Rights NI is delighted to welcome this guest post from Christopher Stanley of KRW LAW LLP KRW
The decision of the Irish government confronted by a legal challenge from The Hooded Men to Apply under Rule 80 of the Rules of European Court of Human Rights (ECtHR) for the inter-state case of Ireland v UK to be revisited was an unexpected turn of events. It was unexpected because of the political sensibilities in play between Ireland and the UK and the uneasy relationship between the UK, the ECtHR and the Council of Europe in light of a forthcoming General Election in the UK in May 2015 and the alarming rise of UKIP and Conservative Party manifesto commitment to repeal the Human Rights Act 1998 and to effect political change with the ECtHR. This has been recently commented on by Rory O’Connell in this blog: Rights NI 04 10 14. I commented on the significance of recent development regarding the case of The Hooded Men in an earlier blog: Rights NI 08 09 14. The Application made by the Irish government is not unique but it is significant and has already been commented by leading academic commentators including ECtHR expert Philip Leach at Jurist 06 12 14 and Contemporary Intelligence Studies expert Samantha Newberry at The Conversation 08 12 14.
At this juncture a number of comments can be ventured as to the importance of the Irish Rule 80 Application:
First, what will be the response of the UK government? The Northern Ireland Office gave a muted response focusing on the present and not the past (ironic considering the stalled present round of interminable Talks about the Past in Northern Ireland) at BBC News 02 12 14. Will the UK seek to use procedural arguments to defeat the Rule 80 Application? Will it use this Application to once again ‘play’ the human rights card to its popular audience of Euro sceptics maintaining foreign interference in domestic matters and questioning the jurisdiction of the ECtHR? Will it seek to dismiss the Application as a distraction and historical aberration?
Second, as to that last point the UK government will find it difficult to dismiss Ireland v UK ‘revisited’ when it is confronted by international condemnation relating to the use of the Five Techniques against Iraqi civilians in Basra in 2003 resulting in the murder of Baha Mousa by British troops; or when it is reminded of its reliance on intelligence obtained from British nationals implicated in the War on Terror subject to extraordinary rendition to ‘friendly’ third state or interned in ‘Black Sites’ being fed questions by MI5 and MI6 officers; or when its aborted ‘inquiry’ into such practices (The Detainee Inquiry) was derided as whitewash and hived off to the secretive Intelligence Services Committee; and when it further confronts more litigation on the foot compensation payments to those who were tortured during the British military suppression of the Mau Mau uprising in Kenya during the 1950s – Burma, Oman, Cyprus?
The late 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) Lord Bingham might not have foreseen that Ireland v UK would be revisited by the ECtHR but then he was not privy to the archive material now presented by RTE: the purpose built interrogation centre at Ballykelly, the medical evidence, the deliberate misleading of the ECtHR and the senior political authorisation. What Lord Bingham identified was that the Bush Administration following the 9/11 attacks used the threshold in Ireland v UK to justify interrogation techniques identified as inflicting inhuman and degrading treatment then short of torture by the CIA at Guantanamo Bay and elsewhere (in collusion with other War on Terror ‘allies’ and ‘friendly’ third states).
The publication of an extensive 480 page Executive Summary of the US Senate Intelligence Committee Report classified and running to 6000 pages on the role of the CIA operation ‘Rendition, Detention and Interrogation’ in the War on Terror has considered the legality of the CIA use of ‘enhanced interrogation’ techniques, whether their use yielded life-saving intelligence and if their use was always clear to the politicians in Washington – the operation was unreliable and poorly managed. The Executive Summary is to be published despite the reservations of Secretary of State John Kerry (BBC 09 12 14) (BBC News 09 12 14 ). The Executive Summary will be available here: Senate Intelligence. The resonance of the Irish government’s Application to seek a revision of Ireland v UK and that The Hooded Men were tortured will mean that the techniques used by the CIA against hundreds individuals could now be classified as torture, illegal in international law, within the ambit of a war crime, subject to a possible referral to the International Criminal Court and a tranche of civil claims for compensation.
Meanwhile in the North of Ireland, The Hooded Men have at least two further possible routes to challenge their internment and interrogation before the Irish Rule 80 Application is considered by the ECtHR. First, they could seek to have their historic compensation settlements set aside and litigate for enhanced compensation from the UK Government. Second, they could request that in the absence of an Article 3 compliant investigation at the time of their internment and torture, the UK Government remains in breach of its procedural investigatory obligations toward them and that such an investigation should now take place, possibly under the Inquiries Act 2005 with appropriate undertakings regarding ECHR compliance with participation, openness, accountability and independence. The Hooded Men will not be going away and their campaign for truth, justice and accountability over many years now has far wider implications beyond The Men alone.