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Reassessment of the Ireland v. the United Kingdom ECtHR case: A lost opportunity to clarify the distinction between torture and ill-treatment

Vesna Stefanovska, PhD*

torture, did not exist at that time. Although Key points of interest a re-opening of the case was requested in •• The European Court of Human 2014 by Ireland, forensic documentation Rights’ (ECtHR) decision on the using the Istanbul Protocol was not used; Ireland v. the United Kingdom in 2018, the ECtHR decided against re- case in 1978 based its judgment opening the case. Objective: By using the on the severity of the treatment Ireland v. The United Kingdom case, this without considering the long-term paper aims to map the origins of the five psychological effects of the , review whether applying them (torture) techniques. constitutes torture, analyze the information •• The decision of the ECtHR, in about the claimants available 30 years 2018, not to reassess their original later, and explore the ramifications of the judgement, based on the Istanbul ECtHR decision not to revise its judgment. Protocol and by considering the Methodology: Relevant texts were gathered long-term or permanent damage from the HUDOC database, Cambridge to the victims, may have adverse University Press, Wiley Online Library, repercussions for future cases. SCOPUS and MEDLINE /PubMed, and the Library of the ECtHR in Strasbourg. Abstract Discussion/conclusions: The five techniques, Introduction: In the 1978 Ireland v. the elaborated upon in the case of Ireland United Kingdom case, the European v. the United Kingdom, were used well Court of Human Rights (ECtHR) did not before the incidents in consider that the so called “five techniques” in 1971 and there is evidence that United did not cause enough severity of suffering Kingdom officials have, subsequently, used to be considered torture. The intentionality the techniques. Furthermore, there is clear criterion, outlined in the Convention evidence that the “Hooded Men” had against Torture’s definition of torture, was cognitive, psychological and neurovegetative also not fully considered. The Istanbul symptoms as a result of the five techniques, Protocol, which is critical for evidencing which had long-term effects. The ECtHR did not take this into consideration when it decided not to re-open the case and the full *) Legal Researcher, Institute for Human Rights, implications of this decision for future cases Republic of North Macedonia and victims remain to be seen. TORTURE Volume 29, Number 1, 2019 Volume TORTURE Correspondence to: [email protected] https://doi.org/10.7146/torture.v29i1.110000 International Rehabilitation Council for Torture Victims. All rights reserved. 57 SPECIAL SECTION: FORENSIC DOCUMENTATION OF TORTURE: REFLECTIONS AND LEARNINGS ON THE ISTANBUL PROTOCOL

Keywords: Torture, inhuman treatment, They judged that ill-treatment must attain five techniques, psychological torture, a minimum level of severity to fall within interrogation the scope of Article 3 (Padeanu, 2018). The assessment of severity is relative and Introduction depends on all the circumstances of the Article 3 of the European Convention on case, such as the duration of the treatment, Human Rights (ECHR) enshrines one of its physical or mental effects and, in some the most fundamental values of democratic cases, the sex, age and state of health of the societies, stating that: “No one shall be victim (ECtHR, 1978: Ireland v. the United subjected to torture or to inhuman or Kingdom, §162). degrading treatment or punishment.” As Several years after this judgment, the one of the most difficult norms to interpret, 1984 Convention against Torture (UNCAT) the European Commission of Human put forward a definition of torture in which Rights (EcommHR; the Commission) and both physical and mental suffering can the European Court of Human Rights constitute torture on the condition that they (ECtHR; the Court) have faced a number are purposefully inflicted. Intentionality is of disagreements regarding what practices thus a critical criterion of torture; severe pain constitute torture. The Ireland v. the United or suffering, whether physical or mental, must Kingdom case provides a particularly be intentionally inflicted on a person. Indeed, illustrative case of this. Pérez-Sales (2017) argues that intention and In 1971, the Irish Government brought purpose go hand-in-hand; when a purpose an application to the ECommHR on can be identified, so too can intentionality. behalf of 14 “Hooded Men,” who were Purpose is, however, challenging to infer subjected to five harsh interrogation without proof of intentionality. techniques by the UK government during As evidenced by the Ireland case and “”—a conflict regarding the others, initially, no precedent existed for constitutional status of Northern Ireland.1 the ECtHR using intention to infer torture; These techniques comprised: , however, a number of cases have forced wall-standing in stress positions for long the ECtHR to reconsider its position in periods of time, noise, , this regard. For example, if we analyze and food and water deprivation. After the the Strasbourg jurisprudence with the Commission unanimously decided that the intentionality criterion, Aksoy v. Turkey is an “five techniques” were in breach of Article informative case. The Court noted, “…this

