Last week: what is torture?
Last week we started to revisit the topic of torture as it had made the British news once again when Ghislaine Maxwell’s brother, Ian, spoke out against the apparently torturous conditions in her New York jail. Mr Maxwell reported his sister is being held unnecessarily under constant surveillance, in a 6x9ft (1.8x2.7m) cell with no natural light, and with terrible food & water rations.
However, as we discussed, deciding whether Ghislaine is being tortured is complex. The United Nations (UN) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) contains a complex definition of torture, which can be difficult to interpret. And, although the United States of America (USA) has signed the CAT, it has not signed the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). So the UN’s Subcommittee for the Prevention of Torture and Cruel, Inhuman or Degrading Treatment or Punishment (SPT) cannot inspect her cell within one of the USA’s many prisons and other places of detention.
Even if the USA was signed up to OPCAT, the SPT does not have published standards by which to judge whether - as Ian Maxwell claims - Ghislaine’s living space is indeed too cramped, too short on natural light & too lacking in privacy or if her food is really all that bad.
However, if Ghislaine was incarcerated in Europe, she would be held by a member state of the Council of Europe (CoE). All such states are automatically signed up to both its European Convention on Human Rights (ECHR) and its more detailed Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which, through inspections by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), tries to ensure that the ECHR’s prohibition of torture is respected.
How small is too small?
So then, if for some reason Ghislaine was extradited to Europe, she and her cell may just be lucky enough to be inspected by a delegation from the CPT, which does have well-known standards. Let’s consider purely its standard on living space, which is the most objectively assessable of the complaints raised by Ian Maxwell on her behalf…
According to the CPT, each detainee should have ‘6m² for a single-occupancy cell + sanitary facility’ or ‘4m² of living space per prisoner in a multiple-occupancy cell + fully-partitioned sanitary facility’. By this definition then, Ghislaine’s single-occupancy 6x9ft (1.8x2.7m) cell - at ~4.9m² - is too small. Whether or not it could be considered ill-treatment amounting to torture - as per either the UN’s definition or the deliberation of judges sitting at the European Court of Human Rights (ECtHR) - is a far more complex, thorny question.
How does nelson mandela come into this issue?
Within International Humanitarian Law, prisoners’ basic needs must be met and their human dignity maintained. And so, in 2015, the United Nations revised its 1955 Standard Minimum Rules for the Treatment of Prisoners, now known as the Nelson Mandela Rules - as the late President of South Africa was, in his earlier years, very famously ill-treated whilst behind bars.
These 122 rules provide guidance on all aspects of a prisoner’s journey from admission right through to release. Regarding solitary confinement, rules 44 and 45 state:-
44. For the purpose of these rules, solitary confinement shall refer to the confinement of prisoners for 22 hours or more a day without meaningful human contact. Prolonged solitary confinement shall refer to solitary confinement for a time period in excess of 15 consecutive days.
45. 1. Solitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review, and only pursuant to the authorization by a competent authority. It shall not be imposed by virtue of a prisoner’s sentence.
What about her lack of privacy?
We do not know the exact amount of time per day that Ghislaine is confined to her cell. We also do not know whether she is allowed day-to-day interaction with other detainees. However, in his interview Ian Maxwell stated the following:-
Ghislaine has been in prison now for nearly 250 days and counting… she is under 24 hour round-the-clock surveillance with ten cameras, including one that moves and tracks her movements. And on top of that there are four guards that are looking at her, and presumably there is another guard looking at the camera feeds. She is not allowed to move into the corners of her cell and she’s not allowed to be within two and a half feet of the cell door. That is her existence every day.
As we mentioned last week, Ian Maxwell intimated that - subsequent to Mr Epstein’s high profile suicide last year whilst in prison - Ghislaine is under constant surveillance due to the authorities’ fear that she too may try to end her life whilst in custody. However, he does not believe that she is a suicide risk, making this level of monitoring a ‘grotesque over-reaction’.
What should be done to prevent suicide in custody?
The World Health Organisation (WHO) has written guidance on suicide prevention in jails and prisons. This document explains that a thorough risk assessment process should be completed for every prisoner when they are admitted to the prison and advises on appropriate management techniques as and when necessary.
Adequate monitoring of truly suicidal prisoners is necessary, given that hanging can cause serious brain damage within three minutes and death within five to seven minutes.
The use of camera technology has become increasingly popular as an alternative to prison guard watches. Even so it still requires surveillance of camera footage and prompt action. The guidance say:-
Moreover, most inmates dislike constant observation if it occurs without emotional support and respect. Therefore, camera surveillance should never be utilized as a substitute for the officer’s observation of the suicidal inmate and, if used, should only supplement the direct observation of staff.
If Ghislaine’s New York jailors have conducted risk assessments that clearly identify her being high risk of suicide, then constant surveillance may be a necessity for her own safety. However, if Ian Maxwell’s claims are true and her jailors are acting purely out of an excessive fear for their own reputation, then her level of monitoring is truly excessive and could even be counter productive.
But what’s in a name?
However, let’s for a moment leave aside the varying degrees of both lack of privacy and cramped cells endured by Ghislaine and very many others of the world’s ~11 million prisoners. Instead, let’s consider the undeniable psychological and physical health consequences to keeping prisoners in any sort of secure environment where perpetual confinement and frequent observation are the orders of the day…
The COVID-19 pandemic lockdown has imposed on a massive percentage of the world’s free citizens has given us a tiny taste of the psychological sequelae of imprisonment. It is therefore unsurprising that detainees, especially those who have been kept in confined conditions, suffer from anxiety, panic, insomnia, paranoia, aggression and depression. These psychological symptoms in turn can increase the risk of self-harm and suicide.
Detainees kept under such conditions are also at higher risk of a range of physical effects such as joint and back pain, deterioration of eyesight, lethargy and cachexia.
Are such conditions ill-treatment? And could they be said to amount to torture, as defined by the UN’s CAT or as interpreted by the ECtHR’s judges? You try to decide. But either way, it’s neither necessary nor proportionate punishment for offending human beings in general to be kept in such conditions.
So what about her diet and exposure to sunlight?
Although the above symptoms may be caused purely by psychological stress, they cannot often be separated from the physical consequences of poor diet and lack of sunlight. And so next week we will focus on Ian’s claims that Ghislaine receives practically inedible food and is not given enough exposure to natural light.
How may such allegations be assessed?
What are the potential health consequences of such ill-treatments?
And are they ill-treatments that could be said to amount to torture?
Until next time…
Dr Esme MacKrill with Dr Rachael Pickering