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Understanding Sleep Deprivation As Torture and Other Ill-Treatment in International Law

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Understanding Sleep Deprivation As Torture and Other Ill-Treatment in International Law 11 SPECIAL SECTION: SLEEP DEPRIVATION Befogging reason, undermining will: Understanding sleep deprivation as torture and other ill-treatment in international law Ergün Cakal, LLM* Sleeplessness befogs the reason, undermines the the legal literature on deprivation of sleep, will, and the human being ceases to be himself, the definition, and prohibition of torture to be his own ‘I’. and ill-treatment, and its health impacts. — Solzhenitsyn in The Gulag Archipelago A number of texts were identified and analyzed based on contextual relevance: criminal justice processes as well as Key points of interest medical literature on health impacts. •• Sleep deprivation is prohibited The texts were identified via a search of by international law but there key legal and health databases using the is a dearth of informed analysis search terms “sleep deprivation,” “sleep regarding its individual (subjective) adjustment,” and “sleep regulation.” These and contextual (environmental) texts were limited to English-language complexities. journal articles, NGO reports, court-cases •• There is a considerable body and UN documents since 1950. They of medical knowledge to be were then analyzed for their approaches extrapolated in order to formulate to conceptualizing sleep deprivation from workable definitions and the perspective of assessing “severe pain limitations. and suffering” and the “diminishment of mental capacity.” Results/Discussion: Sleep deprivation is an ill-defined and, in turn, poorly documented method of Abstract torture, particularly when prolonged Background: Sleep deprivation is a or inflicted in combination with other TORTURE prevalent method of psychological torture. methods (e.g., threats) and conditions However, difficulties in documentation (e.g., disruptive environment or time Volume 29, Number 2, 2019 Volume have meant that it is not adequately of day). More nuanced legal principles, appreciated by courts and other quasi- informed by medical evidence, are lacking. judicial institutions such as UN treaty Applying these principles would sharpen its bodies. Method: This paper aims to review conceptualization. Keywords: Sleep deprivation, sleep *) Legal Advisor, DIGNITY - Danish Institute Against Torture, Copenhagen disruption, adequate rest, psychological Correspondence to: [email protected] torture, interrogation https://doi.org/10.7146/torture.v29i2.109620 International Rehabilitation Council for Torture Victims. All rights reserved. 12 SPECIAL SECTION: SLEEP DEPRIVATION Introduction Some categorizations treat sleep deprivation through the broader discussion Objective and Method of sleep disruption, which also includes sleep The use of sleep deprivation has been interruption, adjustment, and manipulation recognized by the international human as a consequence of other methods of ill- rights framework as a method of torture or treatment. The discussion here, however, is cruel, inhuman and degrading treatment or primarily focused on sleep deprivation. punishment (hereafter “other ill-treatment”). However, its temporal and contextual Definition and Purpose dimensions require a clearer definition. The There is no universally accepted legal related concept of “adequate sleep”—as a definition of what constitutes sleep safeguard (or, more broadly, rest) for those deprivation or what is sometimes referred under interrogation, arrest or detention— to as “prolonged” sleep deprivation. When is also ill-defined and lacks clarity. This the broader discourse on psychological paper aims to review the legal literature methods of torture is surveyed, the dearth on deprivation of sleep, the definition, and of any workable definitions of methods, with prohibition of torture and ill-treatment, and the recent exception of solitary confinement its health impacts. (now defined in the Nelson Mandela A desk review was undertaken based Rules), becomes apparent.1 In their work on primary (i.e., case-law and institutional on Guantánamo Bay, Physicians for Human reports) and secondary literature (i.e., Rights (PHR) and Human Rights First expert reports, commentaries, and meta- (HRF) put forward a definition of sleep studies) pertaining to the deprivation of deprivation as the deprivation of “normal sleep, whether intentional or consequential. sleep for extended periods through the Particular attention was given to criminal use of stress positions, sensory overload, justice contexts as well as medical literature or other techniques of interrupting on health impacts. The texts were identified normal sleep” (PHR & HRF, 2007, p. 22). via key legal and health databases (i.e., However, what is considered “extended HeinOnline, HUDOC, UNODS