human rights Cases

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Case Summary of Ireland v United Kingdom (1979-80) 2 EHRR 25

Ireland v United Kingdom1 is a European Court of Human Rights (ECtHR) principally concerning the threshold at which 'cruel and unusual treatment' becomes 'torture' for the purposes of Article 3 of the European Convention on Human Rights (ECHR), and the circumstances in which an Article 15 'derogation in times of war or other public emergency' permit a valid deviation from the standards imposed by Article 5 (right to liberty and security) and Article 6 (right to a fair trial).

Background

Before 1922, the island of Ireland was a constituent part of the United Kingdom.2 By the 1970's, a series of complicated political events had resulted in the island becoming two separate nations:

  • The Irish Republic - an independent sovereign nation-state; and
  • Northern Ireland that, at the time the events of this case took place, maintained a separate "Government and Parliament" under the sovereignty of the United Kingdom.3

Despite this partition, tensions remained high between Northern Ireland's Protestant and Catholic populations. This superficially religious divide was further characterised and complicated by deep-rooted, social, and economic differences between the two communities.4 Politically, the Catholics - who comprise around one third of Northern Irelands population of 1.5 million - generally supported the idea of a united Ireland. The Protestant community opposed it, preferring on the whole to remain part of the UK.5

The situation deteriorated from 1970 onwards, as terrorist campaigns orchestrated by Loyalists - Protestants who supported the union with the UK - and the Irish Republican Army (IRA) - who aimed for a united Ireland - became more violent and deadly in nature.6 The Northern Ireland Government maintain that the IRA perpetrated the overwhelming majority of this violence.7 By March 1975, an estimated "1,100 people had been killed, over 11,500 injured and more than £140,000,000 worth or property destroyed" as a result of violence that "found its expression in part in civil disorders, in part in terrorism perpetrated for political ends."8

Facts

It was against this background that the Northern Ireland Government introduced Operation Demetrius,9 which was a series of "extrajudicial measures of detention and internment of suspected terrorists."10 The principal target of these measures was suspected members of the IRA, although it is accepted that some people would have been wrongfully detained on the basis of "inadequate or inaccurate information."11

One of the more serious interrogation techniques used on fourteen prisoners became known as the "five techniques."12 This consisted of the following:

  1. "Wall standing (forcing detainees to remain in a stress position for hours at a time);
  2. Hooding (keeping a bag over detainees heads at all times, except during interrogation);
  3. Subjection to continuous loud noise;
  4. Deprivation of sleep;
  5. Deprivation of food and drink."13

It is probable that "physical violence was sometimes used in the forcible application of the five techniques."14 One prisoner spent three weeks in hospital after being subjected to "kicking and beating, during or between a series of 'interviews' conducted by the Special Branch sic."15 At least two detainees would go on to develop "acute psychiatric symptoms" as a result of their interrogation.16

The respondents (the UK) in this case argued that these measures were necessary because "normal procedures of law and order had become inadequate to deal with IRA terrorists." Widespread intimidation "made it impossible to obtain sufficient evidence to secure a criminal conviction against known IRA terrorists in the absence of an admissible confession or of police or army testimony."17 Large swathes of the Catholic community had become "no-go" areas for the police and security forces. The international border also posed challenges for law enforcement. These factors led the respondents to conclude that there was "no hope of winning over the terrorists by political means."18 As such, these measures were necessary to countenance the threat posed by an IRA, who were engaged in a "highly organised, politically motivated campaign designed to overthrow the State.19

ECtHR Proceedings

The Irish government objected to these actions, alleging wide reaching breaches of the ECHR.20 The ECtHR convened to consider the following points:

  • "Whether the treatment of persons in custody .... constituted an administrative practice in breach of Article 3;
  • Whether internment without trial and detention .... constituted an administrative practice in breach of Articles 5 and 6 in connection with Article 15;"
  • Whether Operation Demetrius - targeting IRA dissidents - amounted to discrimination on the grounds of political opinion (which would breach the Article 14 prohibition of discrimination).21

The ECtHR found that the five techniques caused "intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation," but did not necessarily cause actual bodily injury.22 As such, the Court concluded that the five techniques breached Article 3 as they amounted to "inhuman and degrading treatment." However, this treatment was not considered serious enough to amount to "torture," which was reserved for the most serious of breached of Article 3.23 The Court determined that although Article 5 might have been breached, the existence of an emergency that would permit a derogation "is perfectly clear from the facts," concluding that no breach had occurred.24 The Court found that Article 6 overlapped with Article 5, meaning that no further consideration was required.25 Finally, as the IRA perpetrated the majority of the violence, the Court concluded that there was no tacit breach of Article 14.26

Wider Impact

The ECtHR's distinction between "degrading treatment" and "torture" for the purposes of Article 3 highlights how torture under international law has a subjective element that evolves over time. This flexibility - and the margin of appreciation afforded the UK in determining the scope of derogation under Article 15 - has led some academics to fear a "devaluation of Convention rights and freedoms."27 The ECtHR's conclusion that use of the "five techniques" did not amount to torture appears to have been cited by the US Attorney General as legal authority that the interrogation techniques used by the USA in Iraq, Afghanistan and Guantanamo Bay did not amount to torture under international law.28

However, one could equally argue that as the standards of human rights expected by society grow, the Convention evolves to reflect them. Indeed, it has been said that if the facts of this case were to be heard today, they "would now be regarded as torture within the meaning of Article 3 of the Convention."29 The case was also significant in establishing a more general principle that the cumulative effect of mistreatment can amount to a breach of Article 3. As the recent decision in Becciev v Moldova30demonstrates, this can still be the case where individual instances of mistreatment do not, in isolation, amount to a breach of Article 3.

Footnotes

1 Ireland v United Kingdom (1979-80) 2 EHRR 25

2 ibid 1, para 13

3 ibid 1, paras 13 and 14

4 ibid 1, para 15

5 ibid 1, para 15

6 ibid 1, para 29

7 ibid 1, para 32

8 ibid 1, para 12

9 ibid 1, para 39

10 ibid 1, para, 34

11 ibid 1, para 39

12 ibid 1, para 165

13 ibid 1, para 96

14 ibid 1, para 105

15 ibid 1, para 111

16 ibid 1, para 104

17 ibid 1, para 36

18 ibid 1, para 36

19 ibid 1, para 37

20 ibid 1, para 144

21 ibid 1, para 145

22 ibid 1, para 167

23 ibid 1, para 167

24 ibid 1, para 205

25 ibid 1, para 235

26 ibid1, para 231

27 Jones (1995), "The Devaluation of Human Rights under the European Convention" Public Law, Aut, 430-449

28 "The Hooded Men - joint press release from CAJ and the Pat Finucane Centre". Committee on the Administration of Justice. 24 November 2014. Last accessed 25th September 2015 Click here to read

29 Hope (2004) "Torture", International & Comparative Law Quarterly, 53(4), 807-832

30Becciev v Moldova (2007), 45 EHRR 11