Lawfulness of Interrogation Techniques under the Geneva Conventions
CRS Report for Congress
Lawfulness of Interrogation Techniques
under the Geneva Conventions
September 8, 2004
Jennifer K. Elsea
American Law Division
Congressional Research Service ˜ The Library of Congress
Lawfulness of Interrogation Techniques under the
Allegations of abuse of Iraqi prisoners by U.S. soldiers at the Abu Ghraib prison
in Iraq have raised questions about the applicability of the law of war to
interrogations for military intelligence purposes. Particular issues involve the level
of protection to which the detainees are entitled under the Geneva Conventions of
1949, whether as prisoners of war or civilian “protected persons,” or under some
other status. After photos of prisoner abuse became public, the Defense Department
(DOD) released a series of internal documents disclosing policy deliberations about
the appropriate techniques for interrogating persons the Administration had deemed
to be “unlawful combatants” and who resisted the standard methods of questioning
detainees. Investigations related to the allegations at Abu Ghraib revealed that some
of the techniques discussed for “unlawful combatants” had come into use in Iraq,
although none of the prisoners there was deemed to be an unlawful combatant.
This report outlines the provisions of the Conventions as they apply to prisoners
of war and to civilians, and the minimum level of protection offered by Common
Article 3 of the Geneva Conventions. There follows an analysis of key terms that set
the standards for the treatment of prisoners that are especially relevant to
interrogation, including torture, coercion, and cruel, inhuman and degrading
treatment, with reference to some historical war crimes cases and cases involving the
treatment of persons suspected of engaging in terrorism. Finally, the report discusses
and analyzes some of the various interrogation techniques approved or considered for
use during interrogations of prisoners at Abu Ghraib.
In troduction ......................................................1
Interrogation of Prisoners............................................1
Prisoners of War..............................................2
Common Article 3.............................................7
Interpreting the Geneva Conventions...................................8
Inhumane or Degrading Treatment...........................18
Status of Detainees............................................20
Department of Defense Methods of Interrogation........................23
Approved Approaches for all Detainees...........................23
Incentive / Incentive Removal...............................25
Emotional Love / Hate.....................................28
Fear Up Harsh / Mild......................................29
Pride & Ego Up / Down....................................29
We Know All............................................30
Establish Your Identity....................................30
File & Dossier...........................................30
Require CG’s Approval........................................31
Change of Scenery Down...................................32
Presence of Military Working Dogs..........................34
Removal of Clothing......................................36
Removal of All Comfort Items, Including Religious Items.........36
Use of Scenarios Designed to Convince the Detainee that
Death or Severely Painful Consequences are Imminent.......36
Lawfulness of Interrogation Techniques
under the Geneva Conventions
Allegations of abuse of Iraqi prisoners by U.S. soldiers at the Abu Ghraib prison
in Iraq raise questions about the applicability of the law of war to interrogations for
military intelligence purposes. Particular issues involve the level of protection to
which the detainees are entitled under the Geneva Conventions of 1949. After photos
of prisoner abuse became public, the Defense Department (DOD) released a series
of documents disclosing policy deliberations about appropriate techniques for
interrogating persons the Administration had deemed to be unprotected by the1
Geneva Conventions with respect to the Global War on Terrorism (GWOT).
Investigations related to the allegations at Abu Ghraib revealed that some of the
techniques discussed for “unlawful combatants” had come into use in Iraq, although
none of the prisoners there was deemed to be an unlawful combatant.
This report outlines the provisions of the Conventions as they apply to prisoners
of war and to civilians, and the minimum level of protection offered by Common
Article 3 of the Geneva Conventions. The report analyzes key terms that govern the
treatment of prisoners with respect to interrogation, which include torture, coercion,
and cruel, inhuman and degrading treatment. Finally, the report discusses and
analyzes the various interrogation techniques approved or considered for use during
interrogations of prisoners at Abu Ghraib.
Interrogation of Prisoners
Gathering of military intelligence has always been a top priority for belligerents,
and captured enemy soldiers could be expected to have at least some knowledge2
pertinent to military operations. As a consequence, prisoners of war (POWs) can
expect to be questioned by their captors, who can be expected to employ whatever
means are available to them for extracting such information. Possibly due in part to
the inherent interest of belligerents both in procuring intelligence information and in
protecting their own information and soldiers, ground rules developed for fair play
in exploiting the intelligence value of captives. The emergence of “total war” in the
twentieth century increased the military utility of economic data, industrial secrets,
1 Press Release, Department of Defense, DoD Provides Details on Interrogation Process
(June 22, 2004), available at [http://www.defenselink.mil/releases/2004/
2 See A. J. BARKER, PRISONERS OF WAR 59 (1975)(noting that during the Napoleonic wars,
the U.S. Civil War, and in the Crimea, “all belligerents staged raids for the express purpose
of capturing prisoners for interrogation”).
and other information about the enemy that in centuries past might have been of little
interest to warriors, increasing the intelligence value detainees might have, but not
necessarily improving their treatment.3
Prisoners of War
The ill-treatment of prisoners of war, even for the purpose of eliciting
information deemed vital to self-defense, has long been considered a violation of the
law of war, albeit one that is frequently honored in the breach.4 The practice was
understood to be banned prior to the American Civil War. The Lieber Code,5
adopted by the Union Army to codify the law of war as it then existed, explained:
“Honorable men, when captured, will abstain from giving to the enemy,
information concerning their own army, and the modern law of war permits no
longer the use of any violence against prisoners in order to extort the desired
information or to punish them for having given false information” (Art. 80).
The Geneva Convention Relative to the Treatment of Prisoners of War (GPW)6
Article 17, paragraph 4 provides the general rule for interrogation of prisoners of war:
No physical or mental torture, nor any other form of coercion, may be inflicted
on prisoners of war to secure from them information of any kind whatever.
Prisoners of war who refuse to answer may not be threatened, insulted, or
exposed to unpleasant or disadvantageous treatment of any kind.
This language replaced a provision in the 1929 Geneva Convention that stated
“[n]o pressure shall be exerted on prisoners to obtain information regarding the7
situation in their armed forces or their country.” According to the ICRC
Commentary,8 the many violations that occurred during World War II led drafters of
the 1949 Convention to expand the provision to cover “information of any kind
whatever,” and by “prohibiting not only ‘coercion’ but also ‘physical or mental
3 Former Nuremberg prosecutor Telford Taylor commented that
Today the value of prisoner interrogation for intelligence purposes and the fear
of reprisals have ensured among the major powers (though by no means
universally) observance of the obligation to accept surrender and grant humane
treatment to prisoners of war.
Telford Taylor in WAR CRIMES, 49 (Henry Kim, ed. 2004).
4 See Sanford Levinson, “Precommitment” and “Postcommitment”: The Ban on Torture in
the Wake of September 11, 81 TEX. L. REV. 2013, 2017-18 (2003).
5 General Order No. 100, Instructions of the Government of Armies of the United States
in the Field (1863) [hereinafter “Lieber Code”].
6 August 12, 1949, 6 U.S.T. 3317 (hereinafter “GPW”).
7 Geneva Convention Relative to the Treatment of Prisoners of War art. 5 para 3, 47 Stat.
8 INTERNATIONAL COMMITTEE OF THE RED CROSS, 3 COMMENTARY ON THE GENEVA
CONVENTIONS OF 12 AUGUST 1949 (Jean Pictet, ed. 1960) [hereinafter “ICRC
torture.’”9 The provision does not prohibit the detaining power from seeking any
particular kind of information, but prohibits only the methods mentioned.10 Coercion
is also prohibited to elicit confessions from prisoners of war to be used against them
Other articles that apply at all times during captivity are also relevant. They
suggest that prisoners of war may not be singled out for special treatment based on
the suspicion that they may have valuable information. Article 13 provides, in part,
that “[p]risoners of war must at all times be humanely treated”12 and they “must at
all times be protected, particularly against acts of violence or intimidation...”
Furthermore, it describes as a “serious breach” of the GPW “[a]ny unlawful act or
omission by the Detaining Power causing death or seriously endangering the health
of a prisoner of war in its custody.” Article 14 states that “[p]risoners of war are
entitled in all circumstances to respect for their persons and their honor.”13
9 Id. at 163 (citing in particular the “great hardship” inflicted on prisoners at “interrogation
camps” to secure information ). Interestingly, the ICRC Commentary seems to have viewed
‘coercion’ and ‘pressure’ to be the same thing, distinct from physical or mental torture.
10 Id. The ICRC Commentary interprets the provision to prohibit the Detaining Power from
“exert[ing] any pressure on prisoners,” even with respect to the personal identification
information the prisoner is required to give under the first paragraph. Id. at 164. In other
words, “It’s not what you ask but how you ask it.” See U.S. ARMY JUDGE ADVOCATE
SCHOOL, LAW OF WAR WORKSHOP DESKBOOK 83 (CDR Brian J. Bill, ed. 2000) [hereinafter
“LOW DESKBOOK”], available at [https://www.jagcnet.army.mil/JAGCNETInternet
11 GPW art. 99 (“No moral or physical coercion may be exerted on a prisoner of war in order
to induce him to admit himself guilty of the act of which he is accused.”).
12 GPW art. 13, para. 1. The ICRC Commentary regarded this requirement as absolute,
describing “humane” as follows:
With regard to the concept of humanity, the purpose of the Convention is none
other than to define the correct way to behave towards a human being; each
individual is desirous of the treatment corresponding to his status and can
therefore judge how he should, in turn, treat his fellow human beings.
ICRC COMMENTARY III at 140. According to the ICRC Commentary, the elements of
“humane” are set forth in the remainder of Article 13. Id. (noting that it includes not only
a prohibition against corporal punishment but also a positive duty to protect the detainee
from harm and provide assistance as necessary).
13 GPW art. 14, para. 1; see ICRC COMMENTARY III at 143 (describing the article as
encompassing both the “physical and the moral aspects of the individual”). Offenses against
the physical person, according to the ICRC Commentary, include the killing, wounding or
even endangering prisoners of war, or allowing these acts at the hands of others. Id.
Protection of the “moral person” prohibits adverse propaganda and requires the detaining
power to provide for the prisoners’ intellectual, educational and recreational pursuits,
according to their individual preferences. Id. at 145. Respect for “honor” requires the
protection of prisoners from “libel, slander, insult and any violation of secrets of a personal
nature” (even if the source is another prisoner) and humiliating circumstances involving
clothing and work. Id.
Reprisal against prisoners of war is explicitly prohibited in Article 13. Article
Taking into consideration the provisions of the present Convention relating to
rank and sex, and subject to any privileged treatment which may be accorded to
them by reason of their state of health, age or professional qualifications, all
prisoners of war shall be treated alike by the Detaining Power, without any
adverse distinction based on race, nationality, religious belief or political
opinions, or any other distinction founded on similar criteria.
Article 16 does not prohibit more favorable treatment based on these criteria.14
Article 25 provides for a minimum level of living conditions, suggesting that the
manipulation of environmental conditions below these standards is not permitted:
Prisoners of war shall be quartered under conditions as favourable as those for
the forces of the Detaining Power who are billeted in the same area. The said
conditions shall make allowance for the habits and customs of the prisoners and
shall in no case be prejudicial to their health. .... The premises provided for the
use of prisoners of war individually or collectively, shall be entirely protected
from dampness and adequately heated and lighted, in particular between dusk
and lights out.
Articles 21 and 22 address physical conditions of confinement, and do not
appear to allow the placement of prisoners in solitary confinement in order to prepare
them for interrogation. Article 21 provides:
Subject to the provisions of the present Convention relative to penal and
disciplinary sanctions, prisoners of war may not be held in close confinement
except where necessary to safeguard their health and then only during the
continuation of the circumstances which make such confinement necessary.
