A Positive Take on the Legacy of the 1978 Judgment in Ireland v. United Kingdom

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In September 2018, a request by the Irish Government to refer the Ireland v. United Kingdom revision case to the Grand Chamber of the European Court of Human Rights (ECtHR) was refused, closing a door that had been reopened after forty years. The fact that the ECtHR arrived at a finding of inhuman and degrading treatment ‘only’ has been maligned. In this post, I’d like to highlight an alternative perspective and suggest that this judgment elevated the gravity of the ‘other’ forms of treatment and set in motion a pioneering approach to the interpretation of Article 3 ECHR.

Subsequent to the Chamber judgment in March 2018, there was much debate (including in this blog) about whether the ECtHR should have revised its 1978 finding of inhuman and degrading treatment in light of the additional evidence. Some have supported the ECtHR’s exercise of restraint in the use of its exceptional revision powers under Rule 80 of the Rules of Court, pointing out the need for legal certainty. Others have critiqued the Court’s approach to the new evidence or have lamented the Court’s failure to follow the European Commission on Human Rights’ finding of torture, opening the door to manipulation of the torture-versus-ill-treatment distinction. All have opined that the facts of the case would give rise to a finding of torture today.

A further commonality across the commentary is that all refer to the finding of inhuman and degrading treatment ‘only’. The 2018 judgment itself describes the applicant Government’s request for the Court to find that the ‘five techniques’ ‘amounted to a practice not merely of inhuman and degrading treatment but of torture within the meaning of Article 3 of the Convention’ (para. 8). In the context of these debates, and the revision request itself, the distinction between torture and inhuman and degrading treatment ‘only’ has been amplified. That is, there is a pervasive and implicit sense that inhuman and degrading treatment is in some way not as bad as torture. In 2018, as was observed in 1978, the Court’s failure to arrive at a finding of torture overshadowed the finding of inhuman and degrading treatment.

There is an alternative perspective: that the finding of inhuman and degrading treatment in 1978 was pivotal in the development of a substantial and internationally leading body of case law in which the status of these ‘other’ forms of harm has been elevated.

Ireland v. United Kingdom’s reference points — ‘benchmarks’ as Waldron describes them — for inhuman and degrading treatment are the most frequently-used. Given the circumstances of the case, inhuman treatment was characterised as treatment that is premeditated, applied for hours and causing bodily injury or intense physical and mental suffering; degrading treatment as an experience that brings about feelings of fear, anguish and inferiority capable of humiliating and debasing a person, and/or breaking that person’s physical or moral resistance (para. 167). The ECtHR has since invoked other benchmarks established in the European Commission of Human Rights’ decisions in the Greek case (Commission Report, 5 November 1969, Yearbook of the European Convention on Human Rights XII, 1969, para. 186), but Ireland v. United Kingdom was the first time that the benchmarks of inhuman and degrading treatment were confirmed in a judgment of the Court and it is these benchmarks that have underpinned the development of the vast majority of the ECtHR’s Article 3 judgments. There are more than 1500 such judgments, and findings of a violation of Article 3 over the past few years have on average accounted for almost one fifth of the total findings of a violation under the ECHR.

This is a substantial body of case-law and it has been built on the basis of inhuman and degrading treatment, not torture. The ECtHR arrived at its first finding of torture only in the late 1990s, and while we might see this as evidence of the ECtHR lagging behind we might also see it as evidence of the ECtHR acting as a pioneer in international law of the interpretation of these often overlooked ‘other’ forms of treatment. There are several reasons why these ‘other’ forms have tended to be in the background, but one of those reasons undoubtedly stems from the influence of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This treaty provided an influential definition of torture in its first Article, while the other forms of treatment that feature in its title were not mentioned again until Article 16 and were not developed in the same way as the scope of torture. This reflects the particular focus of this Convention, on prevention and punishment, but it also reflects concerns, as scholars like Rodley and Pollard have observed from the drafting history, that cruel, inhuman and degrading treatment were too difficult to define.

These ‘other’ forms of treatment have in general been subject to limited development by international monitoring bodies but the opposite is the case at the European regional level. We find examples of the influence of the ECtHR’s inhuman and degrading treatment case-law in the UN Committee Against Torture, the African Commission on Human and Peoples’ Rights, the Inter-American Commission of Human Rights, and the Inter-American Court of Human Rights. The Strasbourg case-law might (rightly, to some extent) be criticised for not developing the interpretative scope of inhuman and degrading treatment in even greater depth, but its approach remains the most developed, and its body of case-law the most extensive within international human rights law. In the development of the ECtHR’s body of case-law, the judgment in Ireland v. United Kingdom was pivotal.

