Revisiting the Pledge by the UK Regarding the 'Five Techniques'

Abstract

In 1977, the UK pledged to the European Court of Human Rights (ECtHR) that it would discontinue five different interrogation techniques being used in Northern Ireland that amounted to human rights violations. The ECtHR affirmed that the “Five Techniques” violated human rights. However, in the years since 1977, the UK has apparently continued the use of those Five Techniques. As recently as 2018, multiple investigations and public inquiries have uncovered use of the Five Techniques by UK forces in Iraq and Afghanistan. The Committee Against Torture expressed its concern in June 2019, in reaction to the sixth periodic report of the UK, that allegations of torture were well-founded. This article questions whether, in addition to violating human rights of the victims by performing those techniques on them, the UK is additionally responsible to the ECtHR for violating its pledge. Pledges made before international courts and tribunals, in the solemnity of proceedings, can be legally-binding, creating new legal obligations to comply with the content of the pledge. The UK Attorney-General gave the pledge before the ECtHR during the Ireland v UK case. The pledge was preceded by another statement by the Prime Minister before Parliament on the same topic, ending use of the Five Techniques. Jurisprudence before the ECtHR, but also other international courts and tribunals such as the International Court of Justice (ICJ), shows that making such a statement is usually treated as creating a new legal obligation. In addition, the International Law Commission (ILC) has developed guidelines on how to determine if a unilateral statement is merely a political remark, or whether it is legally binding. Following both the jurisprudence of the courts and the ILC guidelines, the pledge by the UK must be regarded as binding.