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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 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 TORTURE Volume 28, Number 2, 2018 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

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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 ’ 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, ) (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

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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 TORTURE Volume 28, Number 2, 2018 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). ); psychological Notwithstanding its breadth, a debilitation (deprivation of basic preliminary review of international needs, forced physical exertion); spatial jurisprudence reveals that international disorientation (small, dark cells); law does not provide a uniform approach temporal disorientation (denial 18

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of natural light, erratic scheduling of and/or family members of death, non- activities); sensory disorientation repatriation, endless isolation and (inducing perceptions of sensory interrogation, vague threats); lies failure, narcosis or hypnosis); sensory and deception (re evidence against deprivation (, blindfolding, detainee, use of falsified documents darkness, sound proofing etc.); sensory or reports); occasional indulgences; assault (overstimulation) (bright demonstrating omnipotence lights, loud noise/music); induced and omniscience; degradation desperation (arbitrary arrest, indefinite (use of foul language, preliminary detention, random punishment, humiliation, confinement, denial of forced feeding, implanting sense personal hygiene, filthy environment, of guilt or abandonment); threats denial of privacy, stripping, removal of (to self or others, mock executions, clothing); enforcing trivial demands forced witnessing of torture); feral (forced writing, enforcement of treatment (forced nakedness, denial extremely detailed rules); heightened of personal hygiene, overcrowding, suggestibility, hypnosis and forced interaction, bestialism, incest); narcosis; self-induced physical sexual humiliation (forcing victim to pain (forced sitting on edge of chair witness or partake in sexual behaviour); of stool, forced upright kneeling and desecration (forcing victims to standing, stress positions); physical witness or partake in violating religious abuse (waterboarding, manhandling, practices (irreverances, blasphemy, mild physical contact such as grabbing, profanity, defilement, sacrilege); poking, pushing); exploitation of pharmacological manipulation (non- phobias (individual or religious phobias, therapeutic use of drugs or placebos). such as dogs); sexual humiliation (Ojeda, 2008, pp. 2-3) (forced stripping etc.) (Behan as quoted A similar categorisation is found in in Ojeda, 2008, p. 120) Behan’s work: Unless explicitly emphasised that they are disruption of daily rhythms and non-exhaustive, the patent danger with routines (night interrogation, disruption such categorisation, inter alia, is it becoming of sleep and biorhythms, early morning restrictive. As Pictet observed in his arrest, manipulating diet, sleep patterns, commentary to the Geneva Conventions as removal of all comfort items); isolation early as 1958: and (solitary However great the care taken in confinement, eliminating lights, sounds, drawing up a list of all the various odors, hooding); monopolisation forms of infliction, it would never of perception (constant bright cell, be possible to catch up with the physical isolation, barren environment, imagination of future torturers who restricted movement, monotonous wished to satisfy their bestial instincts; food, sensory overload, interrogation and the more specific and complete a in non-standard locations); induced list tries to be, the more restrictive it debilitation; exhaustion (starvation, becomes. (Pictet, 1958, p. 204) sleep deprivation, prolonged constraint, The Human Rights Committee (‘HRC’)

TORTURE Volume 28, Number 2, 2018 Volume TORTURE interrogation); threats (against self adopts the same position in saying that it is 19

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not ‘necessary to draw up a list of prohibited prolonged mental harm, a requirement not acts or to establish sharp distinctions found in the UNCAT. The latter point was between the different kinds of punishment explicitly made by the Committee against or treatment; the distinctions depend on the Torture (Conclusions and Recommendations: nature, purpose and severity of the treatment USA, 2006; hereinafter ‘CAT’). applied’ (Human Rights Committee, 1992, §4). This rings especially true if we are to Conceptions and their contestations: The legal accept the assertion, by one account, that versus the non-legal military technology is a decade or two more The ruling of whether a particular act or advanced than that of clinical or academic omission constitutes torture is ultimately research (Pérez-Sales, 2017, p. 331). a judicial one. It is, however, inevitably A narrow definition embracing informed by medical understandings categorisation, or enumeration, of due to the anatomical and psychological prohibited acts of psychological torture conceptualisations of pain. The dominance has been adopted by the United States of of blindly legal conceptualisations of torture America. In domestically implementing has been contested for being devoid of the UNCAT, the definition adopted by the this necessary non-legal perspective, for United States’ federal government presents its opaque focus on severity, bias towards an interesting case study. It refers to the physical, and its Euro-centrism. A psychological torture as the: number of experts, namely Pérez-Sales, ...mental pain or suffering refers to Sveaass and Başoğlu, have argued for a prolonged mental harm caused by better-informed definition which can help or resulting from: (1) the intentional instigate a more scientific understanding of infliction or threatened infliction of particularly psychological torture. Başoğlu, severe physical pain or suffering; (2) to reproduce one argument, explains that the administration or application, ‘a legal understanding of torture provides or threatened administration or protection from torture to the extent application, of mind altering substances that it comes closer to its psychological or other procedures calculated to formulation’ (2017, p. 492) and that disrupt profoundly the senses or the what is needed is a ‘broader definition of personality; (3) the threat of imminent torture based on scientific formulations death; or (4) the threat that another of traumatic stress and empirical evidence person will imminently be subject to rather than on vague distinctions … that

death, severe physical pain or suffering, are open to endless and inconclusive debate TORTURE Volume 28, Number 2, 2018 or the administration or application and, most important, potential abuse’ of mind altering substances or other (2017, p. 397). procedures calculated to disrupt Sveaass understands psychological profoundly the senses or personality. torture to be ‘the process by which (18 U.S.C. §2340(2)(B)) psychological pain is transformed into There have been two main criticisms made humiliation and dehumanisation, where the against this definition: that enumerating the essence of being human—namely personal actions unduly (to threats of imminent death agency, values, emotions, hope, relationships, for instance) narrows the understanding of and trust—is under attack’ (2008, p. 304; psychological torture, and that it requires see also Sveaass, 1994, p. 43). Pérez-Sales 20