And the legacy of Ireland v United Kingdom is more than a particular combination of words and principles — when the language of inhuman and degrading treatment was used to encompass the grave experiences suffered by the applicants, the finding allowed the status of these forms of treatment to be elevated. This may seem counter-intuitive, but inhuman and degrading treatment are only perceived to be lowered in gravity when juxtaposed with torture. Torture can have a ‘special stigma’ without diminishing the gravity of inhuman and degrading treatment. The idea that torture is different is not the problem; it is an oversimplified interpretation of the idea of a severity scale within Article 3 that has been unhelpful. I have argued elsewhere that torture, inhuman and degrading treatment should not be seen as different in an over-simplified, more severe or less severe way, but should be seen as different in a way that recognises substantively distinct yet connected forms of experience. I have systematically examined 40 years of the ECtHR’s inhuman and degrading treatment case-law, and it reveals that findings of inhuman and degrading treatment since 1978 have, on the whole, coalesced around a coherent, narrow conceptual core: of profound powerlessness brought about by experiences leading to symbolic exclusion from the human community.

Ireland v United Kingdom, as the first finding of inhuman and degrading treatment by the ECtHR and concerning experiences of such gravity as wall-standing, hooding, subjection to noise, food, water and sleep deprivation, opened the door to this direction of travel: inhuman and degrading treatment must be understood as experiences that go to the heart of what it means to be a human being. The social experiences encompassed in the categories of inhuman and degrading treatment are environmental conditions (in the sense of living conditions, inside or outside of deprivation-of-liberty contexts), physical and psychological intrusion, and indifference in the face of suffering that all display a kind of loss of control, which affects one’s self-perception and that symbolically denies one’s status as a human being. We can consistently detect this in successful applications on the basis of inhuman and/or degrading treatment, concerning experiences from deliberate obstruction of an urgent request for pre-natal testing, to being held in a cage during trial in front of relatives and the public, to experiences like those which occurred in Ireland v. United Kingdom.

Fundamentally, what we can and should acknowledge on the basis of the characterisation of the treatment to which the applicants were subjected in Ireland is that inhuman and degrading treatment are not ‘lesser’. They are not less reprehensible and not less impactful. It is true that in 1978 the focus was on justifying why the experiences of the men detained did or did not constitute torture, and nothing in the judgment suggests that the ECtHR consciously aimed to recognise the gravity of inhuman and degrading treatment. But whatever the motivations then, the finding in 1978 represents a pivotal and influential point in the interpretive development of the right not to be subjected to inhuman or degrading treatment or punishment.

This is the key point: whatever the motivations of the ECtHR in 1978, the legacy of Ireland v. United Kingdom is not all negative. This is not to downplay the negative consequences, notably for perceptions in the late 1970s of the actions for which the United Kingdom Government was responsible. We can also of course acknowledge that it is frustrating that some have invoked the ECtHR’s finding to limit understandings of what constitutes torture in contemporary contexts. But while the ECtHR might be criticised for its own judgment, it should not be criticised for the manipulation of it by others intent on minimising human rights obligations: as Michael O’Boyle remarked here, such invocations were ‘spurious and self-serving’ uses of a decades-old judgment. Even when we recognise negative implications to which the ECtHR’s judgment gave rise, this does not preclude the alternative perspective that I have highlighted here.

The sentiment that seems to underlie reactions to the Ireland case in 2018, across the board, is that inhuman and degrading treatment are really ‘not as bad’ as torture. But this obscures the way that the interpretation of inhuman and degrading treatment has developed in the intervening years. Inhuman and degrading treatment/punishment can be understood as experiences of denial of one’s status as a human being deserving of respect. These ‘other’ forms of harm capture grave violations of a fundamental right and should not be seen as accessories to the real harm. They should not be seen as peripheral, but central to the right’s past — and continuing — interpretive development in international human rights law. As the right develops, there is actually much we can learn from the approach of the ECtHR. The 2018 revision judgment provides an opportunity to acknowledge this positive legacy.

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Michael O’Boyle says

February 9, 2019

I think this positive take on the Court’s 1978 judgment is worth stating and has been well developed by Elaine in this excellent post. Another positive take is that the Court has constantly developed and updated the notion of torture since that judgment and has not been shy in subsequent cases in recording findings of torture where this has been warranted by the facts. The law against torture as well as that against inhuman and degrading treatment and punishment has thus benefitted from the former Court’s historical reticence. The 1978 judgment has thus arguably been revised through practice.