The Law of Interrogation

I. CF Doctrine

A) Standard of Treatment

With respect to the conduct of interrogation, some international law rules are only applicable as a matter of law in times of armed conflict, that is to say that IHL is normally only applicable in the case of a factual armed conflict. Further, some rules are applicable only in the case of a particular type of armed conflict: for example, the vast majority of the rules in the Geneva Conventions are only applicable in the case of an international armed conflict and can thus be considered a part of the law of international armed conflict. In addition, within IHL are differing rules and protections which are dependent on the legal status of the detainee. However, “it is Canadian Forces policy that all captured persons or detainees be treated to the standard required for PWs, as this is the highest standard required under International Humanitarian Law.”²¹⁶ Accordingly, regardless of the status a particular detainee is given under the IHL, he or she will always be treated to the PW standard.

Further, as is stated in the Code of Conduct, the CF will, as a minimum, apply the spirit and principles of the law of armed conflict during all operations other than domestic operations. As such, IHL rules are always applicable to CF interrogation activities, even if they do not apply to a specific international deployment/operation in a strict legal sense. This baseline standard is consistent with CF policy on the Law of Armed Conflict generally which provides that the basic principles of IHL must be applied, as a minimum, by all members of the CF taking part in all Canadian military operations other than Canadian domestic operations. Subjects of interrogations will, as a minimum, be provided the protections accorded by the Third Geneva Convention whether or not as a matter of law, the convention applies. All detainees are therefore provided with the same standards of treatment and care.²¹⁷

B) Aim and Purpose of Interrogation

According to CF doctrine, interrogation and tactical questioning (TQ) are intelligence-gathering activities, defined as follows:

1. Interrogation. Interrogation is the systematic questioning of a PW to obtain information of intelligence value.
2. Tactical Questioning. The first questioning and screening to which a PW is subjected to obtain information of immediate tactical value.²¹⁸

For the purpose of this paper no distinction is made between interrogation and tactical questioning activities; the law discussed herein does not differentiate in application between the two and is equally applicable to both. Any reference in this paper to "interrogation" could be understood to refer to both interrogation and TQ under CF doctrine.

The purpose of interrogation as defined by the CF is “to obtain usable and reliable information, in a lawful manner and in the least amount of time, which meets the intelligence requirements of any echelon of command.”²¹⁹ In this respect, an interrogation is successful if it results in “time, complete, clear, and accurate” information.²²⁰ “Interrogations provide commanders with information about enemy networks, leadership and tactics. Such information is critical in planning operations. Tactically, detainee interrogation is a fundamental tool for gaining insight into enemy positions, strength, weapons, and intentions. Thus, it is fundamental to the protection of our forces in combat.”²²¹

The Israeli Supreme Court defined interrogation as “asking questions which seek to elicit truthful answers” and wrote that the purpose of interrogations is to gather information with respect to the methods of operation of the detainees in order to thwart and prevent them from carrying out attacks.²²²

CF Doctrine defines the concept of interrogation as “controlled, systematic processes by which specified personnel question individuals in order to obtain information.”²²³ In the GSS Practices Case, the Israeli Supreme Court suggested a very pragmatic way to articulate what is inherent in the concept of interrogation: “An interrogation is a 'competition of minds', in which the investigator attempts to penetrate the suspect's thoughts and elicit from him the information the investigator seeks to obtain”.²²⁴

II. Legal Rules Relating to Interrogations

A) Authority to Detain

The question of whether or not detention is permitted for a particular operation will be considered at the strategic level and the answer reflected in the rules of engagement. For the purpose of providing context and to present a whole picture of the law relating to interrogations, this paper will briefly discuss the law relating to detention. Importantly, it is not only consideration of the law that will influence strategic decisions on whether to authorize detentions in a particular operation: policy considerations will also enter into the analysis.

Very generally, which law is referenced for rules governing authority to detain depends on the nature of the international operation. If the operation takes place in the context of an international armed conflict, then IHL will be applicable. In that situation, in the case of persons who would be entitled to PW status, the conventional IHL does not provide a specific authority to detain. This authority, however, is clearly implied by other IHL rules. For example, GCIII relates to the treatment of PWs, and part of the definition therein for the term PW is that the person has “fallen into the power of the enemy.”²²⁵ Furthermore, customary international law provides for the detention of combatants. The conventional IHL is more explicit in the case of persons who would be considered "protected persons." Parties to a conflict “may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.”²²⁶ That such measures may include detention is clear, reinforced by the definition for "protected persons" requiring in part that such persons be “in any manner whatsoever […] in the hands of a Party to the conflict […] of which they are not nationals.”²²⁷ The IHL also provides for the specific measure of "internment" of "protected persons" in certain cases.²²⁸

In cases of a conflict not of an international character, Common Article 3 presupposes that detention will occur by including within the term “persons taking no active part in the hostilities” those “placed hors de combat by […] detention.”

In some cases, the CF will conduct an international operation under the authority granted by UN Security Council resolution. In these cases, the mandate will define the scope of the allowable use of force. For example, by Resolution 1510 (2003), the Security Council gave authority to the International Security Assistance Force ("ISAF") to engage in certain activities in Afghanistan, and authorized “member states participating in (ISAF) to take all necessary measures to fulfil its mandate.” This broad language authorizes detention of persons where necessary.

B) Authority to Interrogate Detainees

As a general rule, the authority to interrogate derives from the authority to detain. In other words, if the CF may lawfully detain an individual, it may also interrogate that individual, although the rule permitting interrogation does not derive explicitly from conventional law. That is, there is no rule permitting interrogation. There is also, however, no rule prohibiting interrogations, and, as has been discussed, several rules govern how interrogations are to be done: it's not what you ask but how you ask it.

Further, the legal authority to interrogate can be sourced in the past and ongoing practice of states. Possessing information is helpful in military operations, and obtaining intelligence has always been a priority for militaries engaged in hostilities. It is likely that this state practice has coalesced into a customary law rule generally permitting interrogation where detention is lawful.²²⁹

C) Legal Rules Relating to the Conduct of Interrogations

The GCs are clear about the prohibition of torture and other forms of inhumane or degrading treatment and specifically prohibit the use of any form of coercion. According to the ICRC, all detainees fall somewhere within the protections of these two Conventions. According to the ICRC Commentary:

All of this said, it is CF policy to treat all detainees to the standard afforded to PWs. From this we may surmise that regardless of whether the operation takes place against the backdrop of an international or non-international armed conflict, and regardless of the actual legal status of a detained person, the detainee will be entitled to the PW standard of treatment.

Several provisions in GCIII prescribe the means by which information may be elicited in the context of interrogations. The following rules set out the PW standard, and therefore the standard applicable to all detainees interrogated by the CF.

Detained persons must always be treated humanely, including during interrogation. Viewed positively, humane treatment requires that detainees must at all times be protected, particularly against acts of violence, intimidation, insults, or public curiosity.

