Background
Intelligence collection in conflict zones supplies militaries and policymakers with critical information to craft strategies and make decisions. Without it, military operations are at a greater risk of casualties and mission failures. During ‘The Troubles’ (1968-1998) in Northern Ireland, British personnel collected intelligence to prevent terrorist attacks from Irish Republican Army (IRA) militants. British intelligence employed a method called the ‘5 techniques’ to gather human intelligence. Controversy surrounding the use of the 5 techniques during The Troubles and later in Iraq calls into question the moral standards of British intelligence.
What are the 5 Techniques?
The five techniques are a highly intensive and forceful method of interrogation for national security threats. The techniques include:
- Prolonged wall-standing
- “Hooding” (placing a hood over the detainee for prolonged periods)
- Subjection to white noise
- Deprivation of food and drink
- Deprivation of sleep
The Troubles in Northern Ireland
Long-standing violence and polarization characterize Northern Ireland, with predominantly Catholic Republicans advocating for unity with Ireland and Protestant Unionists preferring to remain in the United Kingdom. In 1969, the British army intervened in Northern Ireland to restore order amidst escalating violence between Republican and Unionist groups. However, controversial actions such as the Falls Curfew and the Bloody Sunday Massacre escalated the situation. By 1972, Britain suspended the Northern Ireland parliament and established direct rule from London. The suspension of parliament, intending to calm the situation and open negotiations, only intensified the conflict.
During this period, the British army implemented internment without trial, officially known as Operation Demetrius, to detain suspected terrorists or those involved in the conflict without a proper trial or legal representation. It was in these detention facilities where the ‘Hooded Men’ case took place. [source]
The Case of the Hooded Men
The Hooded Men case refers to a group of 14 Irish Catholic men arrested by British intelligence services in 1971. These men underwent the 5 techniques to compel them to provide intelligence on the IRA or other paramilitary groups. The British government deemed these methods necessary for intelligence gathering. However, in that year, the Hooded Men lodged a complaint with the European Commission, alleging that their rights under Article 3 of the ECHR were violated. Article 3 asserts that no one should endure torture or inhuman or degrading treatment or punishment. [source] [source]
The five techniques left the Hooded Men with enduring physical and psychological trauma. Jim Auld, one of these men, vividly remembers his interrogation experience, during which his interrogators hooded him, placed him into a helicopter, and threw him out. Though he was only a few feet off the ground, Auld claimed to have had no way of knowing, saying “I honestly believed the British government would not allow me out of this situation alive.” [source]
He also describes the long-lasting cognitive damages of the white noise component of the five techniques, saying; “It stops you from being able to think, it stops you from being able to do anything at all.” [source] The purpose of this method was to coerce Auld into providing information about the IRA, which he claimed to have no affiliation with.
The Aftermath
Many people actively debate the ethics of employing the 5 techniques on these men. Sir Dick White, the Head of the Secret Intelligence Services from 1956 to 1969, defended their use in Northern Ireland. He argued, “It must be demonstrated to [the subject] that his freedom is now entirely within our control. He must be brought to realise that he is now completely alone.” [source]
The mental and physical distress detainees endured under the five techniques were purported as necessary to make them more willing to disclose important information related to IRA groups and future terrorist plots; however, the usage of these techniques was widely controversial and polarised communities in Northern Ireland. [source]
Though the effects on detainees were detrimental to their mental and physical well-being, it cannot be understated that the intelligence gathered was valuable. British intelligence services collected details regarding possible IRA operations, identified nearly 700 suspected IRA members, and aided the discovery of individuals responsible for approximately 85 unsolved incidents. [source]
In June 2023, the Police Service of Northern Ireland (PSNI) apologised to the Hooded Men and the abuse they endured during internment without trial. This came before the death of one of the Hooded Men, Joe Clark, at the age of 71.