Article 22 provides:
Prisoners of war interned in unhealthy areas, or where the climate is injurious for
them, shall be removed as soon as possible to a more favourable climate. The
Detaining Power shall assemble prisoners of war in camps or camp compounds
according to their nationality, language and customs, provided that such
prisoners shall not be separated from prisoners of war belonging to the armed
forces with which they were serving at the time of their capture, except with their
The first important modern effort to protect civilians in occupied territory is
reflected in Hague Convention IV of 1907 and its accompanying Regulations.15
14 ICRC COMMENTARY III, supra note 8, at 154 (explaining that differentiation is
prohibited only when it is of an adverse nature).
15 Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18,
Article 44 forbids the occupying power “to force the inhabitants of territory occupied
by it to furnish information about the army of the other belligerent, or about its means
of defense.” In 1949, the treatment of enemy civilians was addressed for the first
time in a separate instrument, the Fourth Geneva Convention (“GC”).16
The GC governs the treatment of civilians who fall into the hands of the enemy,
including those residing in the territory of that power as enemy aliens and the civilian
population of occupied territory. Civilians in occupied territory are “protected
persons” under the fourth Geneva Convention (“GC”), and are entitled under article
their religious convictions and practices, and their manners and customs.”17 While
an occupying power is permitted to “take such measures of control and security in
regard to protected persons as may be necessary as a result of the war,” Article 27
provides further that “[t]hey shall at all times be humanely treated, and shall be
protected especially against all acts of violence or threats thereof and against insults
and public curiosity.” Article 32 forbids any “measure of such a character as to cause
the physical suffering or extermination of protected persons in their hands. . .
[including] not only . . . murder, torture, corporal punishment, mutilation and medical
or scientific experiments not necessitated by the medical treatment of a protected
person but also to any other measures of brutality whether applied by civilian or
military agents.” Reprisals against protected persons and their property are
16 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August
17 According to the ICRC Commentary,
Article 27 is the basis on which the Convention rests, the central point in relation
to which all its other provisions must be considered. It was in order to give
greater prominence to this essential Article and to underline its fundamental
importance that the Diplomatic Conference placed it at the beginning of Part III
on the status and treatment of protected persons.
2 COMMENTARY ON THE GENEVA CONVENTIONS OF 1949 201 (Pictet, ed. 1960)[hereinafter
ICRC COMMENTARY II]. The ICRC Commentary defined the rights as follows:
The right of respect for the person . . . covers all the rights of the individual . . .
which are inseparable from the human being by the very fact of his existence and
his mental and physical powers; it includes . . . the right to physical, moral and
intellectual integrity — an essential attribute of the human person.
The right to physical integrity involves the prohibition of acts impairing
individual life or health.
Respect for intellectual integrity means respect for all the moral values which
form part of man’s heritage, and applies to the whole complex structure of
convictions, conceptions and aspirations peculiar to each individual. Individual
persons’ names or photographs, or aspects of their private lives must not be given
The right to personal liberty, and in particular, the right to move about freely, can
naturally be made subject in war time to certain restrictions made necessary by
Id. at 201-02.
Civilians may be detained or interned by an occupying power only if “security
requirements make such a course absolutely necessary.” (GC art. 42).18 Article 5
provides for the detention of civilians who pose a definite threat to the security of the
Where in occupied territory an individual protected person is detained as a spy
or saboteur, or as a person under definite suspicion of activity hostile to the
security of the Occupying Power, such person shall, in those cases where
absolute military security so requires, be regarded as having forfeited rights of
communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in
case of trial, shall not be deprived of the rights of fair and regular trial prescribed
by the present Convention. They shall also be granted the full rights and
privileges of a protected person under the present Convention at the earliest date
consistent with the security of the State or Occupying Power, as the case may be.
Internment or assigned residence is the most severe measure allowed in the cases of
protected civilians who pose a definite security threat (GC art. 41(1)), and these
measures are to be reviewed by a court or administrative board at least twice
annually. (GC art. 43).
Article 31 addresses interrogation explicitly. It provides that “[n]o physical or
moral coercion shall be exercised against protected persons, in particular to obtain
information from them or from third parties.”19 In addition, protected persons may
not be held as hostages, which would appear to preclude an occupying power from
detaining civilians as a method of persuading others to cooperate in providing
information about possible threats to the security.
18 Most of the prisoners at Abu Ghraib in Iraq fall into this category. See AR 15-6
Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade,
LTG Anthony R. Jones and MG George R. Fay 11 (2004), available at
[http://www.defenselink.mil/news/Aug2004/d20040825fay.pdf][hereinafter “Fay Report”].
The report explains further:
[A] “Civilian Internee” is someone who is interned during armed conflict or
occupation for security reasons or for protection or because he has committed an
offense against the detaining power. Within the confinement facility, however,
there were further sub-classifications that were used, to include criminal
detainee, security internee, and MI Hold. Security Internee[s] are [c]ivilians
interned during conflict or occupation for their own protection or because they
pose a threat to the security of coalition forces, or its mission, or are of
intelligence value. This includes persons detained for committing offenses
(including attempts) against coalition forces (or previous coalition forces),
members of the Provisional Government, Non-Government Organizations, state
infrastructure, or any person accused of committing war crimes or crimes against
humanity. (References omitted).
19 See DEPARTMENT OF THE ARMY, AR 190-8 ENEMY PRISONERS OF WAR, RETAINED
PERSONNEL, CIVILIAN INTERNEES AND OTHER DETAINEES Para. 1-5(a)(1) (1997)[hereinafter
Protected civilians may be imprisoned as a punitive measure only after a regular
trial, subject to the protections in articles 64 through 77. Additionally, article 33
provides that “[c]ivilians may not be punished for an offence he or she has not
personally committed,” and prohibits all forms of collective penalties and
intimidation. Article 100 addresses discipline in internment camps:
The disciplinary regime in places of internment shall be consistent with
humanitarian principles, and shall in no circumstances include regulation
imposing on internees any physical exertion dangerous to their health or
involving physical or moral victimization. Identification by tattooing or
imprinting signs on the body is prohibited. In particular, prolonged standing and
roll-calls, punishment drills, military drill and maneuver, or the reduction of food
rations, are prohibited.
Like prisoners of war, protected civilians are entitled to equal treatment,
“[w]ithout prejudice to the provisions relating to their state of health, age and sex, all
protected persons shall be treated with the same consideration by the Party to the
conflict in whose power they are, without any adverse distinction based, in particular,
on race, religion or political opinion.”
Common Article 3
The 1949 Geneva Conventions share several types of common provisions. The
first three articles of each Convention are identical. Common Article 3 provides
minimal rules applicable to “armed conflicts not of an international character
occurring in the territory of one of the High Contracting Parties.” It provides that
each Party to the conflict shall be bound to apply, as a minimum, the following
1. Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by
sickness, wounds, detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction founded on race, colour,
religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and
in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular humiliating and degrading
treatment; . . .
Common Article 3 has been described as “a convention within a convention” to
provide a general formula covering respect for intrinsic human values that would
always be in force, without regard to the characterization the parties to a conflict
might give it.20 Originally a compromise between those who wanted to extend POW
protection to all insurgents and rebels and those who wanted to limit it to soldiers
fighting on behalf of a recognized State, Common Article 3 is now widely considered
to have attained the status of customary international law.21 The prohibition against
ill-treatment applies during interrogations.22
Interpreting the Geneva Conventions
Despite the absolute-sounding provisions described above, whether certain
techniques employed by interrogators are per se violations of the Geneva Convention
remains subject to debate. Presumably, all aspects of prisoner treatment fall into
place along a continuum that ranges from pampering to abject torture. The line
between what is permissible and what is not remains elusive.23 To complicate
matters, interrogators may employ more than one technique simultaneously, and the
courts and tribunals that have evaluated claims of prisoner abuse have generally ruled
on the totality of treatment without specifying whether certain conduct alone would
also be impermissible. Not surprisingly, governments may view conduct differently
depending on whether their soldiers are the prisoners or the interrogators, and may
be unwilling to characterize any conduct on the part of the adversary as lawful.
Human rights advocates may tend to interpret the treaty language in a strictly textual
fashion, while governments who may have a need to seek information from prisoners
appear to rely on more flexible interpretations that take into account military
operational requirements. Nonetheless, it may be possible to identify some threshold
The following sections explore relevant terms that provide boundaries for the
conduct of a Detaining Power under the Geneva Convention with respect to prisoners
of war, civilian internees, and other detainees.
20 See JEAN PICTET, HUMANITARIAN LAW AND THE PROTECTION OF WAR VICTIMS 32 (1975).
21 See KRIANGSAK KITTICHAISAREE, INTERNATIONAL CRIMINAL LAW 188 (2001)(citing
Nicaragua v. United States, ICJ Rep. 1986, 14).
22 See Prosecutor v. Krnojelac, No. IT-97-25-I, paras. 5.17- 5.26 (ICTY Indictment, June 17,
Prosecutor v. Aleksovski, No. IT-95-14/1-A (ITCY Appeals Chamber May 7,
1999)(defendant not guilty of grave breaches of the 1949 Geneva Conventions because the
conflict was not international, but was convicted of violating the laws or customs of war,
namely outrages upon personal dignity, for conduct including excessive and cruel
interrogation found to be inhumane treatment); Prosecutor v. Furundzija, No. IT-95-17/1-T
(ICTY Trial Chamber Dec. 10, 1998) (defendant held criminally responsible as a
co-perpetrator of torture and for aiding and abetting in outrages upon personal dignity,
including rape, in connection with interrogation of unclothed civilians).
23 See John T. Parry, What Is Torture, Are We Doing It, and What If We Are?, 64 U. PITT.
L. REV. 237, 241 (2003).
Torture. Torture is proscribed by all four of the Geneva Conventions and their
additional Protocols,24 as well as customary international law.25 Torture, which can
be either mental or physical, is not explicitly defined in the Conventions. Modern
tribunals may look to the United Nations Convention Against Torture (“CAT”)26 for
a definition of torture:
For the purposes of this Convention, the term “torture” means any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on
a person for such purposes as obtaining from him or a third person information
or a confession, punishing him for an act he or a third person has committed or
is suspected of having committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any kind, when such pain
or suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity. It
does not include pain or suffering arising only from, inherent in or incidental to27
The International Tribunal for the former Yugoslavia (ICTY) has identified the
following elements of the crime of torture in a situation of armed conflict:
24 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, June 8, 1977, reprinted in 16 I.L.M.
The following acts are and shall remain prohibited at any time and in any place
whatsoever, whether committed by civilian or by military agents:
(a) violence to the life, health, or physical or mental well-being of persons, in
(ii) torture of all kinds, whether physical or mental;
(iii) corporal punishment; and
(b) outrages upon personal dignity, in particular humiliating and degrading
treatment, enforced prostitution and any form of indecent assault;
(c) the taking of hostages;
(d) collective punishments; and
(e) threats to commit any of the foregoing acts.
The United States has not ratified Protocol I, but article 75 is widely considered to be
universally binding as customary international law.
25 See KITTICHAISAREE, supra note 21, at 143 (defining torture as “acts or omissions, by or
at the instigation of , or with the consent or acquiescence of an official, which are committed
for a particular prohibited purpose and cause a severe level of mental or physical pain or
suffering”)(citing International Criminal Tribunal for the former Yugoslavia (ICTY)
decision in Celebici at para 442).
26 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51
(1984) [hereinafter CAT]. For an analysis of relevant case law, see U.N. Convention
Against Torture (CAT): Overview and Application to Interrogation Techniques, CRS Report
27 CAT art. 1(1).
(i) . . . the infliction, by act or omission, of severe pain or suffering, whether
physical or mental; in addition
(ii) this act or omission must be intentional;
(iii) it must aim at obtaining information or a confession, or at punishing,
intimidating, humiliating or coercing the victim or a third person, or at
discriminating, on any ground, against the victim or a third person; 28
(iv) it must be linked to an armed conflict. . . .
Physical Torture. The U.S. Army Field Manual (FM) 34-52, Intelligence29
Interrogation (“FM 34-52”) lists the following as examples of physical torture:
electric shock; infliction of pain through chemicals or bondage (other than legitimate
use of restraints to prevent escape); forcing an individual to stand, sit, or kneel in
abnormal positions for prolonged periods of time; food deprivation; and any form of30
The International Military Tribunal for the Far East (IMTFE) found that
Japanese soldiers had used the following forms of torture: water treatment, burning,
electric shocks, the knee spread, suspension, kneeling on sharp instruments and
flogging.31 The U.S. District Court for the District of Columbia found that U.S.
