The following is part of a memorandum submitted to the Parker Committee in December 1971. It was written by an American, Gil Boehringer, a former lecturer in the Sociology of Law and Deviant Behaviour at Queen's University, Belfast. Since we live under a system of 'repressive tolerance' (to use Marcuse's term), it is highly unlikely that the State will accept any of these modest and liberal proposals, nor are Gil Boehringer or I naïve enough to expect that it will. Nevertheless the suggestions put forward here may serve to show what might be possible in a truly democratic or even a liberal society. The memorandum is Gil Boehringer's work. I have only added two footnotes.
Internment and all related matters, particularly interrogation, must be seen as a part of a dynamic process of interaction between the peoples of Northern Ireland, and in particular the minority community which, it is widely conceded, has been denied social justice for five decades by successive Unionist governments.
The depth of feeling amongst the working-class section of the Catholic community was not, in my view, fully appreciated either at Stormont or Westminster and therefore inadequate measures were taken to avoid the tragic mistakes that have been made.
If internment is to continue, and if it is to be used in the future here in Northern Ireland or elsewhere, then stringent measures must be established in order to prevent repetitions of the 'ill-treatment' recorded in the Compton Report.
1. The security forces have an important and dangerous job to do, and it is clear from statements by their leaders and those responsible for security that there is great pressure upon them to 'get results'.
2. We can therefore expect them to be subjected to strong personal, social and more general pressures to use methods which will obtain information, whether or not the methods conform to the rules governing interrogation. This is particularly so where the interrogation team is local and sectarian, as presumably it has been in the main – and of course interrogatees were from a different section of the community; it is also likely to be so when the situation is defined by the interrogators as 'war' and no-holds-barred can be an acceptable attitude.
3. The security forces involved in internment, and especially interrogation, tend to be isolated, semi-autonomous, with a high degree of group support and a strong sense of their group purpose. Add to this the fact that they are dealing with people they firmly believe are subversive (in most cases, though not always subversive in the sense of constituting a threat to life) and it is not surprising that they should adopt what has been referred to in another context as a 'crime control' approach rather than one of 'due process' or natural justice.
4. In such circumstances the security forces are likely to tend to take on an attitude of knowing better than 'outsiders' how to deal with these people; they are likely to begin to act according to their own norms, which are at variance with the rules established to control them. They can function in this way particularly well when there is a mystique of their being well disciplined, trust-worthy and humane.
5. The historical evidence: with regard to police activity generally, and interrogation techniques specifically, the British record is not so bad as that of many other nations; however, it is clear that the record, particularly in the last twenty years, is not so bright. One need only refer to the growing list of police scandals – Sheffield, Leeds, Brighton, Metropolitan London – and the findings concerning security forces – Kenya, Aden, Northern Ireland – to realize that maltreatment has taken place not infrequently. Therefore there can be no presumption in favour of the security forces when the question of maltreatment arises.
6. We are here talking only of 'recorded deviance', and criminology has taught us that the amount of deviance which is recorded is invariably a much smaller amount than that which actually occurs. This concept of unrecorded deviance, or the 'dark figure', is an important one when considering whether to implement wide-ranging reforms with regard to the control of behaviour which occurs at times and places of the security forces' choice and usually in isolation from society – behaviour with 'low visibility'.
7. It must be accepted then that even if stringent new rules or more strict interpretations are laid down, deviance can be expected. It would be surprising if the interrogators and their aides did not take the view that because the rules are made up by 'outsiders', by persons who 'do not fully understand the situation', by 'bleeding hearts' and 'interfering politicians', they are justified in deviating from those rules (this is the essence of the 'crime control' model of behaviour).
8. The problem then is to try to devise controls, to develop sanctions and to establish an on-going review and investigation so that the mystique does not prevent society from realizing that safeguards are needed against deviance. Such deviance from the rules is to be expected as a result of the context within which the security forces are operating, but it is not acceptable, and realistic steps must be taken to curb it.
9. Thus we are faced essentially with a sociological problem of deviant behaviour and how to control it, not with a problem of establishing rules and court-oriented remedies. Plain speaking is required, a willingness to look impartially at the situation in the light of both historical experience and our knowledge of social interaction.
1. In considering the rule aspect of interrogation it 'is import-ant to have in mind the circumstances in Northern Ireland in which the Northern Ireland government decided to exercise their powers'. For justice – even in an 'emergency situation' – must not only be done but it must be believed to be done even if it cannot be seen to be done. Therefore there must not only be rules governing the interrogation process which are specific and humane; the rules must be capable of enforcement through agencies of control, with both positive and negative sanctions provided for.