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also attempts to posit a workable definition to act as an illusion of control purportedly as being ‘the use of techniques of cognitive, safeguarding the process from breaching the emotional or sensory attacks that target the pain threshold. conscious mind and cause psychological This was recognised as early as 1978 suffering, damage and/or identity breakdown in the case of Ireland v. the United Kingdom, in most subjects subjected to them; such where in his dissenting opinion, Judge techniques may be used alone or together Evrigenis, calling the majority out on their with other techniques to produce a reasoning, found that torture in the case was: cumulative effect’ (2017, p. 8). ... based on methods of inflicting The disconnect between the legal suffering which have already been and non-legal conceptualisations coupled overtaken by the ingenuity of modern with the dominance of the former clearly techniques of oppression. Torture no presents a problem for the advancement longer presupposes violence, a notion to of our understanding of torture generally, which the judgment refers expressly and and perhaps an even greater hindrance generically. Torture can be practised— with respect to psychological torture. and indeed is practised—developed in The minor role given to dignity and multidisciplinary laboratories which humiliation (linked to self and identity) claim to be scientific. (ECHR, 1978) which feature more prominently in non- Rejali points out that at best this is also legal understandings is problematic when sourced from the perceived humanism compared to ‘pain-producing techniques’ in and polyvalent use of technology. Pointing legal understandings (Pérez-Sales, 2017, p. to the general public value in electricity- 262). As shall be discussed later, severity has based technologies as an example, Rejali also proven a challenge for legal minds. argues that any ill-conceived use, say as constituting a torture method, is faced Practices and perpetuation of with a ‘civic doubt’ as to whether such psychological methods a technology can be as harmful given its This section will explore how psychological benefits to humanity (2003). methods are designed, enabled and Relatedly, revelations on the use of perpetuated under the guise of science music as torture (its coerced listening and lawfulness. The conceptual argument (loud or otherwise), playing, singing or persists as we draw on ‘lawful sanctions’, dancing) by the United States in places ‘intentionality’ and the difficulties with such as Guantánamo Bay promptly respect to distinguishing between torture spawned a debate amongst academics and and cruel, inhuman and degrading musicians alike. Music’s use as therapy treatment (CIDT). renders it difficult to think of its use as torture. Spielmann, a past president of Scientific complicity: The ‘benevolence’ of the European Court of Human Rights, technology has observed that certain uses of music The scientific milieu out of which these ‘can amount to torture, and lyrics can methods have sprung is also of import to be the vehicle of human rights abuses’ understanding the phenomenon. Technology, (2012, p. 371). Such statements have be it in the use of techniques, knowledge been seen to herald a change in perceiving

TORTURE Volume 28, Number 2, 2018 Volume TORTURE or personnel, has been used by state actors non-physical methods (Papaeti, 2013). 21

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Grant’s assessment is that there is nothing contained to a level below that of torture intrinsically harmful about music so (American Psychological Association, context is paramount. She prescribes: 2005, p. 2). Trust in science was co-opted Preventing the worst abuses of physical in order to appease public and institutional and mental integrity that can be inflicted . The wheeling out of the through music begins with the much phrase ‘safe, effective, legal, and ethical’ by more simple act of removing the sheen the Bush Administration was symbolic in from musical activities as in some way manipulating the perception of torture: intrinsically beneficial and morally good. … into an expert activity with “scientific We need to face up to both the possible techniques” and other accoutrements of negative health effects of different professionalism provided advantages to musical practices and the long-standing the torturers, conscious and unconscious. conjunction between music and processes The pseudo-scientific façade Jessen of humiliation and shaming (Grant, and Mitchell developed for the military 2013, p. 11). created a fig-leaf of cover that the torture was not the primitive and sadistic Perceived control: The perversion of ‘trust’ behaviour it really was. It also gave senior and ‘regulation’ military personnel a chance to escape The complicity of psychology and, perhaps accountability by turning torture over to a lesser extent, psychiatry, intentionally to “the docs”.” The Justice Department or not, in lending their expertise to state in effect created a “safe harbour” for intelligence apparatuses, from the beginnings interrogators. If a psychologist was of the Cold War to the ‘War on Terror’, is involved in the interrogation, by the mere widely accepted in the literature (Physicians fact of the psychologist’s involvement, for Human Rights, 2005; Pope & Gutheil, the “enhanced interrogation” was per se 2009; Soldz, 2011). It is important to “safe, effective, legal, and ethical”. There recognise the psychology underpinning the was no requirement that the psychologist psychological techniques of torture and even do anything of a protective nature. warfare, which has been well-documented His or her very presence, by executive elsewhere (Lavik, 1994; McCoy, 2012; definition, meant that the enhanced Suedfeld, 1990). interrogation was “safe, effective, legal, Soldz has, for instance, illustrated and ethical”. (Welch, 2010, p. 6) in some detail the role of psychologists For Kalbeitzer, the coerciveness of at Guantánamo Bay, in designing the interrogations, as designed by psychologists, TORTURE Volume 28, Number 2, 2018 environment to disrupt cohesion and was as simple as ‘designing the room in communication among detainees and such a way as to create an intimidating to foster dependence and compliance atmosphere’ (Kalbeitzer, 2009). Such instead, and also controlling the tailoring took into account the individual minutiae of interrogations to the point vulnerabilities of the subject. Başoğlu of prescribing the limited provision of also provides a comprehensive account of toilet paper to one detainee (2010). Yet, the centrality of ‘learned helplessness’ in to the American public, the role of mental CIA’s design of its torture regime (Reyes & health professionals were represented here Başoğlu, 2017). as ensuring that the pain threshold was For what it is worth, the US Senate 22

