Perspectives: Upholding dignity in the ‘war on terror’
Audrey Olivier Muralt
Hello and welcome to Perspectives, the APT’s podcast which explores contemporary issues related to torture prevention and dignity in detention.
I’m Audrey Olivier Muralt, APT Deputy Secretary General, and this episode continues our series on the Méndez Principles on Effective Interviewing: a new approach to end coercive interviewing.
Today, we are pleased to share with you insights from Fionnuala Ní Aoláin, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.
Her mandate is frequently contacted by individuals who have experienced torture and ill treatment in the context of the so-called ‘war on terror’. To address these violations, she advocates consistently with States that national counter-terrorism laws must comply with international law and uphold procedural safeguards and due process in practice.
And that’s why the UN Special Rapporteur supports the Méndez Principles. Because they set out an approach to interviewing and information-gathering that protects fundamental rights, upholds the presumption of innocence and focuses on the pursuit of truth in the investigation of serious crimes, including terrorism.
Here is Fionnuala Ní Aoláin, in her own words.
Fionnuala Ní Aoláin
These Principles offer direct support to efforts to promote human rights and fundamental freedoms because torture and ill treatment occur particularly frequently in the context of questioning by law enforcement, intelligence, police, and military personnel in order to obtain confessions, control detainees, or in the case of the mandate I hold, to counter terrorism, or are justified and enabled by the discourse and rhetoric of countering terrorism. It's particularly important to note that the global so-called ‘war on terror’ which followed the attacks of 9-11 illustrated and enabled an extraordinary rise in the use of such techniques and their legal justification by multiple governments, including legal democracies.
In this context what we saw was, in the performance of their duties, law enforcement, intelligence officials, military personnel, and others engaged in acts that clearly violated international law. And today, as since special procedure mandate holders, including my own, have consistently argued and sustained the position that these actors are obliged to respect and promote human rights and the inherent dignity of each human person in all of their acts of questioning persons, whether those are suspects, witnesses, or victims.
It's very clear … that the prohibition of torture and inhuman treatment under international law is both a treaty and a customary requirement for States. But the prohibition has to come with legal and procedural safeguards to ensure that the prohibition actually operates effectively in practice.
What we know and what we have seen over two decades is that torture and ill treatment, when they are systematised, routinised, and legitimised, compromise not just the rights of individuals and their families and communities, but also fundamentally weaken the rule of law across the globe. My mandate has been committed to the principle that counter-terrorism laws must comply with international law and with principles of rule of law, procedural safeguards, and due process. And it's in fact only in the implementation of those procedural safeguards do we often see the effective realisation of these prohibitions for individuals at the granular level.
My mandate is frequently contacted by individuals who have had these fundamental rights and principles attacked or disregarded and have experienced torture and ill treatment directly. Most of those individuals … experienced these harms under the guise of, or justified by, the rhetoric of fighting terrorism.
One of the things that my mandate has also consistently expressed profound concern about over many years is the practice of holding terrorism suspects in solitary confinement or other forms of isolation. Often, again, the rhetoric or the justification is to break their resistance to questioning. And again, what we've seen in this context is the misuse, the granular practices of States, being incompatible, not just with the international law requirements, but with these procedural obligations to protect individuals. We've seen, over the past two decades, again a result in many ways of the horrific events and the responses to them of 9-11, is legislation, particularly counter-terrorism legislation, that provides for long arbitrary detention periods, and we see, globally, reduced safeguards for persons who are suspected or charged of these offenses, and even for persons who are witnesses or victims of terrorism.
One of the things that's really positive is that the Méndez Principles offer a set of steps that, if they are implemented, can ensure the rights of individuals under investigation or in detention. And the Principles themselves are based on scientific, psychologically-based and non-coercive means to ensure that individuals don't suffer the double harm, not only of being potentially victims themselves, but then being re-victimised by virtue of torture and ill treatment by agents of the State. The Méndez Principles offer a human rights-compliant approach to investigation, and the mandate I hold agrees that States must absolutely promote effective, ethical, and non-coercive interviewing, and then focus on the presumption of innocence and the pursuit of truth in investigation for serious crimes including terrorism.
One of the things I want to highlight for this audience is that my mandate has been particularly vocal and concerned about the use of so-called ‘battlefield evidence’ by States. We see the mainstreaming of this terminology of battlefield evidence through Security Council resolutions, global counter-terrorism strategies and in the language and practices of States. My mandate is deeply concerned that battlefield evidence functions as a cover for the inclusion or insertion of evidence which has been educed by torture or other illegal methods into trial processes … I'm particularly pleased that the Méndez Principles apply extraterritorially and during armed conflict, because this is absolutely vital to ensure that human rights protection remain front and centre of all of the places where States make arguments around the applicability of counter-terrorism regulation, often in contradiction to their international law obligation.
I have urged that States ensure that we recognise, in particular, the vulnerability of those who are under investigation, whether as perpetrators, victims, or as witnesses. Again, one of the strengths of the Méndez Protocol is that it supports recognition of this vulnerability.
I urge and recommend that States endorse and implement the Méndez Principles. To do so has two significant values for States. We have to understand, and I think many States do, that coercive techniques of investigation not only violate an individual's rights and freedoms, but those coercive investigations themselves more often than not yield results that are doubly ineffective, not just because they compromise and alienate and destroy the human rights of individuals, but often that they are wholly ineffective and do not produce the kinds of results that ensure effective accountability and transparency for serious crimes.
By moving away, and as the Méndez Principles urge States to do, from accusatory, manipulative and confession-driven techniques to investigative techniques that are based on interview models that are both scientific and progressive, States will not only be the standard bearers for the enforcement of human rights in compliance with their international law obligations, but they will also engage in effective practices that address directly the needs for the safety and security of their populations as a whole. So it is imperative for states to endorse and implement these principles in order to effectively safeguard human rights, but also to ensure safe, open, and transparent societies.
Audrey Olivier Muralt
Fionnuala Ní Aoláin is the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.
You can find out more about the Méndez Principles by visiting our website: www.apt.ch.
We hope you enjoyed this mini-episode of Perspectives. We’ll be back soon with another episode in this series exploring the Méndez Principles.