3 of the European Convention on Human treatment could only have been deliberately TORTURE Volume 29, Number 1, 2019 Rights (ECHR), it was referred to the inflicted...” and found that a certain ECtHR. In 1978, the ECtHR judged that amount of preparation and exertion would the practices used amounted to “inhuman have been required to carry it out (Reidy, and degrading treatment” but not torture. 2002, p.13). This was in relation to the so- called “Palestinian hanging” case, where the victim was suspended by his arms, which were tied behind his back (ECtHR, 1996: 1 Hooded Men is a term often used when referring Aksoy v. Turkey). to this group of 14 men in academic publications Despite this, in 2018, the ECtHR and news stories because hoods were placed on them while they were interrogated. rejected Ireland’s request—made in 2014— 58 SPECIAL SECTION: FORENSIC DOCUMENTATION OF TORTURE: REFLECTIONS AND LEARNINGS ON THE ISTANBUL PROTOCOL

to revise the original decision relating to the The documents were reviewed and Hooded Men, which was made on the basis analyzed through two approaches. Firstly, of new evidence. This was a lost opportunity the sources were read thoroughly and to clarify the conceptual distinction between annotated to develop themes and gain a torture and cruel, inhuman or degrading clearer picture of psychological torture. treatment (CIDT), particularly in relation to Secondly, historical methods were psychological torture. used for gathering facts pertaining to After briefly detailing the methodology different decades and continents, with the used, this paper proceeds as follows: purpose of showing that the five (torture) demarcates psychological torture and maps techniques were applied well before the the historical origins and application of the incidents in Northern Ireland and that five techniques, which led to psychological they continued to be used after, although torture; details the interpretation of the they were considered to be illegal. Based five techniques in the original Ireland v. on this literature, comparable cases The United Kingdom case; reviews the were also sought to form comparisons implications of the recent decision by the between the case in question and other ECtHR not to revise its judgment; discusses cases from the Strasbourg and Inter- other disagreements between these two American case law. The purpose was to institutions; explores the jurisprudence of show that now the ECtHR has clarified the use of the five techniques documented in that the assessment of the minimum level other cases globally regarding psychological of severity is relative and depends on the torture; and concludes. circumstances of the case.

Methodology Demarcating psychological torture The data that informed this paper Both physical and psychological torture consisted of books, articles, newspaper produce physical and mental suffering, searches, and cases. Some of the sources which makes distinguishing between them were collected during a research visit to the challenging. “Psychological torture” can ECtHR in Strasbourg. Other sources were relate to two different aspects of the same found using the Cambridge University entity. On the one hand, it can consist Press database. Databases such as Wiley of non-physical methods as “physical Online Library, SCOPUS and MEDLINE methods” of torture are often self-evident, /PubMed were also used to locate articles such as thumbscrews, flogging, application in relation to the Ireland v. The United of electric current to the body, and other Kingdom case, psychological torture, and similar techniques. On the other hand, the long-term effects of the five (torture) physical methods can also cause mental techniques. Court cases were found using suffering. In this context, “non-physical” the HUDOC database and the IACtHR. refers to a method that does not hurt, maim In total, 54 sources were identified, of or even touch the body, but touches the which 37 were deemed relevant and used mind instead (Reyes, 2007). Practices that in this research. The rationale for the constitute psychological torture include: selection of papers was not only influenced isolation, debilitation, spatiotemporal by the case in question as a whole but the disorientation, ,

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violence, degradation, and pharmacological and thus severely inhibits investigation, manipulation (Ojeda, 2008).2 prosecution or prohibition attempts.3 Both physical and psychological effects of torture are comprehensively The five techniques and their historical discussed in the Istanbul Protocol, application which considers virtually all aspects According to the Commission’s findings, of torture and its consequences, and later elaborated on by the ECtHR, the five establishes a procedure for governments techniques of torture can be defined as or independent bodies to conduct a follows (ECtHR, 1978: Ireland v. the United standardized investigation into the use of Kingdom, § 13): torture (Reyes, 2007). The application of a) Wall-standing: forcing the detainees to the Istanbul Protocol can categorically remain for periods of hours in a “stress document torture without there being a position,” described by those who need for visible scars or marks. underwent it as being “spread eagled Psychological torture, expressed against the wall, with their fingers put through interrogation techniques, can high above the head against the wall, also be described as an “assault to the the legs spread apart and the feet back, mind.” Pérez-Sales (2017) explains that, causing them to stand on their toes in interrogation and torture, physical and with the weight of the body mainly on psychological techniques aim to create the fingers.” the physical, cognitive and emotional b) Hooding: putting a black or navy-blue exhaustion in the detainee considered colored bag over the detainees’ heads necessary for the successful questioning and, at least initially, keeping it there of a potential source of information. permanently except during interrogation. The term “interrogation techniques” is c) Subjection to noise: pending their ordinarily used to refer to methods of interrogations, holding the detainees in a questioning as well as every aspect of a room where there was a continuous loud prisoner’s experience between arrest and and hissing noise. release, all of which have an impact upon d) Deprivation of sleep: pending their their will to cooperate (Newbery, 2009). interrogations, depriving the detainees Coercive interrogation is most frequently of sleep. characterized by hours of exhaustive e) Deprivation of food and drink: subjecting questioning with interrogators shifting the detainees to a reduced diet roles, taking turns and using emotional and during their stay at the center when TORTURE Volume 29, Number 1, 2019 cognitive manipulation tactics (Pérez-Sales, interrogations were pending. 2017). This is a form of psychological The five techniques were developed in torture, which, unlike its physical the 1950s by officials in the Joint Services counterpart, more easily evades detection

