Revisiting Torture: Implications of Overturning Ireland v. United Kingdom

One of the seminal international decisions on torture, inhuman and degrading treatment, the Ireland v United Kingdom case decided by the European Court of Human Rights in 1978, may be about to be reopened, and potentially reversed. As many Just Security readers will be aware, this case is not “old” history in the context of US torture debates. The case was heavily relied upon in key memoranda produced by the OLC supporting the use of coercive interrogation measures. And the case also figured prominently in other proceedings that scrutinized those memos including a civil suit against John Yoo in the Ninth Circuit (Padilla v. Yoo), the Justice Department’s Office of Professional Responsibility (OPR) review of John Yoo and Jay Bybee’s conduct (p. 191-193), and the Associate Deputy Attorney General’s review of the OPR’s final report (p. 38-41).

The facts of the Ireland v. UK case involved a complex series of detention measures applied in Northern Ireland during the early phase of the conflict, including the treatment experienced by detainees while interned without trial by the British government. The case was argued before both the European Court of Human Rights and the (now inoperative) European Commission. 

The issues then before the Court and Commission included whether the scale of arrests and the selection of detainees were within the parameters of the derogation clause of the Convention (Article 15, which allows states to limit the exercise of certain right in situations of emergency/war) and whether the allegations of mistreatment would be sustained. The fundamental issue for Ireland was whether the use of five techniques amounted to torture under Article 3 of the Convention. These five techniques involved wall-standing, hooding, subjection to noise, sleep deprivation, and deprivation of food and drink.

The Commission found that the five techniques constituted torture under the Convention. By contrast, on review,  the Court was only prepared to agree that the techniques met the threshold of inhuman and degrading treatment. The Court examination was, as I have noted here, characterized by the manipulation of splintered factual categories as a tool to avoid specific scrutiny of the net effect of the techniques. Practically, this meant looking at the effect of each technique employed separately, adducing whether each individually amounted to the standard of torture, rather than closely examining whether the combined effect of the five techniques cumulatively reached the torture threshold for each individual detainee.

Having served a nontrivial role in the OLC memos and subsequent reviews of those memos,  Ireland v. UK is now coming under significant and unexpected pressure. Based on the persistent research of two small NGOs representing the twelve men who were detained and subject to the five techniques, a number of previously undisclosed documents were revealed over the summer and now made public through a television documentary (here). These documents appear to demonstrate conclusively that the British government accepted at the time the European case was being pursued (but did not reveal to the Court) that the interrogation methods they were using amounted to torture. Hence, the government misrepresented to the Court its own internal findings on the harshness of the methods used to interrogate these men.  In short, they lied about torture.  The response of the Irish government to these internal documents has been swift and somewhat unexpected. Many commentators expected that the political costs of reopening this contentious and highly emotive case would be too high in the context of a variety of bilateral economic and political relationships with the UK. Nonetheless, the Irish Foreign Minister has recently confirmed that the Irish government will seek to have the decision in Ireland v. UK overturned. This move has stayed domestic litigation by the former detainees which sought to compel the Irish government to review the ECtHR decision based on the imputed good faith breach by the British government as it litigated the case. It appears that the Irish government is of the view that had all the investigative documents available to the British government been available to the European Court of Human Rights, a torture finding would have been sustained. The implications for torture jurisprudence in Europe and beyond are seismic. The decision to seek overturn confirms the robustness of the torture prohibition. It also serves to undermine further all those who confidently relied on Ireland v. UK as a basis to legitimate acts that are now revealed by the internal British memoranda as constituting torture at the time they were used by the state deploying the five techniques.   If these acts constituted torture in 1978 they clearly constituted torture in 2001 and beyond. Watch this space for the Council of Europe response.

[The author notes that she is a Board Member of one of the two organization, the Belfast-based Committee on the Administration of Justice representing the family of one of the former detainees]. 

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About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).