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confirmed that the CIA conducted no efforts at prosecution and prevention. ‘significant research to identify effective As a belated point of qualification, one interrogation practices, such as conferring must bear in mind that as much as Rejali with experienced US military or law alludes to the unacknowledged malleability enforcement interrogators, or with the of technology towards different ends, one intelligence, military, or law enforcements must also refrain from holding science services of other countries with experience to be ‘purely truth-seeking’ and devoid in counterterrorism and the interrogation of values. Moreover, Evans and Morgan of terrorist suspects’ (US Senate Select militate against torture as conventionally Committee on Intelligence, 2014, p. 20).. ‘unrestrainedly savage’, instead depicting it Observing this, O’Mara has deployed as having long been cruel yet controlled, a the term ‘cargo cult science’ to refer to such ‘carefully-regulated practice’ (1998, p. 58). ‘use of the language and even behaviours that bear some resemblance to science but Humiliation: Torture or inhuman and critically without the scientific method and degrading treatment? the intellectual commitments that follow Back-tracking to powerlessness, fear and from the adoption of the scientific method’ uncertainty, the relational dynamics, or the (2015, p. 30). Similarly, McCoy has also power imbalance, between the perpetrator explored the nexus between science and and the victim, particularly with the use impunity, and the means by which science of psychological methods must also be sanitises and assists in emboldening and considered. Whilst it is not exclusive to legitimating psychological methods of psychological torture, it may be argued torture, where he states: that its significance is distinct when The language of science can make compared to the use of physical methods. psychological torture seem like a series For Pérez-Sales, torture arises where, upon of carefully controlled procedures, this background of ‘powerlessness and sanctioned by rational experts who have suppression’, there occurs a violation of the aura of authority that comes with dignity and autonomy (2017, pp. 84-85, knowledge and credentials (McCoy, 261). When the phenomenology of torture 2012, p. 24). is surveyed further, we can see that the As a side note, McCoy’s work on the torturer demonstrates his power to exhaust, CIA’s development and propagation of disorient, create dependency, create fear psychological methods of torture extensively and humiliate his victim (Hauff, 1994, explores the relationship between impunity, p. 21). Such a violation may also involve history and public forgetting. The fragility self-betrayal, where a victim for instance is of collective memory means that publicised forced in the circumstances to do something cases of psychological torture are also to acknowledge their absolute helplessness susceptible to contestation and manipulation and submission. Doerr-Zegers, speaking by media and the state, which, according from experience on treating Chilean torture to McCoy, ‘tear at the threads of collective victims, states that the ‘psychological memory, making each exposé seem isolated, component of torture becomes a kind anecdotal, and ultimately insignificant’ of total theatre, a constructed unreality (McCoy, 2012a, p. 38). He goes on to of lies and inversion, in a plot that ends

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destruction’ (McCoy, 2006, p. 10). Guantánamo Bay, it was pointed out that: The notion of humiliation readily Treatment aimed at humiliating victims springs to mind here, which is may amount to degrading treatment conventionally associated with cruel, or punishment, even without intensive inhuman and degrading treatment, and pain or suffering. It is difficult to assess more specifically with degrading treatment in abstracto whether this is the case (Ireland v. United Kingdom, §167). Yet, as with regard to acts such as the removal shall be discussed below, psychologically- of clothes. However, stripping detainees informed systems of torture, such as those naked, particularly in the presence operated by the CIA, feature humiliation of women and taking into account as a part of an overall method as a cultural sensitivities, can in individual means of breaking the will and extracting cases cause extreme psychological information. It is upon this background pressure and can amount to degrading that Nowak as UNSRT unearthed the treatment, or even torture. The same centrality of ‘powerlessness’ to torture: holds true for the use of dogs, especially as the most serious violation of the if it is clear that an individual phobia human right to personal integrity and exists. (UN Commission on Human dignity, presupposes a situation of Rights, 2006, §51). powerlessness of the victim which usually Başoğlu, Livanou & Crnobaric, in their oft- means deprivation of personal liberty or cited study, conclude that stress indicators of a similar situation of direct factual power psychological methods including humiliation and control by one person over another. are similarly severe when compared to … A thorough analysis of the travaux physical methods. They posit this as follows: préparatoires of Art 1 and 16 CAT as well Ill treatment during captivity, such as as a systematic interpretation of both psychological manipulations, humiliating provisions in light of the practice of the treatment, and forced stress positions, Committee against Torture has led me to does not seem to be substantially the conclusion that the decisive criteria different from physical torture in terms for distinguishing torture from CIDT is of the severity of mental suffering they not, as argued by the European Court of cause, the underlying mechanism of Human Rights and many scholars, the traumatic stress, and their long-term intensity of the pain or suffering inflicted, psychological outcome. Thus, these but the purpose of the conduct and the procedures do amount to torture, thereby

powerlessness of the victim. (Nowak & lending support to their prohibition by TORTURE Volume 28, Number 2, 2018 McArthur, 2006, p. 150; 2008, p. 76; see international law. (Başoğlu, Livanou & also Nowak 2006, p. 832; Sifris, 2013) Crnobaric, 2007) This is also central for Manderson who sees This brings into question the feasibility the ‘experience of absolute powerlessness of equating humiliation with the lesser that reduces the victim, in their own eyes as category of inhuman and degrading well as their torturer’s, to an animal, a body treatment as most adjudicatory bodies without will or dignity of any kind … the continue to do. It must be said that, destruction of identity’ (Manderson, 2005, whether assumed or dismissed, explicit p. 640). Applying this conceptualisation mention of ‘powerlessness’ in the work in his assessment of the detainees at of relevant human rights bodies and 24