and periods” or “normal sleep” is not concretely DIGNITY’s Documentation Centre) using defined. Indeed, perhaps they cannot be the search terms “sleep deprivation,” “sleep defined due to contextual and subjective adjustment,” and “sleep regulation.” The factors, as later discussed. review encompasses legal and, to a lesser Medical literature depicts sleep extent, medical literature. deprivation with more clarity. The following These texts were analyzed for their categorizations are regularly used: “long- respective approaches to conceptualizing term total sleep deprivation (>45 h), short- sleep deprivation from both legal and term total sleep deprivation (≤45 h) and medical perspectives, particularly with partial sleep deprivation (<7 h in a 24 h the objective of assessing “severe pain and period)” (Leach, 2016, p. 17). Other terms suffering” and the “diminishment of mental in the literature generally include sleep capacity”. Whilst the approach taken is deductive, non-legal considerations not explicitly referenced in the text of court 1 See Cakal (2018) for a lengthier discussion on TORTURE Volume 29, Number 2, 2019 Volume TORTURE decisions could not be reviewed. conceptualizing psychological torture. 13 SPECIAL SECTION: SLEEP DEPRIVATION restriction, which is comparable with partial & Huffcutt, 1996; Pires et al., 2016; Wickens sleep deprivation. These are not, however, et al., 2015). Similarly, there is extensive consistently used across all studies. literature anchored in psychology on Historically, sleep deprivation has been coercive interrogations, which identify sleep used for a number of different objectives deprivation as a factor that induces false but, primarily, to cause stress and duress confessions (Davis and Leo, 2012; Kassin et for the purpose of coercing information al., 2004). and confessions (see Rejali, 2007, pp. 290- One review concluded that sleep 292). According to Pérez-Sales (2016), deprivation may cause “cognitive sleep deprivation is one method, among impairments including deficits in memory, others, to “prolong the shock of capture learning, logical reasoning, complex verbal and prevent the detainee from recovering, processing, and decision-making” and regaining control or making decisions observed that “sleep restriction of four hours … [and it] increases the perception of per night for less than a week can result pain and it diminishes the capacity to in physical harm, including hypertension, react in complex adverse situations” (p. cardiovascular disease, altered glucose 186). It is often applied in interrogation tolerance and insulin resistance” (PHR & settings. The detention centre with poor HRF, 2007, pp. 22-23). It concluded that the conditions is another context in which severity of these sequelae can indeed amount sleep deprivation, as a consequence of to torture or other forms of ill-treatment if sleep disruption, takes place. This is used for criminal investigation. often due to overcrowding, insufficient Whether the findings identified in tightly or no mattresses, and poor conditions of controlled scientific studies are applicable to transportation between the courts and the real-life situations is debated (see O'Mara detention facilities. Although case-law on 2015 generally). Detention and interrogation detention conditions will be touched upon, conditions are also not simulated as part of the context of interrogation is the primary these studies. The application of scientific focus of the below discussion. knowledge to an interrogation context, therefore, remains limited. Health Impacts Drawing the links between what is known While ethical considerations prevent a and the conditions of detention, Başoğlu scientific study from being conducted on speculates that: detained subjects, controlled medical studies in an experimental setting demonstrate that “Prolonged exposure to unhygienic or TORTURE sleep deprivation can lead to a number of unsanitary conditions, overcrowding, and health impacts. Studies, to varying degrees, restriction of movement, together with Volume 29, Number 2, 2019 Volume consistently find an association between deprivation of food, water, sleep, and medical sleep deprivation and increased anxiety, care, can pose a serious threat to life, even higher perception of pain, emotional in the case of a healthy person. Under response, and cognitive functioning (Leach, such conditions, a person would most likely 2016, p. 7). A multitude of reviews exist perceive a serious threat to their life. Sleep in medical literature, which support this deprivation is not only a potent stressor in analysis (e.g., Beattie et al., 2014; Griffith & itself but also likely to amplify the impact of Mahadevan, 2015; Lowe et al., 2017; Pilcher other stressors by making effective coping with 14 SPECIAL SECTION: SLEEP DEPRIVATION other threatening events difficult. In addition, a combination
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