Wednesday, 10 December 2014

Transatlantic Torture: The Senate Report, the “Hooded Men” and the Regrettable Role of the European Court of Human Rights

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 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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