Any interrogation techniques that result in the CF not providing such protection are always prohibited as inhumane, and may never be used.

Negatively, interrogation techniques that involve the following are always prohibited as inhumane, and may never be lawfully used:²³⁰

1. seriously endangering health,
2. physical mutilation,
3. medical or scientific experiments,
4. violence,
5. threats of violence,
6. intimidation,
7. reprisals, and
8. taking of hostages.

Interrogation techniques that involve the following are always prohibited and may never be lawfully used:

1. physical or mental torture,
2. cruel, inhuman or degrading treatment or punishment, including:
   1. use of violence,
   2. outrages upon human dignity,
   3. humiliation, and
   4. physical or moral coercion.

As outlined above, GCIII delineates general provisions that prohibit abusive treatment of PWs, protect their health,²³¹ and describes specific conditions relating to their confinement.²³² In the same way, GCIV which protects civilians in times of conflict, provides a specific prohibition on coercion and also contains general prohibitions on ill-treatment, as well as specific conditions of treatment.²³³ These principles are enshrined in CF policy relating to the key principles which govern interrogation and TQ.²³⁴

D) Prohibition on Subjecting a PW to Unpleasant or Disadvantageous Treatment

All detainees in the hands of the CF are entitled to the standards of treatment for PWs. This means that PWs or other detained persons who refuse to answer questions may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.²³⁵ The broad scope of this prohibition may be deduced from its context; the sentence preceding it in the convention reads: “no physical or mental torture, nor any other form of coercion, may be inflicted on PWs to secure from them information of any kind whatever.” (Emphasis added.) Accordingly, the rule prohibiting unpleasant or disadvantageous treatment applies to a refusal to answer any question.

Importantly, this rule does not prohibit interrogation for any purpose; it merely provides that certain interrogation techniques may not be employed.²³⁶

With respect to the techniques that may not be employed, the wording of the rule clearly sets a very low standard for interrogation practice.²³⁷ This wording sets out a general prohibition on exposing a person to “unpleasant or disadvantageous treatment,” and gives as examples causing a person to be "threatened" or "insulted." Threatening and insulting is thus a type of unpleasant or disadvantageous treatment.²³⁸

It has been pointed out that, strictly speaking, the bar on unpleasant or disadvantageous treatment only applies to PWs “who refuse to answer,” but practically, the rule applies to PWs at all stages of the interrogation process.

IHL also provides some positive obligations on PWs relevant in this context. PWs are "bound" to provide the following information when questioned on the subject: “surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.”²³⁹ If the PW "willfully infringes" this rule, he or she may be liable to a "restriction of privileges."²⁴⁰ This rule appears in the same paragraph as the rule, cited above, providing that PWs "who refuse to answer" may not be exposed to “any unpleasant or disadvantageous treatment of any kind.”²⁴¹ One way of reading these two rules together would be to say that a "restriction of privileges" is therefore not “unpleasant or disadvantageous treatment” since PWs may have privileges restricted in certain circumstances. This reading would unavoidably mean that PWs may be subject to "restriction of privileges" at any time, there being no rule against it. The trouble with such a reading is that it goes against the specific rule allowing for restriction of privileges when PWs refuse to give-up information they are obliged to provide. The better reading is that "restriction of privileges" is a type of “unpleasant or disadvantageous treatment” that is allowable against PWs only when they refuse to provide name, rank, date of birth, and serial number.²⁴²

These requirements led to the rule that the PW is obliged to provide information to help the detaining power establish identity, but nothing more; and preventing the detaining power from using even minimally unpleasant or disadvantageous treatment to persuade the PW to provide more information.

With respect to the use of incentives to reward cooperation, varying the quantity and quality of privileges may not, in all circumstances, be appropriate if a non-cooperative detainee is exposed to disadvantageous treatment as a result.²⁴³

III. The Treatment of Detainees

As stated above, interrogation tactics which have a goal to "break" prisoners are prohibited. If a detainee is "broken", his/her will is overborne. Although it is not possible to draw a bright-line between coercive and noncoercive interrogations, a very sharp line must be drawn between efforts to break down a detainee, and the use of trickery, ruse, deception or other forms of manipulation. Any use of force, torture, threats, insults or inhumane treatment is prohibited. It is clear that military necessity cannot override the obligation/standard of "humane treatment" for detainees as provided in the GCs. Psychologically coercive interrogation techniques beyond trickery are unlawful.

Interrogation tactics which involve physical force – beatings, stress position, deprivation of food, and subjection to cold or hot temperatures are prohibited. Methods which are more subtle but have a harmful psychological effect are equally prohibited. Sensory deprivation, sleep deprivation, isolation, humiliation, music and light control, use of phobia, and environmental manipulation are also prohibited. It is not however necessarily improper to reward a cooperative detainee with incentives and privileges.

In 2004, the Special Rapporteur specifically responded to allegations about the kinds of methods being used on detainees in the "war on terror." He was clear in his condemnation of the methods used as torture and illtreatment:

Since the scandals²⁴⁴ broke-out with respect to the treatment of detainees at Abu Ghraib in Iraq, considerable attention has been paid to the limits of interrogation techniques with respect to physical forms of torture and cruel, inhuman and degrading treatment of detainees (e.g. stress position, sleep and sensory deprivations). Indeed, there have been significant legislative and policy changes in the US as a result (e.g. the new US Army Field Manual and the new DOD policy). The principles governing interrogation procedures and treatment of detainees conform, at a minimum, to Common Article 3 of the GCs.²⁴⁵

In order to obtain a remedy within the human rights system, allegations of ill-treatment must be supported by evidence. The ECrtHR has adopted the standard of proof "beyond reasonable doubt". The Court recognizes, however, that where the events lie in whole or in great part in the exclusive knowledge of the authorities as is the case in most cases involving persons in detention, a strong presumption of fact arises where there are injuries caused while an individual is in custody. “In such cases the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.”²⁴⁶ In the absence of such explanation, the Court will draw adverse inference against the State.²⁴⁷

A) Conditions of Detention

The physical conditions in which a person is held can also be inhuman or degrading. In the Greek Case, the European Commission on Human Rights found that when considered in combination, the following conditions of detention amounted to a violation of Article 3: overcrowding, incommunicado detention, no access to open air, limited lighting, no exercise, and prolonged detention.²⁴⁸

The HRC has adopted a similar approach in applying Article 7 of the ICCPR. In Portorreal v. Dominican Republic, the applicant was detained in a cell measuring 20 x 5 metres where 125 persons were held. The restrictive space meant that some detainees had to sit on excrement. The applicant received no food or water until the following day and was detained for 50 hours. The HRC found that this treatment constitutes inhuman and degrading treatment amounting to a violation of Article 7.

