The Quantification of Pain: Ireland v United Kingdom (1978) and the Subjectivity of Torture

By Christopher Keith Johnson

INTRODUCTION

Even in national emergencies, including but not limited to those associated with terrorism, there are limits in which a government must operate to fully observe internationally recognized laws, rules, and regulations of its conduct. These rules apply even as that nation engages in the act of countering violent extremism on its shores or abroad. For those governments professing to adhere to international law, issues involving the avoidance of torture in the handling of detainees have proven to be contentious.  There has been wide disagreement on the very fundamentals of the question--what is torture? How should one measure the physical and mental toll, if any, of certain investigatory techniques employed by security agents on suspects or detainees? In doing so, one could surmise that what is intolerable for one person, could be a moderate vexation to another. 

A landmark case in international law that directly engages an individual’s right to be free from torture can be found in Ireland v United Kingdom (1978).  This case was tried before the European Court of Human Rights (ECHR).  At its heart, the case defines what is and is not torture. But in doing so, following the court’s logic, one would have to accept that there is a universal standard for the measurement of human pain on the subject, without regard to the intent of the security professional conducting the interrogation. Further, the case describes what is an acceptable practice under international law by security forces conducting counterterrorism operations—in this case on its home soil. The court would provide a close reading of the above while determining the merit of the usage of "special measures" to combat terrorism. 

The justices specifically examined the conduct of UK security forces during the height of an ethno-nationalist conflict occurring in Northern Ireland from 1968-1998. This period was popularly known as the Troubles. Irregular warfare was conducted by opposing factions mostly in Northern Ireland with recorded attacks in Ireland, England, and other parts of Europe to a lesser extent. Over 3000 people were killed during the period, with most being civilians. The conflict was an existential threat to the United Kingdom. One faction--Unionists--desiring to remain a part of the United Kingdom. The other--Irish Nationalists including armed elements designated as terrorists by the British government--preferred to be reunited with the rest of Ireland.

The decision reached by the court had implications on how anti-terrorist operations, particularly those carried out by the military or police, from any signatory to international conventions banning the use of torture, should be waged globally. Although argued over 40 years ago, the case is relevant beyond the confines of a courtroom. The decisions that security forces make in the heat of battle or emergencies do not always follow a script or code created by those outside of the profession. Is there a broader, easier-to-process standard of care that security forces should consider? Is there a standard that respects the humanity of the detainee while simultaneously connecting to the professional duty of the security professional to protect the public from harm by armed combatants?

Background

The early 1970s saw a serious uptick in political violence in Northern Ireland. In the view of the UK government, having been urged to take decisive action by its representatives in Northern Ireland, the severity of the crisis demanded both a police and military response to quell the violence. The lines between peacekeeping, traditional law enforcement, and defensive versus offensive action by security forces quickly blurred shortly after British troops arrived following riots and clashes between Irish Nationalists and Unionists in Belfast, Derry and other cities and towns in 1969. These disturbances led to the growth of paramilitary organizations on both sides of the debate.

  There were a set of controversial interrogation measures in use in the 1970s by UK security forces in response to the Troubles in Northern Ireland. Ireland v United Kingdom determined if those should be classified as torture and thus unallowable under the laws that governed the member states of the European Union. If the decision by the court had been in the affirmative, the techniques, by court judgment determined to be outside of an acceptable standard of policing, would require, at minimum, an overhaul of how the UK government conducted its anti-terror campaign in Northern Ireland. It is necessary to fully list the actions in question. The five techniques described in the court’s decision were:

(a) wall-standing: forcing the detainees to remain for periods of some hours in a "stress position", described by those who underwent it as being "spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers";

(b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;

(c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations (European Court of Human Rights 1978).

            The court had to navigate whether the above, if used by security forces during an interrogation, would be considered a fair and lawful treatment of a detainee. Also, the ECHR had to determine how the times/political climate features in the development of criminal justice policy during periods of political unrest. The situation in the UK occurred during an era where there was an uptick in left-wing, terrorist violence in Europe--West Germany and Italy in particular. A ruling, in this case, was applicable throughout Europe that was impacted by international as well as domestic terrorism.

During two years in the early 1970s, the UK government arrested 3,276 terror suspects in Northern Ireland. The initial interrogation and detention of each suspect were done in five or more locations, some of them undisclosed (European Court of Human Rights 1978). In its policing of Northern Ireland, the five techniques were used in the interrogation process of some of the detainees. The court had to weigh the lawfulness of the UK security force's conduct during the interrogation of suspects. Since each member state had ratified conventions governing its treatment of detainees, the acceptable standard could not deviate from norms of human rights agreed upon by members of the European community. The court could not simply state whether UK conduct was good or bad. It was bound to classify the conduct based on the evidence presented. The court would have to do two things here. One would be to determine whether torture was committed. If it had not been, then what would the behavior of the security agents be classified as, if not torture?

JUDGMENT

The European Court of Human Rights determined that the five techniques fell short of any internationally recognized definition of torture. The most common of which is provided by the United Nations:

1. For this Declaration, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners. 2. Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment (United Nations 1975).

