April 25, 2018
Written by Dr Alan Greene, Assistant Professor at Durham Law School*
In Ireland v The United Kingdom, the European Court of Human Rights (ECtHR; the Court) in Chamber formation refused to revise its 1978 judgment regarding whether British security forces’ use of the so-called ‘five techniques’ of interrogation during the conflict in Northern Ireland amounted to torture under Article 3 ECHR. In so doing, the ECtHR missed an opportunity to correct an historic wrong; one that has had a pernicious effect across the globe. In contrast, the dissenting judgment of Judge Siofra O’Leary strikes a more persuasive balance between legal certainty and the public interest in holding a state to account for ‘a serious violation of the European public order.’
The case centred on the use of ‘interrogation methods’ known as ‘the five techniques’ on individuals detained without trial by British security forces during the conflict in Northern Ireland in the 1970s. Whereas the Commission unanimously found that the five techniques amounted to torture under Article 3 ECHR— and indeed, the UK had accepted this finding and did not contest this before the Court— the Court, nevertheless, over-turned this decision and found that the five techniques amounted to inhuman and degrading treatment only.
Following the broadcast in June 2014 of a documentary by the Irish state broadcaster which highlighted a number of documents that had become available in the British Government archives according to the ‘thirty years rule’; Ireland sought to reopen the case against the UK. Ireland contended that these documents revealed that that British Government had withheld certain information from the Commission and the Court that would have altered the outcome of the case. Ireland’s claim was formulated on two grounds: firstly, that the British Government had information which revealed that the effects of the five techniques could be substantial, severe and long-term, in contrast with its contention in the original case that the effects were minor and short-term; and secondly, that the new material revealed that the policy of withholding this information from the Commission and the Court was authorised at ‘ministerial level’. Consequently, negative inferences may have been drawn from the UK’s conduct, thus making it easier for Ireland to satisfy the rather onerous standard of proof ‘beyond reasonable doubt’.
It is important to note that, in accordance with the Court’s review procedure, Ireland was not seeking to produce new evidence of the long-term impact of the five techniques based on data collected up to the present day. Rather, its claim centred on withheld evidence the UK had in its possession at the time of the original proceedings. Furthermore, Ireland was not asking the Court to re-appraise the five techniques in light of the evolving moral standards of today. The Court does not have the power to revise a past judgment simply because it was wrong; nor does it need to use the revision procedure to do so as was seen in Selmouni v France, when the Court held that acts in the past that were considered to be inhuman and degrading treatment could be re-classified as torture in future.
This was the first time that the revision procedure has been used in an inter-state case and it is possible that this had a profound impact on the majority judgment. The possibility of revising a judgment is not provided for in the Convention; rather, it was introduced by the Rules of Court. A revision request is considered to be an exceptional procedure and, as such, subjected to strict scrutiny in order to preserve legal certainty. The majority found that the new facts upon which the revision is based must ‘by their nature have a decisive influence’ in order for a judgement to be revised. Ultimately, the majority found that the new documents did not meet this standard.
In reaching this conclusion, the majority relied heavily on the ‘two illustrative cases’ that the Commission heard in its initial inquiry. The new evidence contained the assessment of Dr L who observed that one of the detainees, Mr SK, had suffered serious and long-term side effects as a result of the five techniques. Mr SK, however, was not one of the ‘two illustrative cases’. Yet when Dr L gave evidence to the Commission, he contended that there was no evidence of long term serious side effects. The Court stressed that as Mr SK suffered from a specific serious health condition, the evidence submitted by Dr L in the original hearing was not prima facie misleading or made in bad faith. The Court further concluded that although it was unknown to the original Court that the five techniques had been authorised at ministerial level, the original judgment acknowledged that they were authorised at a ‘high level’. Moreover, the original judgment also made reference to the fact that the UK had not ‘always afforded [the Court] the assistance desirable’ and therefore it was difficult to contend that alternative inferences would have been drawn from the UK’s conduct had the information regarding the five techniques being authorised at ministerial level been known to the Court.
In light of this, the majority found that the new material would not have had a decisive influence on the outcome of the case. The majority further stressed that ‘it must be clear from the reasoning contained in the original judgment that the Court would not have come to a specific conclusion had it been aware of the true state of facts’. The majority then went on to stress that as the original judgment did not mention the issue of possible long-term side effects of the five techniques, it was difficult to place any emphasis on the relevance of the uncertainty of the long-term impact on the Court’s reasoning.