2. The reasons for requiring the security forces to conform strictly to specific rules are several, and exist without regard to the category of person being interrogated (although more stringent rules might be thought proper in the case of persons not actively engaged in subversive activities, the need for conformity is no greater); without regard to the kind of treatment the subject may have expected or could be considered to have invited by his actions; without regard to his willingness or not to complain; and without regard to the mental element of the interrogators (the idea put forward by the Compton Report that this is a crucial factor in determining the degree of maltreatment ought to be rejected, as it plainly has by many commentators).
3. The test applied ought to be an objective one: what was done to the subject? Liability should be strict, with no distinction made between intentional maltreatment and that which occurs through negligence.
4. The reasons for establishing such a strict test are:
(a) to afford protection to the interrogatee who is in a very vulnerable position;
(b) to put the burden of justification more clearly on the security forces and thereby attempt to change their pattern of behaviour as reported in Compton;
(c) to help prevent a situation arising where individual members of the security forces become corrupted by activities for which they believe they will not be held accountable;
(d) to help prevent a situation arising where society becomes corrupted by a too-complacent unconcern about acts done on its behalf.
5. The status of detainees and internees should be that of 'protected persons' as that term is used in the 1949 Geneva Convention on the treatment of civilians, with the regulations amended to cover 'psychological coercion' as well as 'physical or moral coercion'. The authorities should not be permitted to invoke Art. 5 of that convention – withdrawing the status of 'protected person' – until they can prove to a judicial tribunal that they have reasonable grounds to believe that the subject is actively engaged in behaviour which is a direct threat to human life. The tribunal might meet in camera, but the subject should be entitled at least to a public defender, and the tribunal should be empowered to inquire independently as to the reasonable grounds.
6. General observations on the rules concerning interrogation:
(a) they must be clear and specific, indicating the exact type of treatment which can be meted out;
(b) they must be arrived at in public discussion in Parliament and given wide publicity;
(c) they must be displayed in all interrogation centres, detention centres and holding stations;
(d) they must include the physical location of interrogation centres and their physical construction and furnishings;
(e) any changes with regard to treatment techniques and locations must be brought about in the same manner as the original rules were adopted.
1. Although the concept of an independent investigative bureaucrat as a mechanism for uncovering wrongs within a system has great appeal and can claim some validity on historical evidence, the situation of internment and accompanying interrogation is sufficiently unique to call for a re-assessment.
2. The investigating bureaucrat will be under considerable pressure to uphold the security forces in general, while finding some evidence of maltreatment, i.e. to reach a compromise. This is not to say that he is corrupt; in effect, it is to say that the situation is structured so that he can be expected to do little else:
(a) he is a member of an 'acceptable elite' stratum of society, otherwise he would not be chosen for the inquiry. As such there is no need to corrupt him or to even indicate to him how he should report; because he has been socialized by his life's environment, he will understand how he is to report. He in fact starts with a presumption in favour of the security forces;
(b) because he will have to live with his reference group and peers generally, the investigator will find it virtually impossible to report anything that would cast serious discredit on institutions that they admire, feel attached to and, to some extent, responsible for. The minimal discredit which he does cast at the security forces will, of course, not make any great difference, in fact it will support his own self-image as incorruptible, and their image of him, plus giving support to their general opinion that the system is good except for a few bad apples;
(c) there may be other considerations of a less psychological nature: the investigator may wish to buttress or establish his own reputation, or position, and could be subjected to direct or indirect pressures from the system to reach the right sort of conclusions;
(d) the investigator may have his own preconceived notions concerning both the activities of security forces and interrogatees, and towards the situation which has brought interrogation into being, and will certainly be influenced by those beliefs;
(e) there are always pressures operating of a kind which I will refer to as 'psycho-bureaucratic'. That is to say that the investigator must rely on the system to function, and if he should incur the displeasure of persons within the system he is investigating, he will find it extremely difficult, if not impossible, to do his job properly. Thus there is the 'psychological corruption' of the investigator, normally occurring unconsciously, wherein the investigator's task is made easy and pleasant, so long as he refrains from 'stirring up trouble'. It is this dimension of the social interaction between the bureaucrat and the system which is the basis for the former's being 'co-opted'. In the process, investigation tends to become justification with, of course, minor knuckle-rapping;
(f) it is also well known to students of organization theory that the 'amateur investigator' will be no match for the professionals he is investigating, and with regard to interrogation this must be even more certainly the case.
