Episode 02.
I’d rather be called naive than tolerant of injustice – Juan Méndez in conversation with Ivar Fahsing

Transcript

Davidhorn  

Hi everyone, I’m Børge Hansen, CEO of Davidhorn and welcome to the second episode of Beyond a Reasonable Doubt. We are absolutely thrilled to have an incredible conversation hosted by Dr. Ivar Fahsing with Prof. Juan Méndez the legendary human rights advocate and former UN Special Rapporteur on torture. 

 We caught up with Prof. Mendez in New York during the launch of the groundbreaking UN Manual on Investigative Interviewing for Criminal Investigations. 

 Get ready to deep dive as we explore Prof. Méndez’s pivotal role in creating guidelines that align police interviewing techniques with human rights standards. We’ll discuss the ethics of modern policing, and we’ll reinforce the absolute ban on torture. It’s an inspiring and fascinating conversation you don’t want to miss. 

Let’s get started. 

Ivar Fahsing 

We are meeting at the launch the new UN manual on investigative interviewing for a number of police chiefs from around the world. And I remember… 

You have to correct me if I’m quoting you wrong now, but when this manual was validated in November, you were part of that validation meeting.  

Juan Méndez  

Yep.  

Ivar Fahsing 

And I remember you said something like this, that. I think initially I said that if it wasn’t for the Méndez principles, it would be harder to get this UN manual. But then you said something that you kind of turned it around and said, the manual validates the principles. So I was thinking that could be an interesting start of the conversation. If you agree, if I’m quoting you correctly? 

Juan Méndez 

I think you are. In my experience, at least, you know, I first published my report to the General Assembly, it was my last report because my term was coming to an end. And I had consulted with a number of people before writing the report. And on that occasion, I called for a protocol because that was my, you know, my legal bias to call it a protocol. 

But the idea was to have a set of guidelines that the police could use to make the work more effective, but also more compliant with the international human rights standards. And particularly the standard of the absolute prohibition of torture, of psychological torture, and of any coercion. Because all of that is part of international law. 

And that immediately when that report was published and discussed at the General Assembly, this is October. And we got such a good reception, in part because we had calls on some very good specialists to do the early consultation that helped me draft the report and among them Asbjørn Rachlew, Mark Fallon, a lot of very good people. And so we already had an audience. I mean, they had been part of it to begin with, but the UN police actually picked up on it very early. 

There was so much interest that we had a meeting about how to, you know, take it from there and produce something along the lines of what I had suggested we needed. And the UN police was there from day one. 

As it happened, I didn’t know about it, but they were also working on what is now the UN police manual. 

And as we worked on our principles, there were parallel contacts between UN police and us. And so the ideas were very much shared. I mean, we all agreed that we needed a set of guidelines and that the set of guidelines should be based on the 30 or 40 years experience of people who had looked at this and had published and researched about how good police work can be done that is compliant with human rights standards, guarantees all the safeguards that suspects should have in a democratic police environment or criminal justice environment and at the same time provides a positive and affirmative vehicle for police to do its work more effectively than relying on coercion and things like that that have been proven to be counterproductive.  

Ivar Fahsing 

Absolutely. So if you look at the relationship then between the Méndez principles can be seen more as a policy document on a national level. 

Juan Méndez 

Yeah.  

Ivar Fahsing 

Whilst the UN manual for how to do interviews is more a guidelines for practitioners.  

Juan Méndez 

Yes. Well, I mean, the principles that we decided in the steering committee and the advisory group, you know, we took about 100 people involved in this exercise and took us about four years. We decided to distill the fundamental principles of methodology that has already been proven to be the right one and has been studied also. So we basically did not want to adopt one standard or, you know, this is the way the Norwegian police does it or the British police does it. We kind of condensed and distilled the fundamental principles knowing that that is not enough to be a training manual. That a training manual has to observe those principles but go beyond them and have much more in the way of methodologies of training and even details about where to sit and how to approach the first questions and then wait for answers, things like that. 

