Bringing the Méndez Principles to life

This episode is the fourth in our series on the Méndez Principles on Effective Interviewing: a new approach to prevent torture. The Principles aim to end accusatory, coercive and confession-driven practices during investigations; practices we know can lead to torture and ill-treatment.

In this podcast, we are delighted to share a special conversation between the two individuals responsible for bringing the Méndez Principles to life: former UN Special Rapporteur on torture, Juan Méndez, and former APT Secretary General, Mark Thomson. 

Together, they co-chaired the Steering Committee established to develop what would become the Principles on Effective Interviewing for Investigations and Information Gathering, with input from experts and practitioners across the globe.

Mark and Juan discuss the motivation for establishing the Principles, the process and challenges of drafting them, and how the Principles add value to efforts in all countries, regardless of legal culture or tradition, to prevent torture and ill-treatment.

Find out more about the Méndez Principles: https://www.apt.ch/en/mendez-principles-effective-interviewing

Transcript

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 feature a special conversation between the two individuals responsible for bringing the Méndez Principles to life: former UN Special Rapportuer on torture, Juan Méndez, and former APT Secretary General, Mark Thomson.  

Together, they co-chaired the Steering Committee established to develop what would become the Principles on Effective Interviewing for Investigations and Information Gathering, with input from experts and practitioners across the globe.

The Principles are designed to support investigators collect reliable information – not a confession – using rapport-based interviewing techniques. They also uphold the rights of those being interviewed by ensuring that key safeguards are respected in practice.

In today’s conversation, Mark and Juan discuss the motivation for establishing the Principles, the process and challenges of drafting them, and how the Principles add value to efforts in all countries, regardless of legal culture or tradition, to prevent torture and ill-treatment.

We begin with Mark Thomson.

Mark Thomson

Well, nice to be here. So, Juan and I, we chaired the process for the drafting and adoption of these Principles on Effective Interviewing, Investigations and Information Gathering. So that's what we're going to talk about today, because there are all sorts of things we can talk about, but we'll focus on that. And what I'd like to do is ask Juan some questions about the origins of the idea, the process of putting it together and the significance of this, what can this do to make a change that's going to be important for protecting people's human rights? So Juan persuaded me to co-chair with him this process, but it's Juan's idea. And so I think it's important to try and find out a little bit more today about where Juan got the idea from. 

Juan Méndez

Well obviously, I've been thinking about why the need to obtain confessions leads to so much torture and so much grief around the world, and I've been thinking about it for many, many years. But in fact, a much more proximate cause was when I was a Special Rapporteur, I observed in many countries that I visited that the moment in which one is most vulnerable to torture is when you are faced with the interrogation by investigators, law enforcement, et cetera. And then also I had the good fortune of consulting with a lot of people that approached the mandate with ideas. And I learned that the Northern European States particularly, had gone through a process of looking back on what went wrong on investigations and determining very specifically, in a very organised manner, to substitute the brutality of torture for a process of interviews that was much more based on rapport. And then I thought I would write my last report to the General Assembly precisely on that topic. And we conducted a consultation and there was so much interest, such very good people coming to join us, that the report to the General Assembly wrote itself almost. And then, of course, I had also a very good fortune that the report did have a certain shelf life, it didn't end with the presentation at the General Assembly. And soon thereafter, there were all kinds of people showing interest, and many with great experience, professional and academic, on why we needed something like this. That's the origin from my perspective. And I'm really excited to note that when one has an idea, if it is a good idea like this one, then a lot of people volunteer to join him.

Mark Thomson

I remember you were behind a report that came out from the Inter-American Commission, which for me was a very important report on the application of law at the moment of threats of terrorism. It was a very important statement at the time to defend that principle of maintaining human rights law at all times, including in that situation. I assume that was also another reason why you felt you needed to take on the work of Special Rapporteur, but also to come up with an approach that challenged that in a convincing way.

Juan Méndez

Yes, absolutely. I was the President of the Commission at the time and we wrote a report on human rights in combatting terrorism and it was at the height of the so-called ‘global war on terror’ where the United States, in particular, were almost publicly advocating that new rules were necessary. And the new rules, among other things, was taking the gloves off during interrogation. And I think at that time, especially, we were concerned that the argument that ‘torture works’ was gaining ground, especially in the popular culture, and I still think we need to recover that ground. We are still kind of conditioned to think that torture works and it's ugly but ‘somebody has to do it’. But we were kind of pushing back on whether torture was worth using or not. We were saying, ‘it's not true that torture works’. And we were putting up to it the prohibitions in international law that have remained absolute all along. But this step, the drafting of these Principles, is about offering an alternative that has been proven to be much more effective. Not only more professional and more ethical and more legal – or absolutely legal – but also more effective in fighting crime. And that, I think, is a piece that was missing and that the Principles tries to fill in.