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international law is negligible. Given its analysis here when compared to the depth centrality, techniques of humiliation that of discussion on other constitutive elements seek to achieve a sense of powerlessness in also found therein such as severity of pain the victim and the victim’s family, and are and suffering and official capacity. During the all too often found to amount to be less drafting process, it seems that the United severe than torture, need to be seriously Kingdom’s proposal to include ‘gratuitous reconsidered, given the material differences torture’, conceivably meaning torture between the consequences that flow from without purpose or for self-gratification, was it, and any underestimation of pain and not adopted (Nowak & McArthur, 2008, p. suffering addressed. 75). As pointed out by Burgers and Danelius, Whilst it is accepted that the particular purposes explicitly stated in the definition stigma attached to torture must remain are based on state interest (1988, pp. 118- reserved for the most atrocious instances 119). This may mean that acts intended to of ill-treatment, the use of powerlessness humiliate or debase, those arguably closer to firms up an opening for ill-treatment to gratuitous, do not fall within the category of be treatment that is not simply physically state interest, and therefore do not amount brutal. Yet, the resort to severity in to torture. That said, even where private differentiating between torture and CIDT sadism predominates, there is ‘usually an has also been increasingly critiqued and element of punishment or intimidation’ abandoned. In Keenan v United Kingdom sufficient to satisfy the purposive element (2001), the European Court stated that under Article 1 (Burgers & Danelius, 1988, while ‘it is true that the severity of suffering, p. 119). Conversely, Article 2 of the Inter- physical or mental, attributable to a American Convention against Torture, particular measure has been a significant whilst listing similar purposes, includes ‘for consideration in many of the cases decided any other purpose’, hence not proscribing by the Court under Article 3 of the ECHR, purposes to ones based on state interest. there are circumstances where proof of the actual effect on the person may not be a ‘Enhanced Interrogation Techniques’ (EITs) and major factor’ (§113). Coupling this with the the ‘Five Methods’ Selmouni ruling, for the European Court, Despite experience disproving the efficacy ‘the level of pain inflicted is increasingly of coercive tools in eliciting reliable a less determinate factor, as acts it once information, the context of interrogation considered only “inhuman” could now rise poses a fertile ground for the infliction of to the level of torture, depending on the torture (Costanzo & Gerrity, 2009). This context and purpose for which physical force is front and centre of UNCAT Article 1’s is employed’ (Evans, 2002, p. 373; Selmouni purposive element. Yet, much in the vein of v. France, 1999). psychological methods of torture, abusive A brief note on purpose under the interrogations have not been adequately and UNCAT definition is warranted. It is widely explicitly proscribed by international law. interpreted to be inclusive of ‘such purposes In remedying this, by calling for a protocol as’ obtaining information or a confession, for non-coercive interviewing, the UNSRT punishment, intimidation and coercion or (Mendez) recently stated that: discrimination and that it is, therefore, not Torture and ill-treatment harm those

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memory, mood and general cognitive deprivation, isolation, sleep deprivation, function. Depending on their severity, forced nudity, the use of military working chronicity and type, associated stressors dogs to instil fear, cultural and sexual typically impair encoding, consolidation humiliation, mock executions, and the threat and retrieval of memories, especially of violence or death toward detainees or where practices such as repeated their loved ones’ (PHR, 2006, p. 1). suffocation, extended sleep deprivation Herman underscores that such and caloric restriction are used in ‘techniques of establishing control over combination. Such practices weaken, another person are based upon systematic, disorient and confuse subjects, distort repetitive infliction of psychological trauma’ their sense of time and render them prone (Herman, 2015, p. 69). Moreover, it is in the to fabricate memories, even if they are context of ‘highly controlled detention and otherwise willing to answer questions. interrogation environment used to exploit They are also detrimental to the helplessness and vulnerability’ engendering establishment of trust and rapport, and the ‘denial of autonomy and dependency compromise the interviewer’s ability to on interrogators’ that such techniques understand a person’s values, motivations must be viewed (Physicians for Human and knowledge — elements required for a Rights & Human Rights First, 2007, p. 6). successful interview. (UNSRT, 2016, §18) Similarly, this system has been described Accusatorial, protracted or suggestive as ‘ambiguous almost by design’ and the interviews overlayed with threats, ‘product of deliberate attempts to engineer manipulation and coercion are underscored tactics that provoke subtle forms of pain, as unethical, and depending on their relying on technological, psychological, and ‘degree, severity, chronicity and type, undue pharmacological innovations that maximize psychological pressure and manipulative the pain or discomfort of the detainee’s practices’ may be ill-treatment (UNSRT, experience while leaving minimal perceptible 2016, §44). At the very least, one must evidence of brutality’ (McDonnell, Nordgren accept the view of the CAT that ‘moderate & Loewenstein, 2011). physical pressure’, even when viewed as a Further on the point of ‘design’, it ‘lawful’ mode of interrogation by a state is axiomatic to say that trauma can be (i.e. Israel), is ‘completely unacceptable’ as ‘culture-bound’ and can differentiate it creates conditions leading to the risk of across individuals as the ‘meaning of torture or CIDT (CAT, 1994, p. 10). torture and trauma is shaped by social

Undoubtedly, the gravest contemporary support and religious, cultural and political TORTURE Volume 28, Number 2, 2018 regime of psychological torture, to be beliefs’ (Physicians for Human Rights & publicised at least, has been the United Human Rights First, 2007, p. 7). Another States’ abuses of prisoners, by the later primary point of discussion has been the disavowed use of ‘enhanced interrogation exploitation of cultural sensitivities of Arab techniques’, in various ‘black-sites’ around men regarding sexual taboos (e.g. forced the world and notoriously in Abu Ghraib nakedness, contact with a woman) and and Guantánamo Bay. In their seminal other phobias (e.g. relating to dogs), based report ‘Break Them Down’, Physicians on a text called The Arab Mind by Patai for Human Rights (PHR) lists the from 2002. employed techniques as including: ‘sensory Surveying the mentioned regimes of 26

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psychological torture, Reyes concludes that interrogation techniques’ as UNSRT, ‘accumulation of methods’ together with Rodley pointed out that ‘[e]ach of these ‘unpredictability and uncontrollability’ measures on its own may not provoke (an aggravating feature similar to severe pain or suffering’ but may do so in ‘powerlessness’) are distinct features here combination ‘applied on a protracted basis (Reyes, 2007, p. 591). In the same vein, of, say, several hours’ (UNSRT, 1997, §121). Başoğlu posits that the ‘most deleterious Therefore, he considered a certain degree of consequences stem from uncontrollable combining methods or their accumulation aversive events that are also unpredictable’ and duration as requisite before the severity (Başoğlu & Mineka, 1992, p. 199). threshold became relevant. Sleep deprivation The cumulative or combined nature of may also prove an apt case to illustrate these techniques warrants some expansion. the cumulative, as opposed to inherent, Contextually, some legitimate interrogatory dynamics here. In its criticism of Israel, the methods which may seem ‘minor’ or CAT did not categorically state that sleep ‘innocuous’ at first glance ‘become coercive deprivation, in all cases, amounted to torture if used over prolonged lengths of time’ but detailed certain durations over specific (Reyes, 2007, p. 599). That is not to say periods that did (CAT, 1998, §24). that this is exclusive to or necessary for Two European Court of Human Rights psychological torture. Also, isolated instances cases of Al Nashiri v. Poland (2014) and of methods such as mock executions, death Husayn (Zubaydah) v. Poland (2014) where threats or forcefully witnessing torture ‘EITs’ were found as having been used have been found to amount to torture. The in CIA black-sites in Poland make for thesis here rather is that such seemingly enlightening reading here. In Al Nashiri, the legitimate or innocuous means ‘form a victim was subjected to two mock executions system deliberately designed to wear and (one with a power drill), stress positions break down, and ultimately also to disrupt and ‘EITs’. The Court characterised these the senses and personality’ (Reyes, 2007, techniques as ‘deliberate inhuman treatment p. 599). In its latest report to the United causing very serious and cruel suffering’ States, the CAT explicitly recommended amounting to torture under Article 3. In that uses of sensory deprivation and sleep its assessment, the Court stated all the deprivation at Guantánamo Bay were measures were applied in a: violations of the UNCAT and should be premeditated and organised manner, abolished (CAT, 2014, §17). The UNSRT on the basis of a formalised, clinical has similarly assessed that ‘jurisprudence of procedure, setting out a “wide range both international and regional human rights of legally sanctioned techniques” mechanisms is unanimous in stating that such and specifically designed to elicit methods violate the prohibition of torture and information or confessions or to ill-treatment’ (UNSRT, 2004, §17). obtain intelligence from captured Furthermore, the UNSRT has also terrorist suspects. Those—explicitly seen it necessary to explicitly point out that declared—aims were, most notably, “to ‘the simultaneous use of these techniques psychologically ‘dislocate’ the detainee, is even more likely to amount to torture’ maximize his feeling of vulnerability and (UN Commission on Human Rights, 2006, helplessness, and reduce or eliminate his

