Introduction

Interrogation is the processes by which specially trained and authorized personnel conduct controlled and systemic questioning of individuals in order to obtain information.1 This type of formal questioning and information gathering has been likened to an intense and thorough cross-examination.2 The goal, or challenge, of an interrogation, is to have a detainee divulge information that he or she is predisposed to hold back. In this respect interrogation is, in effect, a contest of wills. The purpose of this paper is to discuss legal issues that provide doctrinal guidance with respect to the conduct of Canadian Forces ("CF") interrogations which take place in the context of a full range of international operations.3

The CF's legal obligations and the standards applicable thereto, are derived from, and informed by, international law, domestic law, and military doctrine. These sources of law jointly and severally create the legal framework applicable to intelligence gathering activities and to the interrogations of detainees in an operational context. The content, scope of application, and interrelationship of the various sources of law and related policies that may potentially apply in a defined operation require careful and complex legal analysis. The applicability of the relevant legal regimes and their precise hierarchical relationships are not considered in this paper.4 The objective is to provide a broad overview of the law of interrogation by considering interrogation methods and techniques and exploring what is meant by torture and ill-treatment in this context.

It is useful to recall that while there is a general legal framework which restricts the methods that may be used to elicit information from a detainee, there is nothing in the texts (or indeed spirit) of the laws which prohibits the interrogation process itself.5 Individuals subject to interrogations have rights and protections that are defined primarily by international law and the primacy of international humanitarian law (IHL) as the law applicable in situations of armed conflicts.6 Specifically, in the context of international armed conflict (IAC) and non-international armed conflict (NIAC) the lex specialis character of IHL and applicability of international human rights law (IHRL) as lex generalis is asserted.7

From a doctrinal and principled perspective the legal analysis of the lex specialis applicable to interrogations conducted in the context of international operations elucidates fundamental norms which are commonly understood to inform the rules protecting detainees and, by extension, the lawfulness of interrogation techniques that may be used. The two principle ideas that permeate this area of law are the following: detainees are to be treated humanely and be protected against all forms of coercion. In this respect, it is clear that both positive and negative obligations are engaged. In addition, we can identify a further overarching principle namely that to be lawful, at a minimum, all conduct must have an articulable purpose that is directly, and determinedly related, to the investigative process.

The focus of this paper is to explore the minimum level of protection to which detainees are entitled to under the provisions of IHL. In addition, this paper also considers the standards of treatment that define the acceptable legal boundaries relevant to interrogations. In so doing, the analysis will consider both areas and sources of law that may inform our understanding and interpretation of the applicable legal obligations. As such, the analysis does not engage the debate on whether the current legal limits are morally defensible and it does not consider nor explicate policy considerations that could limit what is otherwise permissible conduct.8 Consideration of the procedural and substantive requirements relating to the manner of arrest, treatment of detainees generally and ultimate disposition of cases is also beyond the scope of this paper. Reference to rules applicable in respect of the overall handling and treatment of detainees is thus only addressed incidentally.9

In addition, and very importantly, this paper does not address the relationship between interrogation and the rules of evidence and due process requirements.10 A person detained on suspicion of involvement in crime has legal rights and failure to provide for exercise of those rights may lead to the inadmissibility of evidence in court, or other remedies. In addition, in some cases willfully depriving a detainee of due process rights could be considered a grave breach of the Geneva Conventions (GCs).11 Accordingly, while matters of rules of evidence and due process requirements are extremely serious and must be fully understood by persons conducting interrogations, a discussion of them is beyond the scope of this paper.

There is very little specific legal guidance on the issue of interrogations in the context of international operations. There are, however, important rules of specific and general application that apply in the context of interrogations. As suggested above, the international law relevant in this context can be considered under two headings: IHL and IHRL. As a general rule, we may say that a CF operation will engage IHL as lex specialis, when the interrogation takes place in the context of an armed conflict. In addition, CF policy provides that “all interrogation and TQ activity will fully comply with Canadian law and relevant international law, conventions, and agreements, including the Third Geneva Convention (relative to the treatment of PW), and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984)” and that at “a minimum the spirit and principles of the Law of Armed Conflict in all CF operations other than Canadian domestic operations12, will prevail.


Footnotes

1 Interrogation, as defined by the Merriam Webster Dictionary, is the act of “questioning; formally and systematically.

2 Kantwill, Holdaway, and Corn "'Improving the Fighting Position' A Practitioner's Guide to Operational Law Support to the Interrogation Process" (July 2005) The Army Lawyer 12 at 18 ["Improving the Fighting Position"].

3 In this respect, this paper does not discuss CF interrogations that take place within Canada.

4 For example, this paper does not address the issue of whether the Canadian Charter of Rights and Freedoms applies specifically to particular CF operations.

5 The ICRC has never stated, suggested or intimated that interrogation of any detainee is prohibited, regardless of the detainee's status or lack of status under the Geneva Conventions. The ICRC has always recognized the right of States to take measures to address their security concerns. It has never called into question the right of the US to gather intelligence and conduct interrogations in furtherance of its security interests. Neither the Geneva Conventions, nor customary humanitarian law, prohibit intelligence gathering or interrogation. They do, however, require that detainees be treated humanely and their dignity as human beings protected. More specifically, the Geneva Conventions, customary humanitarian law and the Convention against Torture prohibit the use of torture and other forms of cruel, inhuman or degrading treatment. This absolute prohibition is also reflected in other international legal instruments and in most national laws.” See ICRC Reactions to the Schlesinger "Panel Report" (Aug 9, 2004), available online at http://www.icrc.org/(visited 25 Jan 2008). See also R (Al-Jedda) v. Secretary of State for Defence [2007] UKHL 58 wherein the House of Lords accepted that a power of detention was recognized under customary IHL.

6 The term IHL is used to describe the totality of rules specifically applicable in situations of conflict.

7 See generally Heintze "On the relationship between human rights law protection and international humanitarian law" (2004) 86 International Review of the Red Cross 789; Schabas, "Lex Specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus Ad Bellum" (2007) 40 Isr. L. Rev. 592; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J. Rep 226.; Legal Consequences of the Construction of a Wall in the Occupied Territory, Advisory Opinion, [2004] I.C.J. Rep. 136.

8 Policy-based constraints may result in restricting the use of otherwise legal techniques. For example, withholding certain non-legally mandated privileges. See e.g. "Improving the Fighting Position" at 21.

9 See e.g. B-GJ-005-110/FP-020, Prisoner of War Handling: Detainees and Interrogation & Tactical Questioning in International Operations (1 Aug 04) [PW Handling Manual]; B-GG-005-027/AF-023, Code of Conduct for CF Personnel [Code of Conduct]; B-GJ-005-104/FP-021, Law of Armed Conflict at the Operational and Tactical Levels (13 Aug 01).

10 If in the course of interrogation or tactical questioning, information is rendered that is related to a possible or known war crime or other criminal offence, the immediate action unless otherwise specified shall be to continue the operationallyoriented questioning while ensuring that the military police are informed as soon as practicable” PW Handling Manual at art. 4A03.

11 Convention Relative to the Treatment of Prisoners of War, Geneva, 12 August 1949 [GCIII], art. 130; Convention Relative to the Protection of Civilian Persons in Times of War Geneva, 12 August 1949, [GCIV], art. 147. See also Geiß, "Name, Rank, Date of Birth, Serial Number and the Right to Remain Silent" (2005), 87 International Review of the Red Cross 721.

12 Code of Conduct, at 4-2 and 1-1.

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