Thursday, 13 September 2018

Ireland v UK ~ 1978 judgment will not be revised

The years 1968 to 1998 were a terrible time in Northern Ireland.  They were the years of "The Troubles" when over 3,600 people were killed and thousands more injured.   Over the course of three decades, violence on the streets of Northern Ireland was commonplace and spilled over into Great Britain, the Republic of Ireland and as far afield as Gibraltar.  Several attempts to find a political solution failed until the Good Friday Agreement of 1998.  The Northern Ireland Act 1998 implemented that agreement and devolved government was restored.  Regrettably, in early 2017, devolved government broke down and the British government is seeking to restore it - UK Government Statement 6 September 2018.

A number of issues
from those times remain including the treatment of a number of prisoners during the years of internment - 9 August 1971 to 5 December 1975.  During the period of Internment, 1,981 people were detained; 1,874 were Catholic / Republican, while 107 were Protestant / Loyalist.

Treatment of internees:

In the autumn of 1971, fourteen men held under internment were interrogated by British security forces using techniques that received condemnation at home and abroad.   The 5 techniques in question were - hooding, white noise, stress positions, sleep deprivation, and food deprivation. The practice was applied over an unknown period of four to seven days for an unspecified number of hours at a time.  These “deep interrogation” methods caused caused intense physical and psychological pain and suffering.

Ireland v UK:

The use of these methods and the inadequacies perceived in the British response to their use, played a significant role in the Republic of Ireland's November 1971 decision to bring proceedings against the United Kingdom for breaches of the European Convention on Human Rights.  Ireland's application was first considered by the European Commission on Human Rights.  The UK admitted it had used the five techniques in Northern Ireland.  The Commission agreed with Ireland that the techniques "when used in combination" amounted to torture.   However, the European Court of Human Rights disagreed and held (13 votes to 4) that the techniques did not occasion suffering of the particular intensity and cruelty implied by the word "torture."  Nonetheless, the court held (16 votes to 1) that the treatment meted out to the prisoners was "inhuman and degrading."  The court's judgment of 18 January 1978 may be read HERE or via Ireland v. The United Kingdom

Interestingly, neither the Irish Government, nor the U.K. government challenged the Commission’s classification of the techniques as torture. The U.K. government simply argued that it had stopped using such techniques.  On 2 March 1972, Prime Minister Edward Heath made a statement in Parliament stating that the government had decided that the techniques would not be used in future as an aid to interrogation. (A committee under the chairmanship of Lord Parker of Waddington had examined the subject - report).

An unfortunate consequence of the court's finding was not only that the Court rejected the Commission’s findings that the techniques did, in fact, amount to torture, but also that the decision in this case was subsequently cited by the United States to legitimise the use of similar methods in the aftermath of 9/11. The now infamous 2002 Bybee Memo, cited the Court’s decision to support its conclusion that the severity of the methods deployed by the U.S. did not amount to torture. 

In passing, it is well worth noting that the conduct of security forces in Northern Ireland did not entirely escape criticism in Parliament.  For example, in an adjournment debate held on 9 December 1971,  Mr George Cunningham MP (1931-2018) took the government to task and said - ".... It goes without saying that what we have here is a major scandal to which people have not wakened up, and which Ministers are busy trying to shove under the carpet. I promise the Minister that if torture is to be admitted to our techniques, I cannot stop the Government from doing that, but by God they will not do it in silence."  The Minister of State for Defence (Lord Balneil) defended the government's position on the basis that valuable information had been obtained.

Ireland sought revision of the judgment:

In 2014, the Irish government decided to ask the European Court of Human Rights to revise its 1978 judgment - BBC News Northern Ireland 2 December 2014.   The Irish foreign affairs minister said he took the decision to go back to the European Court of Human Rights following a review of thousands of documents on the basis of which it claimed that the ill-treatment suffered by the men should be recognised as torture.  [See article by Fiona de Londras EJIL: Talk - December 2014 - Revisiting the five techniques].