TORTURE Volume 28, Number 2, 2018 Volume TORTURE §52). During his examination of ‘enhanced will to resist ... efforts to obtain critical 27

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intelligence”; “to persuade High-Value stand on their toes with the weight Detainees to provide threat information of the body mainly on the fingers”; and terrorist intelligence in a timely (b) hooding: putting a black or navy manner”; “to create a state of learned coloured bag over the detainees’ heads helplessness and dependence”; and their and, at least initially, keeping it there all underlying concept was “using both the time except during interrogation; physical and psychological pressures (c) subjection to noise: pending their in a comprehensive, systematic and interrogations, holding the detainees in cumulative manner to influence [a a room where there was a continuous High-Value Detainee’s] behaviour, loud and hissing noise; (d) deprivation to overcome a detainee’s resistance of sleep: pending their interrogations, posture”. (§§ 515-516) depriving the detainees of sleep; (e) Husayn (Zubaydah) v. Poland involved deprivation of food and drink: another CIA detainee who had been subjecting the detainees to a reduced subjected to the ‘EITs’, and at ‘least 83 diet during their stay at the centre and waterboard sessions in a single month’, pending interrogations. (§96) before being implicitly threatened with such When considering these methods, the a method again if he failed to comply. In its (now defunct) European Commission of assessment, the Court observed: Human Rights, focusing on the combined that this permanent state of anxiety psychological impacts, found that the five caused by a complete uncertainty about techniques constituted torture on the grounds his fate in the hands of the CIA and of the intensity directly affects the personality: a total dependence of his survival on physically and mentally [and that] the provision of information during the systematic application of the the “debriefing” interviews must have techniques for the purpose of inducing significantly exacerbated his already a person to give information shows a very intense suffering arising from the clear resemblance to those methods application of the “standard” methods of systematic torture which have been of treatment and detention in the known over the ages... a modern exceptionally harsh conditions. (§ 509) system of torture falling into the same A clear antecedent to this system was the category as those systems... applied ‘’ as used by the British in previous times as a means of Military firstly in , during obtaining information and confessions. , on individuals suspected to (ECommHR, 1976: Ireland v. United TORTURE Volume 28, Number 2, 2018 be involved with the Kingdom, § 512) (IRA). It consisted of: When it progressed to the European Court (a) wall-standing: forcing the of Human Rights however, it disagreed detainees to remain for periods of some and held that the ill-treatment only hours in a “stress position”, described amounted to cruel inhuman and degrading by those who underwent it as being treatment but not to torture because the “spreadeagled against the wall, with necessary severity and intensity of harm their fingers put high above the head that a finding of torture required was not against the wall, the legs spread apart established (according to the de minimis and the feet back, causing them to rule). In his dissenting opinion, holding that 28

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the treatment constituted torture, Judge It assessed this regime as amounting Matscher stated that: to violations of Articles 1 and 16 of the the more sophisticated and refined the UNCAT (CAT, 1997, § 257). Similarly, the method, the less acute will be the pain HRC assessed the Israeli use of ‘the methods (in the first place physical pain) which it of handcuffing, hooding, shaking and sleep has to cause to achieve its purpose. The deprivation to have been and continuing as modern methods of torture which in their being used as interrogation techniques, either outward aspects differ markedly from alone or in combination’ and that it violated the primitive, brutal methods employed Article 7 of the International Covenant on in former times are well known. In this Civil and Political Rights (HRC, 1998, §19). sense torture is in no way a higher degree of inhuman treatment. On the contrary, Assessment and documentation of one can envisage forms of brutality which psychological methods cause much more acute bodily suffering The preceding discussion has attempted to but are not necessarily on that account sketch out a number of inter-related elements comprised within the notion of torture. which obscure a thorough consideration By some accounts, this was a lost of psychological torture. Compounding opportunity to stamp out the contemporary these, perhaps more intentional, biases are uses of such techniques, and has been shortcomings in assessing and documenting linked to the reluctance of the Court to find allegations of psychological ill-treatment. a violation of torture from 1978 to 1996 When compared with the visibility of physical (Rouillard, 2005, p. 30). Recently reviewing signs of ill-treatment, the relative invisibility the case upon disclosure of new evidence, of psychological impact can frustrate the the Court decided not to change its original processes of evidence-seeking fora. conclusion (Ireland v. the United Kingdom, The ‘Break Them Down’ report observes 5310/71, 20 March 2018) primarily upon the health consequences of psychological the principle of legal certainty. Despite this, methods to be ‘extremely destructive’ in the in view of its subsequent statements as noted short and long term, including: above and in Selmouni v. France (1999, see … memory impairment, reduced §101), the Court would now clearly find capacity to concentrate, somatic a regime similar to the five techniques as complaints such as headache and amounting to torture. back pain, hyperarousal, avoidance, Two decades later, a combination of irritability, severe depression with interrogation methods comparable to the vegetative symptoms, nightmares, five techniques, for instance, as has been feelings of shame and humiliation, used by Israel on Palestinian prisoners, were and posttraumatic stress disorder … documented by the CAT in 1997 to include: incoherent speech, disorientation, (1) restraining in very painful conditions, , irritability, anger, (2) hooding under special conditions, (3) , and sometimes paranoia … sounding of loud music for prolonged depression, thoughts of suicide and periods, (4) sleep deprivation for nightmares, memory loss, emotional prolonged periods, (5) threats, including problems, and are quick to anger death threats, (6) violent shaking, and (7) and have difficulties maintaining