Similarly, in Tshisekedi v. Zaire, the HRC found a violation of Article 7 amounting to inhuman treatment. The applicant had been “deprived of food and drink for four days after his arrest […] and was subsequently kept interned under unacceptable sanitary conditions.”

B) Methods of Interrogation

i) Physical Abuse:

(a) Beatings and Blows

The use of force during an interrogation may range from a slap to severe blows. Physical "abuse" or beatings have been defined as follows: “The prisoner is subjected to forceful physical contact, either directly or through an instrument.”²⁴⁹ Reported assaultive behaviours include severe beatings, kicking, and electric shock. The ICRC has reported that detainees in Iraq complained of the following treatment during interrogations: “beatings with hard objects (including pistols and rifles), slapping, punching, kicking with knees or feet on various parts of the body (legs, sides, lower back, groin)”.²⁵⁰ Physically restraining a person in very painful conditions, threats of illtreatment or reprisals against family members can also constitute inhuman treatment.

With respect to minor physical force, the European Commission of Human Rights in the Greek Case concluded that “some prisoners may tolerate […] and even take for granted […] a certain roughness of treatment […] by both police and military authorities […]. Such roughness may take the form of slaps and blows of the hand on the head or face.” The Commission concluded that, in the circumstances, the conduct did not attain the level of severity required to constitute cruel, inhuman or degrading treatment within the meaning of Article 3 of the ECHR because “the point up to which prisoners and the public may accept physical violence as being neither cruel nor excessive, varies between different societies and even between different sections of them.”²⁵¹

We may question whether it is likely that the Commission or the ECrtHR would come to the same conclusion if this case was heard in 2008. The ECrtHR has emphasized that the Convention is a “living instrument which must be interpreted in the light of present-day conditions.”²⁵² The Court “takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies”.²⁵³ In applying this statement, the Court has found that certain conduct could possibly be classified more harshly than it had before.²⁵⁴ It follows that certain acts, previously falling outside the scope of prohibited conduct, might now be deemed to have attained the required level of severity to amount to ill-treatment.

With respect to any use of physical force, more recent ECrtHR jurisprudence provides as follows: “In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is in principle an infringement on the right set for in Article 3 of the Convention.”²⁵⁵

Although it was reported that physical abuse was widely accepted and commonly used as an interrogation technique by US personnel, the use of applied beatings or any forms of physical force causing pain is now expressly prohibited in the US Army Field Manual.²⁵⁶

The common element with respect to these interrogation techniques is the pain, mental and physical, suffering and distresses caused to the detainee.²⁵⁷ This is the case even though there are no marks or bruises: “Severe beatings (often of the feet) with wooden or metal sticks or bars without breaking the bones or causing lesions, yet causing intense pain and swelling, are torture indeed”.²⁵⁸ The Istanbul Protocol states that the absence of bruising does not mean that illegal force was not applied.²⁵⁹ The external indicia of a beating is dependent on where the force is applied, not its extent or severity.²⁶⁰

Beatings are most often used along with other forms of ill-treatment. In many such cases the combined effect of the treatment rises to the level of torture. The HRC has considered the following conduct to amount to torture: beatings and withholding food; beatings and being buried alive; electric shocks; beatings, and being hung with arms behind one's back; head forced under water until nearly asphyxiated.²⁶¹ Rape or threats of physical mutilation constitute torture as well.²⁶²

(b) Shaking

The Israeli Supreme Court noted that, “among the investigation methods outlined in the GSS interrogation regulations, shaking is considered the harshest. The method is defined as the forceful and repeated shaking of the suspect's upper torso, in a manner which causes the neck and head to swing rapidly.”²⁶³ The Court heard expert evidence that shaking is “likely to cause serious brain damage, harm the spinal cord, cause the suspect to lose consciousness, vomit and urinate uncontrollably and suffer serious headaches.”²⁶⁴ In support of the use of this tactic, the Government argued that prior to using this method of interrogation a detainee was given a health evaluation and that a doctor was present during interrogations. In addition, the Government argued that not only was shaking “indispensable to fighting and winning the war on terrorism” but that it had proven an effective technique in the past.²⁶⁵ The Court held that “shaking is a prohibited investigation method. It harms the suspect's body. It violates his dignity. It is a violent method which does not form part of a legal investigation. It surpasses that which is necessary.”²⁶⁶

Shaking would seem to clearly fall within the category of prohibited ill-treatment. It can cause physical pain and risks inflicting severe pain and suffering.²⁶⁷ Even where it causes no actual injury shaking should be barred because it represents a prohibited use of force.

(c) Hand or Leg Cuffs

It is accepted that there may be some instances where cuffing is necessary and justified for security purposes. This practice has been proscribed; however, where it is maintained for excessively long periods of time or when it causes the detainee an unacceptable level of pain. Where cuffing is used for a lawful purpose, the mere fact that a detainee experiences some discomfort as a result would not be sufficient to render the practice unlawful in the circumstances.

The ECrtHR has ruled that “handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with a lawful detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary.” In determining what may be necessary and justified, the Court concluded that proper considerations include the danger of a person absconding or causing injury or damage.²⁶⁸

In the GSS Practices Case, the Israeli Court provides a comprehensive analysis of this practice. A number of petitioners complained of excessively tight hand or leg cuffs. The practice resulted in injury to the detainee's hands, arms and feet because of the length of the interrogations. In addition, the petitioners argued that particularly small cuffs were used. The state denied using cuffs which were too small. In defence of its practice, it submitted to the Court that the types of injuries complained of were to be expected when interrogations were lengthy. The Court accepted that cuffing “for the purpose of preserving the investigator's safety” is acceptable. As such, if safety requires cuffing and it is in fact used for that purpose, cuffing a detainee during interrogation is permitted.²⁶⁹ Where the method of cuffing is unrelated to the safety requirements (i.e. the hands are in a distorted position) the practice is prohibited.²⁷⁰ In all circumstances, if the cuffing causes pain (because of the position used or the size of the cuffs) or is a superfluous use of force, it is not permitted.²⁷¹

The ICRC observed the following with respect to the treatment of detainees in Iraq: “Handcuffing with flexi-cuffs, which were sometimes made so tight and used for extended periods that they caused skin lesions and long term after effects on the hands (nerve damage)”.²⁷² In applying the standards set-out by the Israeli Court, one easily comes to the conclusion that the effects of the use of handcuffs suggests that the practice did not conform to acceptable standards.

ii) Sleep Deprivation:

As with other disorientation techniques, sleep deprivation clearly fall within the definition of ill-treatment. In their report, Human Rights First defined the practice as follows: “The prisoner is deprived of normal sleep for extended periods through the use of stress positions, sensory overload, or other techniques of interrupting normal sleep.”²⁷³ Sleep deprivation is used to break down the detainee's resistance by impairing cognitive functions. Its affect can be to cause physical as well as physiological burdens on the detainee.²⁷⁴

