Ireland v UK and the Hooded Men: a landmark human rights judgment revisited

We are delighted to welcome this guest post from Christina Verdirame, JD student, Queen’s University Belfast School of Law.

Queen’s University Belfast provided a powerful setting for a one-day conference, hosted jointly with King’s College London, on 14 April to discuss the landmark Ireland v UK case. In the words of Darragh Mackin, KRW Law, this is not a case simply about dealing with the past. This is a case about legacy. Part of that legacy has to do with the lasting effect of the misclassification of the Article 3 ECHR torture threshold. Repeated on the day were calls for truth, justice and accountability 38 years on.

The story of the Hooded Men starts with illegal detention, arrest and torture in 1971. 14 of those men who experienced what has come to be known as the five techniques – hooding, wall-standing, white noise, food and water deprivation, and sleep deprivation – took their case to the European Court of Human Rights (ECtHR) in 1978. The overwhelming conclusion drawn across the four panels of the day was that in 1978, the Court simply got it wrong. They found a violation of Article 3 – but did not classify the ill-treatment as torture, but rather – only – as a violation of the prohibition of inhuman and degrading treatment.

In June 2014, new evidence came to light, which allowed for an application to reopen the case. It took a bit of convincing, but the Irish Government reopened the case in December 2014. This, however, is only one procedural victory. The story is now about redress. Liam Shannon emphasised that the men are looking for justice – and they intend to get it. The strongest reminder of why we are all here discussing the Ireland v UK case were the accounts of torture provided by the Hooded Men themselves.

How can a government arbitrarily detain and torture its own citizens in the name of counter-terrorism? Counter-terrorism has certainly evolved since 9/11 – but it was not born on 9/11. Counter-terrorism legislation, including the early Terrorism Act 2000, has, for many decades, tended to go beyond what is strictly necessary or justifiable in the legitimate aim of countering terror. Of course the legislation did not start in 2000 in Northern Ireland; emergency powers can be traced back to the Civil Authorities (Special Powers) Act (Northern Ireland) 1922. The conference was also an opportunity to reflect on counter-terrorism’s potential excesses.

The conflict in Northern Ireland has long included issues of identity and citizenship. As reflected upon on the day, the Hooded Men were targeted for being Irish. This resonates today. Section 66 of the Immigration Act 2014 includes measures that allow the Secretary of State for the Home Department to revoke citizenship in the name of counter-terrorism, or conduct that is ‘seriously prejudicial to the interests of the United Kingdom’ (s 66(1)).

The reopening of the Ireland v UK case is about legacy, in that above all it is about correcting a legal classification on the threshold of torture that has persisted since 1978 and has influenced organisations including the CIA in defending illegal interrogation practices as something less than torture. The broader legacy includes the search for truth, justice and reparations. Dr Luke Moffett discussed the need for redress, which would include the recognition that what happened to the Hooded Men was torture. He described redress as a form of resistance – resistance against the state narrative of denial and the justice system that allowed this to happen and the societal ambivalence on these occurrences at the time and, arguably, today. Denying truth, justice and reparations denies victims their rights.

So what do we do? How do we go beyond symbolic human rights litigation? Dr Cian Murphy said we have not learned enough from the Troubles. Emergency legislation has become permanent; international courts cannot be relied upon to be the saviour of human rights on the ground. Professor Brice Dickson noted that the ECtHR is not good at dealing with systematic human rights abuses.

Brian Gormally, director of CAJ, highlighted the broader goal of non-recurrence of human rights violations. The Hooded Men themselves recognise that their case goes beyond the 14 of them – others have suffered abuse, and continue to be tortured. Mr Gormally emphasised the importance of a human rights framework for counter-terrorism; when the strategy includes breaching human rights, the result is often increased levels of terrorism. Organisations in civil society and national human rights institutions, such as CAJ and the Northern Ireland Human Rights Commission represented on the panel, engage with human rights issues on the ground. Mr Gormally noted CAJ’s work with developing a human rights framework for policing, and its contribution alongside increased oversight and independence of monitoring, in working towards the result of near eradication of police brutality or abuse in Northern Ireland police stations. Human rights work for these institutions involves participation of people and governments to integrate human rights into everyday life. This occurs on the ground, not only through litigation.

The day allowed for human rights advocates from practice and academia to reflect on Article 3 ECHR in theory and in practice. There is no situation in which the importance of the prohibition of torture is made more apparent than sitting in a room with survivors. As Father Raymond Murray said: ‘who will the people believe – the state or the little people?’ On this occasion, we were able to listen to those who suffered themselves.

The men reflected that they had less of a role in the 1978 case. Now they are involved, and committed to taking their case back to the ECtHR. Liam Shannon said: ‘we want Britain found guilty of torturing its own citizens’. This will undoubtedly reverberate with governments that continue to ignore fundamental human rights. Francis McGuigan stated simply: ‘truth in itself is actually justice’.