3. The need then is for a really independent investigatory board – independent in that members have no political or other significant connection with the British government. A UN-designated International Control Commission would be a reasonable suggestion. (At worst a board consisting of members some of whom were independent, i.e. nominated by the UN or some other non-British agency.)
4. In order to be effective, the board must have free access upon demand not only to the interrogation centre, but to all other places connected with security operations, e.g. places of arrest, within vehicles for transportation between arrest and holding, etc. The American experience with regard to police activity has shown that police brutality occurs in many out-of-the-way places.
5. It is also necessary that such a commission have notice of operations so that they can observe; the point is that, as the Americans have found out with regard to rules concerning protection for criminal defendants, there are many ways of avoiding the rules and avoiding the searching eye of the defendant's would-be protectors. Failure to notify should bring penalties.
6. A point that is very important and will be discussed again below, but should be mentioned here, is the need for observation of training methods. Interrogation is a skill, and training with the techniques is mandatory; by observing techniques the controllers will at least make it more difficult for illegal techniques to be perfected so as to avoid inspection.
1. Persons who have been subject to interrogation cannot be expected, for the most part, to complain or to be able to substantiate their complaints if they do so. Thus any lack of complaint or failure to substantiate complaints cannot be taken as justifying the conclusion that no maltreatment has occurred. It is important to understand why there may be few complaints, particularly in the Northern Ireland context, both for an appreciation of past conduct of security forces and future conflict.
2. As with crime generally, victims may not complain for a wide variety of reasons:
(a) Retaliation if they do complain: here it is retaliation from two sources mainly – the IRA (whose policy it is not to co-operate) and the security forces. Whatever we may think of the IRA and its policy of non-cooperation is here irrelevant; we are concerned to prevent maltreatment of human beings, with the resultant bad effects on the victims, the attacker, and society at large: we must understand that members of the IRA as well as persons under their influence may not wish to complain, and that they remain silent ought not to allow society to ignore the very real possibility of maltreatment. There is of course the possibility of retaliation by security forces: criminologists with experience of prison conditions generally can attest to the very real threat posed to a person complaining against his gaolers. (For this reason one must take a sceptical position on the value of a Board of Visitors as a control mechanism, although every little bit may help.)
(b) Many people do not report crimes because they don't believe it will do any good (e.g., nobody will take any real notice; no proof; no compensation; nor any sanction), and this reason may also exist where a man has been subjected to 'techniques of persuasion' that are so sophisticated as to be difficult to detect.
(c) The same is true where the man believes the system is loaded against him; this is the basis for scepticism about inquiries such as that resulting in the Compton Report; it must be especially true when the victims are working-class Catholics who have a firm belief that they have been maltreated their entire life by a system of one-party sectarian rule.
(d) The man who has been maltreated and has given in is much like the blackmailer's victim – he probably has more to lose by complaining; thus the Army has taken the opportunity to label the escapers Meehan and Doherty as 'squealers' in order to denigrate them and reduce their effectiveness. There is no reason to believe that similar methods are not or would not be used in other cases.
(e) Sometimes victims of crime do not know they have suffered a loss, and the same might be true of a man who has been subjected to a variety of modern sophisticated 'treatments'; it' is perfectly possible to put people into such states that they are incapable of knowing or describing maltreatment.
(f) It is possible that some victims would not complain because it would not be consistent with their own masculine image of being able to take what is given out without complaining.
(g) A corollary would be that victims might have a commitment to 'self-help', and therefore would prefer not to complain, thus allowing for complete revenge at a later time.
(h) There might be some unwillingness to complain because of fright and heartache to relatives and friends outside.
(i) There might be a desire not to complain because the individual may wish to keep comrades outside from worrying about his having 'spilled the beans' under torture, whether or not he did so.
1. The problem of sanctions is of utmost significance. Rules and control mechanisms without sanctions are simply hortatory, and will be seen to be such.
2. The difficulty of using sanctions to enforce rules and to allow controls to work effectively arises from aspects of the system, and it is the system which must be re-structured (although obviously any pathological individuals must be weeded out of the sections of the security forces which are involved).
