A/71/298
law. 10 The humane treatment requirements under the Convention against Torture
(and customary international law) and international humanitarian law are
substantially equivalent; the obligations relating to the prohibition and prevention of
torture and ill-treatment in international and non-international armed conflicts are
the same, with common article 3 of the Geneva Conventions constituting a
minimum baseline of protection applicable at all times (see A/70/303). Most guiding
principles, standards and procedural safeguards applicable to interviews conducted
in the traditional law enforcement context must be applicable, as a matter of law or
of best practice, during interviews conducted in times of war.
34. The standards and procedural safeguards mentioned herein must be guaranteed
in law and practice during all interviews by law enforcement agents and other
investigative bodies, including intelligence and military services, and must also
apply to private contractors and all persons who act, de jure or de facto, on behalf
of, in conjunction with or at the behest of the Sta te, under its direction or control or
otherwise under colour of law (see Committee against Torture, general comment
No. 2 (2008) on the implementation of article 2 by States parties).
III. Elements of a universal protocol for interviews
A.
Alternative model of investigative interviewing
1.
Legal framework against coercive questioning and techniques
35. The protocol must provide detailed guidance on the purpose and parameters of
a human rights-compliant interviewing model that promotes a human rights-based
approach, enhances the professionalism and effectiveness of law enforcement and
other State agents and is premised on the aim of ensuring that all interviews are
conducted without resort to torture, ill-treatment or coercion.
36. Persons interviewed in connection with their alleged role in a criminal offence
must not be compelled to testify against themselves or to confess guilt (International
Covenant on Civil and Political Rights, art. 14 (3) (g)) and investigating authorities
may not resort to “any direct or indirect physical or undue psychological pressure ”
to induce confessions (see Human Rights Committee, general comment No. 32
(2007) on the right to equality before courts and tribunals and to a fair trial
(article 14 of the International Covenant on Civil and Political Rights)).
Accordingly, the prohibition of torture and ill-treatment is complemented by the
prohibition of any form of coercion during the questioning of suspects. The Rome
Statute of the International Criminal Court likewise prohibits “any form of coercion,
duress or threat” during investigations (art. 55). The protocol must expressly
recognize this prohibition and extend it to interviews of witnesses, victims and other
persons in the criminal justice system.
__________________
10
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Accordingly, civilian internment during both international and non -international armed conflict
must remain exceptional, limited in time and accompanied by procedural safeguards akin to
those described in paragraph 29 (see Human Rights Committee, general comment No. 35 (2014)
on liberty and security of person (article 9 of the International Covenant on Civil and Political
Rights); and Geneva Convention relative to the Protection of Civilian Persons in Time of War,
arts. 42 and 78).
16-13568
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