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

Date01 January 2010
An Eye for that Blind Eye: Retributive
Justice As a Means to Re-Legitimating
Ireland’s International Law Obligations
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
9&10 HJ2010:Layout 1 27/05/2010 17:05 Page 193
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
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);
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.
9&10 HJ2010:Layout 1 27/05/2010 17:05 Page 194

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT