This is
a guest post by Dr Michelle Farrell, who is a lecturer in Law in the School of
Law and Social Justice at the University of Liverpool. She is the author of The Prohibition of Torture in
Exceptional Circumstances (Cambridge University Press, 2013).
#Torture
Torture is back in the headlines. On 9 December,
the Senate Select Committee on Intelligence released its long
awaited controversial report on the use of torture in the
aftermath of 11 September by the CIA. The report was over 6 years in
production, runs to thousands of pages, is heavily redacted and – surprise,
surprise – illustrates that –
amongst other things – the methods used were ineffective, were based on
fabricated claims of effectiveness and were much more brutal and were used much
more extensively than was recounted. The report’s release has caused a huge
stir;
so far there has been plenty of commentary on the question of criminal
accountability and there have been lashings of liberal outrage at the extent
and methods of violence used. Many have pointed out that the contents of the
report ought to come as no surprise. We knew – or suspected – a lot of this
already. The report will no doubt be dissected in great detail over the coming
days, weeks and years.
Bad
Torture v Good Torture
Ostensible liberal democracies do not like to be
called out as torture practicing states. In an effort to explain away the
violence, states seek – as the Bush administration did – legal
and moral cover, intellectual and popular support in the form
of torture apology and justificatory rationales in the form of necessity and life-saving
information extraction. Moreover, states invariably try to recast torture as
something else. For the Bush administration, it was “enhanced interrogation
techniques”. For the Israeli
Landau Commission, it was “moderate physical pressure”. These
efforts at definitional gymnastics and legal and moral justification produce a
torture compliant culture.
Revisiting
the UK’s use of torture
Beyond the Senate report in which the UK is
implicated, the UK government and indeed the European Court of Human
Rights have a distinct – yet not unrelated – torture
issue to handle. Earlier this month, on 2 December, Ireland’s Minister for
Foreign Affairs, Charlie Flanagan, announced that
Ireland would request the European Court of Human
Rights to
revisit its decision in the infamous case of Ireland v UK – a torture-centred case – decided in 1978. The
decision of the Court in this case set the scene for much legal definitional
wrangling over the meaning of torture. Ireland
v UK was far reaching in impact and in a way that does not flatter. The
decision was cited in the Bybee
‘torture’ memo and by the Landau Commission in Israel in the
late 1980s to justify both states’ unconscionable interpretations of torture.
Ireland
v UK
was initially
taken by Ireland against the UK to the European Commission on
Human Rights in December 1971. It concerned the alleged
breach by the UK of a number of provisions of the European
Convention on Human Rights following the introduction of internment in
Northern Ireland in August 1971. At the heart of the case were allegations of
the use of torture and other forms of ill-treatment by British agents against a
number of individuals – the so-called ‘hooded men’ - under
interrogation in secret detention centres in Northern Ireland. Their torture
has become known, euphemistically, as “interrogation-in-depth” or the “five
techniques”. These five techniques were hooding, wall standing in a stress
position, white noise, sleep deprivation and deprivation of food and water,
perpetrated over a period of days and enforced through - as we now know -
assaults and death threats.
Torture
one day, inhuman and degrading the next
The European Commission found that the use of
the “five techniques” in the interrogation of fourteen individuals amounted to
torture in breach of Article 3 of the European Convention. Article 3 states
simply: “No one shall be subjected to torture or to inhuman and degrading
treatment or punishment.” The Commission reached this conclusion having reasoned
that the techniques were deliberately employed to break the will of the
individuals. Although, the Commission reasoned, the five techniques “might not
necessarily cause any severe after effects”, it saw in their use “a modern
system of torture”.
Following the release of the Commission’s report
in 1976, the Government of Ireland had the case referred to the European Court,
with a view to achieving an authoritative Court decision. The Court offered a
different interpretation of the five techniques to that of the Commission. By a
vote of 14 to 3, it found that, used in combination, the five techniques constituted
inhuman and degrading treatment in breach of Article 3. However, the techniques
did not constitute torture as “they did not occasion suffering of the
particular intensity and cruelty implied by the word torture as so understood”.
In reaching this determination, the Court introduced the idea that there is “a
special stigma” attached to torture which differentiates it from inhuman and
degrading treatment.
The Torture Files
On 24 November, Amnesty
International requested Ireland to reopen this case. Their request
followed the unearthing of new evidence by the Pat Finucane Centre and by
RTÉ, Ireland’s national broadcaster. In June
2014, RTÉ aired the
Torture Files, a half hour documentary which disclosed archival
material demonstrating that the British government had withheld evidence during
the European Commission and Court hearings. The Torture Files also documents
the experience of the fourteen men subjected to the five techniques, and it
shows, sensitively and significantly, the immediate and the long-term suffering
endured by the men. In one scene, the wife of one of the interrogated men, Pat
Shivers, who died of cancer in 1985, remarks “even
yet, I think, I wish they had killed him then. It would have saved him the
horrors of having to relive that over and over again”. Her words recall those
of Jean Améry, a member of the Belgian resistance, tortured by the Gestapo in
1943: “Whoever was tortured, stays tortured”.
New
Disclosures
The Torture Files is not only effective in
un-hooding the men, made so famous and yet anonymous by these European cases.
It also demonstrates the extent of British bad faith during the proceedings. The
documentary reveals that the British Government knew that the use of the five
techniques produced long term psychological effects, a fact that it failed to
disclose during the proceedings. In addition, the documentary exposes the
extent to which the use of the five techniques constituted a political decision
at the highest levels, sanctioned by then Secretary of State for Defence, Lord
Carrington. At the Commission and the Court, the Government denied such
responsibility.
The Troubling
Role of the European Court
Whether or not this case is substantively
revisited, I do think it is important to remember the damaging role
played by the European Court of Human Rights in saving the UK from the “special
stigma” of torture. Whilst, of course, the real crimes in all of this were
committed by the British authorities and the individual perpetrators, the
European Court ought not to be excused for its erroneous decision in 1978 on
the basis that it did not have all the
evidence, since disclosed by the Torture Files. The European Court had the same
information as the Commission. The Court reached its different determination on
the basis of flawed and dangerous interpretations wielded because, in the face
of one of Europe’s leading and influential liberal democracies, it acted
politically and spinelessly.
Perhaps it is with the benefit both of hindsight
and of being far-removed from the fractious politics of the 1970s that I and
others can criticise the European Court for its decision in Ireland v UK. Yet those judges exercised
arrogant discretion in finding themselves capable of determining how
ill-treated these men were, even if deference to the UK was the underpinning
motivation. The interpretational aids dragged in to the Court to decide Ireland v UK are still in play. Torture
versus other forms of ill-treatment is still – for the Court - a matter of
severity of pain; it still has a ‘special stigma’. The Court has generated a
confused concept of torture. The treatment of the “hooded men” was torture stricto sensu. To avoid the “bad word”,
the Court downplayed inhuman and degrading treatment. Oddly, therefore, the Court managed, by
creating a special stigma for torture, to convey inhuman and degrading
treatment as somehow less severe, less serious. And this was all done under the
banner of human rights.
The European Court is powerless to stop torture.
It does have the power to stay out of messy debates about thresholds of pain
and suffering. More importantly, it has a responsibility to victims. The case was poorly and politically reasoned. It
remains relevant because it has influenced global understanding of torture to
date. It remains relevant because it concerned a state which has since gone on
to practice torture again, in Iraq and elsewhere. And it remains relevant
because it contains the kind of logic that has underpinned the whole US torture
farce. Perhaps today’s judges will have
the chance to correct their predecessors.
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