POWs during the First Gulf War were tortured in Iraq:
The torture inflicted included severe beatings, mock executions, threatened
castration, and threatened dismemberment. The POWs were systematically
starved, denied sleep, and exposed to freezing cold. They were denied medical
care and their existing injuries were intentionally aggravated. They were
shocked with electrical devices and confined in dark, filthy conditions exposing
them to contagion and infection. The POWs suffered serious physical injuries,
including broken bones, perforated eardrums, nerve damage, infections, nausea,32
severe weight loss, massive bruises, and other injuries.
In the context of a non-international war, the conflict in the former Yugoslavia,
frequent examples of torture were said to include “beating, sexual violence,
prolonged denial of sleep, food, hygiene, and medical assistance, as well as threats
to torture, rape, or kill relatives. . .”33
28 Prosecutor v. Furundzija, No. IT-95-17/1-A, para. 111 (ICTY Appeals Chamber July 21,
29 DEPARTMENT OF THE ARMY FIELD MANUAL 34-52, INTELLIGENCE INTERROGATION
(1992), available at [http://www4.army.mil/ocpa/reports/ArmyIGDetaineeAbuse/
FM34-52IntelInterrogation.pdf](Sep. 1, 2004)[hereinafter FM 34-52].
30 FM 34-52 at 1-8 (1992).
31 United States et al. v. Sadao Araki, IMTFE 1948, excerpts reprinted in HOWARD S. LEVIE,
60 INTERNATIONAL LAW STUDIES, DOCUMENTS ON PRISONERS OF WAR 450 (U.S. Naval War
College 1979) (hereinafter “POW DOCUMENTS”).
32 Acree v. Republic of Iraq, 271 F.Supp.2d 179, 185 (D.D.C. 2003), vacated by 370 F.3d
41(D.C.Cir. 2004)(failure to assert a valid cause of action cognizable under the terrorism
exception to the Foreign Sovereign Immunities Act).
33 Prosecutor v. Kvocka et al., No. IT-98-30-PT, para. 144. (ICTY Trial Chamber Nov. 2,
Mental Torture. According to FM 34-52, examples of mental torture include
mock executions, abnormal sleep deprivation, and chemically induced psychosis.34
The International Military Tribunal for the Far East noted in its judgement of the
major Japanese war criminals after World War II that mental torture had been35
commonly employed, and cited the case of the Doolittle fliers to illustrate what
mental torture entailed:
After having been subjected to the various other forms of torture, they were taken
one at a time and marched blindfolded a considerable distance. The victim could
hear voices and marching feet, then the noise of a squad halting and lowering
their rifles as if being formed to act as a firing squad. A Japanese officer then
came up to the victim and said: “We are Knights of the Bushido of the Order of
the Rising Sun; We do not execute at sundown; we execute at sunrise.” The
victim was then taken back to his cell and informed that unless he talked before36
sunrise, he would be executed.
A more recent example of mental torture, as found by a U.S. court, involved the
treatment of American POWs by Iraqi agents during the 1991 Gulf War:
Iraqi agents caused the POWs to experience severe mental anguish by falsely
reporting that they had killed Americans, including a pilot’s wingman, other
American POWs, and the President of the United States. The POWs suffered
from knowing the agony that their families were enduring because the Iraqi37
authorities refused to inform the families that the POWs were alive.
According to the ICTY, the following treatment may amount to mental torture:
For instance, the mental suffering caused to an individual who is forced to watch
severe mistreatment inflicted on a relative would rise to the level of gravity
required under the crime of torture. [B]eing forced to watch serious sexual
attacks inflicted on a female acquaintance was torture for the forced observer.
The presence of onlookers, particularly family members, also inflicts severe38
mental harm amounting to torture on the person being raped.
Physical / Mental Suffering. Not all physical or mental suffering amounts
to torture. While most people would likely accept that severe physical beatings or
conduct such as electrocution and intentional cigarette burns amount to torture,
relatively less physically brutal conduct, what might be described as psychological
pressure (threats, verbal intimidation) and non-impact physical abuse (forcing
detainee to remain in an uncomfortable position for a prolonged period) invite greater
2001). The trial chamber also noted that “Mutilation of body parts would be an example of
acts per se constituting torture.”
34 FM 34-52 at 1-8.
35 POW DOCUMENTS, supra note 31, at 437, 452.
37 Acree at 185.
38 Kvocka at para. 149.
debate. Most forms of physical or psychological pressure are susceptible of being
applied with varying degrees of intensity or duration. Relatively humane-sounding
techniques applied at great length or in combination could cause physical and mental
suffering that might be characterized as torture.39 Distinguishing between physical
and mental forms of pressure may not be particularly helpful in determining whether
torture has occurred.40 Physical abuse may cause mental suffering that outlasts the
physical suffering. Non-violent physical methods (playing loud music), especially
over an extended period of time may cause physical as well as psychological
suffering. Some victims may be more susceptible to certain types of pressure and
therefore experience suffering that might not affect another. Permanent injury is not
According to the ICTY
[T]he severity of the pain or suffering is a distinguishing characteristic of torture
that sets it apart from similar offences. A precise threshold for determining what
degree of suffering is sufficient to meet the definition of torture has not been
delineated. In assessing the seriousness of any mistreatment, the Trial Chamber
must first consider the objective severity of the harm inflicted. Subjective
criteria, such as the physical or mental effect of the treatment upon the particular
victim and, in some cases, factors such as the victim’s age, sex, or state of health42
will also be relevant in assessing the gravity of the harm.
For Interrogation Purposes. Some experts take the position that the
purpose of eliciting information from the victim is a necessary element of torture, and
that behavior that is cruel and causes suffering, but does not entail coercion to elicit
a confession or information, is not torture.43 Others take the view that cruel treatment
39 See Barak Cohen, Democracy and the Mis-rule of Law: The Israeli Legal System’s
Failure to Prevent Torture in the Occupied Territories, 12 IND. INT’L & COMP. L. REV. 75,
For example, few people would argue that a prisoner subjected to prolonged,
intense questioning, perhaps after a sleepless night on a narrow prison bed, while
seated in an uncomfortable chair, is suffering from torture. In fact, it is arguable
whether that prisoner is even being treated inhumanely, given the fact that
interrogations inherently tend to employ some measure of physical discomfort.
However, extreme applications of a combination of these factors-prolonged lack
of sleep, being forced to stand for unreasonable periods of time with arms held
to the front at shoulder level, being denied food and use of a lavatory for
extended periods, culminating with concentrated questioning and verbal threats
of future abuse could be considered torture, although any one of these activities
by itself might not be severe enough to constitute torture per se.
40 See id. at 78 (arguing that physical and mental abuse both “employ physical means to
achieve a psychological effect — fear and anxiety that ultimately brings about the rupture
of the subject’s ego, thereby allowing a torturer to impose his will on the subject”).
41 Prosecutor v. Kvocka et al., No. IT-98-30-PT, para. 148 (ICTY Trial Chamber Nov. 2,
42 Id at paras.142-143.
43 See HOWARD S. LEVIE, PRISONERS OF WAR IN INTERNATIONAL ARMED CONFLICT 357 &n.
for other purposes, or even for no purpose, can constitute torture.44 Under the
Geneva Conventions, it appears to matter little whether certain treatment is described
as torture; the Conventions protect against treatment that is cruel, inhumane, and
degrading even if such treatment does not amount to torture.
Coercion. The Geneva Conventions do not define coercion. Their prohibition
against coercion may vary somewhat depending on the status of the person
undergoing interrogation. In the case of protected civilians, “[n]o physical or moral
coercion shall be exercised against [them], in particular to obtain information from
them or from third parties.”45 Prisoners of war, on the other hand, may be subjected
to no coercion of any kind, nor can they be “threatened, insulted, or exposed to
unpleasant or disadvantageous treatment.” The conclusion might be drawn that some
other kind of coercion, neither moral nor physical, may be permissible with respect
to civilians but not for POWs. Perhaps “moral” coercion is distinct from “mental”
coercion. However, we have found no references purporting to describe techniques
in this category. Common Article 3 does not explicitly forbid coercion.
The essence of coercion is the compulsion of a person by a superior force, often
a government, to do or refrain from doing something involuntarily. The intentional
application of an unlawful force that robs a person of free will is coercive. However,
circumstances that cause a person to reevaluate a course of action, even if deception
is instrumental, may arguably be non-coercive pressure. Under the interpretation set
forth in FM 34-52, “physical or mental torture and coercion revolve around the
elimination of the source’s free will.”46 These activities, along with “brainwashing,”
are not authorized, it explains, but are not to be confused with the psychological
techniques and ruses presented in the manual. FM 34-52 includes in the definition
of mental coercion “drugs that may induce lasting and permanent mental alteration
and damage.” This appears to reflect a change from earlier doctrine, which47
prohibited the use of any drugs on prisoners unless required for medical purposes.
60 (1979)(citing commentaries of Jean Pictet and Claude Pilloud, who would classify
maltreatment for other purposes under the offense of “wilfully causing great suffering”).
FM 34-52 states that torture is “the infliction of intense pain to extract a confession or
information, or for sadistic pleasure.” FM 34-52 at 1-8 (1992).
44 Id. The ICTY has found that required element of a “prohibited purpose,” see supra note
28, does not require that the sole or even predominating motive or purpose behind the
conduct is a prohibited purpose. See Prosecutor v. Kunarac, Kovac and Vukovic, Nos.
IT-96-23 and IT-96-23/11, para. 486 (ITCY Trial Chamber Feb. 22, 2001).
45 GC art. 31. According to the ICRC Commentary, the prohibition “covers all cases,
whether the pressure is direct or indirect, obvious or hidden . . . [and] for any purpose or
motive whatever.” See ICRC COMMENTARY II, supra note 17, at 219-20. The ICRC
commented that the authors of the Convention were mainly concerned with “coercion aimed
at obtaining information, work or support for an ideological or political idea,” but notes the
language is broader than that of the Hague Regulations on the same subject. Id.
46 FM 34-52 at 1-8.
47 See Stanley J. Glod and Lawrence J. Smith, Interrogation under the 1949 Prisoners of
War Convention, 21 MIL. L. REV. 145, 153-54 (1963)(citing JAGW 1961 / 1157, 21 June
In the context of U.S. criminal law, coercion is usually asserted as a defense to
a crime48 or as an element of a crime, or to render a confession inadmissible in court
as involuntary. The standards differ depending on the purpose. To assert coercion
as a defense to a criminal charge, a defendant generally has to show a well-grounded
fear of imminent injury or death.49 On the other hand, a confession is the product of
coercion if a defendant’s “‘will was overborne’ or if his confession was not ‘the
product of a rational intellect and a free will.’”50 Prolonged questioning has been held
to be inherently coercive,51as has incommunicado detention52 and interrogation by a
In an opinion by The Judge Advocate General of the Army reviewing the
employment of [“truth serum”] in the light of Article 17, it was noted that Article
17 justly and logically must be extended to protect the prisoner against any
inquisitorial practice by his captors which would rob him of his free will. On this
basis it was held that the use of truth serum was outlawed by Article 17. In
addition, its use contravenes Article 18, which states in part : “. . . no prisoner of
war may be subject to . . . . medical or scientific experiments of any kind which
are not justified by the medical, dental, or hospital treatment of the prisoner
concerned and carried out in his interest.” The opinion declared that “. . . the
suggested use of a chemical “truth serum” during the questioning of prisoners of
war would be in violation of the obligations of the United States under the
Geneva Convention Relative to the Treatment of Prisoners of War.” From this
opinion it seems clear that any attempt to extract information from an unwilling
prisoner of war by the use of chemicals, drugs, physiological or psychological
devices, which impair or deprive the prisoner of his free will without being in his
interest, such as a bonafide medical treatment, will be deemed a violation of
Articles 13 and 17 of the Convention.