What we were trying to accomplish, it was not necessary to get into all those details. But we also recognize that our principles require the drafting of manuals or proper training of police and particularly of people conducting interviews. In the case of the UN police, they decided to go into more detail, among other things, because the UN Police Manual is like a minimum standard that all contributing police forces have to agree to before they can join peacekeeping operations, for example, and things like that. So in their case, they have to be more detailed and more specific. 

I think they also benefit from experiences that were already there from literature and training exercises that the Norwegian Center for Human Rights has been conducting for years that of course were beyond what we were trying to accomplish. But I think it was a good coincidence that they were working on something as a kind of minimum standard, but more detailed. And we were working on something that eventually could be considered a sort of non-binding legal instrument, to judge whether, you know, in interviews with suspects, with witnesses, and with victims, was conducted appropriately under, you know, kind of standards that could universalized.  

Ivar Fahsing 

Exactly. I think you’re right. I think that’s like my good friend, Asbjørn sometimes like to say is that when you take away a tool from a petitioner, no matter if it’s illegal, it was his tool. So you have to replace it with something that they can use. 

Juan Méndez 

Yeah, I heard Asbjørn say you have to give the policeman alternatives. Yes and alternatives that are human rights compliant, but that are also more effective. So you have to start by understanding what the whole purpose of the interview is. And I also heard Asbjørn say the purpose of the interview is to get to the truth. It’s not to obtain a confession, it’s to get to the truth. And to get to the truth while also observing all the procedural guarantees and safeguards. 

And I think that’s exactly what we are trying to do with this. 

Ivar Fahsing  

We have discarded the word truth also, actually.  

Juan Méndez 

Really?  

Ivar Fahsing 

Because very often when that’s put into practice, that ends up with the police version of the truth. They think they already know the truth. Yes. And they just want you to confirm. So we were at, and this was very important when we did this kind of change in Norway 25 years ago was to say that purpose is to gather accurate and reliable information with relevance to the matter of investigation. So every time they came up some kind of deviant idea, you just kind of matched it towards the purpose. Will this foster accurate and reliable and lawful at behavior or will it do the opposite?  

Juan Méndez 

Exactly. That’s why in our principles we talk a lot about avoiding confirmation bias, because you’re absolutely right that perhaps people who conduct interviews pursuant to the old model think that they are after the truth but they’re after the truth that they already think they know instead of letting the facts inform.  

Ivar Fahsing 

Exactly. So that’s, it was actually something that just came to us. We didn’t actually really have this strategy about not talking about the truth, but in the end, we just found out that, well, neither lies or truth are really productive way because it’s black and white and it’s probably beyond what you can expect to find in investigation. In investigation, it’s more shades of gray. Which stories are receiving most consistent support and are coherent? With most of the sources of evidence. And is that coherence strong enough that you can say it goes beyond a reasonable doubt. So this is the way we just naturally found out we need to have this new way of thinking about what the purpose is. And that was so useful because everybody agreed on that purpose. And then we can just use that every time you came to a difficult discussion: well, will this help this purpose or not? Now that we have agreed on this, that was very valuable for us. 

I was thinking, Juan, since, you know, you’re not really a fan of the fact that the principles now mostly are referred to as the Méndez principles. The principles real name is the principle for effective interviewing and information gathering. Nevertheless, you played a very important role in creating this set of principles. And that’s mostly what people talk about when it comes to Juan Méndez. But I know that you have been in this game or business for a very long time. And I wondered if it was possible for you to tell a little bit about how did it come around that you actually spent so much of your life in these questions.  

Juan Méndez 

I was studying law in Argentina when we were undergoing a certain, you know, period, one of many periods of turmoil in my country. And there were military dictatorships, not as bad as the last one, but not good either. And there were resistance movements and movements using political violence and the response to them was very harsh. And it included torture, very, very significant torture. Not openly and always on denial, but not even making a big effort to deny the torture. And this was true of all of South America and perhaps of other parts of the world as well. 