3 Both physical and psychological torture compro- 2 See Fields (2008), Leach (2016), Nowak (2008), mise the mind-body integrity and produce physi- Turner and Gorst-Unsworth (1993), and Wil- cal and functional changes in the brain that can liams and van der Merwe (2013) for discussions be identified through neuropsychological testing on torture methods and psychological symptoms. and neuroimaging (Fields, 2008). 60 SPECIAL SECTION: FORENSIC DOCUMENTATION OF TORTURE: REFLECTIONS AND LEARNINGS ON THE ISTANBUL PROTOCOL

Interrogation Wing (Britain’s only official severity—the Royal Ulster Constabulary interrogation training school), drawing from applied these methods on Irish Republican the experience of British campaigns in the Army (IRA) suspects in Belfast in 1971. colonies. The first reports on the use of some Enforced wall-standing, hooding, blaring of the five techniques are from the Kenya music, sleep deprivation, and dietary Emergency (1953-1954) and there are also manipulation were used (McCoy, 2012). reports from the Malayan Emergency (1955- Although the British Government 1960). In the British Cameroons, a territory vowed not to use the five techniques after mostly belonging to present-day Nigeria they took place in Northern Ireland, their (1960), the use of the five techniques use has been subsequently documented was considered to be effective during in Latin America in the 1970s and 1980s. the interrogation of subversives from the The influence of this “British model” neighboring Cameroon Republic. They were was particularly strong in Brazil and is also successful in ascertaining that labor evidenced by documents of the Brazilian problems in Swaziland in 1963 were not Truth Commission and the testimonies created by a subversive organization as had of survivors of the Brazilian dictatorship been suspected. In another example, which (Pérez-Sales, 2017). took place in Aden (now part of Yemen) The five techniques also left a in 1964, the information produced by the substantial impact on detainees in Iraq interrogation of 11 suspects, arrested after a in 2003. Detainees recounted the long- hand grenade was thrown at a senior official term physical and psychological effects of and his party at Aden airport, supported these experiences in detention, including their innocence (Newbery, 2009). a series of suicide attempts and night In 1963, the developed terrors (Newbery, 2015). There are also a large-scale interrogation operation in long-standing allegations of the UK’s Brunei involving more than 2,000 suspects, involvement in prisoner abuse during with three interrogation centers working counterterrorism operations as part of simultaneously. Hooding and white noise the United States-led so-called “war on were used with all the detainees and the terror” (Blakeley & Raphael, 2017). These five techniques were used on “high value” techniques were applied to detainees, suspects. It was the first time that reports and one of them, Baha Mousa, died as a distinguished between two basic components result of the brutality. The Baha Mousa of psychological torture: “environment Inquiry report, presented by Sir William manipulation” and “handling of prisoners.” Gage in 2011, concluded that use of the The detainees were deprived of food five techniques was a key factor that, in and sanitary facilities, subjected to high combination with others factors, led to the temperatures, and were brutally beaten death of the detainee. The report found (Newbury, 2009). that Mousa’s body had sustained numerous The five techniques were also used injuries (Her Majesty’s Stationery in Northern Ireland. After training from (Office HMSO), Baha Mousa Inquiry, British intelligence on the elusiveness of 2011, §2.1236)). Stress positions were psychological torture—that psychological primarily used to ensure that the “shock of torture often lacks clear signs of abuse capture” was maintained from arrest until or visible marks to indicate the degree of questioning. In Mousa’s case, the standing TORTURE Volume 29, Number 1, 2019 Volume TORTURE 61 SPECIAL SECTION: FORENSIC DOCUMENTATION OF TORTURE: REFLECTIONS AND LEARNINGS ON THE ISTANBUL PROTOCOL

position was also used to the extent that Patrick McNally, Sean McKenna, Gerry pain or suffering was inflicted (ibid, § McKerr, Michael Montgomery, Davy 2.1612).4 Rodgers, Liam Shannon, and Brian Turley (Murphy 2016). Application of the five techniques in The report of the Commission contains Northern Ireland evidence on the effects of the application On 16 December 1971, Ireland lodged an of these techniques, which was gathered inter-state application against the United through investigation over a number of Kingdom before the ECtHR alleging that years. There are also testimonies of two the use of the so-called five techniques witnesses—“T.13” and “T.6”5—who were of interrogation amounted to torture and arrested, selected for special interrogation, violation of Article 3 of the ECHR. and sent to an unknown interrogation Over the course of three decades (1968- center. On arrival, they were medically 1998), a conflict on the constitutional examined and then taken by helicopter status of Northern Ireland led to violence to another location where they served a across the UK and the situation was detention order for four or five days. The especially tense during the first half of the exact duration of the interrogation could 1970s (Lopez Cursi, 2017). The Northern not be determined by the Parker Inquiry Ireland Government proposed (and the or Compton Committees6 (ECommHR British Government approved) Operation Report, 1976). Demetrius—a series of extrajudicial In its report, the Compton Committee measures of detention and internment concluded that interrogation by means of of suspected terrorists, which meant that the five techniques constituted physical detainees could be arrested without a ill-treatment, but not torture (Donahue, warrant and held for 48 hours without bail 1980). The Committee in the Parker Inquiry for the purpose of interrogation. There are concluded that no rules or guidelines had no official documents regarding the exact been laid down to restrict the degree to number of people who were arrested on which these techniques could be applied suspicion of being IRA terrorists but some (Her Majesty’s Stationery Office [HMSO], authors estimate that 342 people were Parker Inquiry, 1972, §12). The long- arrested on the first day alone, although not term mental repercussions were more everyone who was arrested was interrogated challenging to determine due to the lack (Donahue, 1980). There is clear evidence of reliable information concerning medical that 14 men were subjected to these five TORTURE Volume 29, Number 1, 2019 techniques because of their alleged relations to the IRA: Jim Auld, Pat Shivers, Joe Clarke, Michael Donnelly, Kevin Hannaway, 5 While under interrogation they were given code- Paddy Joe McLean, Francis McGuigan, names to hide their identities. 6 The Compton Committee was established in 1971 to prepare a Report of the inquiry into allegations against the Security Forces of physical brutality in Northern Ireland. Afterwards, it prepared a 4 Ultimately, Mousa’s death resulted from his Report of the Committee of Privy Counsellors ap- poor treatment throughout his detention com- pointed to consider authorized procedures for the bined with the application of the five techniques interrogation of persons suspected of terrorism, and beatings. chaired by Lord Parker of Waddington. 62 SPECIAL SECTION: FORENSIC DOCUMENTATION OF TORTURE: REFLECTIONS AND LEARNINGS ON THE ISTANBUL PROTOCOL