The 1987 version of FM 34-52 suggested that the use of any drugs for interrogation
purposes amounted to mental coercion. FM 34-52 ch. 1 (1987).
48 “Coercion,” also known as “duress,” is recognized in nearly every American jurisdiction
as an excuse for otherwise criminal conduct. See PAUL H. ROBINSON, 2 CRIMINAL LAW
DEFENSES §177(a) (1984) (“. . .an actor is excused for his conduct . . .if [it results from ] (1)
being in a state of coercion caused by a threat that a person of reasonable firmness in his
situation would not have resisted and (2) the actor is not sufficiently able to control his
conduct so as to be held accountable for it”).
49 D’Aquino v. United States, 192 F.2d 338, 359 (9th Cir. 1951).
50 Townsend v. Sain, 372 U.S. 293, 307 (1963)(confession induced by truth serum would
51 E.g, Haynes v. Washington, 373 U.S. 503 (1963).
52 E.g, Davis v. North Carolina, 384 U.S. 737 (1968).
psychiatrist trained in hypnosis,53 the use of violence,54 threats,55 and other mental
“modes of persuasion.”56
The standards that apply in criminal cases, however, probably do not apply to
a determination of coercion under the Geneva Conventions.57 The pertinent question
appears to be whether the person subject to treatment designed to influence his
conduct is able to exercise a choice and complies willingly or has no choice other
than to comply.
Asserting coercion by the enemy as a defense to treason or aiding the enemy has
not been fruitful; courts have tended to apply the same test that would govern in other
criminal cases.58 In the post-WWII treason prosecution of Iva Ikuko Toguri
D’Aquino (Tokyo Rose), the court stated its belief that despite the hostilities:
there was no occasion for departing from the ordinary rules applicable to the
defense of duress and coercion. We know of no rule that would permit one who
is under the protection of an enemy to claim immunity from prosecution for
treason merely by setting up a claim of mental fear of possible future action on
the part of the enemy. We think that the citizen owing allegiance to the United
States must manifest a determination to resist commands and orders until such
time as he is faced with the alternative of immediate injury or death. Were any
other rule to be applied, traitors in the enemy country would by that fact alone
be shielded from any requirement of resistance. The person claiming the defense
of coercion and duress must be a person whose resistance has brought him to the59
However, the failure of an asserted coercion defense does not mean that the
behavior giving rise to the claim is lawful. Acts intended to coerce need not succeed
to meet the definition of coercion as an element of a crime.60 In the case of prisoners
held by the Chinese during the Korean War, courts referred to conditions in the
prisoner of war camps as brutal and inhumane, in violation or international law.
53 E.g, Leyra v. Denno, 347 U.S. 556 (1954) (confession was coerced where the subject was
already emotionally drained from several days of interrogation).
54 Brown v. Mississippi, 297 U.S. 278 (1936).
55 E.g, Ward v. Texas, 316 U.S. 547 (1942).
56 Blackburn v. Alabama, 361 U.S. 199, 206 (1960).
57 LOW DESKBOOK, supra note 10, at 97 &n. 61.
58 See United States v. Fleming, 19 C.M.R. 438 (1955); U.S. v. Dickenson, 20 C.M.R. 154,
181 (1955)(testimony of accused that he was subject to “‘cruel and brutal treatment’ and
that someone told him that he ‘would kill me if I did not agree with the Chinese and abide
by the rules and regulations of the camp’” insufficient to show POW’s misconduct was
coerced); U.S. v. Batchelor, 22 C.M.R. 144 (1956); U.S. v. Bayes, 22 C.M.R. 487, 491
59 D’Aquino v. United States, 192 F.2d 338, 359 (9th Cir. 1951).
60 See MODEL PENAL CODE § 212.5 (defining criminal coercion as a threat intended to
restrict unlawfully another’s freedom of action).
The conditions under which American prisoners of war in Korea were required
to live were at best abominable and at worst intolerable. During the early stages,
lack of adequate food, clothing, housing, and medical service resulted in a death
rate which bespeaks man’s inhumanity to man. Nevertheless, the accused was not
subjected to any discomforts which were not shared by his comrades, and if his
lot was harsh, so was theirs. . . . It goes without saying that all men cannot stand
firm against torture, physical violence, starvation or psychological mistreatment.
But in this instance, the record discloses that the accused weakened when others
stood fast, and it does not reveal that he was compelled to sacrifice his61
countrymen because of the use of those influences.
Yet soldiers who succumbed to the ill-treatment and collaborated with the enemy
were unsuccessful in asserting the defense of coercion.
The infliction of any type of physical or mental suffering that would amount to
torture would almost certainly qualify as “coercion.” However, States have sought
to find methods of applying “pressure” to convince a detainee that cooperation would
be in his best interest, thereby persuading him to disclose information voluntarily. It
may be useful to consider theories about coercion from the field of
Non-coercive Interrogation. According to a 1963 CIA manual62 on
The term non-coercive is used . . . to denote methods of interrogation that are not
based upon the coercion of an unwilling subject through the employment of
superior force originating outside himself. However, the non-coercive
interrogation is not conducted without pressure. On the contrary, the goal is to
generate maximum pressure, or at least as much as is needed to induce
compliance. The difference is that the pressure is generated inside the
interrogatee. His resistance is sapped, his urge to yield is fortified, until in the63
end he defeats himself.
The manual describes the following techniques for non-coercive
counterintelligence interrogation: “Nobody Loves You” (pointing out that all of the
information about an interrogation subject has come from persons other than himself,
eliciting a desire to tell his side of the story); “The All-Seeing Eye (or Confession is
61 United States v. Batchelor, 22 C.M.R. 144,162 (1956). The court did, however, note that
the defendant’s participation with the Chinese propaganda program “was instrumental in
coercing other prisoners to sign the petitions.” Id. at 150.
62 Central Intelligence Agency, KUBARK Counterintelligence Interrogation, July 1963,
[hereinafter “KUBARK Manual”]. This and another CIA manual, Human Resource
Exploitation Training Manual (1983) were released pursuant to a Freedom of Information
Act (FOIA) request by the Baltimore Sun in 1997. See National Security Archive Electronic
Briefing Book No. 122, at [http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB122]
(providing links to both documents) (Sep. 7, 2004). The 1983 manual, which had been used
by the CIA to train Honduran military units between 1983 and 1987, became the subject of
Senate Intelligence Committee hearings in 1988 because of human rights abuses committed
63 KUBARK Manual, supra note 62, at 52.
Good for the Soul)” (by manipulating information already known about the subject,
the interrogator can convince a subject that all his secrets are already out and that
further lies would be futile or even counterproductive);64 “The Informer” (planting
an informant as the source’s cellmate);65 “News from Home” (allowing a detainee to
receive carefully selected letters from home);66 “The Witness” (bringing an alleged
witness with knowledge of subject’s misdeeds within the subject’s view to create a
desire to refute charges);67 “Joint Suspects” (causing the subject to believe that
another person involved in the crime is trying to throw all blame upon the subject);68
“Ivan Is a Dope” (pointing out that the adversary is incompetent or ignores the
welfare of its agents, but that the interrogator’s entity will treat the subject better);69
“Joint Interrogators” (good cop/bad cop routine: the brutal, angry, domineering
interrogator contrasted with the friendly, quiet interrogator, with multiple
Coercive Interrogation. Coercive methods, according to the same CIA
manual, “are designed not only to exploit the resistant source’s internal conflicts and
induce him to wrestle with himself but also to bring a superior outside force to bear
upon the subject’s resistance.” Further, it noted, “[a]ll coercive techniques are
designed to induce regression,” which is described as “the loss of those defenses
most recently acquired by civilized man:. . . the capacity to carry out the highest
creative activities, to meet new, challenging, and complex situations, to deal with
trying interpersonal relations, and to cope with repeated frustrations.” These
functions, it posited, could be impaired through the use of “relatively small degrees
of homeostatic derangement, fatigue, pain, sleep loss, or anxiety”71 to bring about the72
typical response to coercion: “debility, dependency, and dread.” The following
were named as the “principal coercive techniques of interrogation: arrest, detention,
deprivation of sensory stimuli through solitary confinement or similar methods,
threats and fear, debility, pain, heightened suggestibility and hypnosis, narcosis [use73
of drugs], and induced regression.”
64 Id. at 67.
65 Id. (noting that the technique is “so well-known, especially in Communist countries, that
its usefulness is impaired if not destroyed”).
67 Id. at 67-69.
68 Id. at 70 -71.
69 Id. at 71-72.
70 Id. at 72.
71 Id. at 83 (citation omitted). The manual advised against the use of such techniques.
73 Id. at 85.
Inhumane or Degrading Treatment.
The prohibition of inhumane treatment of prisoners of war was already
understood to be part of the law of war during the 19th century. Art. 56 of the Lieber
A prisoner of war is subject to no punishment for being a public enemy, nor is
any revenge wreaked upon him by the intentional infliction of any suffering, or
disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other
Both the Union and Confederate governments accused the other of inhumane
treatment of prisoners of war. The North was accused of exposing prisoners of war
to cold weather as well as deprivation of adequate food, clothing, and fuel.74 The
South was accused of “subjecting [prisoners of war] to torture and great suffering,
by confining in unhealthy and unwholesome quarters, by exposing to the inclemency
of winter and to the dews and burning sun of summer, by compelling the use of
impure water, and by furnishing insufficient and unwholesome food,” as well as
using bloodhounds to track escaped prisoners, thereby allowing recaptured prisoners
to be “cruelly and inhumanly injured.”75
The barbarities complained of during the Civil War were repeated or multiplied
during subsequent wars, despite the inclusion of provisions in treaties to protect
prisoners of war.76 The ICRC Commentary to the Geneva Conventions views77
humane treatment as the fundamental theme running throughout the Convention.
GPW art. 13 is viewed as embodying the principal elements of humane treatment.7879
Paragraph 1 of article 13 requires that POWs “at all times be humanely treated.” It
74 See, e.g., Letter from Jefferson Davis to the Confederate Congress, November 7, 1864,
reprinted in 7 Journal of the Congress of the Confederate States of America 254 (November
7, 1864); 6 Journal of the Confederate Conference, 142 (February 24, 1863) (quoting
Chicago Times newspaper article report that twelve Confederate prisoners at Camp Douglas
were frozen to death).
75 These were the charges against Henry Wirz, who was convicted by military commission
for crimes related to prisoner-of-war camp at Andersonville. See POW DOCUMENTS, supra
note 31, at 46.
76 Hague Regulations, supra note 15, arts. 4-20; 1929 Geneva Convention, supra note 7; see
G.I.A.D. DRAPER, THE RED CROSS CONVENTIONS 2-6 (1958)(recounting historical
developments leading up to the 1949 Geneva Conventions).
77 ICRC COMMENTARY III, supra note 8, at 140.
78 Id.; HOWARD S. LEVIE, PRISONERS OF WAR IN INTERNATIONAL ARMED CONFLICT 352
(1979)(remarking that the first sentence of art. 13 is the fundamental principle throughout
the GPW). Others would include arts. 14 and 16 in the minimum definition of “humane
treatment.” See THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 329-30
(Dieter Fleck, ed. 1995)(hereinafter “HANDBOOK”).
79 The language “at all times” was new to the 1949 Convention, added by drafters to prevent
derogations from the principle of humanity by reference to the circumstances of the conflict.