The ECrtHR has concluded that this practice, when used in combination with other forms of ill-treatment, can constitute a violation of Article 3.²⁷⁵ CF doctrine specifically prohibits sleep deprivation or manipulation.²⁷⁶

Interrogation can be an exhausting experience and can be lengthy “due to the suspect's failure to cooperate, the complexity of the information sought, or in light of the need to obtain information urgently and immediately.”²⁷⁷ For this reason, the Israeli Supreme Court accepted that in some cases a detainee will be deprived of sleep during the course of the interrogation process. As such, the Court concluded that this practice is only prohibited “if [it] shifts from being a 'side effect' inherent to the interrogation, to an end in itself.” If the purpose of the sleep deprivation is intentionally prolonged to break the prisoner's will, “it shall not fall within the scope of a fair and reasonable investigation.” Such means, the Court found, “harm the rights and dignity of the suspect in a manner surpassing that which is required.”²⁷⁸ Where sleep patterns are manipulated in order to break a detainee from exhaustion or where non-stop interrogations are used for that same purpose, the conduct is not permitted.²⁷⁹

iii) Sensory Manipulation:

(a) Sensory Deprivation

Sensory deprivation is defined as “the reduction or removal of stimuli from one or more of the senses for prolonged periods”.²⁸⁰ Amongst the methods of ill-treatment observed by the ICRC in its report on the treatment of detainees in Iraq, it noted the following: “Hooding, used to prevent people from seeing and to disorient them, and also to prevent them from breathing freely. One or sometimes two bags, sometimes with an elastic blindfold over the eyes which, when slipped down, further impeded proper breathing. Hooding was sometimes used in conjunction with beatings thus increasing anxiety as to when blows would come. The practice of hooding also allowed the interrogators to remain anonymous and thus to act with impunity. Hooding could last for periods from a few hours to up to 2 to 4 consecutive days, during which hoods were lifted only for drinking, eating or going to the toilets.”²⁸¹

The ECrtHR has considered various forms of sensory deprivation. Sensory isolation or deprivation (i.e. blindfolding or hooding to deprive prisoners of their sight) especially when coupled with social isolation or other forms of ill-treatment subjects detainees to psychological and physical pressures. Sensory deprivation techniques cause serious psychological disorientation, and as a result, amount to inhuman treatment. Sensory deprivation which endangers pain and suffering, physical or mental, or arouses feelings of fear, anxiety and vulnerability which are likely to break the detainee's will and resistance, constitutes a violation of the prohibition against illtreatment.

The ECrtHR has said that “complete sensory isolation, coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason.”²⁸² In the Northern Ireland Case, the ECrtHR found that the detainees had been subject to sensory deprivation as a result of the following treatment: hooding, wall-standing, deprivation of sleep, and subjection to a constant wall of neutral sound.²⁸³

In the GSS Practices Case, the state argued that hooding (in that case a sack which fell down to the detainee's shoulders was placed over the head) was necessary to prevent contact between detainees but also between the detainee and the interrogator. The Court acknowledged that “the need to prevent contact may, for instance, flow from the need to safeguard the investigators' security, or the security of the suspects and witnesses. It can also be part of the "mind game" which pits the information possessed by the suspect, against that found in the hands of his investigators. For this purpose, the power to interrogate–in principle and according to the circumstances of each particular case–may include the need to prevent eye contact with a given person or place.”²⁸⁴ Where however the practice is not related to the purpose, it is prohibited. The interrogators should use the less harmful means available to achieve their purpose. Where it is necessary to cover a suspect's eyes, it is not necessary to cover the entire head or to continue the treatment for a prolonged period of time. In determining the limits of the use of this method, the Court held that if there is “no essential link to the goal of preventing contact between the suspects under investigation, [then it] is not part of a fair interrogation. It harms the suspect and his dignity. It degrades him. It causes him to lose his sense of time and place. It suffocates him. All these things are not included in the general authority to investigate.”²⁸⁵

The Army Field Manual prohibits sensory deprivation: “sensory deprivation is defined as an arranged situation causing significant psychological distress due to a prolonged absence, or significant reduction, of the usual external stimuli and perceptual opportunities. Sensory deprivation may result in extreme anxiety, hallucinations, bizarre thoughts, depression, and anti-social behavior. Detainees will not be subjected to sensory deprivation.”²⁸⁶ With respect to the specific practice of hooding, the Manual provides as follows: “If used in conjunction with intelligence interrogations, prohibited actions include, but are not limited to [...] placing hoods or sacks over the head of a detainee; using duct tape over the eyes.”²⁸⁷

(b) Sensory Bombardment

Exposure to noise or light for prolonged periods may constitute ill-treatment. In many reported cases, the use of constant illumination or bright lights (i.e. strobe lights) and loud music is used to induce sleep deprivation. Such practices can inflict severe mental harm even when used as a discrete interrogation tool.²⁸⁸

In the GSS Practices Case, the Israeli Court considered whether playing loud music to prevent the detainees from communicating with each other and passing on information was prohibited. The Court found that “being exposed to very loud music for a long period of time causes the suspect suffering.”²⁸⁹

The use of systemic loud noise or music and the exposure to constant light by US personnel in Iraq was also condemned by the ICRC.²⁹⁰

Although the issue of sensory bombardment is not directly addressed in the US Army Field Manual, interrogators are directed to take care “to protect the detainee from exposure (in accordance with all appropriate standards addressing excessive or inadequate environmental conditions) to […] excessive noise.”²⁹¹

The CF PW Handling Manual provides that the following treatment, inter alia, is specifically prohibited: sensory deprivation or manipulation through the use of blindfolds, hoods, earmuffs, loud music, bright lights or other methods.²⁹²

iv) Solitary Confinement and Isolation:

Prolonged isolation, “where the detainee is denied contact with other human beings, including through segregation from other prisoners, for prolonged periods of time”²⁹³ is, in effect, a complete deprivation of any stimuli. Depriving detainees of social and environmental stimuli for an extended period of time may induce stress, fear, anxiety, may cause delusions and hallucinations and may cause profound and long-lasting mental harm or distress.²⁹⁴

The ECrtHR has taken the position that where solitary confinement is appropriate, it may only be used for periods as short as possible. The Court has ruled “that complete sensory isolation coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason.”²⁹⁵ The Court did recognize, however, that the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment. However, where a detainee suffers physically and psychologically damaging effects as a result of periods of solitary confinement, or where a detainee is subjected to distress and hardship of an intensity considerably exceeding the unavoidable level of suffering inherent in detention, the treatment will amount to inhuman treatment within the meaning of Article 3.²⁹⁶

The ICRC condemned the use of prolonged isolation techniques on detainees in Iraq. In its report, the ICRC observed that detainees were “being stripped naked for several days while held in solitary confinement in an empty and completely dark cell that included a latrine. […] being held in solitary confinement combined with threats (to intern the individual indefinitely, to arrest other family members, to transfer the individual to Guantanamo), insufficient sleep, food or water deprivation, minimal access to showers (twice a week), denial of access to open air and prohibition of contacts with other persons deprived of their liberty.”