3. The following four aspects of the internment/interrogation process should be kept in mind:
(a) By the nature of the operation, activities to be controlled are of 'low visibility' – there is little contemporaneous observation by anyone except those involved;
(b) persons who are maltreated have relatively little to gain by making complaints;
(c) great pressure bears upon the security forces to get information in ways that are deviant from the rules laid down;
(d) security forces normally tend to be a select group with considerable inner cohesion, and therefore have developed considerable immunity from external pressures.
4. It is aspect (d) which is perhaps crucial to a full understanding of the problem which faces us in trying to develop control institutions and effective sanctions. My analysis is based on sociological theory concerning group dynamics and certain sociological concepts; it is also based on empirical research into analogous social groups, i.e. police officers and prison officers. It is true that the analogy is not complete, nevertheless it is more likely than not that patterns of behaviour will prevail amongst the security forces which are substantially similar, in important respects, to that of the police/prison officers studied in this country and abroad. If the analysis is in general terms correct, as I believe it to be, then it will lead us to a more realistic appraisal of possible control agencies and techniques, and more effective sanctions.
5. In order to analyse the pressures towards deviance, we must consider interrogation as a stage in the context of the ongoing process of maintaining security. Thus we must take note of the interrelationship between, e.g., recruitment and training of those engaged in internment/interrogation and the actual performance of their role, rather than focusing only upon the internment/ interrogation occasion as a discrete social phenomenon.
6. My hypothesis is that because of certain structural features, rather than individual aberrance, deviation from the rules has and will occur.
7. This hypothesis is constructed from the characteristics which I believe typify security forces; this judgement is based on my knowledge of and research into police and military organization and practice. The significant characteristics which appear to exist in the Northern Ireland situation are:
(a) Men are recruited and trained for the general task of maintaining State security against subversive elements (and more specifically are trained in modern means of persuasion, both physical and psychological);
(b) they have, or develop as a member of this elite group, a messianic vision of their own importance in acting as a bulwark of society under threat (and, of course, in Northern Ireland they are bombarded by the mass media about being in a war and can see this with their own eyes; also they see civilians and their colleagues being killed and maimed almost daily);
(c) they know there is a major propaganda effort on behalf of the security forces to cover their activities;
(d) they know that by its bureaucratic nature the armed forces/police will, in most cases, support their activities and reject claims of malfeasance in order to prevent loss of legitimacy in the community;
(e) they know there is a tradition of maltreatment of internees by British forces (e.g. Kenya, Cyprus, Aden) without sanction and apparently with at least retroactive support (e.g. the case of the three interrogators in Aden who were protected by the command structure from the Bowen Inquiry);
(f) they know they can trust their colleagues to help them and to hinder any investigation (e.g. the Devenney affair);
(g) they know civil and criminal actions against them are unlikely, and in any case are almost inevitably doomed to fail;
(h) they don't really accept the need to follow the dictates of politicians and 'interfering do-gooders' (e.g. academics, NCCL), or 'front organizations' (e.g. NICRA, Association for Legal Justice), and have a 'more realistic' understanding of the situation;
(i) they seek a short-term military solution and do not have a deeper understanding of the political problem that exists, and which makes internment/interrogation a very doubtful technique in the long run;
(j) they have been led to believe that this must be the right method because it worked in the past.
8. The picture which emerges then is of a self-protecting organization under severe pressures to produce quick results through an operation which is already 'abnormal', where 'success' is measured entirely by results, not how well the game was played, and where there is little point in not breaking the rules because, although there is no positive reward, there is no negative sanction for infringing the rules. In fact, one assumes that failure to get information is the biggest impediment to a successful career in that line of work (not to mention the adverse psychological effects on the interrogator who has not succeeded) and that interrogators would be inclined to deviate from the rules in order to succeed. It is also the case that the officers in charge will be judged in the same way on the basis of success or failure in getting information. Further pressures towards deviance emanate from the situation in which certain short-term benefits can be clearly observed, while at the same time the worsening of the situation calls for more information, more successes, more quickly.
The following are suggested as methods which may mitigate the effect of pressures towards deviance; none of these, nor probably any other, will singly prevent deviance, but with an array and variety of measures there is a good chance of eliminating a great deal of maltreatment which is otherwise inevitable.
1. Recruitment and training:
(a) Pathological individuals must be carefully screened out in the initial post-recruitment phase, and periodically thereafter psychological checks must be made in order to weed out persons who have become pathological concerning 'the enemy'.