See HANDBOOK, supra note 78, at 329; see also ICRC Commentary III, supra note 8, at 140
goes on to identify as inhumane any “unlawful act or omission by the Detaining
Power causing death or seriously endangering the health of a prisoner of war,”
“physical mutilation or to [unjustified] medical or scientific experiments” and
exposure to “acts of violence or intimidation and against insults and public
curiosity.” “Inhuman treatment” is defined in GPW art. 130 to constitute a grave
breach of the Convention.80
The prohibition on “acts of violence or intimidation and against insults and
public curiosity” appears to have resulted from the World War II practice in Europe
and the Far East of parading captive soldiers through the streets for propaganda
purposes.81 The ICRC has interpreted GPW art. 13 to prohibit the public display of
prisoners through the news media. The ICRC considers the use of any image “that
makes a prisoner of war individually recognizable” to be a violation, because the
condition of being taken prisoner might be considered degrading or humiliating in
itself, and that representations of captives could also have an impact on families.82
The Department of Defense interprets the provision to protect POWs from being
filmed or photographed in such a manner that viewers would be able to recognize the
prisoner. Photos and videos depicting POWs with their faces covered or their
identities otherwise disguised does not, in the view of the Department of Defense,
(noting the principles are valid at all times, including “cases where repressive measures are
legitimately imposed on a protected person, since the dictates of humanity must be respected
even if measures of security or repression are being applied”).
80 See LEVIE, supra note 110, at 356 (noting that the question remains open as to when
maltreatment, other than torture or biological experiments, becomes “inhuman”). The ICRC
Commentary offered the following interpretation:
It could not mean, it seems, solely treatment constituting an attack on physical
integrity or health; the aim of the Convention is certainly to grant prisoners of
war in enemy hands a protection which will preserve their human dignity and
prevent their being brought down to the level of animals. Certain measures, for
example, which might cut prisoners of war off completely from the outside world
and in particular from their families, or which would cause great injury to their
human dignity, should be considered as inhuman treatment.
ICRC Commentary III, supra note 8, at 627.
81 See Trial of Lt. Gen. Kurt Maelzer, 11 LRTWC 53 (U.S. Military Commission 1946),
excerpts reprinted in POW DOCUMENTS, supra note 31, at 355-56; United States et al. v.
Sadoa Araki (IMTFE 1948), excerpts reprinted in POW DOCUMENTS, supra note 31, at
437, 461-62 (describing how Allied POWs were “paraded through the streets” in an
“emaciated condition” and “held up to contempt by a Japanese officer”).
82 See Anthony Dworkin, The Geneva Conventions and Prisoners of War, Crimes of War
Project, March 23, 2003, at [http://www.crimesofwar.org/special/Iraq/brief-pow.html]
(quoting ICRC spokesman Florian Westphal) (Sep. 1, 2004). But see HILAIRE MCCOUBREY,
INTERNATIONAL HUMANITARIAN LAW 148-49 (2d ed. 1998)(“On the other hand,
photographs of masses of prisoners of war with no humiliation beyond the fact of capture
may not so obviously violate [article 13].”); United States v. Sidao Araki, in POW
DOCUMENTS, supra note 31, at 476 (charging that the Japanese government concealed ill-
treatment of prisoners by censoring photographs depicting conditions at POW camps).
violate GPW art. 13. Other experts would make an exception for reporting on
prisoners and their conditions of captivity, in order to enforce international
humanitarian law and to improve their conditions in captivity.83 However, it appears
to be well-accepted that broadcasting images of POWs for humiliation or propaganda
purposes is inhumane.84
Other examples of treatment deemed degrading or humiliating in the context of
the Geneva Conventions include urinating on POWs and forcing them to undergo
inspections of their genitals to determine if they were Jewish (Gulf War I),85 forcing
captured Royal Marines to lie down on the ground for the benefit of television
cameras (Falklands War),86 and the Communist practices for indoctrinating POWs
and pressuring them to sign confessions.87 Acts causing severe humiliation or
degradation may rise to the level of “outrages upon human dignity.”88
Status of Detainees
Belligerents have sometimes argued that certain prisoners are not entitled to
protection under the laws of war and relevant treaties, and that such prisoners might
be subjected to harsher treatment than that accorded to prisoners of war. For
example, during the Civil War, the Union initially promised to treat Confederate
soldiers and sailors as common criminals and brigands, but later relented, with
respect to regular Confederate soldiers and partisans (but not “guerrilla marauders”)
in order to secure better treatment for captured Union soldiers. The Confederate
States denied prisoner-of-war status to Union soldiers who were black. This policy
83 See HANDBOOK, supra note 7, at 704 (citing “examples of reports on prisoner of war
camps in the former Yugoslavia” as an illustration of the need to weigh “preserv[ation] of
prisoners’ lives against the rule prohibiting their exposure to public curiosity”).
84 During the invasion of Iraq in 2003, both Houses of Congress passed resolutions
condemning as inhumane and humiliating the broadcast of interrogations of U.S. POWs.thth
H.Con.Res. 118, 108 Cong. (2003); S.Con.Res. 31, 108 Cong. (2003).
85 Acree v. Republic of Iraq, 271 F.Supp.2d 179, 185 (D.D.C. 2003), vacated by 370 F.3d
86 See MCCOUBREY, supra note 82, at 148.
87 See SEN. COMM. ON THE JUDICIARY, 92D CONG., COMMUNIST TREATMENT OF PRISONERS
OF WAR (Comm. Print 1972).
88 See Prosecutor v. Kunarac, Kovac and Vokovic, No. IT-96-23-PT (ICTY Appeals
Chamber June 12, 2002). The ICTY has listed elements of “outrages upon personal dignity”
(i) that the accused intentionally committed or participated in an act or an
omission which would be generally considered to cause serious humiliation,
degradation or otherwise be a serious attack on human dignity, and
(ii) that he knew that the act or omission could have that effect.
Id. at para. 161. Serious humiliation would have to be “so intense that any reasonable
person would be outraged.” Id. at para. 162. Examples include “inappropriate conditions
of confinement,” “perform[ing] subservient acts,” being “forced to relieve bodily functions
in their clothing,” and “endur[ing] the constant fear of being subjected to physical, mental,
or sexual violence” in camps. Kvocka et al., at para. 173.
was a point of contention between the two sides throughout the war, and afterward,
when Johnson granted amnesty to participants in the rebellion, the amnesty did not
extend to those who had refused to treat black soldiers as prisoners of war.89
During World War II, Germany and Japan adopted different standards for
various types of prisoners. The Germans regarded Bolshevists as undeserving of
POW status under the Geneva Convention, and those prisoners were to be shot on the
slightest provocation without any warning.90 The Security Police and Gestapo
adopted a series of harsher techniques for interrogating certain (mainly civilian)
prisoners who were thought to possess valuable information and who resisted
questioning. Known as the “Third Degree,” the methods included a “simple diet
(bread and water), hard bunk, dark cell, deprivation of sleep, exhaustive drilling,
[and] flogging for more than twenty strokes a doctor must be consulted.”91 Such
methods were restricted to “Communists, Marxists, Jehova’s Witnesses, saboteurs,
terrorists, members of resistance movements, parachute agents, anti-social elements,
Polish or Soviet Russian loafers or tramps,” and for any other case where permission
from the Gestapo Chief was first obtained.92 At Nuremberg, defendants argued that
the treatment of Soviet prisoners was not unlawful because the Soviet Union had not
ratified the Geneva Convention. For the most part, the international and national
military tribunals did not accept this defense.93
Countries fighting terrorism or insurgencies have sometimes adopted special
methods of interrogating suspects. For example, Great Britain in the 1970’s
implemented sensory deprivation interrogation methods known as the “five
techniques” against suspected members of the terrorist Irish Republican Army
(IRA).94 Some of the subjects of such interrogation brought suit in the European
Court of Human Rights. The court described these techniques as follows:
(a) wall-standing: forcing the detainees to remain for periods of some hours in
a ‘stress position,’ described by those who underwent it as being ‘spreadeagled
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’; (b) hooding: putting a black or navy
colored bag over the detainees’ heads and, at least initially, keeping it there all
the time except during interrogation; (c) subjection to noise: pending their
89 Proclamation No. 37, 13 Stat. 758, 759 (May 29, 1865)(excepting from amnesty “all who
have engaged in any way in treating otherwise than lawfully as prisoners of war persons
found in the United States service, as officers, soldiers, seamen, or in other capacities”).
90 United States et al. v. Goering, 22 TMWC 411 (IMT 1946), excerpts reprinted in POW
DOCUMENTS, supra note 31, at 357, 360.
91 22 TMWC 50 (1946).
92 See United States v. Wilhelm von Leeb, 12 LRTWC 1, 20 (U.S. military Tribunal,
Nuremberg 1948)(German High Command Case), available at
[http://www.ess.uwe.ac.uk/WCC/ghctrial1.htm](Sept. 8, 2004).
93 Id at 87 (finding general principals of international law required humane treatment,
irrespective of whether Geneva Conventions were binding on Parties).
94 Ireland v. United Kingdom,25 Eur. Ct. H.R. (ser. A) para. 94 (1978).
interrogations, holding the detainees in a room where there was a continuous
loud and hissing noise; (d) deprivation of sleep: pending their interrogations,
depriving the detainees of sleep; (e) deprivation of food and drink: subjecting the
detainees to a reduced diet during their stay at the center and pending
The ECHR held that “use of the five techniques did not constitute a practice of
torture within the meaning of Article 3 [of the European Convention for the
Protection of Human Rights and Fundamental Freedoms],” but did constitute
“inhuman and degrading treatment.”95
Israel’s General Security Service (“GSS”) has employed interrogation methods
involving “psychological pressure” and “moderate physical pressure” to obtain
information from suspected terrorists.96 A judicial commission headed by the former
Israeli Supreme Court President, Justice Moshe Landau, investigated the
interrogation practices of the GSS. The Landau Commission justified the use of
physical pressure as necessary in the face of hostile acts, and recommended that
rather than covering up the use of such tactics, the government should “acknowledge
that some measure of coercion is permissible, and then codify and carefully monitor
the allowable techniques.”97 The Knesset endorsed the findings of the Commission
and enacted statutory authority adopting the Commission’s guidelines. The Landau
The means of pressure should principally take the form of non-violent
psychological pressure through a vigorous and extensive interrogation.
However, when these do not attain their purpose, the exertion of a moderate98
measure of physical pressure cannot be avoided.
The contours of methods were detailed in a classified annex to the report and
have not been made public, but later reports by human rights groups and a 1999
decision by the Israeli High Court shed light on the types of pressure the GSS
employed.99 The methods reportedly included position abuse, imposing hoods on
subjects to produce disorientation, sleep deprivation, “shaking,” the use of
excessively tight handcuffs, and exposure to uncomfortable temperatures and loud
95 Id at para. 167.
96 See Ralph Ruebner, Democracy, Judicial Review and the Rule of Law in the Age of
Terrorism: The Experience of Israel — a Comparative Perspective, 21 B.U. INT’L L.J. 1
97 Report of the Commission of Inquiry into the Methods of Investigation of the General
Security Service Regarding Hostile Terrorist Activity (1987) [hereinafter Landau
Commission Report], excerpted in 23 ISRAEL L. REV. 146, 167-76 (1989), see Ardi Imseis,
Note, “Moderate” Torture on Trial: Critical Reflections on the Israeli Supreme Court
Judgment Concerning the Legality of General Security Service Interrogation Methods, 19
BERKELEY J. INT’L L. 328, 333-34 (2001)(citing Landau Commission findings that
confessions procured from Palestinians using physical pressure were used to obtain
convictions in military courts).
98 See Landau Commission Report, supra note 97, at para. 4.7.
99 See Cohen, supra note 39, at 81-82.
noises.100 The Israeli High Court ruled that while such techniques did not constitute
torture, they were nonetheless barred because they treated the suspects in an
‘inhuman and degrading’ manner.101
Department of Defense Methods of Interrogation
In the aftermath of the disclosure of photographs and reports of abuses at the
Abu Ghraib prison in Bagdad, the Defense Department released a series of
documents related to policy with respect to the interrogation of prisoners there and
at the U.S. Naval Station at Guantanamo Bay, Cuba, where detainees captured in
Afghanistan or elsewhere are being held as (unlawful) “enemy combatants.” The
released documents reveal deliberations about appropriate techniques for
interrogating persons the Administration had deemed to be unprotected by the
Geneva Conventions. The following sections analyze the interrogation methods that
were suggested or approved for use at the Abu Ghraib prison. The descriptions of the
various methods in the DOD documents are somewhat sketchy, however, and the
sensitive nature of intelligence methods and the lack of detailed information about
how the methods have been put into practice make comparison between these
methods and past practices difficult.