evidence (ibid, §15). The Committee did distinguished medical specialists put it: identify that torture, whether physical or “sensory deprivation is one method of mental, is determined by the intensity inducing an artificial or episode of the techniques applied and on the of insanity and there are records that provision of effective safeguards against their people who have been through such an excessive use, and identified that torture is experience do not forget it quickly and unjustifiable under any circumstance. Lord may experience symptoms of mental Parker7 posed the following question: “where distress for months or years” (HMSO, does hardship and discomfort end and, Parker Inquiry, §13). for instance, humiliating treatment begin, The Compton Report and Parker and where does the latter end and torture Inquiry gave figures for the total time begin?” The answer, he stated, is found by each of the 14 men were interrogated for interpreting “words of definition,” meaning and identified that they were forced to that “opinions will inevitably differ” (ibid, § stand at the wall for between nine and 28, 30, 34). 43.5 hours (HMSO, Compton Report, Lord Gardiner in the Parker Inquiry 1971). Wall-standing was used to achieve explained that both the physical and security for the guards working at the mental effects of the five techniques had center by ensuring that detainees’ hands been considered. There was evidence were visible. White noise, which had been of minor injuries to detainees and the likened to a train letting off steam, was Committee received unchallenged medical produced by an electronic noise generator evidence that subjection to a noise level and used to prevent communication of 85 decibels for 48 hours may result in between detainees. This also prevented 8% temporary loss of hearing and in 1% them from overhearing the interrogation permanent loss of hearing (HMSO, Parker of their associates or any other activity in Inquiry §13). According to Lord Gardiner, the center (Newbery, 2009). in examining the physical and mental There is a consensus that certain effects on the detainees, it was highlighted methods of physical ill-treatment are that these techniques were known to cause: accepted as torture but the same cannot be artificial psychosis, episodic insanity, said for those that cause mental suffering. unbearable anxiety, tension, attacks of Therefore, infliction of mental suffering may panic, and nightmares. produce different consequences for different The mental consequences are also persons (Neziroglu, 2007). Moreover, manifold. In-depth interrogation, as Strasbourg case law9 has shown that mental described in the first Compton report, and psychological suffering alone may is a form of sensory isolation leading to constitute torture, depending on its severity. mental disorientation.8 As one group of In the 1978 the Ireland v. United Kingdom case, the Court accepted that use of the five

7 Lord Parker of Waddington was appointed as a Chairman together with Mr. J.A Boyd-Carpenter and Lord Gardener as members to prepare the they placed suspects in the dark and silence. Report of the Committee of Privy Counsellors. 9 It refers to the initiated cases and judgments 8 This was first developed by the Soviet Commit- brought by the ECtHR in relation to possible