(b) Training must be closely supervised by outside, in-dependent observers and publicity must be given to the techniques to be used. This has several advantages: it may deter some persons from getting into activities which would be the cause of their being submitted to such techniques; training in legal methods only would tend to create a respect for the 'due process/natural justice' view rather than the 'crime control' view; without training in illegal methods it would be that much harder to use them without being detected.
(c) Training must include a realistic political element, in which the disadvantages of internment, interrogation and particular deviant methods would be given primary importance.
(d) Who should be the observers? (i) some independent group such as the NCCL, or an international body selected for example by the UN; or (ii) it could be one of the functions of the Internment Inspectorate Internment Control Board (discussed in further detail below).
2. Organization of the internment/interrogation team. In order to break up the social cohesion of the interrogation team and thereby reduce the internal pressures towards deviance and increase of visibility of deviance, two principles ought to be followed:
(a) Interrogation duties ought to he spread as widely as possible amongst the general unit to which they belong (i.e. police or Army);
(b) interrogators should not be organized into any single agency (special unit); a corollary of this would be that they should be primarily engaged in some other field and only called upon for interrogation when necessary;
(c) certain members of the interrogating force should he trained primarily as part of a special corps, the Internment Inspectorate, to which they would have responsibility for reporting deviant activity by interrogators. (It would be especially valuable if this aspect of their training was kept secret in order to increase their usefulness as inspectors.)
3. The Internment Authority:
(a) Responsibility for the technical side of the operation must be placed in the hands of persons who have no long-term unit loyalty to the interrogators, so that they would not feel it advantageous to the unit nor to themselves to cover up deviant practices. Again, this might be a special agency, perhaps a civil service body (Westminster) seconded for the purpose. The principle is that the members of this body would lose by covering up any maltreatment and this could be arranged by a variety of means – blocked promotion, denial of pay increments, etc.
(b) The Internment Inspectorate would be the investigatory arm of the Internment Authority, and could be formed by seconded police inspectors from outside Northern Ireland (or other affected area). Positive sanctions for detection of deviance might be sufficient to prevent them from being co-opted.
4. External observers: Although not too much faith ought to be put in external observation because of the possibility of deception, it is a method of control that should be used if only in order to make it harder to deviate from the rules.
(a) Medical inspection. Impartial medical inspection must be guaranteed. Civilian doctors, picked at random (perhaps from a volunteer rota) and not part of government agencies, should be on hand to make inspections immediately after arrest and before and after transmission to any new stage of detention, interrogation or internment. Records of such inspections should be transmitted immediately to an independent Medical Review Board and copies to the arrested person's family and/or solicitor. Any failure to keep appropriate records or to make proper administrative arrangements should not be dismissed (per Compton) but should be subject to sanctions.
(b) Legal advice. Impartial legal advisers must be present at holding centres after arrest and prior to any further detention and interrogation. They could be provided for in a manner similar to that used for medical inspection. Failure to so arrange would again be sanctionable.
Such advisers should be allowed to speak privately with arrestees and be required to inform them of their rights, e.g. not to be brutally treated. The possibility of seeking redress for maltreatment, and any other information deemed appropriate to protect the interrogatees.
The adviser should be authorized to record complaints concerning arrest procedures.
The adviser shall make a note of and make arrangements to deal with any personal problems indicated by the arrested person, in particular matters concerning the health and welfare of his immediate family.
A legal adviser of his own choice or else an impartial legal adviser shall have access to the interrogatee as soon as the interrogation proper has been terminated.
Arrangements should be made for the subject to verify to his legal adviser the names or other identification of individuals who took part in the interrogation, e.g. he could be shown pictures of the interrogation staff and could indicate the ones who had interrogated him or who took part in the process as guard, etc.
(c) Prison visitors. Speaking from my experience as a penologist and as a social scientist, I would not recommend a standing body such as Prison Visitors. Such institutions rapidly lose their effectiveness and become little more than a rubber-stamp of approval for the authority whom they are meant, in part at least, to control.
The need is for a less formally organized institution – in my view this could be done in much the same manner as people are selected for jury service: at random from the general population, although property and other qualifications based on class position ought to be eliminated.
A volunteer roster could be established and a balance of interests ensured through a minimal amount of screening.
5. Records: Persons interrogated shall have access to all records concerning the interrogation process (time schedules, medical reports, and notes of interrogation indicating 'techniques of persuasion', questions and answers, if any). These records to be kept daily, and copies of daily records to be transmitted daily to the International Control Commission for inspection; copies to go to the Internment Inspectorate Authority and Control Boards.