In March 2018, the court rejected Ireland's application by 6 votes to 1 - Third section judgment - Case of Ireland v UK.   Lord Reed was a member of the court - sitting as an ad hoc judge.

This rejection was followed by a request that the matter be referred to the Grand Chamber and on 10 September 2018 this was refused by the Grand Chamber panel of 5 judges - Hudoc 10 September.  

Why did the court reject the application for a revised judgment?   

A revision request does not offer a way to correct previous mistakes or to re-evaluate a case in the light of more recent case law.  The court may revise a judgment if new facts emerge which should have been made available to the court at the time of the original judgment and which would have had a decisive influence on the court.  In other words, the decision to deny the revision request was justified on the basis of maintaining legal certainty, a fundamental aspect of justice.  This is discussed more fully by Julia Padeanu at EJIL: Talk 5 April 2018

This decision is further explained in this article on EJIL: Talk where Michael O'Boyle comments - "The Court does not have the power under the Convention (ECHR) to revise a past final judgment because it considers it is wrong or was wrongly decided.  It only has an inherent power to revise a judgment where an error has been made concerning matters that were unknown to the Court and which, had they been known, might have had a decisive influence on the outcome of the case.  This power is exercised sparingly and reluctantly because there is almost a presumption that judgments have been correctly decided and should not be revised.  All revision requests will thus be subject to strict scrutiny in the interests of preserving legal certainty."

O'Boyle further points out that media headlines that the five techniques did not amount to torture is thus misleading.   The Court has decided not to alter the original judgment’s characterisation of the five techniques.  It has made no finding of its own about torture and it has made this clear.  However, if the same issue were to be decided today, it "is beyond doubt" that the five techniques would be held to amount to torture.  "The law on torture has evolved considerably since 1978 – the date of the Court’s original judgment – to take account of society’s sensitivity to and condemnation of the use of torture."

It is a sad indictment that, in 2011, the Baha Mousa Inquiry   condemned the "corporate failure" by the Ministry of Defence that led to interrogation techniques banned by the British government in 1972 - including hooding and making prisoners stand in painful stress positions - being used by soldiers in Iraq -  The Independent 8 September 2011

Further proceedings?

In the High Court of Northern Ireland - applicants sought judicial review of decisions by the Police Service of Northern Ireland, the Northern Ireland Office ("NIO"), and the Department of Justice in Northern Ireland in respect of how they have dealt with issues affecting the hooded men.

The first applicant, Francis McGuigan, was one of the 12 men who first underwent deep interrogation. The second applicant is Mary McKenna. She is a daughter of Sean McKenna, who was also one of the 12. He is now deceased. In particular, both seek judicial review of the decision made by PSNI that there is no evidence to warrant an investigation, compliant with Article 2 and 3 of the Convention, into the allegation that the UK Government authorised the use of torture in Northern Ireland. They also challenge decisions of all three respondents as constituting a continuing failure to order and ensure a full, independent and effective investigation into torture at the hands of the United Kingdom Government and/or its agents in compliance with Articles 2 and 3 of the Convention, common law, and customary international law. They also challenge the decision by all three respondents that these applications and, by implication, any investigation, are premature pending the determination of the review initiated by the Irish Government before the ECtHR.

The High Court's judgment quashed the decision of the PSNI  in effect, not to take further steps to investigate the question of identifying and, if appropriate, prosecuting those responsible for criminal acts.  The court added - "This will mean that this question should be revisited. The court will not be prescriptive as to how this issue should be taken forward."

Judgment in an appeal is awaited.


Rightsinfo - The Five Techniques

Strasbourg Observers 25 April 2018 - Ireland v UK and the Hooded Men: A missed opportunity

The Conversation 22 March 2018 - Five controversial interrogation techniques still not judged as torture in missed opportunity for human rights

Samantha Newbery - Dept. of History - Trinity College Dublin - 2009 study

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