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techniques constituted inhuman treatment, being able to even tolerate the noise of a as it caused intense physical and mental vacuum cleaner (Eldemire, 2018). Brian suffering to the victims. It did not mention Turley suffers from nightmares, while Kevin any physical methods of torture that would Hannaway still suffers from anxiety attacks supersede acute psychiatric symptoms. and heart problems. Five of the Hooded Men died as a result of health problems, so Testimonies of the Hooded Men and their long-term psychological effects cannot evidence of psychological torture be discerned. Cognitive, psychological and even The testimonies of the Hooded Men neurovegetative symptoms are evident illuminate the extent to which the five in the Ireland v. United Kingdom case, in techniques were applied. One of the Hooded which the Hooded Men showed signs Men, Jim Auld, recalls that when he arrived of the symptoms discussed. During the at the Ballykelly facility he was severely interrogation sessions, Paddy Joe McClean beaten and a hood was placed on his head. reported to hear funeral hymns, see his own He was put in a boiler suit against the wall, coffin and a firing squad. At one point, he spread-eagled, with his hands way above his reported to forgot who he was, believing head, and there was a hissing noise in the himself to be a farmer from Enniskillen background (Conroy, 2001). At one point, he had met once. Francis McGuigan saw when Auld could no longer bear the noise himself in the company of friends and and the pain, he contemplated suicide, and could not understand why they would not when his attempt to hit his head on a pipe take off his handcuffs (Conroy, 2001). failed, he was severely beaten again. He could also not spell his name, which Paddy Joe Mclean, Michael Montgomery indicates memory disturbance and poor and Joe Clark were beaten, forced to stand concentration. Kevin Hannaway sang the against a wall, and deprived of food and song “Four Green Fields” because he water. Joe Clark began hallucinating and, thought that he would be shot (ibid). at one moment, “snapped,” leading him The Hooded Men also exhibited to run around the room and grab one of symptoms of concentration camp his tormentors (McKay, 2015). Francie syndrome, where the physical and the McGuigan recalls that he was severely psychological effects can be demarcated. beaten and forced to stand against a wall. Physical symptoms include: weight loss, He remembers that during those seven pathological fatigue, dizziness, headache, days in Ballykelly he was handcuffed to a and sleep disturbance. For example, cast iron pipe on a concrete floor with a TORTURE Volume 29, Number 1, 2019 Francie McGuigan lost almost 10kg of his hood on his head, up against the wall in the body mass. The mental symptoms consist “music room,” and interrogated (Farrell, of depression, nightmares, a reduction in 2018). Brian Turley, Liam Shannon and memory, and an inability to concentrate Kevin Hannaway also experienced the five (Turner & Gorst-Unsworth, 1993). Jim Auld techniques of interrogation, which are said suffered from blackouts, a likely symptom to have been used to erode their dignity. of post-traumatic stress. Sean McKenna Liam Shannon remembers that when he was subsequently went to a mental hospital brought to a washroom and his hood was as he could not bear noise in any form. removed he could not recognize himself in Michael Montgomery was reported as not the mirror (McKay, 2015). 64 SPECIAL SECTION: FORENSIC DOCUMENTATION OF TORTURE: REFLECTIONS AND LEARNINGS ON THE ISTANBUL PROTOCOL

In light of the evidence above, threshold to determine the practices as there is a possibility for the survivors torture was not met.10 of this case to be reassessed according Furthermore, Judge Zekia expressed to contemporary forensic standards doubt regarding whether the Court was contained within the Istanbul Protocol. justified in disregarding the unanimous Trained clinicians can examine all conclusions of the Commission in respect available signs and sequelae of physical of torture, which had not been contested and psychological abuse, and produce a by the representatives of both states. He medical-legal affidavit documenting their stated that the word “torture,” included in conclusions, which serve as evidence to Article 3 ECHR, is not capable of an exact prosecute perpetrators of torture. The and comprehensive definition (ECtHR, decision of the Court not to revise its 1978: Ireland v.UK). Judge Fitzmaurice decision in the case of Ireland v. United stated, “Article 3 ascribes no meaning to Kingdom thus appears a lost opportunity. the terms concerned and gives no guidance as to their intended scope” (ibid, p.105). Disagreements between the However, Judge Zekia also disagreed with Commission and the Court the view that the intensity of physical or The case of Ireland v. the United Kingdom mental suffering is a requisite for a case of underlined the different points of view of ill-treatment to amount to torture. In light the Commission and the Court regarding of the evidence that was brought before the the issue of what constitutes torture and Commission, Judge O’Donoghue reiterated what conduct amounts to torture. The that the Court did not have the advantage Commission considered that the purpose of hearing any evidence from witnesses of using the five techniques was to obtain (ibid, p.96), and based its judgment on only information. Moreover, the Commission two cases. In contrast, the Commission’s viewed that the combined use of the five judgment was based on an analysis of 502 techniques unanimously amounted to torture pages and hundreds of witnesses. (EcommHR Report, 1976, §167). The Commission was triggered by the nature of A missed opportunity for case revision sensory deprivation and the practice of all The case recently resurfaced in the public’s five techniques as a sophisticated method of consciousness. On 20 March 2018, the breaking their willpower (ibid, § 792). ECtHR refused to revise its judgment from Paradoxically, the ECtHR (by a 13:4 1978 and decided not to re-open the case vote) disputed that the five techniques because it expressed doubts about whether amounted to torture. Eventually, they the submitted documents contained sufficient were classified as a practice of inhuman prima facie evidence of the alleged new facts. and degrading treatment (ECtHR, 1978, The request for revision had been §167-8). According to Rodley and Pollard submitted on 4 December 2014, in line with (2009), that was unsatisfactory reasoning Rule 80 of its Court Rules, which states: and a distinction should have been made between torture and other ill-treatment; the Court found a lack of evidence for any 10 “special stigma” attached to the See Rodley (2014) who, by applying the UNCAT definition, makes clear that the pain or suffering

