Five controversial interrogation techniques still not judged as torture in missed opportunity for human rights

The so-called ‘hooded men in Belfast, March 20, 2018. EPA/Paul McErlane

An opportunity to designate five interrogation techniques, including limiting a person’s food, water and sleep, as torture has been missed, after the European Court of Human Rights failed to revise a key historical ruling on the issue.

The techniques were used against 14 men – often referred to as the “hooded men” – who were arrested and interned by the British government without trial in 1971 on suspicion of being involved with terrorism in Northern Ireland.

In 2014, the Irish government asked the court to consider revising its 1978 decision that the five techniques should not be described as torture. But on March 20, the court upheld its original landmark 1978 judgement which judged that the five techniques amounted to cruel and inhuman treatment but fell short of the severity of suffering required for them to be described as torture under the European Convention on Human Rights (ECHR).

The initial case had been brought by Ireland in 1971, and the court had originally ruled, seven years later in 1978, that five techniques – standing in a painful position for long periods (a “stress position”), using a hood over the head to restrict sight, consistent exposure to loud white noise, limited food and water, and limited sleep – “did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.”

Nonetheless, it judged that the techniques were in breach of the ECHR’s prohibition of inhuman and degrading treatment. By the time the court issued its judgement – seven years after the case was brought – the UK had already declared it would no longer use these techniques. But the original decision encouraged other states to use similar controversial interrogation techniques.

Fresh evidence

In 2013 and 2014, the Irish government became aware of previously classified UK government records dating from the 1970s that threw the court’s original judgement into question. These records primarily consist of letters about these interrogation techniques and their effects exchanged by senior members of the UK government. The majority of these records were released into the UK’s National Archives between 2003 and 2008. They formed the basis of my PhD and my 2015 book on the issue.

The Irish government argued that these records indicated that a psychiatric expert recruited by the UK had misled the court in the 1970s about the severe and long-term effects of the techniques – and that the UK had withheld important information regarding their use in Northern Ireland.

In its new ruling, the court examined whether a different decision would have been made in 1978 had it then had access to those records submitted by the Irish government in 2014. It acknowledged that if the case was heard afresh today, it would likely judge the techniques to be torture. But it also concluded that the government records now available in The National Archives do not differ substantially from the information given to the court in the 1970s. Its 1978 decision therefore remains unchanged and the five techniques remain – in the eyes of the court – “inhuman and degrading treatment” and not torture.

The Maze: an internment camp in Northern Ireland. PA Archive

The UK government will be pleased with this decision. But the Irish government, the surviving victims of the five techniques and their lawyers, the civil rights campaigners who have spent their time examining these newly-available government records and the victims’ families will be disappointed.

Ongoing work to address outstanding legacy issues stemming from the Troubles, issues which range from unsolved murders to continuing efforts to find the truth regarding the UK’s use of terrorist informers, has suffered a setback. An opportunity to reconsider a judgement widely believed to be inaccurate – even by the court itself – has been missed, damaging faith in the legal system’s ability to help heal past wounds. It is understandably important to people, communities and politicians from across the political spectrum that all those who have suffered as a result of the Troubles feel that justice has been achieved.

Falling short of torture

Internationally, the original case had little negative impact on relations between the UK and Ireland. Despite the fact Ireland caused embarrassment to the UK on the international stage with these allegations in the 1970s, the relationship between the two countries was sufficiently strong that they continued to work with one another on trade, for instance, largely unaffected. For the same reasons, the new ruling is likely to have little impact on relations between the two countries.

It will, however, affect how states around the world treat prisoners. The 1978 judgement remains a landmark decision in how to define torture, defining it as something that causes greater intensity of suffering than inhuman or degrading treatment. It was used by President George W. Bush’s lawyers when presenting defences to politicians within the administration of the US’s controversial treatment of suspected terrorist prisoners in the years immediately after the September 11 2001 attacks.

The new ruling was an opportunity to create case law that would have restricted states’ use of similar techniques. This opportunity has been missed.

The court’s decision to continue to regard the techniques as treatment that falls short of torture will likely encourage democratic and non-democratic states alike to continue to expose prisoners to methods that many victims and observers, such as Amnesty International, describe as torture.