Where now for the hooded men? Ireland v UK revisted

by Guest Post on September 8, 2014

Rights NI is delighted to welcome this guest post from Christopher Stanley of KRW LAW LLP KRW

Recent research which has fed into high profile media documentary television programmes by both RTE and BBC has resurrected interest in the case of the 14 Hooded Men. It will be recalled that The Hooded Men were those Republicans interned by the British Army in 1971 and subject to what would now be defined as torture by both the British Army and RUC Special Branch during Operation Demetrius when they were interrogated during internment using the five techniques of hooding, sleep deprivation, wall standing, white noise and food deprivation (it has since emerged that water boarding was also used by the British Army). Their fate was very early recognised and described in books such as “The Guinea Pigs” by John McGuffin and by the Sunday Times Insight Team, amongst others.

The RTE documentary utilized British state papers to present new evidence regarding the extent of abuse, its long term effects and how far up the chain of command these interrogation techniques were being authorized in addition to the failure to present medical evidence before the European Court of Human Rights (ECtHR). The BBC documentary examined the activities of a covert British military unit known as the Military Reaction Force (MRF) and heard testimony from former members regarding its illegal activities during the early stages of the conflict including shoot to kill and work with Loyalist paramilitary groups to destabilize the Republican cause.

The fate of The Hooded Men became subject to two government enquiries (Compton and Parker).  Compton’s Report exonerated the British Army; Parker’s Report found the techniques to be illegal in domestic law. There was no further criminal investigation into the allegations and no prosecutions of any of the state agents involved. On the day of the publication of the Parker Report Prime Minister Edward Heath made a statement to the House of Commons: “[The] Government, having reviewed the whole matter with great care and with reference to any future operations, have decided that the techniques … will not be used in future as an aid to interrogation… The statement that I have made covers all future circumstances.” (2 March 1972). The statement became incorporated into a Directive which was supposed to become part of British military doctrine.

When the evidence of the five techniques came to the attention of the Irish Government they lodged an application with the European Commission to assess the admissibility of taking a case against the British government before the ECtHR for breaches of Article 3 of the European Convention on Human Rights (ECHR) which is the absolute prohibition on torture and inhuman and degrading treatment. The European Commission concluded that the interrogation techniques amounted to torture and the case came before the ECtHR which delivered its judgment in 1978. On the basis of the evidence before it – and the recent research suggests that the British government mislead the Court regarding aspects of the evidence it presented – the Court ruled that the interrogation techniques did not amount to torture but did constitute inhuman and degrading treatment. The reasoning of the Court was thus:

“The Court considers in fact that, whilst there exists on the one hand violence which is to be condemned both on moral grounds and also in most cases under the domestic law of the Contracting States but which does not fall within Article 3 of the Convention, it appears on the other hand that it was the intention that the Convention, with its distinction between “torture” and “inhuman or degrading treatment”, should by the first of these terms attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.” (Paragraph 167) (Ireland v UK)

The apparent absence in the evidence before the Court of any special stigma attaching to the interrogation techniques therefore meant that the threshold to determine the practices as torture was not met despite the findings of the European Commission (Judge Evrigenis delivered a separate opinion and found that the interrogation techniques amounted to torture). There are a number of consequences to this finding which are important to those of The Hooded Men still alive today and to the relatives of those who have since died. Importantly for the survivors of the legacy of the conflict in the North of Ireland who have suffered physical or psychological damage or both in the case of The Hooded Men and Article 3 of the Convention has contemporary significance in terms of the continuing obligations upon the British state when historic breaches of Article 3 have either substantially occurred or where there has been a failure to prevent the practice of torture, inhuman and degrading treatment by state agents or by others.

Even in the absence of new compelling evidence regarding the treatment of The Hooded Men and others who were interned, it would have been clear to those in the North of Ireland and elsewhere that despite the Heath ban and subsequent Directives, the five techniques of deep interrogation, identified as torture by the European Commission and as inhuman treatment by the ECtHR, the litigation arising from internment in Iraq following the 2003 invasion and which lead to the Baha Mousa Inquiry ensured that the narrative of these unlawful practices by the British Army had become part of the corporate culture of the British Army and the Ministry of Defence. This was clearly spelt out by Sir William Gage in his Report of the Baha Mousa Inquiry in 2011:

 

“Further, the evidence demonstrates that over the 25 years the Heath Statement became largely forgotten and apart from appearing in Part I of the 1972 Directive it mainly faded from policy and training materials and was not replicated in doctrine that related to full warfare. Although compliance with the Geneva Conventions was taught at all levels, there was little reference in any of the policy and training manuals to the prohibition of the five techniques.

….

 

I find that by the time of Op Telic there was no proper MoD doctrine on interrogation of prisoners of war that was generally available. Further, knowledge of Part I of the 1972 Directive (at the time still operative) and the ban on the five techniques on internal security operations had largely been lost. I conclude that this came about by corporate failure of the MoD.

….

Similarly, and not surprisingly because of the loss of knowledge of this ban on the five techniques, the written doctrine for prisoner handling, like the training materials for the tactical questioning, and  interrogation, did not contain any reference to the ban on the five techniques.” (Baha Mousa)

From the suppression of counter-insurgency risings in a number of post-colonial jurisdictions including the North of Ireland through to the invasion of Iraq in 2003 and possibly in Afghanistan also, it is clear that the five techniques of deep interrogation were instilled in British military doctrine despite the ban and in breach of Article 3. Ireland v UK had no impact (possibly because the MOD subscribes to the Edmund Burke’s ethic of a Geographical Morality) (Burke) However, it is now possible to review the case of The Hooded Men in light of jurisprudential developments.