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“A party may, in the event of the discovery the then Defence Secretary (ECtHR, of a fact which might by its nature have 2018, Ireland v.UK § 30). Ireland, as the a decisive influence and which, when a applicant Government, argued that neither judgment was delivered, was unknown to Rule 80 nor the Court’s case law indicated the Court and could not reasonably have that the Court would be prevented from been known to that party, request the Court, modifying the grounds on which a violation within a period of six months after that was found. In their view, the Court was party acquired knowledge of the fact, to called to consider the grounds on which it revise that judgment.” had found a violation of Article 3 in respect The legal grounds for revision came to light of the five techniques, in light of the new with the appearance of “the torture files,” material (ibid, § 69). pursuant to the “thirty-year rule” of United Pursuant to the different interpretations Kingdom Government public archives of the true meaning of the right to request (Padeanu, 2018). In its request, Ireland case revision upon Rule 80, O’Boyle (2018) formulated two grounds for revision. argues that the Court only has an inherent Firstly, that the UK had information power to revise a judgment where an error within their possession including medical has been made concerning matters that reports from “Dr L.” demonstrating that were unknown to the Court and which, the effects of the five techniques could be had they been known, might have had a substantial, severe and long-lasting while decisive influence on the outcome of the the Government, through the evidence of case. However, a number of elements have the same “Dr L.” before the Commission changed or come to light subsequently. If had alleged that the said effects were the original case was first raised today, it minor and short-term. Secondly, the is likely that the five techniques would be archive material revealed that the use of found to constitute torture, particularly the five techniques had been authorized at given the UNCAT definition on torture a ministerial level (ECtHR, 2018: Ireland and the Istanbul Protocol.11 Secondly, the v. the United Kingdom, § 20). Moreover, British authorities never disputed the use there is a handwritten note in the margin of the five techniques, even promising not of a letter written in 1977 by the British to use them again. Thirdly, it is clear that home secretary, Merlyn Rees, to Prime the UK had withheld material evidence Minister, James Callaghan, related to the from the Court (O’Boyle, 2018). The use of methods of torture in Northern ECtHR, however, did not re-open the case.

Ireland. The note in the margin reads: Some legal professionals argue that this TORTURE Volume 29, Number 1, 2019 “This could grow into something awkward was based on the chaos and uncertainty if pursued” (Mc Kay, 2015). Further, a that would have perhaps ensued, for legal document described as a “loose minute” certainty is a fundamental aspect of justice contains a letter of 15 December 1976 (Padeanu, 2018). Others have looked to from Roy Mason MP, Secretary of State counterfactuals, such as what would have for Northern Ireland, to Airey Neave MP. happened if the Court had originally not It argues that the Hooded Men cases had to be settled out of court because of the embarrassment which could arise for those 11 See the Torture Journal issue 2019-1 for papers concerned, including Lord Carrington, focusing on the Istanbul Protocol. 66 SPECIAL SECTION: FORENSIC DOCUMENTATION OF TORTURE: REFLECTIONS AND LEARNINGS ON THE ISTANBUL PROTOCOL

focused on the intensity and severity of the a truncheon and a baseball bat (ECtHR, treatment, but on the long-term effects of 1994: Selmouni v. France). The Court the use of the five techniques instead. unanimously agreed, using diction that marks a departure from the language used Worldwide jurisprudence on in the Ireland v. the United Kingdom case; it psychological torture other than the was observed that these acts were violent Ireland case and would be heinous and humiliating for If we analyze Strasbourg case law, it anyone, irrespective of their condition. It becomes clear that the Court has now also found that all injuries, when taken clarified that the assessment of the together, established the existence of minimum level of severity is relative and physical and mental pain and suffering. depends on the circumstances of the case, More recently, in Dikme v. Turkey, the which distinguishes between torture and ECtHR found that the treatment inflicted other forms of ill-treatment. For instance, on the victim consisted of “at the very in the Cambell and Cosans v. United Kingdom least a large number of blows and other case, which involved the threatened use of similar forms of torture,” which cause corporal punishment on two schoolboys, both physical and mental pain or suffering the Court stated that, “provided it is followed by permanent damage to the sufficiently real and immediate a mere applicant. The Court considered that such threat of conduct prohibited by Article 3 treatment was intentional (ECtHR, 2000: may itself be in conflict with the provision. Dikme v. Turkey). Furthermore, in Aydin Thus, to threaten an individual with torture v. Turkey, the applicant alleged that she might in some circumstances constitute at was raped in police custody. The Court, least inhuman treatment” (ECtHR, 1982: when finding that she had been raped, Campbell and Cosans v. United Kingdom). stated, “rape of a detainee by an official Furthermore, in Elçi and others v. Turkey, of the State must be considered to be an the Court considered the conditions of especially grave and abhorrent form of detention as inhuman treatment. In Gäfgen ill-treatment given the ease with which v. Germany, the Grand Chamber of ECtHR the offender can exploit the vulnerability was confronted with a difficult issue: can and weakened resistance of his victim police officers threaten to torture a suspect (ECtHR, 1997: Aydin v. Turkey). In Akkoç if they believe this may save the life of an v. Turkey, the victim, in this case, had been innocent child? The Court clearly stipulated subjected to electric shocks, hot and cold- that they cannot.12 water treatment, blows to the head, and In Selmouni v. France, the Commission threats concerning the ill-treatment of her found medically certified trauma on various children (ECtHR, 2000: Akkoç v. Turkey). parts of the body as proof of torture in This treatment left the applicant with long- the form of beatings over a period of days, term symptoms of anxiety and insecurity, involving punches, kicks, and blows with and post-traumatic stress disorder (PTSD), which required medical treatment. Thus, PTSD found in prisoners subjected to coercive interrogations would qualify 12 See: ECtHR, Elçi and others v. Turkey, App. No as significant psychological harm and 23145/93; 25091/94 and ECtHR, Gäfgen v. Ger- permanent damage. TORTURE Volume 29, Number 1, 2019 Volume TORTURE many, App. No.22978/05 67 SPECIAL SECTION: FORENSIC DOCUMENTATION OF TORTURE: REFLECTIONS AND LEARNINGS ON THE ISTANBUL PROTOCOL