In its ruling, the court determined that the five techniques, while inhuman, were not torture. In terms of how often these techniques were used, the majority said that the application of inhuman measures was limited and ended in 1971. It also found that the national emergency that was the Troubles merited “special” measures to be taken by UK security forces in its counterterrorism program. And while inhuman measures were used during interrogation, the court would not recommend that the UK punish the security agents who inflicted inhuman treatment upon their prisoners. The UK's conduct as it relates to this case was determined to be within the acceptable standard of care within European and international law.

The judges deemed that the impact of the five techniques on the detainees, while significant and inhuman, was less severe than torture. The ruling indicated that it was reasonable to believe that the pain and suffering inflicted upon the detainee, while harsh, did not merit classification as the worst form of ill-treatment--torture. The judgment, therefore, tied the definition of torture to the perceived physical and mental impact UK security force actions had on the complainant/detainee/victim of the act, rather than the intent of the government representative/security agent carrying out the act. 

ANALYSIS

How does a court of law quantify the impact of actions that result in the physical and mental pain of a detainee? Is there an objective standard that should be applied when the quantification of pain and suffering of an individual is in question? What role does the intent of the perpetrator play in classifying their actions as torture? 

Anthony Cullen (2003) uses international human rights law since 1948 and other widely accepted laws and conventions to address the four features that must be debated when the issue of torture reaches a court. These features are the severity of physical and mental harm, whether the act is intentional, the purpose of the act, and the definition of its official character. These are of value in navigating merit in the 1978 decision. A different, and in my opinion better, measure would be the usage of a perpetrator-centered threshold that places the intent of the state's agent as a deciding factor rather than having to quantify the pain and suffering of the victim of state-sanctioned abuse (Yarwood 2008, pg 335).   

While the court did not believe that the five techniques amounted to torture, they did determine that the UK government’s actions fell under “inhuman or degrading treatment” a lesser standard that while far from ideal was not a violation of the human rights of the detainee in their view (Ortlieb 2018). It is troubling that a human rights court would find this standard of prisoner care allowable and acceptable at all as it diminishes the very existence of the subject by allowing him to be treated inhumanely by representatives of a European Union member state. What the court allowed here is for the UK government to lean so heavily to the right upon existing law, that it in essence damaged and buckled the walls surrounding a standard of acceptable human rights practice in its treatment of detainees. The security agent was left to guess on-site whether violence meted out to prisoners would have a lasting impact on the subject themselves with the only deciding factor being whether that decision was carried out with cruelty as an accelerant of the flames of that government-sanctioned violence (Grdinic 2000, pg 246). 

The circumstances in which the interrogation was delivered were also considered. The arrests were in response to an uptick in violence in IRA-held areas. The court determined that special times called for special measures. Its ruling opened a door for the suspension of human rights as an acceptable element of counterterrorism policy. That this was done within the UK, thus sending a message that extreme measures could be acceptable anywhere the UK had global interests. At a later stage, the ruling had bearing on America’s waging of its own “war on terror” (Walker 2000, pg 9).

Perhaps the judgment's most disturbing element can be found in Cullen's fourth feature—the official nature of the action. In this regard, the actions of a government were held to a lower standard than those of a common criminal in similar circumstances. Torture becomes inhuman treatment not based on the damage done, but rather on who administers the damage. The many forms of ill-treatment that represented the five techniques if committed by a private citizen against their neighbor would be met with swift and decisive action by law enforcement. However, in this case, security forces could round up thousands of the state's citizens using emergency powers and suspend civil and human rights to conduct a police action rife with violence against civilians.

The perpetrator-centered basis for the classification of torture is a better standard for a few reasons. A judge would not be required to ponder an objective pain threshold to determine whether torture has occurred. For example, in cases where violent acts such as rape were employed by the perpetrator, the judge would not be required to apply their, likely his, mind to what that action would do to the humanity of the victim. This model had it been applied would have held the UK government to a higher rather than lower standard of care than would apply to the average criminal. Security personnel in the UK are highly trained representatives of the state who understand how to inflict as well as how to prevent the infliction of pain during detention and interrogation of a subject. To say that they are somehow unaware of the consequences of violence on the lives of detainees under their care is to say that the standards of security employed by the UK are so unsatisfactory as to be beyond repair or reform. The court judgment failed to rate the system so poorly. Therefore, if violations of human rights occurred, it was likely a conscious decision by the perpetrator to cross the line. If not the perpetrator, then the system itself would have to be judged.

The decision, in this case, placed the onus on the victim to prove that they had been severely rather than significantly harmed. It placed the burden on the victim to quantify the level of humanity that had been stripped away from them to determine if their treatment amounted to torture. This is not quite a "blame the victim" scenario but it exists at a minimum within a parallel universe.

Worth noting is that the UK government banned the five techniques from further use the day the European Court heard the case (Rouillard 2005, pg. 26). Although not having a direct bearing on the outcome of the case, this decision by the government at minimum indicated a belief that this form of ill-treatment had somehow crossed a boundary of acceptable practice.

