Abdorrahman Boroumand Center

Editor’s note: This article is part of a Just Security series on the newly released “Principles on Effective Interviewing for Investigations and Information Gathering,” an expert-led initiative responding to a 2016 appeal to the U.N. General Assembly by then-U.N. Special Rapporteur Juan E. Méndez to develop such standards. The series outlines the origins and the scientific, legal, and ethical underpinnings of the guidelines, also known as the “Méndez Principles” in honor of its co-chair.)

International law absolutely prohibits torture and ill-treatment, yet such abuses remain prevalent and widespread. This occurs particularly in the context of questioning by law enforcement, intelligence officials, and military personnel in order to “fight crime,” obtain confessions, control detainees, or to “counter terrorism.” The deeply misguided practices utilized in the global fight against terror following the attacks of 9/11 exemplify this. At the same time, although international law mandates that legal and procedural safeguards be in place to mitigate the risks for torture and ill-treatment, these measures are often improperly implemented or are lacking entirely, compromising the protection and rights of individuals who have been deprived of their liberty, and weakening the rule of law.

Questioning during investigations is one of the primary functions of law enforcement and other authorities with investigative mandates; the information obtained from interviews and interrogations plays a central role in the criminal justice process, ultimately impacting its fairness. It is therefore imperative that interviews be conducted in a manner that complies with human rights, upholds the fundamental principle of the prohibition of torture, and places at its center the right to dignity and physical and mental integrity of every person.

Evidence has clearly shown that the use of torture, ill-treatment, and coercion does not work to elicit trustworthy information. Such practices not only harm the areas of the brain responsible for memory and general cognitive functions, thereby effectively doing physical and psychological harm to the person; they also lead to false confessions and unreliable information as individuals become disoriented and provide fabricated memories or will say anything to stop the abuse. Confessions and declarations obtained under torture or coercion are not only ineffective but also counterproductive, as they squander valuable resources and erode the public’s trust.

Recognizing the widespread use of torture during investigations, one of us, Juan E. Méndez, submitted a report in 2016 to the United Nations General Assembly as outgoing Special Rapporteur on Torture. It called for the development of a universal set of standards for non-coercive interviewing and associated procedural safeguards during investigations to ensure that no person — including suspects, witnesses, victims, and other persons being interviewed — is subjected to torture, ill-treatment, or coercion while being questioned.

Following consultations with key stakeholders, including law enforcement practitioners, representatives of U.N. agencies, civil society organizations, criminologists, psychologists, and experts from other disciplines, decided to proceed with developing such principles through an inclusive, expert-driven process. In early 2018, the Anti-Torture Initiative (ATI) at American University Washington College of Law, joined with the Geneva-based Association for the Prevention of Torture (APT) and the Norwegian Center for Human Rights (NCHR) to form an institutional partnership to promote and coordinate the development of the principles.

A 15-member Steering Committee oversaw the development of the principles. It was comprised of recognized authorities in the areas of policing, law enforcement, counterterrorism, intelligence gathering, psychology, law, and human rights protection. Under their guidance, a drafting group, with two sub-working groups on the topics of investigative interviewing and legal safeguards, drafted the text. Providing assistance with strategic decisions and ad hoc technical support as needed is an advisory council of approximately 80 experts from around the world. Facilitating the process and providing support for the development of the principles is a coordination group comprised of representatives from the ATI, APT, and NCHR. All of the working bodies involved in the initiative feature geographical and gender diversity. (Members who have served on these bodies are listed in full in the document.)

Concrete Guidance

The “Principles on Effective Interviewing for Investigations and Information Gathering” were published on May 17. While not a training manual, the document provides concrete guidance to authorities on non-coercive interviewing process and standards, along with the legal and procedural safeguards that should be implemented during investigations. Rooted in established norms, scientific research, and best practices, the guidance provided in the principles applies in all investigative contexts, including national security, and for all categories of interviewee (i.e., suspects, witnesses, victims, and other persons being interviewed).

One of the pillars of the principles is that interviewers should establish and maintain rapport with interviewees, as building rapport reduces interviewees’ anxiety and stress, and leads to interviewers obtaining more comprehensive, more truthful, and more actionable information. Another pillar is strict adherence to procedural safeguards, including detainees’ rights to access counsel, to remain silent, and to receive medical care. That means interviewers and their superiors are responsible for implementing such safeguards at every step of the process.