The US Army Field Manual permits the use of the separation interrogation technique, in exceptional circumstances where there is a “unique and critical operational requirement”. The purposes of this technique is to deny the detainee the opportunity to communicate with other detainees in order to keep him from (i) learning counter-resistance techniques; (ii) gathering new information to support a cover story. It is also to decrease a detainee's resistance to interrogation. The separation technique is described at Appendix M of the US Army Field Manual as a restricted technique. Of particular interest is the specific instruction that separation may not be used on detainees covered by the GCIV. The US Army Field Manual specially prohibits the use of this practice on PWs.²⁹⁷

The Committee Against Torture considered a case where a detainee was held in solitary confinement for less than two months total. Her cell measured 8x2 and had no windows. She had no radio and had not been informed about access to books from the library. The prison doctor reported that she was “close to a psychotic breakdown […]”. The Committee Against Torture found that her condition could “fully be explained as the result of incarceration and solitary confinement.” The Committee concluded that “solitary confinement, particularly in cases of pre-trial detention, is considered to have extremely serious mental and psychological consequences for the detainee.” The Committee had called upon States parties to abolish the practice. Although abolition is preferable, the concluding observations of the Committee reveal that solitary confinement should be applied only in exceptional cases and not for prolonged periods of time.²⁹⁸

v) Environmental Manipulation:

A common interrogation technique is to subject the detainee to prolonged periods of extreme heat or of extreme cold. The ICRC noted that in Iraq, detainees were subjected to “prolonged exposure while hooded to the sun over several hours including during the hottest time of the day when temperatures could reach 50 degrees Celsius or higher.”²⁹⁹ The US Army Field Manual states that “if used in conjunction with intelligence interrogations, prohibited actions include, but are not limited to […] inducing hypothermia or heat injury.”³⁰⁰ Such temperature manipulation can constitute ill-treatment. Hypothermia or even more moderate exposure to cold can have adverse physical effects. Exposure to extreme heat can cause heat stroke, a life-threatening condition.³⁰¹

vi) Stress Positions:

The use of stress position involves the practice of requiring that a detainee adopt and maintain a specific posture for a period of time, the effect of which is physical pain and exhaustion. There are numerous reports indicating that the US has used this practice in Guantanamo, in Iraq, and in Afghanistan.³⁰² By way of illustration, stress positions can include forcing a detainee to stand, to kneel, or squat for a prolonged period with or without arms lifted; being forced to sit in unnatural and painful positions; being placed in the fetal position and chained; being attached for hours at a time with handcuffs to a cell door in uncomfortable positions, made to stand naked against a wall with arms raised, being forced to stand, handcuffed with feet shackled to an eye bolt in the floor for more than 40 hours.³⁰³

In the Northern Ireland Case, one of the interrogation techniques used was "wall standing", defined as follows: “forcing the detainees to remain for periods of some hours in a "stress position", described by those who underwent it as being "spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”.³⁰⁴ Similarly, in their report, Human Rights First defined the practice as follows: “The prisoner is forced to maintain painful physical positions, such as forced standing, and awkward sitting or suspension of the body from a chain or other implement, for prolonged periods of time.”³⁰⁵ In the GSS Practices Case, petitioners complained of being subjected to interrogations in a "frog crouch position". This refers to “consecutive, periodical crouches on the tips of one's toes, each lasting for five minute intervals.”³⁰⁶

In addition to the physical pain³⁰⁷ and exhaustion caused by the stress of maintaining a position for prolonged periods, stress positions are used to “develop a sense of debility, dependency, and helplessness.”³⁰⁸

Both the Israeli Supreme Court in the GSS Practices Case and the ECrtHR in the Northern Ireland Case and its progeny, have considered the legality of the use of stress positions under international law. In its ruling in the GSS Practices Case, the Israeli Supreme Court adopted the approach that where stress positions are used specifically to break a suspect's will, the practice constitutes ill-treatment. The Court banned this method of interrogation ruling that: “This is a prohibited investigation method. It does not serve any purpose inherent to an investigation. It is degrading and infringes an individual's human dignity.”³⁰⁹ While the ECrtHR found that the five techniques in combination did not amount to torture, it is important to recall that the ultimate determination was that the detainees were subjected to prohibited ill-treatment.

The case law provides a clear indication that stress positions amount to ill-treatment but none has specifically found that when used alone this practice amounts to torture. In most cases stress position were used in combination with other techniques.

In cases, for example, where stress positions are used in combination with beatings or other illegal practices, the combined practices may constitute torture. The HRC has in certain cases made specific findings of torture based on the following conduct: beating, electric shocks and mock executions,³¹⁰ plantones,³¹¹ beatings and lack of food; being held incommunicado for more than three months whilst being kept blindfolded with hands tied together (resulting in limb paralysis, leg injuries, substantial weight loss and eye infection).³¹²

The CF manual relating to the handling of Prisoners of War and Detainees specifically prohibits the use of any stress positions.³¹³

vii) Acts of Humiliation:

Among the methods of ill-treatment observed by the ICRC in visits at detention facilities in Iraq were acts of humiliation. The detainees were being made to stand naked against the wall of the cell with arms raised or with women's underwear over their head for prolonged periods while being laughed at by guards, including female guards, and sometimes photographed in this position. They were also paraded naked outside their cells in front of other persons, deprived of their liberty, and sometimes hooded with women's underwear over the head.³¹⁴ These acts of humiliation were used as a means of breaking down the resistance of detainees.

The ECrtHR has found a violation of Article 3 where a detainee was stripped naked in the presence of a female officer, with the intention of humiliating him. The Court ruled as follows: “Obliging the applicant to strip naked in the presence of a woman, and then touching his sexual organs and food with bare hands, showed a clear lack of respect for the applicant, and diminished in effect his human dignity. It must have left him with feelings of anguish and inferiority capable of humiliating and debasing him.”³¹⁵

In another case, the detainee was stripped to his underwear in front of a group of guards who were verbally abusing and deriding him. The ECrtHR found that the guard's behaviour was intended to cause feelings of humiliation and inferiority and constituted a lack of respect for his human dignity.³¹⁶

Depriving detainees of clothing and forced nudity is considered inhumane and degrading. If used in combination with threats or sexual assaults, such conduct could be deemed an “outrage upon human dignity.”³¹⁷

viii) Dietary Manipulation:

There is no question that the deprivation of food or water constitutes ill-treatment. A detainee must not be deprived of food or water required to maintain health. Conversely, it is suggested, that a detainee's diet may be manipulated in a way that causes no deprivation and does not affect the health of the detainee. The purpose of this latter case is simply to disorient the detainee and upset the regular routine but not to deny the detainee of food or water.³¹⁸

ix) Fear and Threats:

Mock executions and death threats are common interrogation techniques used to intimidate detainees. In addition, the use of dogs by US personnel in many detention facilities was widely reported. The use of military working dogs was originally intended to provide a psychological and physical deterrent in the detention facilities as an alternative to the use of firearms.³¹⁹ They were not used in that way. The reports conclude that dogs were used in the detention facilities to instill fear in the inmates.³²⁰

With respect to the use of threats, the ICRC has observed the following: “Persons deprived of their liberty undergoing interrogation […] were allegedly subjected to frequent cursing, insults and threats, both physical and verbal, such as having rifles aimed at them in a general way or directly against the temple, the back of the head, or the stomach, and threatened with transfer to Guantanamo, death or indefinite internment. Threats were extended to family members, particularly the wives and daughters, of detainees.”³²¹

The effects of such treatment was also noted by the ECrtHR in the Akkoc case. The Court found that “threats made concerning the ill-treatment of [the applicant's] children, caused intense fear and apprehension. This treatment left the applicant with long-term symptoms of anxiety and insecurity. He was diagnosed with posttraumatic stress disorder and required treatment by medication.” In concluding that a violation of Article 3 had occurred, the Court found that Mr. Akkoc was the victim of very serious and cruel suffering that could be characterized as torture.³²²

x) Psychological Manipulation and Incentives:

The use of psychological methods of interrogation also deserves attention.³²³ The legal limits of interrogation tactics in the context of domestic criminal law focus to some extent on whether the investigator's conduct, words, and actions are such that the statement is not only voluntary but also, based on the surrounding circumstances, putatively reliable and trustworthy. The notion of an involuntary confession is clearly broader than a confession as a result of real or threatened physical force. There is a psychological tactic aspect to the voluntariness rule.³²⁴

Intelligence gathering activities cast a wide net with respect to their purpose. The focus is not on obtaining a confession, in this sense the detainee is not interviewed in order to convince him/her to provide a statement and an admission of guilt.³²⁵ The focus is on obtaining information. There are certain acts which are clearly prohibited and others which are more subtle in their effect and thus may be less obvious.

Aggressive interrogation which relies on the application of force or subjects a detainee to the types of treatments set-out above are coercive because they require the detainee to choose between providing information and cooperating or enduring more of the treatment. These "outer pressures" are easily identified as coercive. “Under such circumstances, a subject's decision to provide information is said to be "coerced" because external forces have compromised a subject's ability to take a rational decision to reveal or not reveal information”³²⁶ The focus is on the detainee's ability to choose. So long as the detainee maintains his or her free will to choose, an interrogator may manipulate an uncooperative detainee to influence the exercise of that choice. Coercive interrogation methods remove the choice completely and this is why they are impermissible. In this context, coercion involves abuse tactics, whether physical or psychological, which are inherently inhumane. Incentives involve situations where a detainee can gain benefits and advantages in the form of privileges through cooperation.³²⁷ The US Army Field Manual provides the following guidance:

For instance, if we accept that we may act on information obtained in the context of interrogations although such information may not be admissible in legal proceedings, then some of the techniques which are prohibited for purposes of criminal law prosecutions may be approved techniques within the law of interrogation so long as the standard does not fall below the minimum standard required.³²⁹ The prohibition against torture and ill-treatment and the obligation for humane treatment is a legal principle rather than a rule of evidence. It is on this basis that the distinction between lawful manipulation techniques (which includes subtle psychological pressures, trickery, incentives and privileges) and unlawful coercive measures may be maintained. Although the primary concern of the applicable IHL standards is not reliability, it should be remembered that often more permissive rules may be to the detriment of reliability and may in the intelligence gathering context dissuade their use.

Footnotes

²¹⁶ PW Handling Manual at i.

²¹⁷ For a general discussion on the evolution of US Policy and changes in this respect see: Nowak, "What Practices Constitute Torture?: US and UN Standards" (2006) 28 HRQ 809; O'Connell, "Affirming the Ban on Harsh Interrogation" (2005) 66 Ohio St. L. J. 1231; Parry "'Just for Fun': Understanding Torture and Understanding Abu Ghraib" (2005) 1 J. Nat'l Security L. & Pol'y 253, Paust; "Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees" (2005) 43 Colum. J. Transnat'l L. 817. As regards specific treatment standards, the US Army Field Manual was updated in September 2006. It provides that the only authorized interrogation techniques or approaches are those included in the Manual. The Manual also specifically requires all detainees be treated in a manner consistent with the Geneva Conventions. US Army FM 2.22-3 also specifically prohibits eight techniques when used in conjunction with intelligence interrogations, at 5-75. If used in conjunction with intelligence interrogations, prohibited actions include, but are not limited to: forcing the detainee to be naked, perform sexual acts, or pose in a sexual manner; placing hoods or sacks over the head of a detainee; using duct tape over the eyes; applying beatings, electric shock, burns, or other forms of physical pain; "waterboarding"; using military working dogs; inducing hypothermia or heat injury; conducting mock executions; and depriving the detainee of necessary food, water, or medical care. See also CRS: Lawfulness of Interrogation Techniques; Garcia, "Interrogation of Detainees: Overview of the McCain Amendment" CRS Report for Congress RL33655 October 23, 2006; and Wood, "Overview and Analysis of Senate Amendment Concerning Interrogation of Detainees" CRS Report for Congress RS22312 (November 2, 2005).

²¹⁸ PW Handling Manual at 402.

²¹⁹ Ibid., (emphasis added). This is consistent with NATO doctrine: “The primary aim of interrogation is timely extraction of information and/or intelligence from [captured personnel/detainees], and dissemination of that product to the relevant command in order that it may be used in the production of intelligence estimates and in decision making.”

²²⁰ Ibid.

²²¹ Final Report of the Independent Panel to Review DoD Detention Operations, The Honorable James R. Schlesinger, Chairman, (August 2004), at 65.

²²² GSS Practices Case at para. 1.

²²³ PW Handling Manual at para. 403.

²²⁴ GSS Practices Case at para. 22.

²²⁵ GCIII, art. 4.

²²⁶ GCIV, art. 27.

²²⁷ GCIV, art. 4.

²²⁸ GCIV, art. 42. See also GCIV, art. 78 for internment in occupied areas.

²²⁹ See e.g. R (Al-Jedda) v. Secretary of State for Defence, [2007] UKHL 58.

²³⁰ “Cruel treatment and torture;” as well as “outrages upon personal dignity, in particular humiliating and degrading treatment,” are each prohibited on their own terms, but are also examples of inhumane treatment and thus prohibited on that ground as well.

