An Eye for that Blind Eye: Retributive Justice as a Means to Re-Legitimating Ireland's International Law Obligations Post-Rendition

• Date: 01 January 2010

An Eye for that Blind Eye: Retributive

Justice As a Means to Re-Legitimating

Ireland’s International Law Obligations

Post-Rendition

BR IAN Ó BE IRNE *

Introduction

The judgment of the European Court of Human Rights in Saadi v Italy1is

undoubtedly a watershed in terms of its effect on States purporting to

discharge their international law obligations through their reliance on

“diplomatic assurances”. More than ever before, there is a strong case to be

made that, through their complicity in the practice of “extraordinary

rendition”, the Irish State has breached a variety of these obligations; in

particular those that bear strongly on the protection of human rights. With

the exception of the writings of the learned Dr Fíona de Londras,2the

putative liability of the Irish State for these breaches has escaped compre -

hensive legal scrutiny. The failure to hold the Irish State responsible for such

breaches runs the risk of undermining international human rights standards.

This article has two objectives: first, it aims to show that the Irish State has

breached its international law obligations in two different ways; second, it

aims to suggest a means through which the responsible parties can be held

accountable for their transgressions. In this vein, it shall be explained why

securing this accountability serves the purpose of re-legitimating inter -

national human rights protections and ipso facto protecting human rights.

With these aims in mind, this article will proceed as follows: first, the

international obligations that the Irish State is subject to shall be identified;

second, the two different senses in which the State has breached these

obligations shall be explored; third, through an economic analysis, the

causes of the ongoing accountability deficit shall be identified; fourth, a

* LLB Candidate, Trinity College Dublin. The author would like to extend his thanks

to Ms Niamh Hayes and Dr Oran Doyle for their kind help in discussing the content

of this article, and to the Edi torial Board o f the Hibernian Law Journal for their

useful suggestions. Any errors or omissions are my own.

1ECHR, Saadi v Italy, 28 February 2008, Grand Chamber; App No 37201/06, (2008)

24 BHRC 123, [2008] INLR 621, [2008] ECHR 179

2De Lon dras, “Shannon, Saadi and Irela nd’s Relianc e on Diplo matic Assurances”

(2009) I rish Yearbook of International Law, 79; “International Decision: Saadi v

Italy” (2008) American Journal of International Law, 616

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normatively appealing analysis of the Irish State’s moral culpability shall be

suggested as a means of generating political will to pursue this account -

ability; finally, the purpose of this pursuit of accountability shall be more

fully explained and possible forums for securing this accountability shall be

proposed.

Ireland’s International Law Obligations

Ireland is a party to the UN Convention against Torture and All Forms of

Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”),3

Article 3 of which provides that “no State party shall expel, return (refouler)

or extradite a person to another State where there are substantial grounds

for believing that he would be in danger of being subject to torture.” Article

16 of the UNCAT forbids acts of “cruel inhuman or degrading treatment or

punishment which do not amount to torture, when such acts are committed

with the acquiescence or consent of a public official or any other person acting

in such an official capacity.” Articles 12 and 13 require signatories to carry

out a prompt investigation of any claims of torture.4These provisions, in

effect, require the Irish State to take effective measures to prohibit/prevent

torture within its borders, and forbid the act of returning people to their

home country if there is reason to believe they will be tortured.

Ireland is also a party to the International Covenant on Civil and Political

Rights (“ICCPR”).5Article 7 of the ICCPR provides that “no-one shall be

subjected to torture or to cruel, inhuman or degrading treatment or punish -

ment.”6This provision places an absolute obligation on the Irish State to

prevent torture or inhuman or degrading treatment or punishment.7Ireland

3GA res 39/46, annex, 39 UN GAOR Supp (No 51) at 197, UN Doc A/39/51 (1984);

1465 UNTS 85

4Article 12 of the UNCAT: “Each State Party sh all ensure that its competent

authorities proceed to a prompt and impartial investigation, wherever there is

reasonable ground to belie ve that an act of torture has been committed in any

territory und er its jurisdiction.” A rticle 13 of the UNCAT: “Each Stat e Party shall

ensure that any individual who alleg es he has been subject ed to torture in any

territory under its jurisdiction has the right to complain to and to have his case

promptly and impartially examined by its competent authorities. Steps shall be taken

to ensure that the c omplainant and witnesses are protect ed against all ill-treatment

or intimidation as a consequence of his complaint or any evidence given.”

5GA res 2200A (XXI ), 21 UN GAOR Supp (No 16) at 52, UN Doc A/6316 (1966);

999 UNTS 171; 6 ILM 368 (1967)

6Article 7 of the IC CPR: “No one shall be subjected to t orture or to cruel, inhuman

or degrading treatment or punish ment. In particular, no one shall be subjected

without his free consent to medical or scientific experimentation.”

7This obligation c ould potentially be enforced throu gh the individual complaints

mechanism established by the Optional Protocol of the ICCPR: Optional Protocol to

the Internatio nal Covenant on Civil and Political Rights, GA Res 2200A XXII, 21

UN GAOR Supp (No 16) p 59.

194 BRI AN Ó BE IRN E

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