Mark Thomson

I was at the Association for the Prevention of Torture at the time and we asked the question, ‘does prevention actually work?’. And we commissioned researchers to do this study. And the reason I make the link to this is not just to promote excellent work, but it's the link to the Principles, because one of the conclusions of this study was that it's when safeguards are applied that you have most effective prevention of torture and ill-treatment.

Juan Méndez

I remember the process of production of that book and what was really good about that book was that it has case studies, especially of countries that have at least experienced some reduction in the incidence of torture, and why. I think it is an important contribution. At the same time, what was needed was for States to take seriously the consequences of torturing. And in the countries that had, some decades ago, conducted the process of substituting harsh interrogation for rapport-based interrogation or interviews, the reason was that they wanted to avoid judicial error. They wanted to avoid jeopardising the whole investigation by forcing the nullification of everything that had happened. And I always reflected that works when courts and prosecutors take seriously the exclusionary rule and other sanctions that work against torture. It remains to be proven, whether it works, in jurisdictions where the courts are complicit on the torture, they actually look the other way and don't apply the exclusionary rule, don't exclude evidence obtained under torture, and don't investigate and sanction those people who do torture, because in a way, they are comfortable with interrogations based on coercion of different sorts. But that's why I think we needed a document that showed that the true professionalism of people investigating crime involved also learning and knowing how to conduct interviews, without violating the rights of the person interviewed.

Mark Thomson

Let's move on to process, because you made the proposal in your final report to the General Assembly. It was well received. I remember at the time States responding positively, they liked the idea. And there was then the important task of bringing together a group of people who had the right type of expertise, that was relevant, to try to draft something like this. 

Juan Méndez

The first step actually happened literally two months after my report to the General Assembly. And it happened here in the premises of the Association for the Prevention of Torture. It was a very encouraging moment. And that's when we decided that we needed Mark to be a co-chair, because of your long association with APT, and also because we wanted APT to be institutionally involved. And that I think proved very true immediately, because we were able to be joined by people who were very interested in this, and as you say, had the experience of interviews for investigative purposes but also people who had studied from different social science perspectives, from criminology, psychology and even neurology, to show why torture doesn't work, or works for cross purposes with finding the truth and establishing justice. And I was really impressed with that. And we also had the enthusiastic assistance of people who had been in the forefront of opposing the trend towards bringing back torture, especially in the context of the global war on terror. They added not only their experience, but their prestige. And so we had so much interest that we were able to create this steering committee, but also had some other people join our drafting committee, and then also an advisory council. And so we ended up with more than a hundred people participating in this to get to the point of having a document to offer to the international community. And it took us four years, but I think that's a testament of how important it was to get this right. 

Mark Thomson

I think of that Tibetan saying that ‘If you have a choice of two routes, always choose the hardest because it's far more enriching’. But yes, it was a difficult process because we had such a vast group of people involved. But they brought their experience to the table, which I think it was just essential for this to be something that would have added value, and the involvement of former investigators, involvement of human rights lawyers, involvement of people working in academia. And I think that, for me, was also really interesting. And it's quite exceptional to bring together that multidisciplinary team to work on a specific human rights challenge. 

Juan Méndez

Yeah, I think in fact, the Principles document itself, especially the first chapter, is a very powerful argument for why torture not only doesn't work, it actually is counterproductive. I mean it's just a summary of the very rich literature on the matter, but it works very effectively that way.

Mark Thomson

The first principle being that effective interviewing is instructed by science, law and ethics. That's a very strong statement. So we chose the hard route, which is to draft collectively. And I think we went through maybe 60 drafts or so, but there was an important shift halfway through the process, just to take you back to that. Because we had asked the legal people to draft what was essential to go into a protocol, and we asked the practitioners, investigators to draft what was also important to go. And then we tried to bring the two together. But we realised it wasn’t going to fly and that we were trying to rewrite human rights law and humanitarian law. We realised we had to take a different approach. And that's where we came up with the idea of a Principles approach. It’s another example of where, by doing something collectively, we could reflect on things and be prepared to adapt and change. And I think that's important as well, to note that. We tested this with other people and realised that this was not something that would be any additional value. In fact, we were getting into problems because people would say we were not thorough enough, etcetera. But we had meetings in Brazil, Tunisia and Bangkok, I think they were the three. We had meetings with law enforcement officials and they were very receptive and they liked the idea of the Principles though, which was also very encouraging for us.

Juan Méndez

Yeah. And even now all the reception that we get tends to be very positive. 

Audrey Olivier Muralt

You’ve been listening to Juan Méndez and Mark Thomson in conversation.

We hope you enjoyed this episode of Perspectives. We’ll be back soon with another episode in this series exploring the Méndez Principles.

And if you have an idea for us to cover on Perspectives, we’d love to hear from you. Contact us via email on apt@apt.ch. Or find us on social media – Facebook, Twitter and LinkedIn. Thanks for listening and we look forward to your company next time.