²³¹ GCIII, Article 17 (specifically prohibits mental torture and any other form of coercion of PWs in order to secure information), Article 13 (requires that at all times PWs must be treated humanely. Any act, or omission by the detaining power that causes death or seriously endangers the health of PWs is a serious breach of the Convention), Article 14 (PWs are entitled to respect for their person and their honour), Article 87 (prohibits any form of torture or cruelty in the context of punishments).

²³² See, e.g., GCIII, Article 21 specifying that PWs may not be held in close confinement except where necessary to safeguard their health; Article 25 specifying conditions must make allowance for the habits and customs of PWs and “shall in no case be prejudicial to their health.”; and Article 90 prohibiting punishment that lasts more than 30 days.

²³³ GCIV, Article 31 (“No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties”), Article 27 (protected persons are entitled to respect for their persons, honour, religious convictions and practices, manners and customs. “They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof …”), Article 32 (measures that cause physical suffering, including murder, torture, and mutilation are prohibited), Article 118 (forbids without exception imprisonment in premises without daylight, and, in general, all forms of cruelty).

²³⁴ PW Handling Manual at 404.

²³⁵ GCIII, art. 17.

²³⁶ See, e.g. ICRC Commentary III, art. 17: “a State which has captured (PWs) will always try to obtain military information from them. Such attempts are not forbidden; the present paragraph covers only the methods to which it expressly refers.”

²³⁷ See, e.g. Glod & Smith, "Interrogation under the 1949 Prisoners of War Convention" (1968) Military Law Review 145 at 152 where it is stated in relation to this rule: “one principle which can be used to determine the legality of an interrogator's action is whether or not a particular prisoner was treated less favorably than the others in order to pressure him into giving military information.”

²³⁸ Many instances of threatening or insulting will also be prohibited on other grounds in the law, for example as amounting to intimidation or threats of violence.

²³⁹ GCIII, art. 17. This is an expansion of the rule which provides PWs are bound to provide only "true name and rank."

²⁴⁰ GCIII, art. 17. Although the wording of the rule is not as clear as it could be, this is the most that may be done by the detaining power to get this information: see Levie, "Prisoners of War in International Armed Conflict" (1977) 59 I.L.S 1 at 108.

²⁴¹ GCIII, art. 17.

²⁴² The ICRC Commentary III suggests the first reading: “The Detaining Power may not therefore exert any pressure [referring to the prohibition on coercion] on prisoners, and this prohibition even refers to the information specified in the first paragraph of the Article [i.e. name, rank, date of birth, and serial number.]”

²⁴³ See e.g. CRS: Lawfulness of Interrogation Techniques at 26-27.

²⁴⁴ Final Report of the Independent Panel to Review DoD Detention Operations, The Honorable James R. Schlesinger, Chairman, (August 2004); AR 15-6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade LTG Jones & MG Fay.

²⁴⁵ See e.g. "International Human Rights and International Criminal Law" (2006) 100 Am. J. Int'l. L. 936. Prior to the coming into force of these new policies in 2006, US policy provided that any interrogation methods which did not cause death or severe pain were lawful. Current doctrinal guidance provides that all detainees shall be treated humanely and prohibits cruel, inhuman or degrading treatment or punishment. The war on terror may have ushered in a new paradigm but there has been a significant renunciation of interrogation practices following the scandal at Abu Ghraib and in Guantanamo.

²⁴⁶ Salman v. Turkey App No. 21986/93 (27 June 2000), at para. 100.

²⁴⁷ Mikheyev v. Russia, App No. 77617/01 (26 January 2006), at para. 102.

²⁴⁸ The Greek Case at 468-497. This has been confirmed in more recent judgments of the ECrtHR.

²⁴⁹ Physicians for Human Rights & Human Rights First, Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality (August 2007) [Leave No Marks] at 2.

²⁵⁰ International Committee of the Red Cross, (2004) Report of the Committee of the Red Cross (ICRC) on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment, and Interrogation [ICRC Report] at para. 25.

²⁵¹ The Greek Case at 180 and 501.

²⁵² Tryer v. United Kingdom (1979-80) 2 E.H.R.R.1 at 15-16.

²⁵³ Selmouni v. France (25803/94), (2000) 29 E.H.R.R. 403 at para. 101.

²⁵⁴ Ibid. In Selmouni, the Court found that treatment previously classified as cruel, inhuman and degrading could possibly be classified as torture, ibid.

²⁵⁵ See e.g. Tekin v. Turkey. App. no. 52/1997/836/1042 (9 June 1998); Labita v. Italy, App. No. 26772/95 (6 April 2000); Aktas v. Turkey, App. No. 24351/94 (24 April 2003).

²⁵⁶ U.S. Department of the Army, Field Manual 2-22.3 Human Intelligence Collector Operations, at paras. 5-75, p. 5-21 (Sept. 6, 2006) [US Army FM 2-22.3] (“If used in conjunction with intelligence interrogations, prohibited actions include, but are not limited to … applying beatings, electric shock, burns, or other forms of physical pain”).

²⁵⁷ For a comprehensive review of the physiological effects (i.e. trauma, muscle injuries) of beatings see Leave No Marks, at 13. It is also reported that beatings may cause post-traumatic stress disorder (PTSD), see Leave No Marks, at 13-14. See also UNHCHR, Professional Training Series No. 8, Istanbul Protocol "Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment" (2004) [Istanbul Protocol] Chapter V.

²⁵⁸ Rodley, The Treatment of Prisoners Under International Law at 77. The ECrtHR makes a similar comment in Selmouni v. France (25803/94), (2000) 29 E.H.R.R. 403 at 102 “The Court is satisfied that a large number of blows were inflicted on Mr. Selmouni. Whatever a person's state of health, it can be presumed that such intensity of blows will cause substantial pain. Moreover, a blow does not automatically leave a visible mark on the body.”

²⁵⁹ See e.g. The Istanbul Protocol.

²⁶⁰ Leave No Marks, at 13.

²⁶¹ For a discussion of cases reported by the HRC see Rodley, The Treatment of Prisoners Under International Law at 87-88.

²⁶² Ibid., 89-90.

²⁶³ GSS Practices Case, at para. 9.

²⁶⁴ Ibid.

²⁶⁵ Ibid.

²⁶⁶ Ibid., at para. 24.

²⁶⁷ See Leave No Marks at 26-27 for a discussion of the potential brain damaged which can be caused.

²⁶⁸ Raninen v. Finland (1997) VI Eur Ct. H. R. 2260 at para. 56.

²⁶⁹ By implication therefore where the exigencies do not require the detainee to be cuffed, it may constitute ill-treatment if an interrogator nonetheless chooses to cuff the individual during the interview.

²⁷⁰ In the GSS Practices Case, the cuffing was associated with the "Shabach" position, where “the suspect is cuffed with his hands tied behind his back. One hand is placed inside the gap between the chair's seat and back support, while the other is tied behind him, against the chair's back support. This is a distorted and unnatural position. The investigators' safety does not require it” at para. 26.