The European Court of Human Rights and Torture
The case of the Hooded Men was taken to the European Court of Human Rights (ECtHR) in 1978. However, the ECtHR found that the label ‘torture’ is dependent on the severity of the methods used. For the first time, labeling something as torture was a matter of legal subjectivity in international human rights law. The consequence of this was a ‘special stigma’ attached to torture under Article 3 of the ECHR. [source] [source]
Under this ruling, the Court implies that torture is subjective in that the severity of the pain received determines the statute. The complexity of this ruling can be seen through a statement made by the honorary Judge Sir Gerald Fitzmaurice during the hearings:
If the five techniques are to be regarded as involving torture, how does one characterize e.g. having one’s fingernails torn out, being slowly impaled on a stake through the rectum, or roasted over an electric grid? That is just torture too, is it? Or might it perhaps amount to “severe” torture?! Or what words do you find to mark the difference between treatment of that kind and the mere aches, pains, strains, stresses and discomforts of the five techniques, which pale into insignificance in comparison with the searing, unimaginable, agony of the other? These are not in the same category at all, and cannot be spoken of in the same breath. [source]
Fitzmaurice’s stigma on torture suggests that the five techniques are tolerable by comparison to other examples of torture [source]. In 2019, Lord Chief Justice Sir Declan Morgan of Northern Ireland said the treatment of detainees “would, if it occurred today, properly be characterised as torture”. [source]
Aksoy v. Turkey
In Aksoy v. Turkey, the Court agreed the methods used were severe enough to comply with their special stigma. The applicant, Zeki Aksoy, was taken into custody by Turkish police in 1984 for his criticisms of the government. In detention, he was stripped naked with his hands tied and strung up in a method known as “Palestinian hanging.” After, they attached electrodes to his genitalia, doused him with water, and electrocuted him for 35 minutes at a time.
Aksoy v. Turkey is one example of the Court choosing to label a form of enhanced interrogation as torture. The ECtHR concluded that the methods used were severe enough that it went beyond the expectations of inhumane treatment. [source]
The Case of Baha Mousa
The Baha Mousa Inquiry highlights a bizarre example of inhumane treatment severe enough to cause death but not severe enough to be called torture. In 2003, Baha Mousa was one of ten men taken into British custody during a security sweep on a hotel in Iraq. He was subjected to the five techniques under the suspicion he was involved in attacks on British troops. He suffered 93 different injuries, including brain swelling, multiple hematomas, and lacerations across the body. Dr Deryk James, an accredited home Office pathologist, came to the following conclusion on Mousa’s cause of death:
From my understanding of the background, it is in a manmade vulnerable to injury, high temperature and humidity, lack of food and water, and entrapment- by that, really I mean that he is restrained in plasticuffs with a hood over his head and subjected to fear a pain, has suffered an event which includes struggle, restrains and assault, and that has acted as a trigger mediating death via cardio-respiratory arrest. [source]
Despite the death of a young, otherwise healthy 26-year-old man as a result of the five techniques, the ECtHR does not recognize these conditions as torture. Instead, it was the result of degrading and inhumane treatment. While still a violation of Article 3, the five techniques are not severe enough to be classified as torture like “Palestinian hanging” was. This rhetoric is dangerous because it implies some types of torture are more tolerable than others. In turn, this creates inconsistencies in the moral standards of intelligence agencies and international human rights.
The Future of the 5 Techniques
In 2018 the ECtHR rejected a request by Ireland to revise their judgement in Ireland v. UK. Medical documents released evidence outlining the longstanding effects of the five techniques. In the nearly three decades since Aksoy v. Turkey and the death of Baha Mousa, the Court still has to revisit its special stigma on torture. The cases of Ireland v. UK, Aksoy v. Turkey and the Baha Mousa Inquiry are the challenges of defining and applying torture in international human rights law. New evidence and calls for revision continue to emerge. However, the ECtHR fails to correct its mistakes and revisit old judgments. Thus, they fall short of any positive change on this issue. [source]
Conclusion
The use of the five techniques in Northern Ireland by British Intelligence was not only a controversial act during the Troubles but also influenced the subjectivity of torture in international human rights law for decades to come. The Hooded Men case set an important precedent for the legal ramifications of inhumane treatment in intelligence gathering. The ECtHR, in the absence of a clear definition of torture, specifically stigmatizes the severity of inhumane treatment to categorize it as torture.
This impacted other human rights cases, such as Aksoy v. Turkey and the Baha Mousa Inquiry, which underscores the need to clearly define torture in international law. The rejection of Ireland’s proposal to revisit Ireland v. UK in 2018 demonstrates how the ambiguity of differentiating inhumane treatment and torture continues to influence cases.
Intelligence organizations face a double standard, subjecting them to distinct moral and legal obligations. The Hooded Men case serves as a sobering reminder of the absence of accountability and transparency from intelligence agencies, as well as a renewed commitment to the values of human rights and dignity.
It becomes evident that the issue of accountability and transparency extends beyond British intelligence services. Recent revelations regarding the conduct of the SAS in Afghanistan shed light on concerns about potential war crimes. The inquiry into alleged unlawful killings by the SAS between 2010 and 2013 has uncovered disturbing details, including the shooting of civilians during night raids, with some incidents resulting in the deaths of individuals as they slept. This news emphasises the need for higher standards and accountability not only within intelligence agencies but also among elite military units. The Hooded Men case, alongside the SAS inquiry, emphasises the urgency for a renewed commitment to upholding ethical standards in conflict zones. [source]