TORTURE Volume 28, Number 2, 2018 Volume TORTURE using cold air to chill … relationships and employment. Based 29

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on past experience, post traumatic stress bias (that is, a preference for the physical) disorder is likely to be common. (PHR, of decision-makers render this declaration, 2005, p. 9) despite increasing awareness, less than fully The main issue with respect to the realised in practice. evidentiary dimension is formulating Ultimately, however, the Istanbul Protocol approaches to best understand and conflates the physical and psychological document such effects. Most conventional methods and rejects a clear dichotomy understandings of torture involve the as ‘artificial’ (OHCHR, 2004, §145). For application of physical force; documentation Reyes, this is understood by the fact that, has, therefore, entailed primarily analysing from a holistic, evidence-based perspective, the ensuing physical marks and indicators. both physical and psychological torture and Thus, it is imperative to find processes, effects need to be anticipated. Yet, for him, legal and medical, on which evidentiary this somewhat undercuts the stand-alone corroboration can be formed, specifically importance of psychological torture and sensitive to psychological torture. obfuscates the understanding of the stand- Admittedly, specific means of alone impact of psychological methods (2007, documenting psychological torture remain pp. 600-603). Also, for Pérez-Sales, the limited. Psychiatric and psychological Istanbul Protocol needs to refine its conception sequelae are strong indicators of here, and that just because ‘the distinction psychological torture as it is of physical is artificial (i.e. made for epistemological torture. Yet, it is notable that psychological purposes), it does not mean that we shouldn’t methods are used in combination, either keep in mind that the ultimate target of simultaneously or sequentially, to reach torture is the conscious self, and that we a desired effect, as illustrated in the ‘five should reflect on contemporary torture and techniques’ and ‘EITs’ (see ICRC, 2007, the complex ways in which this conscious self p. 9). It has been argued that this makes it is attacked and controlled’ (2017, p. 308). ‘nearly impossible to determine the specific The logic between the act and the cause of psychopathology shown’ (PHR, effect (without overemphasising the effect) 2005, p. 70). is problematic. It is difficult to frame the question with sufficient specificity; concepts Psychological methods of torture and the like ‘causality’, ‘link’, and ‘relation’ though Istanbul Protocol useful can prove to be problematic as direct Importantly, the Istanbul Protocol accepts causality rarely exists in medicine. Medical that, since torturers increasingly seek to professionals work with percentages and TORTURE Volume 28, Number 2, 2018 conceal their crimes, ‘the absence of such likelihoods in merely identifying where physical evidence should not be construed there is corroboration and working with a to suggest that torture did not occur, patient’s statement. It is important to refrain since such acts of violence against persons from overemphasising the role of individual frequently leave no marks or permanent resilience. Therefore, requiring effect will scars.’ (OHCHR, §161; see also §§ 159, disadvantage resilient victims. While existence 259, 260). Yet, the unrealistic expectations of psychiatric sequelae remains a ‘powerful placed on medical experts who treat and indicator’ of psychological torture insofar document torture (Freedom from Torture, as ‘depression, anxiety and posttraumatic 2015) coupled with the persisting materialist symptoms’ can corroborate the treatment 30

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alleged (Pérez-Sales, 2017, p. 144), such the authors underscore that this methodology sequelae, however, can never be said to be builds on conventional descriptive and diagnostic of ‘any particular source in the testimonial documentation to encompass a way that a particular scar is diagnostic of a broader epidemiological approach: burn or electrical shock’ (Jacobs, 2008, p. The creation of a Torturing Environment 169). Moreover, in rejecting legal notions of requires the interaction of several causality in favour of relativity, Pérez-Sales elements: (a) sensorial and temporal points out that it is a fallacy to expect science disorientation and confusion of the to establish ‘an unequivocal causal relationship self- reflecting mind; (b) fear and terror between certain practices and their that starts from the outset of detention consequences in order to determine the limits and remains present throughout; (c) of torture’ (Pérez-Sales, 2017, pp. 274-275). humiliations and attacks on identity Difficulties arising out of the invisibility that contribute to eroding any sense of of impact lead the discussion to exploring control; and, (d) tension and beatings the purposive alternatives as well as that produce physical and emotional environmental assessments. For Pérez- exhaustion. The capacity of the victim Sales, evaluating torture environments for proper understanding, retrieval of can be a significant means to document memories, judgement and reasoning psychological torture. He defines the is progressively undermined. The torture environment as: techniques of emotional manipulation … a milieu that creates the conditions and cognitive distortion used during the for torture … made up of a group of interrogation complete the process. contextual elements, conditions and Soon strengthened by validation (see Pérez- practices that obliterate the will and Sales, Martínez-Alés, Gonzalez Rubio, control of the victim, compromising p. 2018), the Scale represents a leading the self. … In epidemiological terms, tool of documentation with respect to any element can be considered part of psychological methods. a torturing environment if it has been This is identified by its author as identified as likely to increase the relative complementing and compatible with the risk of severe physical or psychological Istanbul Protocol, primarily to bring to the suffering, if it is used within the context fore, and hence better appreciate, methods of torture or if it is employed with the of psychological torture. Whilst this is purpose of inflicting torture. … Given a promising and innovative proposal, it that methods aren’t used alone but as remains to be tested and used more widely. part of a system, the environment they Similarly, explorative studies into the operate in also needs to be holistically neurobiology of psychological torture also assessed. (2017, pp. 285, 330) promise to provide corroborative evidence In a study conducted by Pérez-Sales et al, through identifying biological markers Basque prisoners held in incommunicado (Ojeda, 2008). detention were interviewed at length in order to ‘elaborate a prototypical process of Subjectivity and severity: Obfuscation of pain, detention and ill-treatment which helped to bias, resilience understand the dynamics of an interrogation Whilst also tied to physical instances of ill-

