Psychological Torture

Definition, Evaluation and Measurement

Pau Perez Sales

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317206460
• Topic: Psychology
• Subtopic: Psychiatry & Mental Health
• Index: Psychology

Sadly, it is highly likely that psychological torture is committed by governments worldwide and yet, notwithstanding the serious moral questions that this disturbing and elusive concept raises, and research in the area so limited, there is no operational or legal definition. This pioneering new book provides the first scientific definition and instrument to measure what it means to be tortured psychologically, as well as how allegations of psychological torture can be judged.

Ground in cross-disciplinary research across psychology, anthropology, ethics, philosophy, law and medicine, the book is a tour de force which analyses the legal framework in which psychological torture can exist, the harrowing effects it can have on those who have experienced it, and the motivations and identities of those who perpetrate it.

Integrating the voices both of those who have experienced torture as well as those who have committed it, the book defines what we mean by psychological torture, its aims and effects, as well as the moral and ethical debates in which it operates. Finally, the book builds on the Istanbul Protocol to provide a comprehensive new framework, including practical scales, that enables us to accurately measure psychological torture for the first time.

This is an important and much-needed overview and analysis of an issue that many governments have sought to sweep under the carpet. Its accessibility and range of coverage make it essential reading not only for psychologists and psychiatrists interested in this field, but also human rights organizations, lawyers and the wider international community.

SECTION 1

Premises

1

WHERE THINGS STAND: THE CONCEPT OF TORTURE AND PSYCHOLOGICAL TORTURE

The definition of torture in the legal arena

Torture is an ill-defined concept. Although many assume they understand it based on the influence of media and films, the fact is that the concept of torture (especially psychological torture) is elusive and blurred. This is not an accident. The UN definition of torture is concrete in certain aspects, but intentionally ambiguous in others, due to a belief that a narrow and overly operational definition of torture would allow governments to dodge the definition easily. Thus, this ambiguity served both a logical and political end.

Legislators seek a broad, qualitative definition of torture while leaving judges the discretion to interpret this definition in specific cases. While this approach may be legitimate, such general definitions undermine researchers’ need for a measurable definition of torture. It is undoubtedly difficult to build a common framework for understanding the anthropological, ethical, psychological and legal aspects of torture. The lack of a measurable definition has made the advancement of a comprehensive theory of torture mechanisms extremely difficult, while depriving courts of the medical and psychiatric tools needed to improve decision-making.

In a review Green et al. (2010) found that only thirty per cent of academic research on torture included a definition, and of those studies, two out of three sources cited the 1984 United Nations Convention against Torture (CAT), which is the uncontested legal reference point. Article 1 of the Convention defines torture as:

Any act by which (1) severe pain or suffering, (2) whether physical or mental, (3) is intentionally inflicted on a person (4) for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, (5) when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. (Numbers added for clarity)

The remaining sources use the definition of the World Medical Association.¹ Although most countries are signatories of the UNCAT, national legislation varies and sometimes includes a definition of torture that is not always compliant with the United Nations standard.²

The UNCAT definition has important operational problems, and the two main difficulties are defining severity of suffering and the motivational criteria (Table 1.1).

The fact that these criteria cannot be easily defined impedes the development of an operational definition of torture that could foster human rights research. This difficulty is reflected in the fact that half of the studies reviewed by Green et al. (2010) used broad categories that included torture victims among other victims of different kind of abuses, or made a single category of victims of torture ‘and other ill-treatment’ (Green et al., 2010).

The severity of suffering criteria is a problem specific to the UN definition; the World Medical Association avoided it. It is also excluded in the definition of the Inter-American Convention to Prevent and Punish Torture, which, drawing from the experience of its predecessor (the UNCAT definition), provided what may well be the best contemporary legal definition of torture. The definition agreed upon by the Inter-American Commission of Human Rights, though limited in its application to the Latin American countries that signed it, deserves special consideration because it goes much further than that of the UN:

For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish. (Article 2 of the convention)³

The definition explicitly recognises that (1) physical pain is not necessarily a requirement for torture; (2) the ‘severity’ of suffering is not a criterion because the emphasis must be on the methods used and not the consequences; and (3) the purpose of torture can be ‘to obliterate the personality of the victim’, or to ‘diminish his mental capacities’. In other words, it specifically recognises psychological torture even in absence of mental suffering, if there is an attack to the psychological integrity of the person. The Inter-American Court has affirmed that when the state is clearly involved, there is no need to know the ‘intentionality’ of the perpetrator, as this is sometimes impossible to elucidate (see discussion in Chapter 6). The Rome Statute of the International Criminal Court and, in the 1990s, the International Criminal Tribunals in the former Yugoslavia and Rwanda are also reference points that have established additional criteria for defining torture.

TABLE 1.1 Key problems in the UNCAT definition of torture

Criteria	Problems with the criteria
Severity of Suffering: Torture is an act that inflicts severe pain or suffering whether physical or mental.	• What is ‘severe’? How is severity defined? • How is ‘mental suffering’ defined? • When is ‘mental suffering’ so severe as to amount to torture?
Motivational Criteria: Torture is intentionally inflicted to obtain a confession, intimidation, coercion.	• How can we ascertain the alleged perpetrator’s ‘intentionality’? • How can the alleged perpetrator’s motives and purposes of be ascertained?

With few exceptions, torture is measured using questionnaires that typically include a checklist of torture methods, and then the total ‘number’ of torture methods suffered is calculated, as if all the methods were comparable.⁴ Thus, torture is often measured based only on the quantity and types of acts. A more refined tool would consider key variables of the torturing environment and the subjective experience of the survivor. For instance: (1) the relationship pattern between torturer and tortured; (2) circumstances of the torturing system (political persecution, ethnic cleansing, law enforcement procedure, etc.); (3) whether techniques target identity; and (4) the severity of each experience from both an objective and subjective point of view.