Approved Approaches for all Detainees
The list of approved methods for interrogation of terror suspects consisted, for
the most part, of methods described in FM 34-52.102 According to FM 34-52, “the
Geneva and Hague Conventions and the UCMJ set definite limits on the measures
which can be used to gain the willing cooperation of prisoners of war.” It does not,
however, elaborate on what the “definite limits” are,103 or the extent to which they
apply to persons who are not prisoners of war.104 Some of the techniques might be
100 Id. (citing GSS agents’ testimony at military hearings).
101 The Judgment Concerning the Interrogation Methods Implied by the GSS, the Supreme
Court of Israel, sitting as the High Court of Justice, adjudicating H.C. 5100/94, H.C.
102 Fay Report, supra note 18, at 16.
103 FM 34-52, ch. 1 (1987), noted that:
The psychological techniques and principles outlined should neither be confused
with, nor construed to be synonymous with, unauthorized techniques such as
brainwashing, mental torture, or any other form of mental coercion to include
drugs. These techniques and principles are intended to serve as guides in
obtaining the willing cooperation of a source. The absence of threats in
interrogation is intentional, as their enforcement and use normally constitute
violations of international law and may result in prosecution under the UCMJ.
104 But see AR 190-8para. 2(1)(d):
The use of physical or mental torture or any coercion to compel prisoners to
provide information is prohibited. . . . . Prisoners may not be threatened, insulted,
considered coercive for the purposes of a criminal prosecution, and would likely be
inadmissible were they used to elicit statements from an accused soldier prior to a
court-martial.105 Some techniques would very likely be unpleasant, possibly
contravening GPW art. 17 if used against POWs who refuse to answer, but it appears
to be the Army’s position that the approved techniques below do not breach the
law.106 Most of the techniques do not appear to violate any provisions of the Geneva
Conventions on their face, but military experts do not always agree among
themselves as to their propriety and boundaries.
The “approach phase” begins when the interrogator first comes in contact with
the source107 and continues until the prisoner begins answering questions pertinent
to the objective of the interrogation.”108 The effort generally consists of the
establishment of control over the source and the interrogation, establishment of
rapport between the interrogator and the source, and the manipulation of the source’s
emotions and weaknesses to gain his willing cooperation.109 An interrogator may
employ more than one technique simultaneously to elicit the desired information.
Direct. This approach involves the straightforward questioning of the detainee
without the interrogator adopting any of the tactics described below. The interrogator
simply asks the prisoner for the information, without concealing the interrogator’s
purpose or using deception of any kind, and is most effective when the prisoner is
cooperative. As long as there is no exploitation of circumstances to cause fear or
suffering, the Geneva Conventions’ prohibition on coercion would not seem to be
implicated. While it may be acceptable to exploit a detainee’s initial shock upon110
capture to obtain information, exploiting a detainee’s suffering by interrogating a
or exposed to unpleasant or disparate treatment of any kind because of their
refusal to answer questions. Interrogations will normally be performed by
intelligence or counterintelligence personnel.
105 See Law and Military Operations in Haiti, 1994-1995: Lessons Learned for Judge
Advocates 60 (Dec. 11, 1995).
106 See FM 34-52, ch. 1 (1987):
The use of force, mental torture, threats, insults, or exposure to unpleasant and
inhumane treatment of any kind is prohibited by law and is neither authorized nor
condoned by the US Government. Experience indicates that the use of force is
not necessary to gain the cooperation of sources for interrogation. Therefore, the
use of force is a poor technique, as it yields unreliable results, may damage
subsequent collection efforts, and can induce the source to say whatever he
thinks the interrogator wants to hear. However, the use of force is not to be
confused with psychological ploys, verbal trickery, or other nonviolent and
noncoercive ruses used by the interrogator in questioning hesitant or
107 FM 34-52 (1992) at 3-10.
109 Id. at 3-21.
110 See HOWARD S LEVIE, PRISONERS OF WAR IN INTERNATIONAL ARMED CONFLICT 109
wounded prisoner would be more problematic, and could constitute a breach of the
obligation to provide medical treatment.111 As noted above, it is generally agreed that
the Geneva Conventions allows any question to be posed to a prisoner of war, so long
as the prisoner is not unlawfully compelled to give an answer.112
Incentive / Incentive Removal. The incentive approach rewards the source
for his cooperation. According to FM 34-52, the approach is based on “the
application of inferred discomfort upon [a detainee] who lacks willpower.”113 It
The front-line unit which captures a prisoner of war will frequently, and
understandably, attempt to exploit that event by seeking to obtain information
from him concerning tactical positions and plans and order of battle before
evacuating him to the rear. Psychologically, this is probably the most fruitful
time to interrogate a prisoner of war because of the state of shock from which he
will be suffering, and his fear of the unknown, including how he will be treated
by the enemy in whose complete power he now so suddenly finds himself. The
capturing unit may seek such information without in any way violating the
provisions of the 1949 Convention, provided that it does not use any form of
coercion and provided that if evacuates the prisoner of from the combat zone as
soon as practicable.
111 GPW art. 15.
112 See id. at 106-109; LOW DESKBOOK, supra note 10, at 83 (citing 15 UNITED NATIONS
WAR CRIMES COMMISSION, LAW REPORTS OF TRIALS OF WAR CRIMINALS 101
n. 4 (1949)); Glod and Smith, supra note 47, at 145; ICRC COMMENTARY, supra, at 163-64.
113 FM 34-52 at 3-14. The 1987 version of the manual stated that the approach is
accomplished by “satisfying the source’s needs.” The 1992 version stresses that “[a]ny
pressure applied in this manner must not amount to a denial of basic human needs under any
circumstances,” id. at 3-14, possibly indicating a change in military doctrine. The
interpretation that privileges may be used as an incentive may stem from GPW art. 17,
which provides that POWs who refuse to provide the required information may be penalized
with “a restriction of the privileges accorded to his rank or status.” This has been interpreted
to apply to “those contained in the provisions concerning special privileges to be accorded
to officers, non-commissioned officers or persons with similar status.” See ICRC
COMMENTARY III, supra note 8, at 159. The following provisions are said to qualify:
Article 16: General clause referring to privileged treatment according to rank and
Article 39, paragraph 3: Special provisions for saluting in the case of officers;
Article 40: Wearing of badges of rank;
Article 44: Special clause regarding treatment of officers;
Article 45: Special clause regarding treatment of other prisoners of war
according to rank and age;
Article 49, paragraph 1: General conditions concerning labour: age reservation;
Article 49, paragraph 2: Exemption from work for non-commissioned officers;
Article 49, paragraph 3: Exemption from work for officers:
Article 60: Advances of pay;
Article 79, paragraph 2: Appointment of prisoners’ representative in camps for
officers and in mixed camps;
states that interrogators are not to withhold anything the prisoner is entitled to receive
by right under the Geneva Conventions, but may withhold privileges.114 Under this
view, it would be improper to use as an incentive something that is required for the
health or survival of the detainee, such as adequate nutrition and necessary medical
care. However, comfort items might serve as lawful incentives.115 For example, it
would be improper to withhold water or food until a prisoner begins to cooperate, but
it would not be improper to reward a cooperative prisoner with food he may regard
as a “treat.”
What qualifies as a “comfort item” or a “privilege” may be subject to debate, but
the language of the Geneva Conventions suggests that in addition to items necessary
for basic subsistence, items necessary for human dignity, such as clothing, would
make inappropriate incentives.116 However, it might not be considered inhumane or
degrading to compel prisoners to wear prison uniforms or clothing not to their
particular liking, so long as the clothing is adequate for conditions (GPW art. 27) and
the result is not degrading or dehumanizing.117 Such a practice might nonetheless
breach other provisions, for example, GPW art. 18 (POWs are entitled to retain their
personal articles other than weapons and military equipment not for personal
protection or identification); GPW art. 40 (POWs are allowed to wear their badges
of rank and nationality, as well as decorations); GPW art. 34 and GC 38 (right to
Article 79, paragraph 3: Appointment of officers to administrative posts in labour
Article 87, paragraph 4: Requirement that the Detaining Power may not deprive
a prisoner of war of his rank or prevent him from wearing his badges;
Article 97, paragraph 3: Provision of quarters separate from those of
non-commissioned officers and men for officers undergoing punishment;
Article 104, paragraph 2: Notification of proceedings against a prisoner of war;
Article 122, paragraph 4: Information transmitted by the Information Bureau.
Id. at 160-61. These restrictions, which apply only to the intentional refusal to give correct
data required of POWs under art. 17, are said to be the “outer limit of the pressure which
may be applied upon a prisoner of war incident to his interrogation.” See LEVIE, supra note
114 FM 34-52 at 3-14.
115 Id. (suggesting that “luxury items” might include candy, fruit, or cigarettes).
116 See Fay Report, supra note 18, at 10 (“The use of clothing as an incentive (nudity) is
significant in that it likely contributed to an escalating “de-humanization” of the detainees
and set the stage for additional and more severe abuses to occur.”).
117 The International Committee of the Red Cross (ICRC) reported as “ill-treatment” of
prisoners at Abu Ghraib a method of securing cooperation whereby prisoners
were “drip-fed” with new items (clothing, bedding, hygiene articles, lit cells,
etc.) In exchange for their “cooperation”. . . . Several had been given women’s
underwear to wear under their jumpsuit (men’s underwear was not distributed),
which they felt to be humiliating.
Report of the International 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 § 3.2 (Feb. 2004)
[hereinafter “ICRC Report”], available at [http://msnbcmedia.msn.com] (Sep. 1, 2004).
practice religion); GC art. 27 (protected persons are entitled to respect for their
religious convictions and practices, and their manners and customs).
FM 34-52 suggests that “realistic incentives” be used to establish rapport, such
as “a meal, shower, [opportunity to] send a letter home” for the short term, or for the
long term, repatriation or political asylum.118 Whether the use of “privileges” or
“entitlements” is appropriate under the Geneva Conventions may depend on the
circumstances. Prisoners of war and interned civilians are entitled to adequate
nutrition and hygiene and, except for civilian internees who are definitely suspected
of posing a security threat, to communicate with family members. Making these
privileges available (or varying their quantity and quality) based on the cooperation
of each detainee during interrogations could run afoul of the GPW prohibition on
disadvantageous treatment of any kind,119 as well as other provisions outlining
rights.120 For example, one U.S. court found that depriving POWs of any opportunity
at all to communicate with the outside world amounted to “torture.”121 However,
allowing a cooperative detainee the opportunity to send three letters home per month,
where other prisoners are only allowed to send the two required by GPW art. 71 and
GC art. 107, may be permissible.
States whose prisoners of war have been subjected to the use of incentives to
elicit information have criticized the technique as inhumane under the particular
circumstances. In describing the conditions to which the U.S. prisoners of war122
held by North Korea were subjected, the Defense Department told Congress:
118 FM 34-52 at 3-12.
119 See Glod and Smith, supra note 47, at 152. By way of example, the authors posit that
to interrogate subtly a hungry prisoner outside a mess hall would probably not
contravene Article 17; however, if all other prisoners were fed and the one being
interrogated was not, the action would be illegal because it would expose him to
what Article 17 terms “unpleasant and disadvantageous treatment.”
120 See 2003 Eritrea-Ethiopia Claims Commission (EECC): Partial Award on Prisoners of
War (Ethiopia’s Claim 4), reprinted at 42 ILM 1056, 1069 (2003) (Ethiopian POWs who
were provided inadequate housing, sanitation, drinking water, bathing opportunities and
food were entitled to compensation).
121 See Acree v. Republic of Iraq, 271 F.Supp.2d 179, 185 (D.D.C. 2003), vacated by 370
F.3d 41(D.C.Cir. 2004) (failure to state a cause of action).
No American POWs were permitted to notify their families of their capture and
current state of health. As a calculated part of the torture of the POWs and their
family members, Iraq refused all requests by both the POWs and the
International Committee of the Red Cross (“ICRC”) for notification of capture.