Effective interviews gather accurate and reliable information to discover the truth of matters under investigation. For this reason, the principles provide a human rights-based approach to interviewing to ensure that interviews conducted by law enforcement, intelligence officials, and military personnel are carried out with the highest levels of professionalism, careful planning, and rigorous evaluation, and thus enhance the effectiveness of the work. This will not only improve operational results but will further societies’ trust in public institutions.

Importantly, the principles address the first few hours of custody, the time during which the risk for torture and ill-treatment is the greatest. It is vital, therefore, that the principles advance the concept of the presumption of innocence, as well as providing guidance with regard to persons in situations of heightened vulnerabilities, including children. As opposed to coercion-based interrogation, in which interviewers think they know what happened and the only requirement is obtain a confession, this principle requires interviewers to be open to their interviewees’ narratives, especially if it does not conform with preconceived notions about the events at issue.

Incorporation into Law and Practice

The principles contain a set of non-binding but highly authoritative guidelines on non-coercive interviewing that we anticipate will be endorsed and adopted by relevant U.N. bodies The ultimate objective is for the principles to be enshrined in domestic policies and legislation, and that they will serve as a standard by which to judge each country’s respect for international obligations.

In brief, the principles elaborate on the following:

• Principle One outlines and underscores the robust scientific research, established legal norms, and professional ethics upon which effective interviewing is founded.
• Principle Two puts forward the comprehensive process for obtaining accurate and reliable information while respecting human rights before, during, and after an interview. It delineates the relevant legal safeguards that should be implemented throughout the interview process and presents practical guidance on the conduct of an effective interview.
• Principle Three holds that authorities must be mindful of addressing the needs of people in situations of heightened vulnerability based upon risk factors such as age, gender identity or expression, nationality, disability, or religion.
• Principle Four emphasizes that effective interviewing is a professional undertaking that requires specific training that is continually updated and refined.
• Principle Five presents the importance of transparency and accountability, through accurate record-keeping of all interviews and allowing for external oversight, independent monitoring, complaints mechanisms, and redress.
• Principle Six provides guidance on the successful implementation of the principles, including the systematic review of domestic legal frameworks, the protection of the independence of the judiciary and other criminal justice actors, and a broad dissemination of the principles.

Central to the realization of the principles are the strategic advocacy activities that have been undertaken to generate broad support for its development, eventual endorsement, and implementation. Of significant note, in August 2019, the U.N. High Commissioner for Human Rights H.E. Michelle Bachelet referenced the initiative to develop the principles in her report on human rights in the administration of justice (A/HRC/42/20). She highlighted that moving away from confession-based criminal justice systems lowers the risks of torture and ill-treatment and concluded that “expert and practitioner-led initiatives, such as the development of guidance on non-coercive interviewing methods and procedural safeguards . . . assist States to comply with their heightened duty of care to protect the lives and bodily integrity of persons deprived of their liberty.”

Additionally, the principles were welcomed in the Kyoto Declaration (A/CONF.234/L.6) adopted at the 14th U.N. Congress on Crime Prevention and Criminal Justice in March of this year. Also in the same month, the U.N. Human Rights Council adopted a thematic resolution on torture (A/HRC/46/L.27), which “[welcomed] the collaboration between police and law enforcement practitioners, lawyers, human rights experts and other relevant stakeholders on the development of international guidelines on non-coercive interviewing and associated safeguards.” Now that the principles are published, those of us involved and supporters of the concepts will continue advocacy to ensure adoption by U.N. bodies as non-binding but authoritative norms, and endorsement by a large number of States, as well as, ultimately, incorporation of the principles into the domestic policies and practices of all States.

Effective, human rights-compliant interrogation and interviewing methods that reject coercive, accusatory – and certainly abusive — methodologies and promote the building of rapport in a systematic manner are necessary and achievable. Such methods are currently being implemented in the U.K., Norway, New Zealand, and Australia, and have been introduced in countries around the world, including Morocco, Indonesia, South Africa, Mexico, and Fiji, among many others.

From these advances, it is clear that there is growing momentum globally to shift away from confession-driven interrogation techniques to non-coercive interviewing methodologies. Adoption and implementation of the principles will play a critical role in this transformation, and will constitute a significant step toward the elimination of torture and ill-treatment by authorities during interviews. This effort will require continued and robust support from the international community to ensure widespread endorsement, adoption, and reference — from the global level to the local — by all those in positions to ensure these principles will be applied in practice.