And if you were a law student at that was particularly intent on finding a solution to the use of torture. And of course, my first interest was to combat torture as used against a political opponent. 

It became very clear that it was used against common crime offenders or even suspects of common crime offenders as frequently and even as violently and as brutally as enemies. So, you know, many people in my generation made it a big, you know, kind of north of our activity to combat torture and to combat first by denouncing it and then illustrating methodologies and things like that and insisting of course on legal prohibitions. 

Denunciations and publicity around them probably played some role but as the political crisis became worse and worse, there was, it was not enough to, to even diminish the incidence of torture. And it came to a point where, you know, you, I and other lawyers and some of us recently graduated lawyers started taking up defenses of people who were accused of crimes against the state and the like. And we felt that one important way to do it was to investigate and denounce the possibility that they had been tortured in order to confess or to obtain evidence against others, etc. And so it was very much a part of our legal strategy to investigate torture. And in, for example, in my hometown, we discovered a couple of places that were kind of like torture settings. 

They were mostly recreational areas that the police used for themselves for the time. On Sundays, they went with their families. But during the week, because they were kind of secluded and outside, they used them as torture chambers. And of course, we discovered them because common crime offenders came to us and told us. 

This, you want to find a place, this is where it is. And we actually went with a judge, and we found torture instruments and everything. And so that put us kind of in the limelight. And so at some point I was arrested myself and of course they tortured me as well, you know. And this was already under the latest dictatorship where not only torture, but disappearance of persons and extrajudicial executions became much more rampant. And I was very lucky that they didn’t have much on me. They tortured me, but they didn’t know what to ask, but so I was able at least to sleep at night knowing that I didn’t offer evidence or even information or intelligence against anybody else to suffer the same fate. And besides, my family and my friends who were lawyers like me worked very diligently and put a stop to my torture early enough so that I didn’t have to suffer as much as others on that same stage. But then I went to prison for about a year and a half, and I was not charged with any crime, but I was held under the state of emergency. And a lot of the people who were there with me had the same torture happening to because I was the lawyer and they wanted to consult me about how to improve their procedural situation in the criminal case against. 

I learned of all kinds of methods of torture and how you can fight them and things like that. And so, when I left Argentina, and I was allowed to leave relatively early compared to other people who were still in prison, and I landed in the United States, I started to try to help the people who were left behind in Argentina. 

It became a sort of a natural aspect of my human rights work to work against torture. And then I worked for like 15 years for Human Rights Watch and we did a lot of different things but some of them had to do with torture of course and documenting it in our reports. 

But actually, I became much more focused on torture when I became the Special Rapporteur, many, many years, many decades later. But yeah, I mean, I came to it through this circuitous route and kind of long route, but of course my predecessors in the Rapporteurship and my successors in the Rapporteurship have come at it from different angles. As far as I know, none of them were themselves victims of torture, but they are doing excellent. They were doing and are doing excellent work combating torture as well. 

Ivar Fahsing 

You say when I became the special Rapporteur, that for me that is a very, very special position. How do you want to become that? How did that happen for you?  

Juan Méndez 

Well, in my case, this was 2010. And by then the Human Rights Council had been already created and the whole way of appointing people to the different special procedures as they’re called uniform. And so when an opening was there, and Manfred Nowart, who was my immediate predecessor, his second term was coming to an end, can’t hold the position for more than two terms of three years each. So the Human Rights Council actually opened the process of asking people to suggest names or to apply themselves. And three NGOs from the South, from Brazil, Argentina, and Chile, suggested my name. And because I had been, for many years, working with Human Rights Watch then with the International Center for Transitional Justice. Then I was at the Inter-American Institute on Human Rights. And I actually had been Kofi Annan’s Special Advisor on Prevention of Genocide. So my background seemed interesting. And so they appointed me. 

Ivar Fahsing 

I see. So what do a special Rapporteur actually do?  

