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Project Director:
Professor William Schabas

Researcher:
Ms. Aisling O'Sullivan

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The case of Lawless v. Ireland (1957-61) was the first international court decision, interpreting and applying international human rights law, and the first dispute between an individual and a State to be tried by an international tribunal.   More particularly, it was the first complaint brought by an individual against a State to be referred to the European Court of Human Rights.  The latter, established under the European Convention of Human Rights, is empowered to adjudicate both inter-State [Article 24] and individual complaints1 [Article 25] on alleged violations of human rights, as defined by the European Convention, committed within the jurisdiction of the States parties. 

In the pre-World War II era, such matters had been considered the exclusive preserve of States, rather than a matter of international concern, with the Minorities treaties under the League of Nations constituting the only exception to the general rule.  However, non-governmental organisations and supporting States in post-war Europe viewed international enforcement of human rights as an essential prerequisite to the establishment of a viable post-war environment and the prevention of State abuse of power, comparable to the violent atrocities perpetrated within Nazi Germany and its occupied territories.  

With the conclusion of the European Convention of Human Rights, the Council of Europe member States created the first international legal protection of human rights for all individuals within the signatory states jurisdictions.  The entry into force of the Convention in September 1953 led to the establishment of the European Commission of Human Rights, the quasi-judicial mechanism to which complaints were first investigated under the original enforcement format.2   The final hurdle was surpassed with the establishment of the European Court of Human Rights in 1959, which became one of the foremost international institutions for enforcing legal protection of human rights and equally, its jurisprudence has been an important source of authority for national courts and international institutions alike.   
  
Relevant to any discussion on the Lawless application is a brief summary of historical events preceding the application.  Between 1956 and 1962, the IRA conducted a bombing campaign in Britain and Northern Ireland, referred to, in colloquial terms, as the IRA border campaign.  In response, the Irish government, under De Valera and his political party, Fianna Fáil, brought back into force special powers of indefinite detention without trial under the Offences against the State (Amendment) Act 1940.  While Ireland had declared neutrality in the face of the invasion of Poland and the igniting of World War II, the Fianna Fáil government under De Valera enacted a host of emergency legislation,3 of which the 1940 Amendment Act formed a part.

By a proclamation under Part II, Section 4 of the 1940 Act on the 8th July 1957, Minister for Justice was authorized to detain without trial persons, who, according to the Minister, were ‘engaged in activities which, in his opinion, were prejudicial to the preservation of public peace and order or to the security of the State’.4   This led to the arrest and ultimately the detention without trial of around 200 suspected members of the IRA in the Curragh, Co. Kildare, subsequently released only in February 1959 by government order.  

One of these suspected IRA members was Gerard Richard Lawless, who was arrested on the 11th July 1957 when he was about to embark on a boat to Britain.  He was initially detained under Section 30 of the Offences against the State Act 1939 but, on the 13th July 1957, a warrant was issued under 1940 Act, authorising his internment in the Curragh.  He was then transferred to the Curragh Military Prison and finally to the internment camp, where he remained until 11th December 1957, the day on which he agreed to make an undertaking to the government that he would not ‘engage in any unlawful activity within the meaning of the Acts of 1939 and 1940’5 and was released. 

His application to the European Commission of Human Rights was transmitted on the 18th November 1957 seeking an order for his release and damages, but on his release in December 1957, was amended to solely seek compensation for his allegation of unlawful detention.  The case before the Commission, and ultimately the European Court of Human Rights, centred on Lawless’ claim that Ireland, by detention without trial, had breached Articles 5, 6 and 7 of the European Convention of Human Rights, providing rights to liberty and security, fair trial and the principle of ‘no punishment without law’ respectively. 

The main legal issues in the case were (i) whether detention without trial was a violation of Article 5 or, in contrast, constituted a lawful exception to the rights of liberty and security of the person protected under the Convention; (ii) whether the government had lawfully derogated under Article 15(3),6 which enabled a State party to derogate from certain provisions of the Convention, including Articles 5 and 6,7 in the situation of war or emergency threatening the life of the nation, (iii) whether such emergency did exist and (iv) if the latter were affirmed, whether the measure of detention without trial was ‘strictly within the exigencies of the situation’8 and hence, no breach of the Convention had occurred.  Therefore, ultimately, the case hinged the issue of a state of emergency, the legality of the letter of derogation under Article 15(3) and the legality of the means utilised by the Irish government. 

The Irish government’s adversary in the petition was its former negotiator Sean MacBride, who acted as legal counsel for P.C. Moore and Ciaran McAnally of P.C. Moore Solicitors, South Great Georges St. Dublin. The government’s case was pleaded by Thomas Woods, Permanent Representative to the Council of Europe, acting as agent, and Andrias O’Caoimh, Attorney General.

   
The final judgement of the European Court of Human Rights held against Lawless, sharing the legal opinion of the majority of the European Commission.  Thus, the European Court held that there was a state of emergency under Article 15, that the letter of the 20th July 1957, claimed by the Irish government to be a letter of derogation, met the legal conditions of Article 15(3) and was a valid letter of derogation and finally, that the measure of detention without trial was ‘strictly within the exigencies of the situation’ leading to the overarching finding that Ireland had not breached its obligations under the European Convention. 
The judgement was delivered on the 1st July 1961 by Rene Cassin, President of the Court, attracting an immense media interest both in Ireland and abroad.

The Lawless Papers in the National Archives constitute the preparatory work for the submissions to the European Commission and European Court of Human Rights, in addition to internal minutes of Attorney General Andrias O’Caoimh.  Collection of this material and documentation of this material has been completed.

Recent Publications based on files in the National Archives of Ireland:
Doolan, Brian, Lawless v. Ireland (1957-61): the first case before the European Court of Human Rights: an international miscarriage of justice, (Aldershot: Ashgate, 2001).
Maguire, John, Internment, the IRA and the Lawless case 1957-61, 2 Journal of Oxford University History Society (Michaelmas 2004)

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1 A complaint by an individual or organisation against a State before an international tribunal is; termed, according to international dispute settlement, as a mixed party dispute.  Under classic international law, international dispute mechanisms could only apply to disputes between States [inter-State] on legal questions arising from international convention or customary law.

2  Protocol 11 of 1998 amended the European Convention of human rights to abolish the European Commission of Human Rights and create a system whereby all complaints are submitted directed to the European Court.

3 Article 28.3 of the 1937 Bunreacht na hÉireann provides for the legal framework in the event of a war or state of emergency.  Under Art. 28.3.3, the State may only declare war or participate in war with assent of the chamber of representatives ‘Dáil Éireann’.  However under Art. 28.3.2, the government is empowered to take necessary measures in the event of an actual invasion.  Finally, and most importantly, under Article 28.3.3, no legislation enacted ‘which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion’ can be declared unconstitutional.  In other words, the judicial review provisions of the Irish Constitution, whereby an individual can challenge the constitutionality of legislation, can not be invoked.

4 Offences against the State (Amendment) Act, 1940. Part II, section 4(1).


5 Publications of the European Court of Human Rights, Series B: Report of the European Commission of Human Rights, p22.

6 Article 15(3) reads as follows: ‘Any High Contracting party availing itself of its right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore.  It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed’.

7 Article 15 permits derogation from all the substantive rights under the Convention except Article 2 (Right to life), unless in respect of deaths resulting from lawful acts of war, Article 3 (Prohibition of torture), Article 4 (Prohibition of Slavery and forced labour) and Article 7 (Principle of legality).

8 Article 15(1) reads as follows: ‘In time of war or other public emergency threatening the life of the nation, any High Contracting party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law’.