Having your cake and eating it? Torture and the laws of war in Northern Ireland- Guest Post by Christina Verdirame

Materials discovered in recent years in the UK national archives in London have revealed evidence relevant in the ECHR 1978 Ireland V UK ‘Hooded Men’ case. The significance of this for the Ireland v UK case and the wider implications of the material have been covered in previous posts by Christopher Stanley here and here.The documents also reveal broader state practices, another post by Eamonn Mallie here concerns the types of counter measures the UK government had considered to try and ‘persuade’ the Irish government to withdraw the case back in the 1970s. Another matter revealed within the archives, and the subject of this article, is how in relation to Northern Ireland London wished to maintain the position that there was no war but at the same time justify its ‘in depth interrogation’ (i.e. torture) methods on the ground that they had been developed and would comply with the laws of war.

The in depth interrogation methods, including what are known as the five techniques, had ‘developed’ from usage in previous UK colonial situations. The previous examples of deployment, most notably Aden, were military operations denoting situations of armed conflict. In Northern Ireland, the official UK position was that there was no armed conflict. The direct legal implication of this is that the laws of armed conflict (also known as international humanitarian law –IHL- and provided for in the Geneva Conventions), would not apply. If Northern Ireland was merely an internal security or emergency situation, international law would be limited to human rights law, where ECHR obligations would be the focus.

The indication UK government ministers treated Northern Ireland as an armed conflict in relation to ‘interrogation’ relate to an obligation under IHL, which the UK then violated, under Common Article 3 of the Geneva Conventions. In a situation that was not officially an armed conflict the UK nevertheless used ‘military’ interrogation tactics, and relied upon a military directive known as the ‘Interrogation Bible’, JIC(65)15. These guidelines take as their baseline treatment what they argue is treatment permitted under the terms of Common Article 3.

There was a great deal of legal uncertainty regarding the methods of interrogation in depth used by the UK security forces starting with internment in 1971. The adamant official position was that the Geneva conventions did not apply. The only international legal obligation that concerned the government was Article 3 of the ECHR. In a letter to Sir Kenneth Jones in the Home Office from the Attorney General’s Chambers in early 1972, the difficulty of taking a legal position of the use of the interrogation procedures under the Geneva Conventions or the ECHR was noted due to the possible bearing on the Irish Case, as the Attorney General had to defend the practices on behalf of the UK. The letter goes on to say “The Attorney then said that if the Committee were to deal with these international legal matters in their Report, a pronouncement could be very damaging to one side or the other in the pending case before the European Commission”.

In order to assuage fears that the interrogators were operating without guidelines, the document provided to the Committee was the so-called ‘Interrogation Bible’. This document was the outworking of the interrogation procedures used in Aden in the 1960s, where the UK used ‘counterinsurgency’ methods to quell resistance in Southern Arabia. The guidelines were a result of a review by Mr Roderic Bowen, QC of interrogation tactics used in Aden and other colonial operations such as Cyprus. The document entitled the amended ‘Joint Directive on Military Interrogation in Internal Security Operations Overseas’. In a letter from October 1971 from the Joint Intelligence Committee, the Director states, “I confirm that the principles of Interrogation which have been used in training the RUC Special Branch are based on well tried principles, including experience gained from a variety of Internal Security situations in various countries since the end of World War II”.

The document is clearly distinguished from the Judges’ Rules and Administrative Directions to the Police, from 1964, which govern police interrogations in the course of investigations where the primary goal is to obtain evidence admissible in court, as noted in a draft document on police practice and the interrogation of suspects in England and Wales. Among the Judge’s rules is a clear understanding that ‘suspects must not be deprived of food or sleep to the extent that such action could be reasonably regarded as oppressive or unfair’. In relation to the directive the interrogations of internees had no intention of producing evidence; the goal was to obtain intelligence and the rules of admissibility did not apply, according to a draft annex of the JIC Directive.

The guidelines include a prohibition of torture and physical cruelty, as these are ‘professionally unrewarding’. The directive uses Article 3 of the Fourth Geneva Convention as a guide for the treatment of arrestees or detainees. This includes that persons ‘taking no active part in hostilities shall in all circumstances be treated humanely’ and prohibits ‘violence to life and person, in particular mutilation, cruel treatment and torture’, as well as ‘humiliating and degrading treatment’.

The Parker Committee was established to determine if the interrogation procedures discussed by the Compton Report needed to be amended. The international legal opinion provided by the Parker Committee for the interrogation techniques was discussed in a note on the Parker Report by UK Government Official, Philip Woodfield. It states, according to the Parker Committee, “if these procedures comply with paragraph 5(a) and (b) of the J.I.C. Directive, they will comply with our obligations under Article 3 of the Geneva Convention referred to in those paragraphs; and, since the obligations under Article 3 embrace in all material respects our other international obligations, the interrogation procedures will in that event be in conformity with all our international obligations”. This clearly indicates an understanding that the application of the Geneva Conventions was in place in Northern Ireland, and thus implies a state of armed conflict.

While it was agreed that interrogation should be carried out by a civilian force, it was noted in the minutes of a meeting to discuss evidence given to the Compton Committee, “The RUC had in practice been carrying out the instructions of the Army”. The RUC was advised and trained by the British Army because they had operational experience, overseas, in interrogation. A letter from CA Whitmore in January 1972 clarifying the responsibilities of the Army and the RUC states, “One reason why the JSIW [Joint Services Interrogation Wing, MOD] were so closely involved in the operation…was that the RUC were not practised in the operation of the interrogation system that was being used, whereas the JSIW personnel were of course completely familiar with it”. Using Common Article 3 as a guide clearly acknowledges the laws of war, and using the directive in the first place points to the mindset of the British that they were engaged in a war in which they were interrogating hostile locals. The Attorney General explained the use of the Geneva Conventions to the Parker Committee by saying that they were merely used as guidelines, as “of course, the rules were not originally designed for the Northern Ireland situation”. They were designed, and implemented, in other situations of armed conflict where the UK was the colonial power.

This has a clear impact on torture and interrogation used by the British Army and other powers since the 1970s. The use of such techniques around the world has shown the pattern has not stopped.

In Northern Ireland, Ministers sought to amend or ignore domestic legal constraints, but still noted their broad obligations under international humanitarian law. This despite the fact that the UK denied that the Geneva Conventions applied as a matter of policy, specifically Common Article 3. Operationally, however, the laws of war were the only legal guide articulated for the methods employed in the ‘internal security operation’ that was an armed conflict.