In the ‘The Torture Files’, the Investigations Unit of the Irish national broadcasting service (RTE) argues that new evidence, which was unearthed in the British National Archives, could justify a re-visiting of the European Court of Human Rights judgment in the Ireland v United Kingdom case. The programme, broadcast on 4 June 2014, can be viewed here. Rita O’Reilly of the RTE Investigations Unit discusses their revelations in the Irish Times here.
Subsequent to the broadcast, Sinn Féin President Gerry Adams called on the Irish Government to request the ECHR to re-open the case. Amnesty International’s Northern Ireland Programme Director Patrick Corrigan has described the evidence that the British Government misled the European Commission and Court of Human Rights during the proceedings as ‘deeply worrying’.
‘The Torture Files’ traces the experiences of the 14 ‘Hooden Men’ who were subjected to what became known as the ‘Five Techniques’. As ‘The Torture Files’ recounts, the ‘Five Techniques’ involved five sensory deprivation methods applied in combination over several days. These are hooding, sleep deprivation, a severe wall-standing position, continual noise generator and bread/water diet. In August and October 1971, these ‘Five Techniques’ were used during the ‘interrogation in depth’ of 14 men. These interrogations arose out of the 1971Operation Demetrius, an operation mounted by the British Army and the RUC on the 9 August 1971 that detained 342 men and signalled the introduction of internment or detention without trial.
‘The Torture Files’ shows that the British Government was aware that the ‘five techniques’ produced severe long-term psychological effects. The Irish Government’s expert witnesses before the European Commission of Human Rights, psychiatrists Professor Robert Daly and Professor Baastians, argued that the effects of the techniques would be long-term mental and physical illness. In opposition, the British Government’s expert witness, Dr Leigh, argued that the ‘acute psychiatric symptoms developed during interrogation were minor and their persistence was the result of everyday life in Northern Ireland’. Yet, among other revelations, ‘The Torture Files’ divulge the contents of Dr Leigh’s Report where he later in 1975 assessed one of the 14 men and drew a completely opposite conclusion –considering that the ‘other psychiatric symptoms’ was probably the result of interrogation in depth.
The Irish Government argued in the European Commission on Human Rights hearings that ‘the British Government failed on several occasions in their duty to furnish the necessary facilities for the effective conduct of the investigation’. However, the European Commission did not draw this conclusion but as the Court’s judgment recalls, it did note that the assistance afforded was not always at a desirable standard.
Another significant revelation in the ‘The Torture Files’ is the letter from (Home Secretary at the time) Merlyn Rees to British Prime Minister Jim Callaghan in March 1977. Here, Rees stated that his view (confirmed by former Stormont Prime Minister Brian Faulkner) was that the decision to ‘use torture in Northern Ireland’ was ‘taken by Ministers in particular Lord Carrington, then Secretary of State for Defence’ and therefore, prosecutions of members of the security forces should not take place. The Ministry for Defence concurred.
Yet, in the UK Counter-Memorial, the British Government argued that they ‘do not admit any of the particular allegations of ill-treatment made by the applicant Government, or that any particular act alleged is attributable to or the responsibility of the UK Government’. ‘So far as concerns the five techniques….the UK Government deny that the techniques, as applied in Northern Ireland, constituted ill-treatment contrary to Article 3 or that the use of these techniques constituted an administrative practice contrary to article 3…..the UK Government accordingly maintain that the allegation of an administrative practice is ill-founded’ (ECHR Report, p260). Further, ‘it would be….neither be fair nor reasonable to regard condonation by sub-ordinate officers of acts forbidden by higher authorities as an administrative practice for which the Government is responsible and there was no evidence of such toleration’ (ECHR Report, p264). Here, the UK was arguing that the official tolerance element of an administrative practice must involve ‘a superior of such rank as to be entitled to speak for the Government’ or of rank that an inference of authority can be drawn. But the European Commission of Human Rights reiterated that official tolerance involved either the direct superiors of those immediately responsible for the acts or that of a higher authority. This allowed the Irish Government to successfully demonstrate an official tolerance despite the lack of evidence at the time of a political decision. Therefore, Merlyn Rees’ understanding would mean that the acts of lower level officers had not been prohibited by higher authorities but had been political sanctioned, despite consistently denying an official tolerance before the European Commission of Human Rights.
In light of these revelations, it has been argued that there are grounds to re-open the case and revisit the Court’s decision on article 3 where it found that the five techniques constituted a practice of inhuman and degrading treatment in breach of article 3 but did not amount to torture (the latter being the finding of the European Commission). The argument that the case can be re-opened hinges on previous situations where the European Court of Human Rights has reversed its earlier decisions. In Al-Khawaja and Tahery v United Kingdom, the UK Government requested the ECHR to revisit its judgment and in turn, the ECHR overturned its original finding that the UK violated article 6 in relation to admissibility of hearsay evidence. However, this procedure falls under article 43 of the ECHR, which permits any party to request, in exceptional cases, the case to the referred to the Grand Chamber within 3 months of the Chamber judgment. Rather ‘The Torture Files’ claim would fall under Rule 80 of the Rules of the Court. Under Rule 80(1), ‘a party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court, within the period of six months after that party acquired the knowledge of the fact, to revise the judgment’.
The Irish Times reports that the Irish Attorney General Maire Whelan has refused to seek the case to be re-opened after representations from lawyers acting for the ‘Hooded Men’. However, Rita O’Reilly reports that the Irish Department of Foreign Affairs has sought access to the RTE Investigation Unit’s research. Whether the Irish Government’s position will remain unchanged, time can only tell. The sequence of events in 1971 that led to Irish Government’s application to the European Commission on Human Rights began with a suggestion by Sean MacBride to make such an application, which was reported in the Irish media in August 1971 and which gathered considerable momentum over the following months.
Dr Aisling O’Sullivan is Lecturer in law at Sussex Law School. Dr O’Sullivan was project researcher with Professor Schabas, who was the Principal Investigator, on a project funded by the Irish Research Council for the Humanities and Social Sciences ‘Ireland’s Participation in International Human Rights Law and Institutions’. The research including an investigation of Irish and British National Archives files on the Ireland v UK case. The research, which was undertaken at the Irish Centre for Human Rights, was used by RTE in preparation of ‘The Torture Files’. This contribution is cross posted with permission from the Human Rights Doctorate Blog.