6. Complaints: An Internment Control Board should be set up in order to receive complaints concerning illegality of procedures during the entire interrogation process (including failure to follow any of the above procedures), complaints to the Board to be allowed from any person or organization – from interrogatees, from any persons or agencies acting on their behalf or as 'amicus', or from any observers in the above categories.
With regard to all complaints, there shall be a presumption of validity which the security forces will have to meet. This presumption is, in a sense, contrary to the usual concept of 'presumed innocent until proved guilty'. Nevertheless, the differences are sufficient to justify the deviation. The essential basis for presumption is normally to protect the citizen against an oppressive government by giving him a slight advantage in a context where most of the advantage – in terms of resources – lies with the State. It is a safeguard against bureaucratic authoritarianism. In the case of an individual in the interrogation situation, all the resources are again on the side of the State and once again the system should bear the burden of proving the case after a complaint has been lodged.
The main objections to this are:
(a) It is hard for the security forces to prove they did not maltreat an internee;
(b) a lot of false accusations will be made for propaganda and other purposes.
The answer to these two arguments is as follows:
(a) It is even harder for the interrogatee to prove his allegation (and in many cases as indicated above he will take no part in the 'trial'); also, there should be no presumption of innocence for the State, which in effect would mean that the individual is lying, when history indicates that in every situation of total power such interrogation abuses are not infrequent.
(b) The degree of propaganda advantage will be no greater than it is today – in my opinion, based on research in Northern Ireland, the Compton Report is seen by a large part of the community (not just Catholic) as being a lame propaganda exercise itself. Far better if the security forces are put to the test in public, and seen to pass it.
(c) The result of such a presumption would tend to make rule-observance self-enforcing – a result which in our opinion is unlikely to be achieved in any other way. Thus the security forces would make certain that appropriate charts were kept and attested to and that observers would be on station at all times necessary to prevent false accusations.
7. Internment Control Board. This board should have two main functions:
(a) To review the specific conduct of the process of internment, including interrogation techniques, and to hear complaints from interrogatees;
(b) during the period of internment, to make a continuous review of the rules and regulations by which internment and interrogation are governed, for example, those concerning observers, medical and legal advisers, etc.
The Board would be civilian, and composed of persons selected at random from a list compiled from nominations made by the political parties (Westminster).
The Board would be charged with a duty to receive complaints from any relevant source and would, through its own investigatory staff, determine so far as possible the facts of the incidents complained of; it would also be authorized to investigate any other aspects of the internment process even though no complaint has been filed.
The findings by the Board should be made available to the subject, his lawyer, and as admissible evidence in a civil or criminal action should the subject seek a legal remedy (or if the government itself instituted an action against an interrogator, e.g. for brutally – thus criminally – assaulting an interrogatee). The finding should also be forwarded to the Internment Authority and to the Internment Inspectorate, to be available as the basis for disciplinary action.
With regard to its second function, the Board would be charged with a duty to make recommendations to the Authority as to how the internment procedure might be altered, with particular regard to practices (and the individuals so engaged) which are considered deviant, or getting very close to it.
The Internment Control Board would replace the Compton Inquiry (first or second model), and would fulfil in a continuing manner much the same function the Parker Committee has been given; however the ICB would also be a vital line in establishing plausible sanctions against both individuals and the agency of security in charge of interrogation.
8. Civil and criminal actions: It must be clear to any impartial commentator that the possibility of interrogators and allied personnel being successfully sued or prosecuted under the law as it stands at present is effectively nought. Thus some reform such as I have suggested above with regard to the Control Board's findings might be called for.
Some method of permitting injunctions on behalf of internees who may be thought to be undergoing maltreatment (similar to the recent one concerning Attica State Prison, New York) might be considered; the likelihood of this procedure operating in a timely fashion to bar maltreatment is not great; nevertheless it might be a method of preventing gross and continuing abuse after initial deviance from the rules had been detected (the injunction should be obtainable by any individual or agency).
1. The process of imposing sanctions must be seen as a part of the larger process – the struggle to achieve a political goal within the community – a part of which is the use of the extreme measures of internment and interrogation. (The following analysis is based in part on the article by Professor Coral Bell, 'Ireland – The Dynamics of Insurgency', New Society, 25 November 1971.)
