The Government decision to seek a referral of the ruling in the Ireland v UK torture case to the Grand Chamber of the European Court of Human Rights has been welcomed by the 'Hooded Men'.
Liam Shannon, one of the ‘Hooded Men’, said they were "delighted" by the decision, which seeks to revise a 1978 court judgment that found they were subjected to inhuman and degrading treatment, but not torture.
In 1971 14 men were taken from their homes in Northern Ireland, hooded, and brought by helicopter to a British army base. There, in units specially designed for the purpose, they were put through so-called 'deep interrogation', using five techniques of sensory deprivation notoriously used before and since in a number of conflicts worldwide.
The men first experienced 'softening up' exercises and were fingerprinted and numbered with markings on the back of their hands. They were then subjected to a controlled, extreme deprivation, forced to spend long hours standing with their arms stretched out and their fingers touching the wall, whilst loudspeakers transmitted high decibel levels of ‘white noise’ into their cells, and whilst they were deprived of sleep, food, water, and in some cases use of a toilet, as they were kept hooded over two days.
Codenamed Operation Calaba, what happened was controlled and overseen by a team of 15 from the British Joint Services Interrogation Wing, with the then RUC Special Branch also involved.
Four years ago, in June 2014, the RTÉ Investigations Unit revealed damning new evidence from Britain's own archives indicating that a political decision had been made at British cabinet level at the time to use torture methods in Northern Ireland.
Records sourced by the RTÉ Investigations Unit and for an unconnected project for the Irish Human Rights Centre at NUIG, combined with records sourced by the Pat Finucane Centre, indicated the decision to use the methods was followed by an official concealment of the facts of the operation and the withholding of key material from the European Commission on Human Rights and the European Court of Human Rights, before which Ireland had brought a rare interstate case against the UK.
Following the RTÉ documentary, the Irish Government announced it was invoking a procedure to apply to the European Court of Human Rights to revise its judgment in light of the new evidence. But in March last, largely relying on technical arguments, including the need for legal certainty, a Chamber of the court dismissed Ireland’s application to revise Ireland v UK. The only dissenting judge was the Irish nominee, Judge Síofra O’Leary.
Last month, a number of the men met with Tánaiste and Minister for Foreign Affairs Simon Coveney along with their solicitor, Darragh Mackin of KRW Law, to press the case for appealing the ruling. Separately, a High Court action was lodged yesterday by solicitors for Mary McKenna, a daughter of Sean McKenna, one of the ‘Hooded Men’ who is now deceased.
Darragh Mackin warmly welcomed the Government's decision, saying its "international significance" was "duly reflected by the fact that this case will now be referred to the highest court in Europe".Liam Shannon said: "At the meeting with Minister Coveney last month we asked him to finish the job the government started in the 70s and to correct the flawed decision that was made then and last March. Hopefully together we can do that now."
The prohibition on torture is absolute under international law, and the UK Supreme Court has said that the use of the five techniques would constitute torture when judged by today's legal standards. However, a number of governments and regimes worldwide have sought refuge in the judgment in the Ireland v UK case to justify or defend the use of such techniques.
In the 1978 judgment, the European Court of Human Rights found that although the techniques were used systematically, they did not cause suffering of the particular intensity and cruelty implied by the word torture. It said "a special stigma" attached to the word torture, and based on the evidence before it at the time, by a majority of 13 to 4, it found Britain guilty of inhuman and degrading treatment, but not torture.
But the RTÉ investigation revealed official archive records that indicated the British government knew that its core argument - that the techniques used on the ‘Hooded Men’ were not severe or long-lasting – was untrue. Their own advice suggested that a man – Mr McKenna - may have died from them.
The European Court of Human Rights (ECtHR) is subject to the European Convention on Human Rights and is a Council of Europe (rather than EU) body.
The Government is to make the request for a referral before a 20 June deadline. It will then be up to a fresh panel of judges of the Grand Chamber to decide whether it should be accepted. That only occurs "in exceptional circumstances".
If the Government's request is successful, the case will then be before the full 17-judge court.
The decision in Marchwas made by a chamber of the court - one within five administrative sections of the court. It consisted of a sectional president from Sweden, the Irish and the UK nominees, and four judges drawn by lots from Serbia, Russia, Spain and Switzerland.
Ireland v UK is viewed as one of the most important judgments of the court’s 60-year history. Welcoming today's Government decision, Amnesty International’s Northern Ireland campaigns manager Grainne Teggart said "When Amnesty visited the detainees in 1971, we found clear evidence of torture. Our assessment has not changed in the years since."
Colm O’Gorman, Executive Director of Amnesty International Ireland said: "In taking this case, then in seeking a revision and now appealing to the Grand Chamber, Ireland has maintained that this treatment was torture. So did the men, their lawyers, and Amnesty International. This is what we have asserted ever since, and assert again today."