CONCLUSION

            To understand the case, one must strip it down to its essential components. It directly addresses the behavior of the state during an emergency. Should the state be able to abandon a certain level of responsibility to uphold human rights standards to protect its interests? The court does something very disingenuous here. It supports the need for “special measures” to be employed in policing during crises but does not clearly define how that provision impacts human rights. The decision makes it clear that certain degrees within existing rights will be lost but it does not state it directly. One of the losses is in the standard of care that governs the professions. Would a doctor be permitted by the state to use unapproved, untested, experimental, or even banned medication or treatment options in a public hospital on a patient that was unaware of the plan, if they felt it might lead to progress in a patient's recovery? No. Then why would a security professional be permitted by a human rights court to employ tactics that at minimum were inhumane and at maximum torture? Just as the doctor in the example above would be responsible, so would the security agent. The doctor's use of experimental medication is no different than the security agent's employ of techniques the impact of which they could not possibly predict on their detainee with 100 percent certainty.

            The standard to define torture must rely on intent, not the level of pain a person can bear before being broken. Otherwise, every case would require an advanced degree in sadism to navigate the facts of a case. The defendant need only be able to point to a more heinous act that makes their activity of ill-treatment of a detainee below the required threshold (DeVos 2007). Ireland v United Kingdom applied the wrong focus in its efforts to determine whether torture had occurred. It gave a free pass to the UK government to violate human rights as it required a shockingly low standard of care to be applied by security agents towards their prisoners. The court then demanded up to a superhuman toughness to be a feature of the detainee to absolve the state from responsibility or guilt. This was a one-sided verdict that while purporting to be balanced only truly considered the needs of the state. It placed law and order above the rights of the citizens in what was not a war but rather a police/criminal justice exercise that demanded a higher standard of care under both local and international law.

REFERENCES

Cullen, A. (2003) Defining torture in international law: A critique of the concept employed by the European court of human rights," California Western International Law Journal: Vol. 34 (1): 29-45, Available at: https://scholarlycommons.law.cwsl.edu/cwilj/vol34/iss1/3 [Accessed 12 October 2020]. 

De Vos, C.M. (2007) Mind the gap: Purpose, pain, and the difference between torture and inhuman treatment." Human Rights Brief 14 (2): 4-10, Available at:   https://digitalcommons.wcl.american.edu/hrbrief/vol14/iss2/2/ [Accessed 12 October 2020].

Grdinic, E. (2000) Application of the elements of torture and other forms of ill-treatment, as defined by the European court and commission of human rights, to the incidents of domestic violence.  Hastings International & Comparative Law Review 23(2): 217-260, Available at: https://repository.uchastings.edu/hastings_international_comparative_law_review/vol23/iss2/2 [Accessed 12 October 2020].

European Court of Human Rights (1978) Case of Ireland v the United Kingdom. Available at:  https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Ireland%20v%20The%20united%20Kingdom%22],%22sort%22:[%22kpdate%20Ascending%22],%22respondent%22:[%22GBR%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57506%22]} [Accessed 12 October 2020].

New call for answers over the scandal of Northern Ireland’s “hooded men.” (2015) [Online] Ireland: The Detail/Brightgrove Migration. Available from Vimeo https://vimeo.com/136835249

Ortlieb, E. (2018) Ripple effect: Far reaching consequences in the wake of re-opening Ireland v. United Kingdom.  Minnesota Journal of International Law Available at:     https://minnjil.org/2018/02/20/ripple-effect-far-reaching-consequences-in-the-wake-of-re-opening-ireland-v-united-kingdom/#_ftn1 [Accessed 12 October 2020].

Rouillard, L.F. (2005) Misinterpreting the prohibition of torture under international law: The Office of legal counsel memorandum. American University International Law Review 21, no.1 (2005): 9-41.  Available at: https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.bing.com/&httpsredir=1&article=1043&context=auilr

Sussman, D. (2006), Defining Torture, 37 Case Western Reserve Journal of International Law 37 (2): 225-230, Available at: https://scholarlycommons.law.case.edu/jil/vol37/iss2/3 [Accessed 12 October 2020].

United Nations (1975) Declaration on the protection of all persons from being subjected to torture and other cruel, inhuman or degrading treatment or punishment. Available at:        https://www.un.org/ruleoflaw/blog/document/declaration-on-the-protection-of-all-persons-from-being-subjected-to-torture-and-other-cruel-inhuman-or-degrading-treatment-or-punishment/ [Accessed 12 October 2020].

Walker, C. (2006) Clamping down on terrorism in the United Kingdom.  Journal of International Criminal Justice 4(5): 1-15 Available at: DOI: 10.1093/jicj/mql056

Yarwood, L. (2008) Defining torture: The potential for abuse.  Journal of the Institute of Justice & International Studies 8:  324-339, Available at:  http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.686.890&rep=rep1&type=pdf#page=328 [Accessed 12 October 2020].