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severity feature distinctively with respect understandings of severity also reveal a to psychological torture. Subjectivity is materialist or physical bias, ‘that the physical used here to refer to both specific factors is more real than the mental’ (Luban & Shue, pertaining to individuals claiming to have 2011, p. 823). Reyes compares the relative been subjected to torture as well as the ease of documenting the physical with the unfounded bias of decision-makers assessing psychological in the following passage: ‘severe pain’ to require the physical and Physical forms of pain and suffering downplaying the psychological. are more readily understood than In her seminal work, Scarry explains psychological forms, although physical that the ‘unshareability’ of pain underscores suffering may also be hard to quantify and the significance of considering subjectivity measure objectively—defining severe pain in assessing torture claims (Scarry, 1986). and suffering involves an assessment of Some commentators have argued that this gravity that is difficult to make, as these ‘unshareability’ is constant, for it is seen notions are highly subjective and may to be based on human impulses to be depend on a variety of factors, such as the self-serving in our assessments (in using age, gender, health, education, cultural ends-based reasoning) and having a hot- background or religious conviction of the cold empathy (not being able to register victim. (Reyes, 2007, p. 593) pain through witnessing or hearing about Attempts, by notorious figures in the it) (Nordgren, McDonnell & Loewenstein, Bush Administration, to obscure the 2011). Tied to this, the concept of conceptualisation of torture have entailed severity has been critiqued by prominent the unfounded claims such as ‘mental commentators as being ‘vague and open to suffering is often transitory, causing no interpretation’, ‘not susceptible to precise lasting harm,’ (US Senate Committee on gradation’ and ‘virtually impossible’ based on Foreign Relations, 1990, p. 17) or that these reasons. torture is ‘broken bones, electric shocks to Conversely, it must be pointed out genitalia … pulling your teeth out with pliers that medical professionals diagnose and … cutting off a limb … Is waterboarding administer relief when treating varying at the same level? I’d say probably not.’ levels of pain, physical and psychological, Similarly, it has been suggested that on a daily basis. It is instructive to note psychological methods such as solitary that the difficulties present with respect to confinement or sleep deprivation are more subjectivity have also been used as an excuse readily dismissed as we all experience to conclude ‘pain is a subjective experience and tolerate small doses of solitude and TORTURE Volume 28, Number 2, 2018 and there is no way to objectively quantify it’ sleeplessness in our daily lives, without ever (Stover, Koenig & Fletcher, 2017, p. 392). understanding the impact of the extremities Accordingly, theoretical problematising, as (McDonnell, Nordgren & Loewenstein, outlined below, must be approached with 2011). Commenting on this mentality, some degree of caution. O’Mara assesses this as being: The methods at hand challenge ‘reliance the all-too-common mistake of consulting on a solely objective analysis of suffering, due the contents of his consciousness to define to the difficulties in measuring intangible torture—not statute law, not international psychological injuries’ (Yarwood, 2008, p. treaties, not medical authorities, not the 336). Partially arising out of this, conventional scholarly literature. This leaves us with a 32

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problem: when we think of torture, our Biased preconceptions against defining thinking is deeply colored by images of psychological methods as torture are medieval cruelty: the rending of flesh, infamously illustrated by the European the breaking of bones, and pain made Court of Human Rights’ decision in Ireland visible through scar and scream. We do v United Kingdom as the five techniques not think of techniques that leave no were found not to ‘occasion suffering visible record of their presence, techniques of the particular intensity and cruelty that manipulate the metabolic and implied by the word torture’. This equated psychopathological extremes of body, torture with ‘acts of extreme barbarity’ brain, and behaviour, and which are, and not the ‘systematically researched and by any reasonable standard, torture. applied subtle techniques of psychological (O’Mara, 2015, p. 11; see also Posner, manipulation which nullify the human will’ 2004, pp. 291-292) (Spjut, 1979, p. 271). This brings into focus the discomfort This has been remedied, fully cognisant versus ill-treatment debate. Pérez-Sales of subtle mechanisms of torture, in the admits that it is ‘difficult to know why some definition of the Inter-American Convention to techniques [such as the use of music] and Prevent and Punish Torture which reads: not others would qualify as “uncomfortable”; Torture shall also be understood to the distinction between “torture” and be the use of methods upon a person “discomfort” seems to be merely semantic’ intended to obliterate the personality of (2017, p. 328). Interrogations, after all, the victim or to diminish his physical or regularly exploit specific vulnerabilities of an mental capacities, even if they do not individual in making them uncomfortable. cause physical pain or mental anguish. What is more, recognising that a vast (OAS, 1985, Article 2) proportion of torture victims prove resilient Here: i. pain is not required; ii. severity of (as high as 60% by one measure (Pérez- suffering is not required as the emphasis is Sales, 2017, p. 144), distinguishing the on methods not consequences; iii. purpose impact of psychological torture as opposed is to ‘obliterate the personality of the to discomfort is made additionally difficult victim’ or to ‘diminish his mental capacities’ (Başoğlu, 2009, p. 142). (Pérez-Sales, 2017, p. 3). As the measure Compounding this, psychological torture of severity is side-stepped, a purposive is defined as anything but torture by those measure of psychological torture, one more partaking in its infliction or legitimisation: conducive to capture the phenomenon, the torturer defines it as a technologically- can be applied. This also brings into play a controlled method designed to fall short number of elements Pérez-Sales deems to of severe harm (Sveaass, 2008, p. 304); be especially significant to the psychological politicians have narrowly defined it in times torture context, including: i. the relationship of national security issues as ‘enhanced pattern between torturer and tortured; interrogation’ (McDonnell, Nordgren & ii. circumstances of the torturing system Loewenstein, 2011, p. 94; see also Luban (political persecution, law enforcement & Shue, 2011, pp. 826-827); and, some procedure, etc.); iii. whether techniques domestic courts have avoided attributing target identity; and, iv. the severity of each torture to state authorities, if possible (see experience from both an objective and