Juan Méndez 

Well, it’s one of several different thematic Rapporteurships. You know, there’s ex -traditional executions, disappearances, you know, women’s rights. There’s many different, like 40 -some thematic Rapporteurships. 

Torture is one of the oldest ones. It was created back in 1985, I believe. It was the third one of a thematic nature that was created. The first one is the Working Group on Disappearances. The second one is a Special Rapporteur on Extrajudicial Executions. And the third is a Special Rapporteur on Torture. And before me, there was several, you know, Northern European jurists, very highly respected people who did wonderful work. 

The four people who preceded me had done such very good work that it was possible to exercise the mandate with just following the path that they had, you know, kind of created for it. 

It’s a mandate that has a lot of credibility because torture is one of those issues that not even the countries that do torture accept that they do. It is kind of a tribute to how well established the prohibition on torture is that many countries practice it but none recognize that they do acknowledge that they do so they use euphemisms they say it’s all a lie it doesn’t happen it’s not true, but the fact is that at least they don’t defend it and that’s already a good starting point now of course. 

What my predecessors and I and my successors also have done is to try to apply the prohibition of torture to what the convention says about what constitutes torture. And that includes many different settings and situations and things like that. But in my experience, the setting in which most torture happens, and it’s the most brutal, is in the interrogation phases at the beginning of detention and inquiries into crime, and in my six years, I saw this happen in third world countries, middle-level and highly developed countries, there’s always some excuse for why. You know some harsh treatment is needed. They don’t put torture but enhance interrogation is what the US government said during the global war on terror, for example. The thing is that it’s still prohibited. No matter what the circumstances and what the crisis is, it still shouldn’t be done. And it does seem to happen because of what your colleagues have long studied as a confirmation bias. 

What really happened and you just need the evidence of it. And if the evidence comes in the form of a confession, that’s the best piece of evidence possible. And that’s why we have so many judicial errors and so many unfair convictions and that then proved to be completely impossible. And so coming up with a better way of doing the inquiries is perhaps the best tool that we have for preventing torture. 

Ivar Fahsing 

Absolutely, I completely agree. When we do training around the world we have created a case. We have got police officers and I guess all of us, we learn better by storytelling and cases than just lecturing.  

Juan Méndez 

Examples. 

Ivar Fahsing 

Exactly. So we have created a case of a missing person case. And I used the missing person because I know that that is the case that have the most possible explanations. It can be nothing. This missing girl can just be sitting in the garage smoking a joint. But she didn’t want to tell her parents. So she’s not missing at all. Or she can have runaway, or dramatic way, or non -dramatic way, or it can be all the way under spectrum to a rape and murder, or kidnapping, trafficking, or whatever. So there are many possibilities here. 

But very often, and I kind of fueled it, gave some suspicion in the case towards the fact that she was a Kurdish girl and that there had been some problems with her dad. And voila, most of the officers are stuck on the idea that the dad did it. To the degree where one of the Norwegian detectives who was in the sample actually said, the dad did it, lock him up and throw away the key. 

Juan Méndez 

Yeah 

Ivar Fahsing 

So I think you’re absolutely right that police officers very often have this guilt presumption that’s effective for them. After all, that’s a job to look after crime. Yeah. And we have it somewhere you can understand it that they have the more that has also what that’s rewarded. 

If you solve crimes, you’re good. If it isn’t a crime, well, there’s no use for you. So it’s an interesting how this really easily can become a self-fulfilling prophecy.  

Juan Méndez 

And there’s so much pressure on the police officer to solve crime, quote unquote, that it’s understandable that they cut corners. And even if they don’t think they’re cutting corners, 

If someone is kind of intimidated by the whole surroundings, and then says, I’ll tell you everything, you just take everything. That’s why I really like this decision by the Supreme Court of Brazil issued a few days ago. Because the majority opinion states very about lower court judges, it’s not a matter of the presumption of truth by what the police says or the presumption that all suspects are always lying to improve their situation. 

In both cases, you have to have corroborating evidence. And if you don’t have corroborating evidence, you’re not doing your job. You cannot just rely on what is said. 