The Inter-American Court further suffocation, near asphyxiation in water, and observed that, according to international other torture methods. standards, torture could be inflicted through physical violence and through acts that Conclusion produced severe physical, psychological or In the case of Ireland v. the United Kingdom, moral suffering in the victims. In the case the Court established that the five techniques of Cantoral Benavides v. Peru, the Court used on the Hooded Men did not amount considered that the acts were planned and to torture. This paper has emphasized the inflicted deliberately upon Mr. Cantoral importance of the intentionality criterion Benavides for at least two purposes. Prior when reconsidering previous cases, and to his conviction, the purpose was to wear outlined how systematic psychiatric forensic down his psychological resistance and reports based on the Istanbul Protocol can force him to incriminate himself or to reveal psychological torture. confess to certain illegal activities. After he However, the Istanbul Protocol did was convicted, the purpose was to subject not exist at the time of the initial hearing. him to other types of punishment and It is likely that this influenced the Court’s imprisonment (IACtHR, 2000: Cantoral original judgment, which was based on Benavides v. Peru). Consequently, the Court the consideration of the severity of the noted acts of psychological torture and a methods and speculative assumptions failure of Peruvian authorities to prevent regarding the severity of suffering in the such conduct. absence of thorough medical and psychiatric The definition of torture contained in documentation. However, in the request the Inter-American Convention to Prevent for revision in 2018, the Court could have and Punish Torture (IACPPT) goes further reassessed their original verdict, based on than UNCAT because it does not require assessments of the victims using the Istanbul the pain or suffering to be severe and refers Protocol, to evidence long-term permanent to “any other purpose” rather than “such damage suffered by the Hooded Men. They purposes as.” In Tibi v. Ecuador, the Court elected not to do so. With this, the ECtHR found that the aim of repetitive execution missed a historic opportunity to: establish a of violent acts was to diminish the physical clear distinction between ill-treatment and and mental abilities of the victim and annul torture by giving full consideration to the his responsibility for him to plead guilty of intentionality criterion; consider the suffering a crime (IACtHR, 2004: Tibi v .Ecuador). criteria according to present day conditions;

Similarly, the Human Rights Committee and to clarify its position in relation to the TORTURE Volume 29, Number 1, 2019 (HRC) in its case law had classified the use of the five techniques, as well as other threat of serious physical injury as a form of psychological torture techniques. psychological torture. For instance, in the One important question that remains Kooijmans First Report, the Committee found unanswered is whether the decision not to there to be torture including applications of re-open the case has encouraged, and will electric shocks, use of submarino,13 beatings, influence on an ongoing basis, other state

13 Inter alia, immersion in a mixture of blood, urine, drowning” experience where victims are suffocated vomit and excrements, which leads to a “near- by having to hold their breath underwater. 68 SPECIAL SECTION: FORENSIC DOCUMENTATION OF TORTURE: REFLECTIONS AND LEARNINGS ON THE ISTANBUL PROTOCOL

