Torture, Human Rights and the Northern Ireland Conflict

von Maximilian Steinbeis

At what point does harsh treatment of detainees amount to torture? With the US Senate report on CIA interrogation practices dominating all the headlines, this question is very much on our minds right now. That the European Court of Human Rights will have to consider this question, is a mere coincidence, though. The Irish Government has decided to reopen a decades old case from the darkest days of the Northern Ireland conflict (Ireland v United Kingdom). The case will raise once again the ugly spectre of the systematic abuse of prisoners in Northern Ireland. Moreover, the litigation has the potential to have far-reaching effects in the relationship between the European Court and the United Kingdom, and in the constitutional settlement within the United Kingdom itself.

Background to the Case

The case itself is well-known to students of ECtHR law. It concerned what were called the ‘five techniques’ during the 1970s in Northern Ireland – wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink (several of these were recently revealed to have been used by the CIA). The Court held that the application of these techniques amounted to inhuman and degrading treatment, but did not ‘occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.’ Accordingly, the UK was held not to have breached the higher threshold of torture under Article 3.

One difficulty which attended the litigation in the case arose from the fact that it was an inter-State dispute. This meant that it fell to the European Commission on Human Rights to adduce evidence in relation to the accusations. In the course of the proceedings, the Commission argued that the United Kingdom ‘did not always afford it the assistance desirable’ (at [148]) ...

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