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On the Conceptual and Evidentiary Dimensions of Psychological Torture1 15 REVIEW Debility, dependency and dread: On the conceptual and evidentiary dimensions of psychological torture1 Ergun Cakal, LLM* its perpetrators. A review of the current Key points of interest: literature to map conceptual and evidentiary •• Psychological torture is prohibited shortcomings from an inter-disciplinary by international law, but is ill- perspective is therefore warranted. Method: defined and regularly interpreted as The relevant texts were identified through not amounting to torture. Mental a systematic full-text search of databases, suffering needs to be clarified namely HeinOnline, HUDOC, UNODS and and expanded upon as part of the DIGNITY´s Documentation Centre, with definition of torture. the keywords `psychological torture´, `mental •• Psychological torture is complex and pain and suffering´, `severity´, `humiliation´, lacks appropriate acknowledgement `interrogation techniques´, and `torture in evidence-based fora. methods´. The identified texts, limited to English-language journal articles, NGO Abstract: reports, court-cases and UN documents Background: Psychological torture is from 1950 to date, were then selected deployed to break and obliterate human for relevance pertaining to conceptual, resistance, spirit and personality, but it evidentiary, technological and ethical critique is rarely afforded sufficient attention. provided therein. Results/Discussion: Deficiencies in conceptualising, documenting Evidential invisibility, subjectivity of the and adjudicating non-physical torture suffering, and perceived technological mean that it is frequently left undetected control are the primary ways in which and uncontested by the public, media psychological torture methods are designed, and the courts, bolstering impunity for and how they manage to evade prosecution 28, Number 2, 2018 Volume TORTURE and consequently be perpetuated. Cognisant of the need for further research, pertinent questions highlighting the need *) Legal Advisor, DIGNITY - Danish Institute to develop approaches, sharpen standards Against Torture. 1 This review has significantly benefited from an and use a medical/psychological/legal ongoing REDRESS-DIGNITY collaboration on interdisciplinary approach are suggested. the topic. Whilst particular appreciation is owed to REDRESS, any errors and views remain the author’s own. The title is a reference to Farber, Definitions and Concepts Harlow & West (1957). Whilst it is important to view torture in its Correspondence to: [email protected] totality and to not disproportionately focus 16 REVIEW on certain methods to the exclusion of others threats), with the latter being the focus of (see Ginbar, 2017, p. 305), there exists this review. clear definitional and conceptual challenges Terminology used to describe, with respect to otherwise headline-grabbing dismissively or otherwise, the mental examples of psychological torture, e.g. suffering as produced by such methods ‘enhanced interrogation techniques’. reflect these intersections. Some notions, This section will broadly outline the main such as ‘evidence-free torture’, emphasise the conceptual approaches that have been or invisibility of the torture whether inflicted may be used to define and conceptualise through physical means or not. Terms used psychological torture. in the literature include but are not limited to: ‘non-physical torture’; ‘white torture’; Methods of torture and the mind and body ‘invisible torture’; ‘no-touch torture’; ‘clean dichotomy torture’; ‘evidence-free torture’; ‘hands-off Difficulties in adequately defining torture’; ‘mental torture’; ‘torture-lite’, and torture are magnified when it comes to ‘psychological torture’. psychological torture. As the physical and Sveaass points out that ‘it may be psychological may be viewed as two sides possible to describe extremely painful of the same coin, conceptually delineating situations where no direct or obvious between the two poses a difficulty in itself, physical pain is inflicted’ (2008, p. 315). For as we straddle the mind/body dichotomy. these situations, the label of ‘psychological According to Sveaass, the psychological torture’ remains apt given that ‘the impact of powerlessness, fear and brutality of psychological torture is very uncertainty for any victim of torture means much based on what we know of human that ‘there is no such thing as physical psychological function [‘personal agency, torture “by itself”’ (2008, pp. 313-314). In values, emotions, hope, relationships, and other words, physical methods of torture trust’], on information and knowledge also have strong psychological effects on a developed within the realm of psychology’ victim, and vice-versa. Rape is an oft-cited (Sveaass, 2008, p. 316). As the