IHRC Report on ‘Extraordinary Rendition’

The Irish Human Rights Commission (homepage) this week released a report entitled ‘Extraordinary Renditions: A Review of Ireland’s Human Rights Obligations’ (pdf). The Report is essentially a response to the Irish government’s decision that it would not carry out random searches of US planes stopping over in Shannon Airport because it had received diplomatic assurances that these planes were not carrying any prisoners who were being extraordinarily rendered. The following excerpt from the Executive Summary concisely outlines the IHRC’s approach:

The IHRC is of the view that in its approach to ‘extraordinary rendition’, the Irish State is not complying with its human rights obligations to prevent torture or inhuman or degrading treatment or punishment. Its reliance on the assurances of the US Government is not enough. In order to ensure full compliance with its human rights obligations, the Irish State should put in place a reliable and independently verifiable system of inspection so that no prisoner is ever transported through this country except in accordance with proper legal formalities and the highest observance of human rights standards. In the absence of such a system of inspection, it is impossible for any ordinary citizen to gain evidence regarding such activity or to ascertain with any level of confidence whether such illegal activity is taking place in the State.

Guantanamo Bay in the US Supreme Court this week

This Wednesday the US Supreme Court will hear arguments in the consolidated cases of Al-Odah v United States and Boumediene v Bush. The applicants in both cases are claiming that the US Constitution applies to them even though they are non-citizens detained in an area that is, strictly speaking, outside of the territory of the United States.

The action is a result of s. 7 of the Military Commissions Act 2006 which strips federal courts of their statutory right to hear habeas corpus applications from Guantanamo Bay detainees. ‘Jurisdiction stripping’ statutes of this kind are quite common and allowable in United States law (see, for example, Janet Alexander’s excellent piece in the Stanford Journal of Civil Rights and Civil Liberties here), but do not on their own disturb the Constitutional protection for habeas corpus found in Article I(9)(2) of the Constitution (known as the ‘Suspension Clause’). By virtue of this provision Congress may only suspend the writ of habeas corpus in times of invasion or emergency where such suspension is required. It is now well established that express words of suspension ought to be used in order for an act of Congress to suspend the writ and those express words are not present in s. 7. Thus the major question for the Court to decide appears to be whether the Constitutional protection of the writ applies to aliens held outside the state.

The case is potentially the sternest challenge that the US Supreme Court has faced in the ‘War on Terrorism’ and the academic focus is mainly on (a) whether they will find that the constitution does apply [which seems quite likely]; and (b) on what basis they will reach this decision [will they use domestic legal argumentation only or will the justices have recourse to principles of extra-territoriality developed in international human rights law?].

The excellent SCOTUSblog has provided useful summaries of the issues here and the Supreme Court has pledged to make the audio recording of the case available quickly on Wednesday. Once it’s released, the audio ought to be available here.

UPDATE The MP3 of the oral hearing is now available here.

ECtHR Decides N.I. Collusion Cases

On November 27th the European Court of Human Rights found violations of Article 2 of the ECHR (right to life) on the part of the United Kingdom in the cases of McGrath v United Kingdom, McCartney v United Kingdom and Brecknell v United Kingdom. The leading judgment is that handed down in Brecknell.

Brecknell concerned the attack on Donnelly’s Bar in 1975 in which three people were killed and six seriously injured. There had been some initial investigation but the investigation was reignited in 1993 when John Weir was released from prison.

John Weir was a police officer who was convicted of murder in 1980 and released in 1993. On his release Weir alleged RUC (Royal Ulster Constabulary) collusion with loyalist paramilitaries, and provided information relating to a number of incidents including the attack on Donnelly’s Bar. This information was investigated by both the Irish police and the Royal Ulster Constabulary (RUC) and, in connection with the RUC investigation, two internal reports were prepared (one in 2001 and one in 2003). In 2004 a Serious Crime Review Team investigation into the Weir allegations began (the PSNI now having replaced the RUC) and the Independent Police Ombudsman for Northern Ireland became involved.

The families of the deceased persons claimed that the investigation had been inadequate and engaged in judicial review at the domestic level that was, ultimately, unsuccessful. Before the European Court of Human Rights the applicants claimed that the investigation into Weir’s allegations had been inadequate particularly since the Irish police had found him to be a credible witness but, on the same evidence, the PSNI had found him to be not credible. According to the complaint Article 2 results in a positive obligation to conduct an independent investigation into Weir’s allegations whereas the Government argued that, even if the allegations did trigger an obligation to investigate (which was denied), the investigation conducted was in compliance with Article 2.

In its judgment the ECtHR reiterated its well-established principle that there is an Article 2 obligation to carry out an effective investigation into unlawful or suspicious deaths and that this investigation ought to be prompt, independent and effective. It is not the case, according to the Court, that every new allegation or piece of information would trigger this positive obligation but “where there is a plausible, or credible, allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator of an unlawful killing, the authorities are under an obligation to take further investigative measures” (para. 71). In this case Weir’s allegations were serious and were prima facie plausible, therefore an obligation to investigate arose.

The initial investigation, which was carried out by the RUC itself, was found by the ECtHR not to be sufficiently independent and therefore failed to comply with Article 2 at the early stages at least. As a result, there was a violation of Article 2. it does appear, however, that the later stages of the investigation operated by a SCRT and involving the Ombudsman would satisfy the requirements of Article 2, thus highlighting (once more) the fundamentality of the change in policing in Northern Ireland from the RUC to the PSNI further to the Patten plan.

The same conclusion was reached on similar facts and in relation to further allegations by John Weir in both McGrath and McCartney.