such Military Courts or Committees of the punishment of death, or of imprisonment for any period, or of a fine of any amount either with or without imprisonment, on any person found guilty by any such Court or Committee of any of the offences aforesaid;"

This motion was amended and approved by resolution of the Dáil, after considerable debate. The Republican, or Anti-Treaty, members had refused to take their seats in the Parliament and the opposition to the measures was provided by the Labour Party, who likened the legislation to a military dictatorship. On 3 October, the Free State had offered an amnesty to any Anti-Treaty fighters who surrendered their arms and recognised the government. However there was little response. W. T. Cosgrave, the head of the Provisional Government, told the Dáil in response, "although I have always objected to the death penalty, there is no other way that I know of in which ordered conditions can be restored in this country, or any security obtained for our troops, or to give our troops any confidence in us as a government".

The final version, passed on 18 October 1922, stated:

"(4) The breach of any general order or regulation made by the Army Council and the infliction by such Military Courts or Committees of the punishment of death or of penal servitude for any period or of imprisonment for any period or of a fine of any amount either with or without imprisonment on any person found guilty by such Court or Committee of any of the offences aforesaid. Provided that no such sentence of death be executed except under the countersignature of two members of the Army Council".

The Order was strengthened in January 1923 to allow execution for many other categories of offence, including non-combatant republican supporters carrying messages, assisting in escapes, using army or police uniforms, and also deserters from the National Army.

After the Civil War the government also felt the need to pass the Indemnity Act, 1923, which stipulated that all sentences passed on military prisoners taken by the Provisional Government's forces, before the passing of the Act, were retrospectively "valid". Two Public Safety Acts were also passed in 1923.