The boundaries of torture: the concept of Cruel, Inhuman and Degrading Treatment (CIDT)

There are excellent, up-to-date reviews on the concept of torture and Cruel, Inhuman and Degrading treatment (CIDT) in international human rights law and international criminal law (Nowak and McArthur, 2008; Rodley and Pollard, 2009; Vos, 2007). Here we will briefly review the most essential topics; Chapter 4 will focus on aspects directly related to the consideration of mental and psychological suffering as factors in the determination of torture allegations in the context of international law.

The definition of torture is closely linked to the legal debate about its boundaries. In 1969 the European Commission of Human Rights (ECHR) introduced the distinction between ‘torture’ and ‘ill-treatment’ and in different sentences established a progressive criterion, considering torture an ‘aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment’, a formula also adopted in 1975 by the General Assembly of the United Nations in their first Declaration against Torture. This distinction disappeared in 1984 when the UN finally approved the Convention against Torture (CAT) and other Cruel, Inhuman or Degrading Treatment or Punishment in which no distinction is explicitly made between ‘torture’ and ‘ill-treatment’ (see Article 1, above). Article 16 of the Convention equates torture and CIDT by stating that any state party is obligated to ‘prevent’ CIDT. However, the level of obligation by the signatory states is not the same. Although the Convention unequivocally prohibits both torture and CIDT under international law (even in times of exception or war), the obligation to criminalise torture and to bring the perpetrators to justice (Articles 4 to 9), the principle of non-refoulement (Article 3) and the prohibition of using evidence extracted by torture (Article 15) apply exclusively to torture and not to CIDT. It is, therefore, of the utmost importance to draw a legal distinction between torture and other forms of CIDT in the application of the CAT (Nowak, 2009).

The European Court (1969), when considering allegations of torture by the State of Greece against political opponents, set an historical precedent and established three levels of treatment (Table 1.2).

The Court established that:

• In Level 1 the key point is dignity and the act does not necessarily need to be intentional.

• Level 2 and 3 are indistinguishable with the only difference that 3 (torture) would be an aggravated form of 2 (inhuman treatment).

TABLE 1.2 Classical distinction between torture and cruel, inhuman and degrading treatment

Level 1. Degrading treatment	Treatment that grossly humiliates a person or drives him to act against his will or conscience.
Level 2. Cruel or inhuman treatment	‘Treatment that deliberately causes severe suffering, mental or physical, which in the particular situation is unjustifiable.’
Level 3.Torture	‘Inhuman treatment which has a purpose of obtaining information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment.’

The concept of ‘unjustifiable’ disappeared in all future definitions and has no application under current international law, although it was at the centre of the recent debate in the United States within the context of the so-called ‘war against terrorism’, where some scholars apply the principle of ‘necessity’ and ‘proportionality’ to advocate for the legalisation of torture under certain conditions (Allhoff, 2005; Dershowitz, 2008; Sussman, 2005)

This distinction was the basis of the well-known sentence Ireland v. United Kingdom that established the boundaries of torture for the European Court of Human Rights (ECHR) in the 1970s and the beginning of the 1980s (ECHR, 1978a). The tribunal considered a complaint by the Irish government regarding the case of a group of 228 Irish citizens detained and interrogated by the British Army between 1971 and 1974 and systematically subjected to five techniques⁵ (wall-standing, hooding, subjection to noise, sleep deprivation and deprivation of food and drink). The European Commission found that the combined use of the five techniques ‘did not occasion suffering of the particular intensity and cruelty implied by the word torture … [but] amounted to a practice of inhuman and degrading treatment’ (Weissbrodt, Aolain, Fitzpatrick and Newman, 2009).

The tribunal was asserting that there was a particular stigma attached to the term ‘torture’, and therefore it should be used selectively and cautiously (Nowak, 2009). For some authors (e.g. Spjut, 1979) this meant that, in practice, treatment should only be declared torture when ‘there were acts of extreme barbarity’ and excluded from torture ‘the systematically researched and applied subtle techniques of psychological manipulation which nullify the human will’. This reasoning criminalised the types of crude torture more commonly performed in ‘third world’ countries, while providing legal protection to the more subtle non-pain based forms of ill-treatment practiced in European democracies (Nowak, 2006).

After facing criticism, the court reconsidered their position in subsequent sentences. In the case of Ahmed Selmouni v. France (ECHR, 1999), the Court clearly changed its doctrine.⁶ It ruled that sustained beatings and humiliation leaving evidence of physical injury (acts that it would have previously categorised as only ‘inhuman’) did constitute torture. The Court also supported the qualification of torture based on psychological suffering (in the form of humiliation, debasement and instilling fear or anguish), noting ‘the regrettable failure to order a psychological report’. The Court stated that: ‘Having regard to the fact that the Convention is a living instrument which must be interpreted in the light of present-day conditions … the Court considers that certain acts which were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified differently in the future.’ The Court took the view that greater firmness was needed to defend the fundamental values of...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• List of tables
• List of figures
• Why this book: the need to define and operationalise torture in the present century
• SECTION 1 Premises
• SECTION 2 The voices
• SECTION 3 Current legal perspectives
• SECTION 4 Scientific approaches to defining psychological torture
• SECTION 5 Psychological torture techniques
• SECTION 6 Definition and measurement of psychological torture
• APPENDIXES
• Bibliography
• Index