For the POWs, this was a special dimension of the torture and mental anguish as
they worried about their loved ones.
122 The Geneva Conventions did not apply de jure to the war in Korea as not all parties had
yet signed or ratified them. North Korea and the United Nations Command declared their
intention to apply the provisions in their treatment of prisoners of war. The Chinese
government took the position that United Nations troops were war criminals and thus not
entitled to treatment as prisoners of war.
Water was often scarce; bathing became difficult. Barracks were foul and
unsanitary. In the best of the camps the men behind the barbed wire were
sometimes given tobacco, a few morsels of candy, occasional mail. As will be123
noted, such items were usually offered as rewards for “cooperative conduct.”
A British report describing the lot of their POWs held by the Chinese noted that
supplies of food, medicine, and standards of accommodation the POWs received
depended “to a large extent on the degree of cooperation with their captors,” and
deplored the use of physical violence and solitary confinement as “incentives” for
cooperation.124 The report also described how the Chinese manipulated mail as an
inducement for cooperation, commenting that the refusal to allow POWs the chance
to write home to let their families know they were alive was a breach of the Geneva125
Emotional Love / Hate. Using the emotional approach, an interrogator seeks
to exploit the source’s emotions in order to override his rationale for resisting.
According to FM 34-52, love or fear for one person may be exploited or turned into
hate for someone else.126 For the emotional love approach, the interrogator focuses
on the source’s anxiety brought on by his predicament. The interrogator then makes
use of the love the source feels toward his family, homeland, comrades, etc., to
devise an effective incentive, such as communication or promised reunification with
the source’s family, a quicker end to the war to save his comrades’ lives, and so forth.
FM 34-52 states that a “good interrogator will usually orchestrate some futility with
an emotional love approach to hasten the source’s reaching the breaking point. This
places a burden on the source and may motivate him to seek relief through
cooperation with the interrogator.”
The emotional hate approach focuses on any genuine feelings of hatred, or
possibly a desire for revenge, the source may feel toward his country’s regime, his
immediate superiors, officers in general, his fellow soldiers or the like. The
interrogator might hint at an opportunity for revenge if the source cooperates and
divulges certain information.
The manipulation of emotions as described does not seem to violate any
prohibitions of the Geneva Conventions on its face. The success of the technique
relies on the arts of perception and persuasion, which most commentators agree are
not out of bounds. However, if the emotional love method, for example, were to
involve threats against the lives of family members, for example, its use could
contravene the Conventions’ prohibitions of threats.
123 Report by the Secretary of Defense’s Advisory Committee on Prisoners of War (1955),
reprinted in POW DOCUMENTS, supra note 31, at 643, 644.
124 Ministry of Defence, United Kingdom, Treatment of Prisoners of War in Korea (1995),
reprinted in POW DOCUMENTS, supra note 31, at 651, 652. The aim of the treatment was
not only to interrogate for intelligence information, but also to indoctrinate prisoners to the
communist way of thinking and cause them to make confessions and statements for
propaganda purposes. Id. at 654.
125 Id. at 660.
126 FM 34-52 at 3-15.
Fear Up Harsh / Mild. According to FM 34-52, the aim of the “increased fear
up harsh” technique is to convince the source who appears to be hiding something
that he does indeed have something to fear (not necessarily from the interrogator) and
that he has no option but to cooperate. The interrogator will behave in a heavy,
overpowering manner, using a loud and threatening voice, and perhaps throwing
objects around the room to heighten the source’s implanted feelings of fear.127 Of the
questioning methods approved by the manual, this approach is said to have greatest
potential to violate the law of war,128 presumably because it could lead to threats or
violence against the subject.
The ‘mild’ version of the ‘fear up’ approach seeks to exploit circumstances that
point to the interrogatee’s involvement in some activity that could bring harsh
punishment. The interrogator does not raise his voice or behave in an overbearing
manner; instead, he uses a “credible distortion of the truth” as a subtle means to
blackmail the subject into cooperating. The interrogator persuades the subject that he
has good cause for fear under the circumstances, but the interrogator might intimate
that he might be willing to conceal or alter the reported circumstances of the source’s
capture, as long as the source cooperates.
Reduced Fear. The “decreased fear down” approach is to be used primarily
on a source who is already in a state of fear. The technique involves calming the
source and convincing him that he will be properly and humanely treated, or that he
is safer in captivity than in combat, for example.129 Using a soothing tone of voice,
the interrogator attempts to create rapport with the source by engaging in small talk
until the source is ready to answer more pressing questions. It is difficult to conceive
of an implementation of this approach that would cause a violation of the
Pride & Ego Up / Down. The “pride and ego” approach concentrates on
tricking the source into revealing pertinent information through the use of flattery or
abuse. The pride and ego up variation is used on sources who feel inferior, especially
low ranking enlisted personnel or junior grade officers, who might respond to the
opportunity to demonstrate their intellect or importance. The interrogator speaks as
if he is very impressed with the accomplishments of the subject, engendering positive
feelings on the source’s part that he is finally getting the recognition he deserves. The
source may reveal pertinent information in order to solicit more laudatory comments
from the interrogator.
The “pride and ego down approach,” in contrast, exploits a source’s sense of
inferiority by attacking the source’s sense of personal worth, criticizing his loyalty,
intelligence, abilities, technical competence, leadership qualities, slovenly
appearance, or any other perceived weakness. The interrogator uses a sarcastic,
caustic tone of voice to express distaste or disgust. If the tactic works, the source will
become defensive and try to prove the interrogator wrong. In his attempt to vindicate
128 Id. at 3-16.
his pride, according to FM 34-52, the source will usually involuntarily provide
pertinent information.130 The approach could contravene the Geneva Conventions’
prohibition of insults and degrading treatment.
Futility. The “futility” approach is used to exploit the doubts and misgivings
already in the source’s mind to make him believe that it is useless to resist the
interrogation efforts. FM 34-52 describes multiple techniques for accomplishing the
desired effect.131 By making the situation appear hopeless, the interrogator allows the
source to rationalize his cooperation. This approach, as described, appears to be
permissible as “guile,” but extreme treatment designed to induce a feeling of overall
futility could cause mental suffering severe enough to raise questions under the
We Know All. The “we know all” approach involves making a source believe
that the interrogator already knows everything about the source.132 The interrogator
compiles all available data on the source and his unit. The interrogator then asks
questions to which he already has the answer. When the source refuses to answer or
provides an incomplete or false response, the interrogator himself supplies the correct
answer. The interrogator tries to convince the source that all information is already
known, so he may as well cooperate. When the source begins to give accurate and
complete information, the interrogator begins interjecting questions for which he
does not have the answers. This appears to be an unobjectionable tactic involving
more wile than coercion, and seems to be widely accepted as legitimate.
Establish Your Identity. In the “establish your identity approach,” the
interrogator insists that the source has been identified as an infamous criminal who
is merely posing as someone else to avoid punishment.133 The source may be tricked
into giving detailed information on his unit to establish or substantiate his true
identity in order to refute the interrogator’s allegations. The technique appears to
involve trickery that might be acceptable under the Geneva Conventions, but could
conceivably be applied in a threatening or coercive manner.
Repetition. The interrogator may repeat the same question many times in
order to get a hostile source to cooperate.134 The source becomes bored with the
procedure and may give more complete and candid answers simply in order to gain
relief from the monotony.135 Taken to extremes, for example, during prolonged
interrogations, it might be said to induce mental suffering
File & Dossier. The “file and dossier” approach is a variation of the “we
know all approach,” but uses a prop. Prior to the session, the interrogator prepares
130 FM 43-52 at 3-17.
132 Id. at 3-19.
134 Id. at 3-20.
135 Id. at 3-20.
a dossier containing all available information obtained from records and documents
concerning the source or his organization, possibly padding it with extra paper to
create the illusion that it contains much more information than is really there. The
interrogator confronts the source with the dossier, exploiting the known facts about
the source to convince him that resistance would be futile.
Rapid Fire. FM 34-52 describes the “rapid fire” approach as a “psychological
ploy based upon the principles that everyone likes to be heard when he speaks, and136
it is confusing to be interrupted in midsentence with an unrelated question.” One
or two interrogators ask a series of questions without allowing the source time to
answer them completely before the next question is asked. The source may become
confused and contradict himself, which the interrogator can exploit by confronting
the source with the inconsistencies. The source may reveal more than he intends in
attempting to clarify his answers.
Silence. The silence approach involves an interrogator who says nothing to
the source, but “looks him squarely in the eye, preferably with a slight smile on his
face,” in an effort to make the subject nervous and force him to break eye contact
first137. The source may begin to talk or ask questions to break the tension. When the
interrogator eventually begins to ask questions, the subject may feel relieved and
more willing to divulge information.
Require CG’s Approval
The methods listed below were authorized to be used under certain conditions
but required the approval of the Commanding General. These methods are not
described in FM 34-52, although some resemble techniques described as coercive by138
the CIA manual. Some appear to involve the “environmental control” techniques
of the sort that led to the revision of FM 34-52 in 1992,139 to cause “debility,”140 or
138 KUBARK Manual, supra note 62, at 85-86
Little is gained if confinement merely replaces one routine with another.
Prisoners who lead monotonously unvaried lives “... cease to care about their
utterances, dress, and cleanliness. They become dulled, apathetic, and
depressed.” And apathy can be a very effective defense against interrogation.
Control of the source’s environment permits the interrogator to determine his
diet, sleep pattern, and other fundamentals. Manipulating these into irregularities,
so that the subject becomes disorientated, is very likely to create feelings of fear
139 See Fay Report, supra note 18, at 16 (noting that detention policies in Iraq may have been
based on the outdated 1987 version of FM 34-52). According to the report, the 1987 version
could suggest to the untrained that the interrogator should control environmental factors,
citing FM 34-52 (1987) Chapter 3:
Establish and Maintain Control. The interrogator should appear to be the one
who controls all aspects of the interrogation to include the lighting, heating, and
fear. Some have argued that these techniques amount to torture, but Pentagon
officials reportedly said that such methods can be applied within the framework of
the Geneva Convention, as long as the prisoner’s basic physical needs are met.141
Change of Scenery Down. For this technique, the interrogator removes the
detainee from the standard interrogation setting to one that may be less comfortable,142
but would not constitute a “substantial change in environmental quality.” The
purpose of a change of scenery is to throw the detainee off balance psychologically.
As long as it is not seen as punishment for failure to cooperate, and the environment
does not fall below the standards for health and hygiene, a change of scenery would
not seem to violate the Geneva Conventions.
Dietary Manipulation. This technique involves changing the diet of a
detainee, not in such a way as to deprive him of food or water, affect his health, or
interfere with his religious practices. This could involve a substitution of cold rations
for hot, according to the DOD Working Group Report. The object is probably to
disorient the detainee by upsetting his regular routine.143
Environmental Manipulation. This method involves alteration of the
environment to create moderate discomfort, by means of adjusting the room
temperature or introducing an unpleasant smell, without bringing about conditions144
that would injure the detainee.
configuration of the interrogation room, as well as the food, shelter, and clothing
given to the source. The interrogator must always be in control, he must act
quickly and firmly. However, everything that he says and does must be within the
limits of the Geneva and Hague Conventions, as well as the standards of conduct
outlined in the UCMJ.
140 KUBARK Manual, supra note 62, at 92-93 (describing methods of inducing physical
weakness, including “prolonged constraint; prolonged exertion; extremes of heat, cold, or
moisture; and deprivation or drastic reduction of food or sleep”).
141 Department of Defense Background Briefing, May 14, 2004 (arguing that methods listed
as requiring approval, if applied correctly and with appropriate oversight, and in conformity
with the safeguards and as long as the baseline of the Geneva Conventions is maintained);
see Interrogation Guidelines, Sydney Morning Herald, May 15, 2004.
142 Department of Defense, Working Group Report on Detainee Operations 64, April 4,
143 KUBARK Manual, supra note 62, at 86: “The point is that man’s sense of identity
depends upon a continuity in his surroundings, habits, appearance, actions, relations with
others, etc. Detention permits the interrogator to cut through these links and throw the
interrogatee back upon his own unaided internal resources.”
