The Mendez Principles: Challenging Torture in Interrogations
Trigger Warning: This article discusses instances of torture. Reader discretion is therefore advised.
In May 2021, a 15-member Steering Committee published the Principles on Effective Interviewing for Investigations and Information Gathering, also known as the Méndez Principles (named for former United Nations Special Rapporteur Juan E. Méndez). The Principles recognise the widespread use of torture and other forms of ill-treatment against suspects, witnesses, and victims during investigations and interrogations. They propose a universal set of standards for non-coercive interviewing and associated procedural safeguards to be implemented during questioning.
The Principles’ proposed framework for interviewing during criminal and national security investigations is based off empirical evidence that torture is an ineffective and unreliable means of acquiring accurate and actionable information. An endorsement from the United Nations General Assembly (UNGA) later this year will establish the Principles as an authoritative normative framework for interviewing that avoids human rights violations. It will also likely kill the last enduring excuse for the use of torture – efficacy.
The prohibition on torture is a jus cogens norm in customary international law but that has not historically stopped states from claiming that torture is a necessary evil to be evoked in times of severe crisis. Since the onset of the War on Terror, the torture efficacy debate has revolved around “ticking time bomb scenarios” and faulty legal interpretations refuting that certain coercive practices amount to torture. Although these arguments hold no water in international legal settings where the torture prohibition is absolute, State law enforcement and security cultures still retain the belief that coercive interrogation techniques produce viable results or even if they do not, that interviewers may resort to such abusive tactics when pressed to provide results. It is precisely cultures like these that the Méndez Principles seek to reform by providing guidance on best interviewing practices as well as just institution building.
The Méndez Principles
The six Principles are as follows:
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, expression, nationality, disability or religion.
Principle Four emphasises 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 by 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.
The Méndez Principles explicitly address the need to shift questioning culture away from accusatory, coercive, manipulative and confession-driven practices towards rapport-based interviewing. This means that for the Principles, the issue of torture is about toxic cultures of effectiveness, where results trump responsibility for human rights and individual dignity.
Although cultures like these are hard to break in many professional settings, they are especially systemic in security and law enforcement institutions, which typically conduct operations using results-based management structures. Results-based management cultures in security and law enforcement institutions encourage interrogation strategies which contribute to the achievement of a clearly stated expected objective. If that expected objective is confession – and it usually is – then such cultures put interviewees at risk of torture in that they are inclined to view ill-treatment as the most expedient process.
To this end, the values and approaches espoused in Méndez Principles represent a fundamental shift in not just interrogation practices but also security and law enforcement culture more broadly. The proposed application of legal and procedural safeguards throughout the interview process does not just reduce risk of abuse but also produces more reliable information and helps to ensure a lawful outcome of the investigation or intelligence operation. This approach embodies a radical reconceptualisation of efficacy: if the goal of the interrogation is rapport-building instead of eliciting information, then there are always results to be had even if actionable information is not received right away. In sum, the Méndez Principles take on the task of convincing states that even if torture might seem expedient, there are alternative approaches proven to be more effective (and legal) ways of obtaining results.
While the proposed shift away from coercive methodologies is promising, it should be noted here that the Principles are not designed as operational guidance. Rather, the document can be thought of as an exercise in international standard setting. Legally non-binding, the Principles are ultimately meant to be enshrined in domestic law and policy by which we can judge states’ commitment to and respect for international human rights law.
Towards an International Culture of Responsibility
Because some States still maintain that torture is effective, it is significantly more difficult to convince them that these guidelines are worth adopting. This is where the ultimate objective of the Principles comes into play. The Principles do address torture as a systemic problem and emphasise accountability; however, they also frame torture in itself as a result of state incapacity. For example, Principle Four recognises that interviewers require training in order to conduct safe and effective interrogations so strengthening their capacity, efficiency and professionalism is paramount. Principle Six explicitly addresses how leadership must commit to changing institutional cultures of impunity and gives guidance for how to begin addressing capacity issues.
By framing torture in interviewing and interrogations as an issue of state capacity to adhere to international law, the Principles reflect the differentiated but complementary roles of states and international organisations with regard to the protection of interviewees. They clarify that ensuring state respect for the torture ban requires not only that states themselves provide an appropriate policy and regulatory environment to foster respect for human rights and accountability but also that the international community has a responsibility to step in to assist with the sustainable development of just institutions.
The Principles make clear that states are subject to international law in all contexts, with no exception; however, they also recognise that there may be situations where a state lacks the institutional capacity to develop and enforce national laws and regulations. Alternatively, the national legal environment may conflict with international human rights standards, including the obligations undertaken by the state. The Méndez Principles provide a framework for states and their law enforcement and security agencies to understand the actions needed to effectively prevent and address adverse impact linked to the presumption of effectiveness regarding torture and ill-treatment in interviewing and interrogation.
The United Nations system has been waiting on the formulation of these Principles since former Rapporteur Méndez first called for their creation in his final 2016 report. UN High Commissioner for Human Rights Michelle Bachelet referenced their development in her August 2019 report as did the March 2021 Kyoto Declaration and a March 2021 UN Human Rights Council resolution. In addition to this, Mendez himself writes that the methods outlined in the Principles “are currently being implemented in the UK, 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.”
The adoption of the Principles by the aforementioned nations ahead of a UNGA endorsement illustrates that there is a demand by states for a universal standard of conducting interviewing and interrogations in adherence to international law. Overall, the finalisation of the principles represents a huge step to ending the efficacy debate in the international arena by contributing to a fundamental change in police and security culture and practices.