governments to rely on the 1978 judgment Eldemire, S. (2018). From Belfast to Guantanamo: as a basis to validate acts that are now The alleged torture of Northern Ireland’s “Hooded Men”. The Intercept.https://theintercept. considered as torture. The decision may com/2018/03/22/ireland-hooded-men-torture/ also deter others from requesting historical Farrell, L. (2018). Hooded Man: “They asked me to decisions to be reconsidered. If this is the count to ten; I refused in case I couldn’t do it”. case, the consequences for victims of torture The Journal.ie http://www.thejournal.ie/hooded- men-what-happened-torture-3914257-Mar2018/ for accessing full justice and reparations, as Fields, R.M. (2008). The neurobiological conse- part of their wider rehabilitation process, quences of psychological torture in Ojeda A.E. extends far beyond the 14 men who had The trauma of psychological torture. Westport: their life trajectories altered at the hands of Praeger Pubs, 139-62. Her Majesty’s Stationery Office (HMSO), Report the United Kingdom. The ripple effects may of the Committee of privy Counsellors appointed to be far more wide-reaching. consider authorized procedures for the interrogation of persons suspected of terrorism (Parker Report), Cmnd. 4901. Acknowledgments Her Majesty’s Stationery Office (HMSO), Report of The author would like to thank the the inquiry into allegations against the security forces anonymous peer reviewers and editorial of physical brutality in Northern Ireland arising out team for their discussion, suggestions and of events on the 9th August, 1971 (Compton Re- port), Cmd.no.4823. references to different versions of this paper. Her Majesty’s Stationery Office (HMSO), The Baha Mousa Public Inquiry Report (Chairman Sir Wil- References liam Gage), 2011, HC 1452–I. Blakeley, R., & Raphael, S. (2016). British torture IACtHR. (2000). Cantoral Benavudes v. Peru, 330029, in the “war on terror”. European Journal of In- 18 August 2000. ternational Relations 23(2), 243-266 https://doi. IACtHR. (2004). Tibi v. Ecuador 12.124/98, 07 Sep- org/10.1177/1354066116653455 tember 2004. Conroy, J. (2001). Unspeakable Acts, Ordinary Peo- Leach, J. (2016). Psychological factors in exceptional, ple: The dynamics of torture. University of Cali- extreme and torturous environments. Extreme fornia Press. physiology & medicine, 5(1), 7. Donahue, D. (1980). Human rights in Northern Lopez Curzi, C. (2017). Explainer: What were the Ireland: Ireland v. the United Kingdom. Boston five techniques and why will they never work? College International and Comparative Law Review Rights Info https://rightsinfo.org/explainer-five- 3(2), 377-432. techniques-will-never-work/ ECtHR. (2000). Akkoç v. Turkey, 22947/93, 10 Octo- McCoy, A. (2012). Torture and impunity: The U.S. ber 2000. doctrine of coercive interrogation. The University of ECtHR. (1996). Aksoy v. Turkey, 21987/93, 18 De- Wisconsin Press. cember 1996. McKay, S. (2015). The torture center: Northern ECtHR. (1997). Aydin v. Turkey, 57/1996/676/866, 25 Ireland’s “hooded men”. The Irish Times https:// September 1997. www.irishtimes.com/news/crime-and-law/ ECtHR. (1982). Campbell and Cosans v. the United the-torture-centre-northern-ireland-s-hooded- Kingdom, 7511/76, 7743/76, 25 February 1982. men-1.2296152 ECtHR (2000). Dikme v. Turkey, 20869/92, 11 July Murphy, C. (2016). The haunting of the “Hooded 2000. Men”. Trinity College Law Review Online, 1-9. ECtHR. (1978). Ireland v. the United Kingdom, Newbery, S. (2009). Intelligence and Controversial 5310/71, 19 January 1978. British Interrogation Techniques: The Northern ECtHR. (2018). Ireland v. the United Kingdom, Ireland Case, 1971-2. Irish Studies in Interna- 5310/71, 20 March 2018. tional Affairs, 20(1), 103-119. http://dx.doi. ECtHR. (1994). Selmouni v. France, 25803/94, 28 org/10.3318/ISIA.2009.20.103 July 1999. Newbery, S. (2015). Interrogation, intelligence and se- ECommHR (1976). Ireland v. the United Kingdom- curity: The origins and effects of controversial British European Yearbook of the European Convention techniques, 1963-2003. Manchester University on Human Rights, 19. Press. TORTURE Volume 29, Number 1, 2019 Volume TORTURE 69 SPECIAL SECTION: FORENSIC DOCUMENTATION OF TORTURE: REFLECTIONS AND LEARNINGS ON THE ISTANBUL PROTOCOL

Neziroglu, I. (2007). A comparative analysis of mental and psychological suffering as torture, inhuman or degrading treatment or punishment under international human rights treaty law. Essex Human Rights Review 4(1), 1-16. Nowak. M. (2009). Torture and enforced disappear- ance. In C. Krause & M. Scheinin, International Protection of Human Rights: A Textbook. Turku: Institute for Human Rights, Åbo Akademi University. O’Boyle, M. (2018). Revising the verdict in Ireland v UK: time for a reality check? EjilTalk https:// www.ejiltalk.org/revising-the-verdict-in-ireland-v- uk-time-for-a-reality-check/ Ojeda A.E (2008). The trauma of psychological tor- ture.Westport: Praeger Pubs. Padeanu, I. (2018). Why the ECHR decided not to revise its judgment in the Ireland v. the UK case. EjilTalk, https://www.ejiltalk.org/why-the-echr-de- cided-not-to-revise-its-judgment-in-the-ireland-v- the-united-kingdom-case/ Pérez-Sales, P. (2017). Psychological Torture: Definition, evaluation and measurement. Routledge Books. Pérez-Sales, P. (2017). Drawing the fine line between interrogation and torture: towards a Universal Protocol on Investigative Interviewing.Torture Journal, 27(2), https://doi.org/10.7146/torture. v27i2.97234 Reidy, A. (2002). A guide to the implementation of Arti- cle 3 of the European Convention on Human Rights. Council of Europe, Human Rights Handbooks No.6. Reyes, H. (2007). The worst scars are in the mind: Psychological torture. International Review of the Red Cross, 89(867), 591-616 https://doi. org10.1017/S1816383107001300 Rodley, N. (2014). Integrity of the person. 17-195. In International human rights law (Eds.) Moeckli, D. Shah, S and Sivakumaran, S. Oxford University Press. Rodley, N., & Pollard, M. (2009). The treatment of prisoners under international law. OUP Oxford. Turner, S & Gorst-Unsworth, C. (1990). Psychologi- cal sequelae of torture; A descriptive model. Brit- TORTURE Volume 29, Number 1, 2019 ish Journal of Psychiatry, 157(4). 1-20 https://doi. org10.1192/bjp.157.4.475