I really think that that is a useful thing. I really like the Fruit of the Poisonous Tree doctrine because it does put a lot of pressure on the police to do the right thing and to look for evidence and not to, you know, it actually excludes evidence that may have been formally obtained in the correct way, but it originates on an illegal way of finding. Anyway, I think the fruit of the poisonous tree doctrine is already law in other jurisdictions, but it’s not international.  

Ivar Fahsing 

No, not at all. 

Juan Méndez 

No, I mean the Convention Against Torture does mandate the exclusion of the confession, but it doesn’t mandate the exclusion of successive evidence. Not yet, anyway.  

Ivar Fahsing 

I remember also one of the guys who inspired me when I was starting this work together with Asbjørn in Norway 25 years ago was the reading by the late Chief Justice Earl Warren? 

Juan Méndez 

Yeah, of course.  

Ivar Fahsing 

I think that was back in 59. Where he said something that, well, one thing about these involuntary confessions is of course their inherent untruthfulness. But the more problematic, even more problematic thing about it is the fact that officers of the law are systematically bridging the law to uphold the law and then in the end it becomes a bigger problem, the problem they actually try to fight. That’s a very well good way of putting it.  

Juan Méndez 

Absolutely. I mean, I agree those of us living in the global South where, you know, the state is always underfunded and even the police is underfunded You can understand how they think that they’re upholding the law by breaking the law and then it becomes a vicious circle, you know and the the tolerance for tolerant before torture becomes tolerance for corruption as well. And so, you know, the police tortures the people who don’t have the wherewithal to, you know, bribe them. But they look the other way with very serious crimes when the money is cannot rely on police forces that are so inherently broken down that way. And starting to find a way for the police to recover their standing in society, the respect of the citizenry that they need to have in order to do their job well. Because as I always say, I mean, a police that tortures intimidate a population, but it doesn’t enjoy their confidence. So they cannot really rely on cooperation because they only rely on intimidation. 

Ivar Fahsing 

And they are deemed to become a paracast in their own country.  

Juan Méndez 

Yeah, or at least they have a very bad reputation. You know, the people suspect that everything that they do is wrong, and at least under suspect motivations, things like that. And that also, you know, kind of this kind of discredit transfers to the whole criminal justice system.  

Ivar Fahsing 

Exactly. 

Juan Méndez 

Where people start guessing that everything that the prosecutors and the judges do also has some illegal motivation behind. And it’s a vicious circle that’s very difficult to break. But I think starting with a methodology for investigating crime, that gets better results while at the same time respecting the complying with prohibitions on ill treatment. It’s probably one angle to start to recover this kind of civic trust. 

Ivar Fahsing 

I would just like to ask you one final question from it is, you know, you have been working with this for a very, very long time. And I’ve been working with it for around 25 years. And sometimes I feel, Ivar, are you a little bit naive thinking that these small efforts that we try to do can actually make this a better world? Do you sometimes think that? 

Juan Méndez 

Yeah, of course I think about it. I think in fact that, but I prefer to be called naive than to be called tolerant with their injustice. So I have to keep the faith that there are ways of improving, you know, in discrete and limited aspects, but improving the circumstances that we live in, that because the alternative is to just surrender and think that justice cannot ever be achieved. And in the meantime, I also feel that even for everybody who calls me naive that torture is not inherently necessary in the investigation of crime, I can come back with examples of saying, but look, it results in injustices, it results in, you know, in the justice system having to, you know, throw everything out and release people, maybe people who should not be released, but you’re prejudging and harming the justice system by using, you know, illegal means. And also, and I always insist on this larger point, that for the state to function effectively, and particularly the criminal justice system to function effectively, both the court system, the prosecutors, and the police, have to enjoy the confidence and the civic trust of the population that they serve. And if you jeopardize it by using illegal means, you’re actually doing a disservice to your own mission. 

Ivar Fahsing 

Thanks a lot. 

Juan Méndez 

No, thank you. Great conversation.