²⁷¹ In this respect, the Court in the GSS Practices Case reminds us that “there are other ways of preventing the suspect from fleeing which do not involve causing pain and suffering.” Ibid., at para. 26.

²⁷² ICRC Report, at para. 25.

²⁷³ Leave No Marks, at 22.

²⁷⁴ See Leave No Marks for an analysis of the medical effects of sleep deprivation, at 22-23.

²⁷⁵ See e.g. Northern Ireland Case; see also Kalashnikov v. Russia, App. No. 47095/99 (15 July 2002).

²⁷⁶ PW Handling Manual at 4A-2.

²⁷⁷ GSS Practices Case, at para. 31.

²⁷⁸ Ibid.

²⁷⁹ The US Army Field Manual provides that a detainee must be permitted four hours of continuous sleep during every 24 hour period. This pattern of sleep may be used for up to 30 consecutive days. US Army FM 2-22.3 at M-10.

²⁸⁰ Leave No Marks, at para. 30.

²⁸¹ ICRC Report, at para. 25.

²⁸² Ilascu and Others v. Moldova and Russia, App. No. 48787/99 (8 July 2004) at para. 432.

²⁸³ GSS Practices Cases, at paras. 96-104, 106-107, 165-168.

²⁸⁴ Ibid., at para. 28.

²⁸⁵ Ibid. The State's suggestion that a 'ventilated sack' could be used was rejected by the Court. The Court wrote “The covering of the head in the circumstances described, as distinguished from the covering of the eyes, is outside the scope of authority and is prohibited”.

²⁸⁶ US Army FM 2-22.3 at M-8.

²⁸⁷ Ibid., at 5-21.

²⁸⁸ Leave No Marks, at 24-25.

²⁸⁹ GSS Practices Case, at para. 29.

²⁹⁰ ICRC Report, at para. 27.

²⁹¹ US Army FM 2-22.3, at M-10.

²⁹² PW Handling Manual, at 4A-2.

²⁹³ Leave No Mark, at 30.

²⁹⁴ For a more detailed analysis of the pathological effects see Leave No Marks, at 32.

²⁹⁵ See Öcalan v. Turkey (46221/99) ECHR 2005-IV, at para. 191.

²⁹⁶ Mathew v. The Netherlands, App. No. 24919/03 at para. 197-205; Hauschildt v. Denmark App. No. 10486/83 (24 May 1989), the Court found that 15 days solitary confinement did not constitute a breach of the ECHR.

²⁹⁷ US Army FM 2.22-3 at Appendix M, M-1. This is of particular interest given the CF policy that all detainees shall, at a minimum, be afforded the protections which are afforded to PWs.

²⁹⁸ Communication No. 202/2002: Denmark. Committee against Torture. May 11, 2004: para. 25. U.N. Doc. CAT/C/32/D/202/2002. 783 Id. Para. 5.6.

²⁹⁹ IRCR Report, at para. 27.

³⁰⁰ US Army FM 2.22-3.

³⁰¹ Leave No Marks, at 16.

³⁰² See e.g. ICRC Report.

³⁰³ See generally Leave no Marks and ICRC Report.

³⁰⁴ Northern Ireland Case, at para. 96.

³⁰⁵ Leave No Marks, at 9.

³⁰⁶ GSS Practices Case, at para. 11. It is of interest to note that prior to hearing the petition, this interrogation practice ceased to be used by the GSS in their interrogations.

³⁰⁷ Human Rights First have documented from a medical perspective the anatomical and physiological effects of stress positions on detainees. See Leave No Marks at 9-12. See also Istanbul Protocol at 40.

³⁰⁸ Leave No Marks, at 9. Human Rights First also notes that where detainees are not provided with access to toilet facilities and are forced to soil themselves results in humiliation.

³⁰⁹ GSS Practices Case, at para. 25.

³¹⁰ Muteba v. Zaire, (124/1982) Report of the Human Rights Committee, GAOR, 22^nd Session, Supplement No. 40, (1984), para.10.2.

³¹¹ Setelich v. Uruguay, (63/1979) Report of Human Rights Committee, GAOR, 14^th Session, para. 16.2. The practice of plantones involves forcing prisoners to remain standing for extremely long periods of time.

³¹² Weinberger v. Uruguay, (28/1978) Report of Human Rights Committee, GAOR, 31^st Session, para. 4.

³¹³ PW Handling Manual at 4A-2.

³¹⁴ ICRC Report.

³¹⁵ Valasinas v. Lithuania, App. No. 44558/98. (24 July 2001) at para. 117.

³¹⁶ Iwanczuk v. Poland, App. No. 25196/94.(15 November 2001) at paras. 15, 59-60.

³¹⁷ CRS: Lawfulness of Interrogation Techniques at 35.

³¹⁸ CRS: Lawfulness of Interrogation Techniques at 32.

³¹⁹ Final Report of the Independent Panel to Review DoD Detention Operations, The Honorable James R. Schlesinger, Chairman, (August 2004), at 76.

³²⁰ See reports detailed in Leave no Marks.

³²¹ ICRC Report, at paras. 31 and 34.

³²² Akkoc v. Turkey. App. Nos. 22947/93 and 22948/93 (10 October 2000) at paras. 116-117.

³²³ See US Army FM 2-22.3 at 8-6 to 8-17 for a list of approved approaches. These approaches are considered in CRS: Lawfulness of Interrogation Techniques.

³²⁴ As one commentator suggests: “Deceptive tactics in the interrogation room distract from the search for truth in the courtroom”. Kageleiry, "Psychological police interrogation methods: Pseudoscience in the interrogation room obscures justice in the courtroom" (2007) 193 Military Law Review 1 at 45.

³²⁵ Police interrogators often begin with the notion that every suspect is guilty of an offence. With this mindset, there is a real danger of false confessions being elicited. Interrogators therefore use tactics that will, willingly or even unconsciously, interpret or create information to verify and solidify that belief.

³²⁶ Thompson, "Note: The legality of the use of psychiatric neuroimaging in intelligence interrogation" (2005) 90 Cornell L. Rev. 1601 at 1617.

³²⁷ Ibid. at 23. By way of example, the author suggests that while the deprivation of food would be impermissible as a form of manipulation because it would result in inhumane treatment, the issuance of extra food rations as a reward for cooperation would be a legitimate incentive.

³²⁸ US Army FM 2-22.3 at 8-7 and 8-8. Note also the cautions set-out at para. 8-22 with respect to the practical application of this method of interrogation.

³²⁹ For a discussion on the admissibility of evidence obtained by torture in another country by foreign authorities in proceedings before domestic Court, see Schabas, "House of Lords Prohibits Use of Torture Evidence, but Fails to Condemn Its Use by the Police" (2007) 7 Int'l Crim. L. Rev. 133.