First, a finding of torture leading to compensation in the recent Mau Mau litigation arising from the suppression of the Mau Mau rebellion in Kenya between 1952 – 1960 (Mutua and Others v FCO [2012] EWHC 2678 (QB)). “I accept, as does the defendant, that the prohibition of torture is a peremptory norm of public international law (a jus cogens). As recently as 20 July 2012 in its judgment “Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal)” the International Court of Justice said this in paragraph 99 of its judgment, “99. In the Court’s opinion, the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens). That prohibition is grounded in a widespread international practice and on the opinio juris of States.”” (Paragraph 156). It will be recalled that The Hooded Men received compensation from the British government.

Second, jurisprudential developments in both domestic and Strasbourg jurisprudence. In Selmouni v France (1999) 25803/94 paragraph 101 the ECtHR that

“having regard to the fact that the Convention is a ‘living instrument which must be interpreted in the light of present day conditions’ the Court considers that certain acts which were classified in the past as ‘inhuman and degrading  treatment  as opposed to torture could be classified differently in the future’ and “It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly.” (Selmouni)

In the recent ECtHR judgment in al-Nashiri v Poland (2014) 28761/08[1] the interrogation techniques used on a Saudi national by the CIA in a secret site in Poland amounted to torture (including the use of the stress position):

 “Paragraph 515: All the measures were applied in a premeditated and organised manner, on the basis of a formalised, clinical procedure, setting out a ‘wide range of legally sanctioned techniques’ and specifically designed to elicit information or confessions or to obtain intelligence from captured terrorist suspects. Those – explicitly declared – aims were, most notably, ‘to psychologically ‘dislocate’ the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist … efforts to obtain critical intelligence’; ‘to persuade High-Value Detainees to provide threat information and terrorist intelligence in a timely manner’; ‘to create a state of learned helplessness and dependence’; and their underlying concept was ‘using both physical and psychological pressures in a comprehensive, systematic and cumulative manner to influence [a High‑Value Detainee’s] behaviour, to overcome a detainee’s resistance posture”

“516. In view of the foregoing, the Court concludes that the treatment to which the applicant was subjected by the CIA during his detention in Poland at the relevant time amounted to torture within the meaning of Article 3 of the Convention.” (al-Nashiri)

Lord Bingham in A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) (2004) (2005) UKHL 71 paragraph 53 stated: “It may well be that the conduct complained of in Ireland v United Kingdom, or some of the Category II or III techniques detailed in a J2 memorandum dated 11 October 2002 addressed to the Commander, Joint Task Force 170 at Guantanamo Bay, Cuba, (see The Torture Papers: The Road to Abu Ghraib, ed K Greenberg and J Dratel, (2005), pp 227-228), would now be held to fall within the definition in article 1 of the Torture Convention.” (AF)

Third, in the absence of a remedy that a declaration could now be made to confirm that The Hooded Men were subject to torture on the foot of the jurisprudence confirming this in any event and by the fact that compensation has been paid and by virtue that it would politically difficult to persuade the Irish government to lodge an application to the ECtHR to have Ireland v UK revisited in some form (which would be unprecedented and could be struck out on limitation grounds) nevertheless there is a possibility that on the back of new evidence not available at the time (or rather not disclosed) the case of The Hooded Men could be revisited via obligations arising under Article 3.

The argument could be made that three evidential aspects could trigger an investigation under Article 3.

The first evidential aspect would be that the Ballykelly interrogation facility was purposely built and therefore could be considered engaging the special stigma element required in the definition of torture. The Ballykelly interrogation facility was built and intended to secret.

The second evidential aspect would be to consider whether it is now possible – in the light of the Baha Mousa findings – to question what the purpose of the interrogation of The Hooded Men was. Was it to extract intelligence? Was it to test interrogation techniques? Was it to send a message to the Republican community? Once again if the latter two reasons then the special stigma element is engaged. The European Commission Report of 25 January 1976 page 402 described the techniques as a ‘sophisticated method to break or even eliminate the will’.

The third evidential aspect would be that there was no criminal investigation at the time. This was remarked upon the European Commission. There was compensation, there were two domestic inquiries (Compton and Parker) and there was Ireland v UK but no criminal investigation of the perpetrators (military and police). In any event British soldiers received de facto suite immunity from the Attorney-General at the time. (PFC)

Cumulatively these three elements could mean that following a substantial breach of Article 3 in 1971 (the torture of The Hooded Men) and following both recent domestic case law (Mutua and Others v UK) and Strasbourg case law (Silih and Janowiec) an investigatory procedural obligation is placed upon the state to conduct an investigation in accordance with the Convention principles established through the Article 2 (Right to Life) jurisprudence. This is clear from the Strasbourg jurisprudence on Article 3 stemming from Assenov. The position is strengthened in that Article 3 is absolute and there are living survivors.

Should the British government suggest that the PSNI investigate the case of The Hooded Men in light of findings of the HMIC Report on the PSNI HET in relation to the investigation of British army killings during the conflict and given the fact that the PSNI would in addition be investigating RUC Special Branch then in no way would such an investigation be considered independent and in compliance with the required standard demanded by the Strasbourg jurisprudence. Therefore a new mechanism would be required as per Haass or a statutory inquiry using the Baha Mousa model. Perhaps then The Hooded Men would achieve truth and justice.

 

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