The amended Army Field Manual:Human Intelligence Collector Operations, has come under scrutiny by human rights organisations especially in relation to "Appendix M" which allows for isolation, sleep deprivation and sensory deprivation. These methods do not comply with the international law regulations prohibiting torture, cruel, inhuman or degrading treatment or punishment.

Amnesty International has raised concerns regarding the use of the amended The Army Field Manual and considers that it is ‘not compatible with the international prohibition of torture or other ill treatment’1. So, what is it about the application of methods outlined in the army field manual that may constitute a breach of international human rights and humanitarian law?

Background

The original Army Field Manual was issued under the Eisenhower Government who took office after World War Two and the Nuremburg Trials. In 2006, a few years after photos of Abu Ghraib were released and allegations of torture by U.S. soldiers became public, Senator John McCain proposed that interrogation methods employed by U.S. military and CIA be limited to conditions set forth in the Army Field Manual2. The new revised manual which is now in use under the Obama Administration was amended in 2006. President Obama has set up an Interagency Commission to find whether the Army Field Manual will apply to agencies such as the CIA, or whether they will be able to utilise different interrogation techniques than those set out in the Army Field Manual. The result is yet to be announced. In May 2007, Martin Schieinin, Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, welcomed the revision of the Army Field Manual as it had expressly prohibited the use of waterboarding which was something not addressed before3. He did note however, that there were still aspects which caused concern. Manfred Nowak, the Special Rapporteur on Torture and Martin Schieinin have recently made a public statement that they still hold some concerns and that they will not let the U.S off the hook just because there is a change in Government4.

Appendix M- “Separation”

Of all of the techniques outlined in the Army Field Manual, one the most troubling would have to be ‘Separation”. Upon authorisation, Appendix M allows for detainees to be ‘separated’ or held in isolation from other detainees. The reasoning behind this according to the Army Field Manual is to “deny the detainee the opportunity to communicate with other detainees in order to keep him from learning counter-resistance techniques or resistance to interrogations.” It goes on to say that this technique may not be employed on detainees covered by the Geneva Conventions, primarily prisoners of war. The objectives of this technique according to the army field manual are to “prolong the shock of capture…and foster a feeling of futility”.

Method of Separation

Physical separation is limited to 30 days of initial duration but may be extended with permission. ‘Field Expedient Separation’ is limited to 12 hours of duration at “the initial interrogation site. This limit does not include the time that the goggles or blindfolds and earmuffs are used on detainees for security purposes during transit and evacuation.” The manual then goes on to say that the detainee must be allowed only 4 hours of continuous sleep every 24 hours. The manual also suggests that ‘HUMINT collectors’ (Human Intelligence Collectors) employ combinations of ‘futility’, ‘fear-up’ and ‘incentive’ in conjunction with ‘separation’.

What are the concerns with this method?

The regulations outlined in appendix M do not comply with the Geneva Conventions, nor human rights protections as outlined in such international instruments as The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant of Civil and Political Rights and the Universal Declaration of Human Rights.

  1. Solitary Confinement: It has been widely documented that solitary confinement is a cruel practice which causes permanent psychological damage to those who have been treated in that manner5. Solitary confinement alone, even in the absence of brutality can cause emotional damage, hallucinations, delusions, depersonalisation and declines mental functioning6. It has also been documented that the circumstances surrounding the detention has a significant impact on the psychological damage experienced by the detainee, such as not knowing why they are being detained in such a way which is common in Guantanamo. Solitary confinement is banned under Common Article Three of the Geneva Conventions as it amounts to cruel, inhuman or degrading treatment or punishment. Manfred Nowak who is the U.N. Special Rapporteur on Torture addressed his concerns about detainees being held in solitary confinement in October of 2008 where he commented that it was ‘deplorable’ that individuals were held under those conditions7.

  2. Sensory Deprivation: Although the Army Field Manual says it prohibits sensory deprivation, what is not mentioned is the most troubling part of this section of The Manual. The Manual describes sensory deprivation as the ‘complete deprivation of all sensory stimuli’ (emphasis added). This play on words means that it is acceptable according to the Army Field Manual to deprive detainees of one or two senses at a time or all as long as it is not ‘excessive’ which of course is open to interpretation. The manual describes placing goggles (blacked out), earmuffs and blindfolds on the detainees. It also allows, for example, total visual deprivation for extended periods of time. The Geneva Conventions prohibit cruel treatment.