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Taking into account the conceivably Conclusions: Room for reflection infinite iterations of psychological methods and research as designed to target an individual’s In light of the difficulties outlined in this particular values, it can be argued that the paper, international and national bodies complexity of subjectivity surpasses that need to better incorporate a medical of physical pain. Interpersonal elements, understanding, particularly a psychological such as the increased susceptibility to one, that is workable within the severity psychological harm for those with a paradigm. Questions arising from some of supportive familial environment (‘securely the key literature in this review include: How attached’) on the background of their trust can the law better reflect the phenomenon in humanity and benevolent worldview of psychological torture through the prism (Kanninen, Punamäki, Qouta, 2003), and of psychology, in terms of quantifying the use of an individual’s severe phobia of severity, duration and effects? How do we the dark during coercive interrogations have then achieve a confluence between the two been but two aspects documented in the fields with respect to this issue? To quantify literature (Lewis, 2005). level of pain, medical professionals resort A comparable complexity is confirmed to notions of ‘duration’, ‘frequency’, and in medical literature on trauma, as ‘intensity’. Other notions such as ‘dignity’, there ‘are infinite ways of reacting and ‘agency’, and ‘fear’ perhaps need to be psychologically processing the same event’ factored in more strongly. (Pérez-Sales, 2017, pp. 129-133). Pérez- At the very least, these must be Sales points out that DSM’s definition understood and engaged with by the law. of trauma has been refined from ‘an Related understandings also need to be extensional definition (“extraordinary accepted. The three decades of research, events”), to a subjective consequentialist some of which is outlined here, does not definition (“overwhelming emotions”), support the equation that the magnitude of and now to an objective consequentialist applied stress will result in a corresponding definition (“threat”)’ (2017, pp. 133-134). magnitude of impact. That is, little stress To mirror this development, torture would could lead to a significant impact, and exclude the objective severity test, avoid great stress to little impact. There are many an extensional definition, and consider variables (e.g. age, culture, health) to render ‘exposure to threat as the core feature’. general rules unsuitable such as a minimum How does, for instance, a male six hours of sleep for every 24, or that decision-maker fully appreciate the impact certain symptoms are exclusively linked to TORTURE Volume 28, Number 2, 2018 of sexual humiliation of a woman? (Arcel, certain acts. 2003) How does one articulate witnessing Given the shortcomings in the law, there the regular desecration of the Koran or exists enough space to develop and sharpen being prevented from praying? (Khan, standards, both regionally and internationally. 2010; McCoy, 2012) How can a decision- Identifying institutional, cultural and practical maker gauge the anguish of a third party shortcomings of professionals, namely police, such as a relative or witness who vicariously lawyers, judges, psychologists and doctors experiences the impact of torture? The etc., and their related institutions in this area questions abound but not for a lack of will be important in developing the necessary interest in the answers. tools of training and documentation. 34

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Relatedly, it has been pointed out psychological torture? What is the level of that what is required is to fix a common awareness that psychologically coercive understanding of psychological torture acts can amount to torture? How many which is defined based on strong research, domestic criminal codes fail to recognise which international and national bodies, the mental element? What training recognising its value, would adopt and tools can be developed to complement operationalise in their work. Specifically, or re-work the existing deficiencies in they need to clarify and expand on the knowledge and process? notion of ‘mental suffering’ as part of the Outstanding questions necessitating further definition of torture. To that end, two broad reflection and research, arising out of sets of issues can be identified as those that this review, point to improved dialogue impede this understanding, as follows: between of psychology and law, developing i. How do victims’ prior psychological and sharpening standards with respect to states (broader than the notion documentation and, in turn, prevention, of ‘condition’ to include personal prosecution and adjudication. values and other subjective qualities) influence assessments of psychological References torture’s impact? Can we, and if so American Psychological Association. (2005). Re- port of the American Psychological Association how do we, differentiate the trauma an Presidential Task Force on Psychological Ethics and individual is subjected to, due to their National Security. http://dx.doi.org/10.1037/ mere interaction with criminal justice e419822005-001 apparatus and processes, from anything Arcel, L. T. (2003). Inhuman and degrading treat- ment of women: psychological consequences. that amounts to ill-treatment of any In: Kjærum, M., Thelle, H., Xia Yong & Bi Xiao severity (torture or not)? Taking victims Quing (eds.). (2003). How to eradicate torture (pp. as one finds them is a basic principle of 951-984). Beijing: Social Sciences Documenta- civil and criminal law. At the very least, it tion Publishing House. Başoğlu, M. (ed). (2017). Torture and Its Definition in is not a mitigatory factor in international International Law: An Interdisciplinary Approach. law. Accordingly, factoring in a victim’s New York: Oxford University Press. https://doi. ‘predisposition to suffer’, or conversely org/10.1093/med/9780199374625.001.0001 ‘resilience’, raises complicated issues. Başoğlu, M. (2009). A multivariate contextual analy- sis of torture and cruel, inhuman, and degrad- ii. How do we overcome the existing ing treatments: implications for an evidence- hierarchies (where some physical torture based definition of torture. American Journal methods enjoy quicker recognition than, of Orthopsychiatry, 79(2), 135–45. https://doi. for example, humiliation)? Is a western org/10.1037/a0015681 Başoğlu, M., Livanou, M., & Crnobaric, C. (2007). psychological understanding of trauma, Torture vs other cruel, inhuman, and degrading particularly with respect to psychological treatment. Archives of General Psychiatry, 64, 277– torture, applicable and transferrable 85. https://doi.org/10.1001/archpsyc.64.3.277 Ba o lu, M., & Mineka, S. (1992). The role of uncon- to non-western jurisdictions? If not, ş ğ trollable and impredictable stress in postraumatic what are the issues arising for the stress responses in torture survivors. In: Başoğlu recognition of psychological torture in M. (Ed.). (1992). Torture and its consequences: those jurisdictions? What are the factors, Current treatment approaches (pp. 182-225).New York: Cambridge University Press. such as common misconceptions, Burgers, J.H, & Danelius, H. (1988). The United Na- professionals demonstrate in contributing tions Convention against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhu-

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