In contrast, the dissenting opinion of Irish Judge Siofra O’Leary laments the majority’s overly formalist approach. Judge O’Leary instead emphasises the gravity of the issue before the Court, noting that an inter-state application is ‘not the exercise of a right of action to enforce the applicant state’s rights but an action against an alleged violation of the public order of Europe’ (her emphasis). The value of legal certainty therefore should be balanced against this public interest. The public interest in this case is particularly salient in light of the fact that the original judgment was utilised by, amongst others, the United States to legitimise and defend what it termed ‘enhanced interrogation techniques’ during the war on terror. The original judgment therefore is a precautionary tale of how a minimalist approach to a particular legal question may have unintended consequences that can undermine a fundamental jus cogens norm of international law.
Judge O’Leary took issue with the manner in which the majority dealt with the conflicting evidence before the Commission and the Court. For O’Leary, the majority focuses almost exclusively on the ‘two illustrative cases’ to the exclusion of all other detainees who were subjected to the five techniques. The reason why ‘two illustrative cases’ were ‘heard’ (her emphasis) by the Commission was for reasons of ‘procedural economy’: i.e. it would be too burdensome for the Commission to hear from all the detainees. However, the Commission and the Court had received written evidence pertaining to 14 of these cases. Instead, the majority judgment focuses only on the ‘two illustrative cases’, to the detriment of the other detainees, and it was this blinkered approach that enabled the majority to exclude the ‘new’ evidence pertaining to Mr SK. Judge O’Leary thus contended that the majority judgment ‘devalues the evidence before the Commission and the Court’ in upholding the original judgment.
The majority’s focus on the ‘two illustrative cases’ is even more questionable in light of the statement by the Commission, endorsed by the Court in the original judgment that what constitutes ill treatment under Article 3 depends upon the circumstances of the case ‘such as the sex, age and state of health of the victim’. The Commission, then further described torture as ‘an aggravated form of inhuman treatment.’ In addition, the separate opinion of Judge Zekia in the 1978 Court also acknowledged this, suggesting that the test for torture or inhuman treatment should be subjective. Moreover, the infamous US ‘torture memos’ which relied upon the distinction between torture and inhuman and degrading treatment delineated in the original Ireland v UK case placed a heavy emphasis on exploiting subjective factors like a phobia of insects to develop bespoke torture techniques for specific detainees. Excluding the evidence pertaining to Mr SK therefore is inconsistent, not merely with Article 3 jurisprudence today, but with the understanding of torture under Article 3 in the 1970s.
While the dissenting judgment of Judge O’Leary is more persuasive, there may be a number of reasons for the timid approach of the majority. As stated before, this was the first case to use the revision procedure in an inter-state application and the Court therefore was in unknown territory. It is not uncommon for courts, not least the ECtHR, to misstep in novel cases. The majority’s approach towards the ‘new evidence’ and its emphasis on the ‘two illustrative cases’ is not dissimilar to how the Court approaches individual petition cases with a heavy emphasis on the facts pertaining to the specific victim who has petitioned the Court. By focusing on the ‘two illustrative cases’, the majority ignored the inter-state dimension of this application and the other detainees whose experiences were examined by the Commission but who had not been chosen as one of the ‘two illustrative cases’. Judge O’Leary’s dissent, however, is more sensitive to this wider factual context.
Furthermore, the Court also experienced considerable difficulty of hearing a case, the facts of which occurred 40 years ago. This was acknowledged by both the majority and the dissent. In addition to the evidentiary difficulties caused by ‘new’ evidence being embargoed for some 30 years, there is also the issue of the imaginative dexterity demanded of a Court in 2018 when speculating how a Court in 1978 would have ruled had this new evidence been available to it. In so doing, the Court must ignore the subsequent 40 years of Strasbourg jurisprudence which has moved on considerably since then. That stated, this does not absolve the Court of carrying out its functions and Judge O’Leary’s dissent shows that it is possible to do so.
The lack of any progress in Northern Ireland related to confronting the legacy issues of the Troubles such the establishment of a truth and reconciliation commission for example means that it is inevitable that the ECtHR will be asked to adjudicate upon cases like this. Ireland v UK, however, shows that a supranational constitutionalist court like the ECtHR may be an ineffective institution for dealing with claims, the facts of which occurred decades ago. This is particularly the case in instances where a state uses national security concerns to embargo evidence. Indeed, a key stumbling block to confronting the legacy issues in Northern Ireland is the British Government’s blocking of a truth and reconciliation commission that would deal with all deaths during the Troubles, including those carried out by state forces. Ireland v UK is thus a reminder that the British Government which often now, ‘plays the part of an honest broker,’ was very much a participant in the conflict.
The ‘hooded men’— the surviving detainees who were subjected to the five techniques— have asked for the Grand Chamber to hear the case so it remains to be seen whether the majority approach in the Chamber will be upheld.
*Dr Greene’s research focuses on counter-terrorism and states of emergency. His new book, Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (Hart 2018) was published in April 2018. He tweets at @DrAlanGreene.