144 General Counsel of the Department of Defense, Working Group Report on Detainee
Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and
Operational Considerations 64 (April 2003)[hereinafter “DODWG”], available at
Subjecting prisoners of war to inhospitable climate conditions has long formed
the basis for complaints about inhumane treatment in violation of the law of war.145
Purposeful exposure of prisoners of war to temperature extremes for interrogation
purposes has been found to be ill-treatment under the 1929 Geneva Conventions.146
Sleep Adjustment. The detainee’s ordinary sleep schedule is disturbed by,
for example, reversing the sleep cycles from night to day, but without depriving the
detainee of sleep. The method likely induces a feeling of disorientation similar to
“jet lag.” “Sleep management” for a maximum of 72 hours was approved for use at
Abu Ghraib with the commander’s approval. The DOD Working Group
distinguished “sleep management” from “sleep deprivation,” which it defined as
“[k]eeping the detainee awake for an extended period of time (allowing individual
to rest briefly and then awakening him, repeatedly) NOT to exceed four days in
succession.”147 The DOD Working Group noted, “as a matter of policy,” that other
nations consider sleep deprivation to amount to torture or cruel, inhuman, or
Sleep deprivation is an age-old method for weakening the subject physically.
However, the CIA manual recommended sleep disruption as a more effective method
Another objection to the deliberate inducing of debility is that prolonged
exertion, loss of sleep, etc., themselves become patterns to which the subject
adjusts through apathy. The interrogator should use his power over the resistant
subject’s physical environment to disrupt patterns of response, not to create
145 6 Journal of the Confederate Conference, 142 (February 24, 1863) (quoting Chicago
Times newspaper article report that twelve Confederate prisoners at Camp Douglas were
frozen to death). The following resolution was proposed:
Whereby it appears that twelve prisoners of the Confederate Army in the hands
of the Abolition authorities of the United States have been murdered by forcibly
confining them in a rigorous climate, in intensely cold weather, without any
adequate means for their protection and the preservation of their lives, against the
severity of the Northern climate into which they were forcibly taken: Therefore,
Resolved, That the President be requested to cause inquiry to be made by one of
our commissioners for the exchange of prisoners, or by such other means as he
may deem expedient, whether the facts stated in said article are true, and if true,
whether said fact, that he be requested to take proper steps to retaliate upon the
enemy for their worse than brutal murder.
146 See POW DOCUMENTS, supra note 31, at 291(discussing Trial of Erich Killinger and
Four Others (British Military Court, Wuppertal at Germany, 1945)).
147 DODWG, supra note 144, at 64.
148 Id. at Annex Summary of Analysis and Recommendations Detainee Interrogation
Working Group Pertaining to Unlawful Combatants Outside of the U.S., n.24 (citing
Concluding Observations of the Committee against Torture, U.N. Doc. A152/44, paragraphs
253-260; Judgment on the Interrogation Methods Applied by the GSS, Nos HC 5100/94, HC
4054/95, HG 5188/96, HG 7563197, HG 7628/97, HG 1043199 (Sup Ct of Israel, sitting as
the High Court of Justice, Sep 6, 1999; Ireland v. United Kingdom, 25 Eur. Ct. H.R. (Ser.
them. Meals and sleep granted irregularly, in more than abundance or less than
adequacy, the shifts occurring on no discernible time pattern, will normally
disorient an interrogatee and sap his will to resist more effectively than a149
sustained deprivation leading to debility.
Isolation. The detainee would be isolated from other detainees (for no longer
than 30 days150), but otherwise complying with the basic standards of treatment. The
DOD Working Group recommended isolation as an “exceptional”151 technique, and
noted that its use could implicate the definitions of torture or cruel, inhumane and
degrading treatment under CAT,152 and that, if applied to POWs, it would violate
articles 13 (prohibiting intimidation), 14 (requiring respect for the person), 34
(prohibiting coercion) and 126 (entitlement to access and basic standards of
Presence of Military Working Dogs. Introducing the presence of military
dogs without directly threatening action or endangering the detainee was suggested
as a method for creating anxiety but not terror or mental trauma.154 The DOD
Working Group framed the technique as an example of “increasing anxiety by use
of aversions,” which it flagged as inconsistent with policies followed by U.S. allies
and possibly violating the CAT.
149 KUBARK Manual, supra note 62, at 93.
150 The DOD Working Group notes that isolation for interrogation purposes is “not known
to have been generally used for . . . longer than 30 days.” DODWG, supra note 144, Annex
at 6. According to the CIA manual, isolation becomes ineffective after a certain period of
time, depending on the individual. See KUBARK Manual, supra note 62, at 87 (“Little is
known about the duration of confinement calculated to make a subject shift from anxiety,
coupled with a desire for sensory stimuli and human companionship, to a passive, apathetic
acceptance of isolation and an ultimate pleasure in this negative state.”).
151 The DOD Working Group recommended the following limitations for “exceptional”
techniques to be used on persons deemed to be “unlawful combatants”:
(i) limited to use only at strategic interrogation facilities;
(ii) there is a good basis to believe that the detainee possesses critical
(iii) the detainee is medically and operationally evaluated as suitable
(considering all techniques to be used in combination):
(iv) interrogators are specifically trained for the techniques;
(v) a specific interrogation plan (including reasonable safeguards, limits on
duration, intervals between applications, termination criteria and the presence or
availability of qualified medical personnel) has been developed;
(vi) there is appropriate supervision: and
(vii) there is appropriate specified senior approval for use with any specific
detainee (after considering the foregoing and receiving legal advice).
DODWG, supra note 144, at 70.
152 DODWG, supra note 144, Annex at 6 (noting isolation could transgress treaty
obligations unless carried out with proper safeguards).
153 Id. n. 15.
154 DODWG, supra note 144, at 65.
Sensory Deprivation. The DOD Working Group did not describe “sensory
deprivation,” but the CIA manual offered a discussion of it as a byproduct of solitary
confinement and isolation:
The chief effect of arrest and detention, and particularly of solitary confinement,
is to deprive the subject of many or most of the sights, sounds, tastes, smells, and
tactile sensations to which he has grown accustomed.155
Artificially limiting the extent to which a person is able to sense his
environment has been found to induce stress and when taken to the extreme, can
cause hallucinations and delusions.
The apparent reason for these effects is that a person cut off from external stimuli
turns his awareness inward, upon himself, and then projects the contents of his
own unconscious outwards, so that he endows his faceless environment with his
own attributes, fears, and forgotten memories. [One expert] notes, “It is obvious
that inner factors in the mind tend to be projected outward, that some of the
mind’s activity which is usually reality-bound now becomes free to turn to156
phantasy and ultimately to hallucination and delusion.”
The CIA theorized that
The more completely the place of confinement eliminates sensory stimuli, the
more rapidly and deeply will the interrogatee be affected. Results produced only
after weeks or months of imprisonment in an ordinary cell can be duplicated in
hours or days in a cell which has no light (or weak artificial light which never
varies), which is sound-proofed, in which odors are eliminated, etc. An
environment still more subject to control, such as water-tank or iron lung, is even157
Stress Positions. The DOD Working Group did not define stress position,
but suggested “prolonged standing” (not to exceed four hours in a 24-hour period),
which it described as lengthy standing in a “normal” position (non-stress). . .not
enforced by physical restraints.158 Prolonged standing is explicitly prohibited against
civilian internees as inhuman treatment.159 The use of stress positions has been found
to constitute torture or cruel, inhumane and degrading treatment in the past. The
KUBARK manual included prolonged standing in its discussion of “coercive
interrogation” methods, recommending that a subject’s “resistance is likelier to be
155 KUBARK Manual, supra note 62, at 87.
156 Id. at 87.
157 Id. at 87-88 (citing research that found “... that isolation per se acts on most persons as
a powerful stress . . . . The symptoms most commonly produced by isolation are
superstition, intense love of any other living thing, perceiving inanimate objects as alive,
hallucinations, and delusions”).
158 DODWG, supra note 144, at 65.
159 GC art. 100; see ICRC Commentary II, supra note 17, at (“. . .anything which attacks the
internees’ personal dignity without being necessary for security reasons, is to be banned as
sapped by pain which he seems to inflict upon himself” rather than by direct torture,
and suggests forcing the detainee to stand at attention for long periods of time.160 It
seems likely that the use of stress positions would violate the Geneva Conventions
for all categories of persons under their protection if were to induce the requisite
amount of suffering or humiliation, but the extent of suffering necessary to cross that
line is not firmly established.
Removal of Clothing. Depriving detainees of clothing probably serves to
divest them of their identity, but could endanger a detainees health depending on
environmental conditions. The DOD Working Group stated its goal as creating a
feeling of helplessness and dependence, but cautioned “it must be monitored to
ensure the environmental conditions are such that this technique does not injure the161
detainee.” Forced nudity without threats or sexual assault may not rise to the level
of an “outrage upon human dignity,” but would probably be considered inhumane
Removal of All Comfort Items, Including Religious Items. This
technique is a harsher version of the “Removal of Incentives” approach described
above. Whether it violates the Geneva Conventions depends on the nature of the
items considered to fall under the “comfort” rubric. The removal of religious items
could entail a violation of GC art. 27, providing that protected persons are entitled
to respect for their religious convictions and practices, or GPW art. 14, respect for
the person of the prisoner of war.
Forced Grooming. The DOD Working Group described forced grooming as
shaving of hair or beard (accomplished without risking injury to the detainee). It may
be viewed as a violation of the respect for the person under GPW art. 14, or as a
violation of a prisoner’s religious rights under GC art. 27. By itself, it would not
seem to constitute an outrage on human dignity,162 but could be seen as inhumane or
Use of Scenarios Designed to Convince the Detainee that Death or
Severely Painful Consequences are Imminent. This technique was listed as
a “Category III technique” that could only be used to interrogate the most
uncooperative detainees at Guantanamo with the approval of the Commanding
General.163 Category III techniques also included exposure to cold weather or water
(with medical monitoring) and “the use of a wet towel and dripping water to induce
160 KUBARK Manual, supra note 62, at 94.
161 DODWG, supra note 144, at 65.
162 In one case against Japanese non-commissioned officers tried by an Australian military
tribunal, a finding of maltreatment was aggravated by the fact that, after beating the
prisoners unconscious, the defendants had cut off their hair and beards. The court noted that
the prisoners were “Indians, of the Sikh religion, which forbids them to have their hair or
beards removed. . .” See Trial of Tanaka Chuichi, 11 LRTWC 62 (Australian Military Court,
Rabaul, July 12, 1946), excerpted in POW Documents, supra note 31, at 344.
163 See Memorandum, “Counter-Resistance Strategies,” Department of Defense Joint Task
Force 170, Oct. 11, 2002 [hereinafter “JTF-170 Memo”].
a feeling of suffocation.”164 There seems to be little doubt that such methods would
violate the Geneva Conventions,165 as constituting coercion, threats, and possibly
mental torture.166 As such, these techniques are also likely to be considered
inhumane by Geneva Convention standards.
164 Id. at 2.
165 A legal brief attached to the JTF-170 Memo did not analyze the techniques with reference
to the Geneva Convention because the Administration had determined they do not apply.
See id. at encl.1.
166 See KUBARK Manual, supra note 62, at 92. While listing “threats and fear” among the
coercive interrogation techniques, the CIA did not recommend threats of death:
The threat of death has often been found to be worse than useless. It “has the
highest position in law as a defense, but in many interrogation situations it is a
highly ineffective threat. Many prisoners, in fact, have refused to yield in the face
of such threats who have subsequently been ‘broken’ by other procedures.” The
principal reason is that the ultimate threat is likely to induce sheer hopelessness
if the interrogatee does not believe that it is a trick; he feels that he is as likely
to be condemned after compliance as before. The threat of death is also
ineffective when used against hard-headed types who realize that silencing them
forever would defeat the interrogator’s purpose. If the threat is recognized as a
bluff, it will not only fail but also pave the way to failure for later coercive ruses
used by the interrogator. (Internal citations omitted).