2. The first aspect of the 'game' is that from one side of the community, the security forces will be seen as acting partially, and – by many on both sides – brutally when carrying out the internment/interrogation policy. To some considerable extent, this is planned for by the insurgents and even necessary for their success. Thus to maintain legitimacy with the population at large the security forces must be seen to be subject to sanctions for behaving illegally.
3. As indicated above, external sanctions through the courts will probably be of no avail (even if they were, they would be so delayed as to be relatively meaningless in terms of the effect on the immediate situation). The possibility of an Indemnity Act would also tend to lessen any credibility which civil actions might have. Such 'controls' as reports (e.g. Compton, Bowen, Hola Camp) do nothing to prevent, nor to sanction, deviance in the immediate situation, however much they may contribute to future rule conformity. (It could be argued that they contribute little even in the long term, except that techniques become more sophisticated and the maltreatment less manifest.)
The other controls should not be dismissed but they all have limitations and no real direct sanctioning effect.
4. The need is for direct sanctions, and a self-enforcing system in so far as one can ever be designed.
With regard to specific deterrence against individuals there must he strong negative sanctions working from within the security forces, related to the individual's career prospects and his own self-image. He must, through training and guided exposure to the political facts of life, come to realize that his deviance from the rules laid down can become a boomerang and wash away whatever good work has been done. He must realize that he will be punished for deviance – in particular he will find impediments to promotion and other career benefits if he deviates.
Footnotes Appendix I:
|1.||During the so-called Widgery Inquiry into the deaths of thirteen (later fourteen) men in Derry on Bloody Sunday, Lord Widgery, himself an ex-Army officer, wined and dined with 'brother officers' every night.|
|2.||In April 1969 Samuel Devenney was savagely attacked in his own living-room by six members of the RUC. He died soon after from his injuries. Sir Arthur Young, sent over from London in 1969 to clean up the RUC, called over Scotland Yard detectives under Commander Drury. Despite the fact that witnesses named several of the policemen responsible, no disciplinary action ensued against anyone, let alone criminal charges. Police records and logs disappeared and Sir Arthur publicly referred to 'a conspiracy of silence' in the Derry police force.|
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suggested by Amnesty International
The General Assembly,
Gravely concerned at the constant resort to torture and inhuman or degrading treatment of persons imprisoned or detained, particularly during periods of armed conflict, internal strife or internal tension,
Noting that such violations of human rights continue despite the numerous dictates of international customary and convention law,
(a) that the Universal Declaration of Human Rights affirms that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,
(b) that the Genocide Convention of 1948 confirms that the causing of serious bodily harm to the members of a group with intent to destroy it in whole or in part is a crime under international law,
(c) that the International Covenant on Civil and Political Rights of 1966 provides that no one shall be subjected to cruel, inhuman or degrading treatment or punishment and that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person,
(d) that the International Convention on the Elimination of all Forms of Racial Discrimination guarantees without distinction the right to security of person and protection by the State against violence or bodily harm whether inflicted by government officials or by any individual group or institution,
Recalling further the prohibitions against torture and inhuman treatment contained in regional conventions on human rights and the numerous exhortations made by non-governmental organizations, the churches and religious bodies, the press and international public opinion for the elimination of violation of human rights and for the application and implementation of the existing rules of international law,
Noting that in the absence of specific provisions relating to the treatment of persons imprisoned or detained, such persons remain under the protection and governance of the principles of the law of nations as derived from the usages established among civilized nations, from the laws of humanity and from the dictates of the public conscience.
The General Assembly, therefore,
1. Affirms that the United Nations Standard Minimum Rules for the Treatment of Prisoners constitute authoritative guidelines pertaining to the treatment and rehabilitation of all prisoners under humane conditions and invites Members States to give urgent and positive consideration to the embodiment of the Rules and to the enforcement of their application in national legislation.
2. Requests the Secretary-General to establish a Committee of Experts to prepare a draft Convention for adoption by the Member States of the United Nations outlawing torture and inhuman or degrading treatment of persons imprisoned or detained as constituting crimes under international law, to render compulsory under international law at the very least the observance of the United Nations Standard Minimum Rules for the Treatment of Prisoners, and to provide an international implementation machinery.
3. Pending the incorporation of the United Nations Standard Minimum Rules for the Treatment of Prisoners in an international Convention, urges that there should be introduced a regular machinery for the reporting to the Secretary-General by Member States on the application of the United Nations Standard Minimum Rules within their country.