  3. Sleep Deprivation: Appendix M of the Army Field Manual allows for sleep deprivation which was described by Amnesty as constituting cruel, inhuman and degrading treatment8. The Army Field Manual describes the practice of not allowing detainees to sleep for more than 4 hours per night over 30 days, which can be prolonged upon approval. This technique has been used to break the detainee down both physically and psychologically. Sleep deprivation causes many psychological and physical issues such as headaches, high blood pressure, stress, lowered immunity, impaired verbal processing and complex problem solving. It has also been known to cause depression, irritability and a reduced sense of wellbeing. The Article 22 of the Third Geneva Convention outlines that a prisoner of war cannot be held in conditions that are prejudicial to their health.

  4. Fear-Up: Although not outlined in appendix M, Chapter 8 of the Army Field Manual outlines a technique called ‘fear-up’ which is used in conjunction with ‘Separation’ to create fear and hopelessness within the person detained. “In the fear-up approach, the HUMINT collector identifies a pre-existing fear or creates a fear within the source."9. It is also used in conjunction with ‘emotional love or hate approaches’ where the love of the detainee to their family is exploited to break them down. For example, the HUMINT collector may ask “You know what can happen to you here?” Then follow on with questions about his family such as “I wonder how your family is getting along without you”10. This practice of attacking the detainees family and engaging in activities to wilfully cause fear is cruel and inhumane.

Separate Categories for Detainees

Appendix M does not apply to those the US deems is protected by the Geneva Conventions, that is prisoners of war, only to those held as ‘unlawful enemy combatants’ which was a term created by the former US Administration in an attempt to prevent detainee protection under the Geneva Conventions. Under International Law, anyone detained in enemy hands must be either covered by the Third Geneva Convention which outlines Prisoner of War Status or the Fourth Geneva Convention under the laws of war which covers civilians. Where a person has been detained outside a theatre of armed conflict, then standards relating to the detention of prisoners and international human rights law apply. There is no intermediate status and no one can fall outside the law.

Human Rights Experts Voice Their Concerns

Many Human Rights organisations such as Amnesty International, Human Rights Watch, the National Lawyers Guild, the Centre for Constitutional Rights (CCR), Physicians for Human Rights (PHR) have all publicly raised their concerns. Hina Shamsi, an ACLU attorney stated that portions of the Army Field Manual were ‘deeply problematic’ and ‘would likely violate the War Crimes Act and Geneva’11.

Martin Scheinin has noted that “a comparison of the two recent versions of the Army Field Manual could leave the impression that the present manual neither authorizes nor prohibits, during the conduct of an interrogation, to slap a person being questioned, subject a person to extreme changes in temperature falling short of medical hyperthermia, isolate a detainee for long periods, make use of stress positions, or subject a person to questioning for periods of up to 40 hours without sleep.”12. He concludes that this constitutes a breach of the prohibition against torture and any form of cruel, inhuman or degrading treatment13.

References

  1. Historic decisions - President Obama’s orders on interrogations and CIA, retrieved http://www.amnesty.org.au/news/comments/20151/
  2. Later McCain allowed an exception to for the CIA.
  3. Martin Scheinin, Press Release, May 29, 2007. Retrieved 10th March, 2009 from http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-project/martin-scheinin-press-release-may-29-2007
  4. Stephanie Nebehay, ‘UN will scrutinise U.S. Counter Terrorism under Obama’, 10th March, 2009. Retrieved 10th March, 2009 from http://www2.canada.com/topics/news/story.html?id=1374351
  5. Craig Haney, Mental Health Issues in Long Term Solitary and “Supermax” Confinement, 49 Crime and Delinquency 124, 132 (2003); Thomas B. Benjamin & Kenneth Lux, Solitary Confinement as Psychological Punishment, 13 Cal. W.L. Rev. 265, 268 (1977); Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Walsh U.J.L. & Pol’y 325, 347 (2006); Human Rights Watch, Locked Up Alone: Detention Conditions and Mental Health at Guantanamo, June 9, 2008.
  6. Human Rights Watch, Locked Up Alone: Detention Conditions and Mental Health at Guantanamo, June 9, 2008, p.30.
  7. UN Press Conference by Special Rapporteur on Torture. Retrieved 11th March, 2009 from http://www.un.org/News/briefings/docs/2008/081024_Torture.doc.htm
  8. “Sleep Deprivation is Torture” SMH, 2006. Retrieved 19th March, 2009 from http://www.smh.com.au/news/National/Sleep-deprivation-is-torture-Amnesty/2006/10/03/1159641317450.html
  9. FM 2-22.3, C.8, p.10
  10. FM 2-22.3, Ch.8, p.11.
  11. Jeffrey S. Kaye, How the U.S. Army Field Manual Codified Torture – And Still Does, AlterNet. 1st March, 2009. Retrieved 10th March, 2009 from http://www.alternet.org/rights/117807/how_the_u.s.army's_field_manual_codified_torture--_and_still_does/
  12. A/HRC/6/17/Add.3. p.17
  13. A/HRC/6/17/Add.3. p.17