methods with example here as, although often involving a which this review concerns itself target an physical act, its objective is a psychological individual’s psychological integrity based one to ‘punish, intimidate and humiliate’ on psychological or pseudo-psychological (see Raquel Martí de Mejía v. Perú, 1996). concepts, the term ‘psychological torture’ Providing an additional distinction, Pérez- will be used throughout this review. Sales differentiates between two categories Notwithstanding this, the pedagogical nature within psychological torture, namely of this choice must be borne in mind. between pure psychological techniques (e.g. humiliation, threats) and attacks on the Definitional elements self through attacks on bodily functions (e.g. While international and regional human exhaustion, sleep deprivation) (Pérez- rights frameworks recognise that the use of Sales, 2017, p. 9). For present purposes, psychological methods in and of themselves psychological effects of torture (e.g. anxiety, can constitute torture (as one need only depression, PTSD) will be distinguished refer to the inclusion of ‘mental pain or from psychological methods (both targeted suffering’ under Article 1 of the Convention TORTURE Volume 28, Number 2, 2018 Volume TORTURE at the body, e.g. exhaustion, and ‘pure,’ e.g. against Torture (UNCAT)), there is a need 17 REVIEW to produce more workable understandings. to methods of psychological torture. It It is notable to find that its drafters did is beyond the scope of this review to not discuss at any length the meaning of further outline the definitional dynamics ‘mental pain or suffering’ but some agreed (interpretative variations, gaps, and on the difficulties therein (Nowak & limitations) with respect to psychological McArthur, 2008, p. 38). Nowak points to methods of torture in international law. the travaux preparatoires in arguing against What is clear is that, with the exception any notion that the ‘drafters intended a of the UN Special Rapporteur on Torture narrow interpretation that would exclude (UNSRT), there is a tendency, where conduct as intentional deprivation of food, specific conclusions have been reached by water, and medical treatment from the certain bodies, to fix a high threshold for definition of torture’ (2006, p. 819). While psychological torture violations. It suffices strict categorisations of forms of torture to say, however, that it remains unclear are avoided, it is clear in most jurisdictions why some factual matrices are found to that some psychological forms have been attract stronger criticism than others, and accepted as constituting torture or inhuman the inconsistency which reigns with respect and degrading treatment or punishment. to when exactly these bodies specifically Beyond a handful of cases, there condemn a psychological method as torture remains a superficiality to judicial reasoning appears to thwart any meaningful analysis. which warrants further dialogue with non-legal understandings here. Surveying Categorisation and typology relevant jurisprudence, Crampton proposes Another approach in striving for conceptual the following criteria as being useful, but clarity, amidst such ambiguities, has been not definitive, indicators of psychological through categorisation (or an extensional torture: i. actions that prevent the detainee definition), which involves providing a from maintaining stable mental health detailed list of techniques known to not (i.e. forced absorption); ii. significance of leave physical marks. Rejali provides four the psychological maltreatment; iii. design categories with which to conceptualise such and planning of the torture; and, iv. the techniques including: i. positional torture, perpetrator’s focus on affective bonds ii. exercising to exhaustion, iii. restraint to pressure the victim (2013). Similarly, torture, and iv. beatings (2007). Admittedly, another set of criteria entails: ‘i. the these are also known to leave physical relationship pattern between torture and marks such as bruises and nerve damage. tortured; ii. circumstances of the torturing Ojeda, defining the phenomenon as ‘the 28, Number 2, 2018 Volume TORTURE system (political persecution, ethnic intentional infliction of suffering without cleansing, law enforcement procedure); resorting to direct physical violence’, iii. Whether techniques target identity; iv. provides a relatively detailed starting point the severity of each experience from both here in his 13 categories: an objective and subjective point of view’ isolation (including complete or semi- (Pérez-Sales, 2017, p. 4). solitary confinement); psychological Notwithstanding its breadth, a debilitation (deprivation of basic preliminary review of international needs, forced physical exertion); spatial jurisprudence reveals that
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