This week we finish our series pegged around the topic of torture, which made British news headlines in early Spring 2021 when Ghislaine Maxwell’s brother, Ian, spoke out against what he felt were torturous conditions in her New York jail. She is apparently being continually observed in a 6x9ft (1.8x2.7m) cell with no natural light and terrible food & water rations.
Previously: is sleep deprivation torture?
During this series we have asked ‘What is torture?’, ‘How small is too small?’ for a jail cell, and ‘What’s diet got to with it?’. And most recently we asked, ‘Is sleep deprivation torture?’ Over in Europe, a landmark case in the European Court of Human Rights (ECtHR) concluded that sleep deprivation, used as part of five techniques used in interrogation, amounted to inhuman and degrading treatment, but not torture. For Ghislaine over in the United States of America (USA) though, sleep deprivation as a consequence of suicide monitoring during the night could be an over-reaction and indeed counter-productive, unless that monitoring matched her level of risk. Whether sleep deprivation is inflicted for the purposes of interrogation, suicide surveillance or it is a result of other biopsychosocial factors from living in prison, it can have lasting health consequences that no human deserves.
Conclusions
Is it ill-treatment?
If Ghislaine is indeed being held in a 6x9ft (1.8x2.7m) cell with no natural light, under constant surveillance, and with terrible food and water rations as her brother reports, then could this amount to ill-treatment? According to the Nelson Mandela Rules (NMR), which the USA (as a member of the United Nations (UN) General Assembly) has to abide by, it could well be the case:-
Has she been held for 22 hours a day, for more than 15 consecutive days as defined as solitary confinement, so breaching rules 44 and 45?
Has her microwaved food lost its nutritional value to the extent that it is inadequate for health and strength, so breaching rule 22?
Has there been insufficient attention to minimum floor space and lighting in her cell, so breaching rule 13?
If the answer to any of these question is an objective yes, then it may fairly be said that she has been subjected to cruel, inhuman or degrading treatment.
But is it torture?
Moving on from an objective yes to the above ill-treatment questions, then - as torture is a subset of ill-treatment - it may be that Ghislaine is being tortured. Let’s see…
We can’t use the European Convention on Human Rights (ECHR) or its more detailed Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), as she is not being held in Europe. Even if we could use these conventions, they do not actually define the torture that they ban. Instead, ECtHR judges sometimes rule on whether a particular case of alleged ill-treatment could be said to amount to torture.
We can’t utilise the UN’s Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) and monitoring by its mandated Subcommittee for the Prevention of Torture and Cruel, Inhuman or Degrading Treatment or Punishment (SPT) to inspect her jail and look for evidence of torture, as the USA is not signed up to OPCAT. And even if USA jails did qualify for SPT inspections, this monitoring body does not have publicly available standards by which to judge cell size, nutrition, lighting and sleeping conditions.
However, the USA is signed up to the UN’s more basic Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). And according to CAT, torture requires a particular action to have:-
caused severe pain or suffering, whether physical or mental;
and
been intentionally inflicted for such purposes as:-
obtaining information or a confession from the victim or another person,
punishment for a suspected or actual deed committed by the victim or another person,
intimidation or coercion of the victim or another person,
or discrimination of any kind;
and
been inflicted by a public official or other person acting in an official capacity.
Pain or suffering arising only from, inherent in or incidental to lawful sanctions such as corporal or capital punishment is specifically excluded.
So, to consider whether Ghislaine’s conditions are torturous according to the letter (as opposed to the spirit) of the USA’s legal obligations under the international humanitarian law it has chosen to sign up to, we must establish affirmative answers to all of the following questions:-
Is it causing severe mental or physical pain or suffering?
Severity is a completely subjective concept. In healthcare, we use a scale from 0 (no pain) to 10 (agony) for people to rate their pain. The major downside to this though is that one person’s 10 is another person’s 5. So this severity stipulation within CAT is the major sticking point for our conclusion.
Is its purpose to get information or a confession, or else to punish, intimidate, coerce or discriminate?
It’s difficult for third parties like us to establish the exact purpose or purposes.
Is it not a lawful sanction of corporal or capital punishment?
This is easy to answer. Yes, it is most definitely not a lawful act of corporal punishment.
Is it authorised or conducted by a state official?
Again, this is fairly easy to answer. Yes, it will be being authorised by her state prison managers and it will be being carried out by state prison officials (eg guards and cooks), although it’s possible that some of the poor cooking is being done by fellow prisoners.
Letter of the law
So, the long and the short of it is that no, according to the letter of the law, Ghislaine is not being tortured.
Spirit of the law
But really, is it right that a certain action may be judged torturous in one country yet non-torturous in another? Why is it that nations including ‘leaders of the free world’ such as the USA may belong to Club UN without ratifying OPCAT? Even signing up to the more basic CAT is optional. After all, Council of Europe member states are obliged to sign up to the CPT on top of the ECHR.
And as an aside, considering that information obtained under duress is often inaccurate, it is surely concerning that the majority (the USA along with China and Russia) of the five permanent members of the UN Security Council (the UN body charged with maintaining international peace and security) are OPCAT signatories.
But let’s return to the fact that what is deemed torture in one state is deemed non-torturous in another. Where is the equivalence? Where is the justice? So many of the world’s 11 million prisoners eat terrible food and live 24/7 in cramped, dark cells - with the full knowledge of their country’s officials. Others are kept alone for months and years at a time. At the very least, this is discrimination against people who are deprived of their liberty. It is surely perverse that we need to argue about semantics in order to decide if these poor people are being tortured! Just how malnourished, lonely, cramped and light deprived does a human being have to be before the law will consider protecting him or her?!
A higher law
As we are a Christian faith-inspired NGO, we also look to an additional set of rules to guide our work - God’s Laws as set out in the Bible.
The Bible has much to say about how to live in just societies. In a nutshell, it rests on how we treat one another. In the New Testament, Jesus teaches his followers ‘The Golden Rule’ as well as ‘The Greatest Commandment’:-
“So whatever you wish that others would do to you, do also to them, for this is the Law and the Prophets.”
Matthew 7:12
Jesus replied: “‘Love the Lord your God with all your heart and with all your soul and with all your mind.’ This is the first and greatest commandment. And the second is like it: ‘Love your neighbour as yourself.’ All the Law and the Prophets hang on these two commandments.”
Matthew 22: 36-40
Loving our neighbours - that is, others living within our culture - as ourselves is a wonderful principle, regardless of one’s faith. Let’s ask ourselves, ‘Would I wish to live day in, day out in a tiny, dark cell? Would I want to eat bland, unhealthy food for breakfast, lunch, and dinner? And would I want to live my life under constant scrutiny?’ If our answers are ‘No, No and No’ then consider: ‘How can I not speak up whilst this is happening to my neighbours?’
At Integritas Healthcare, we advocate for those who are tortured or otherwise ill-treated because we believe that every human being is made equal with innate worth and dignity. We are called to treat everyone with the kindness and compassion we ourselves would want. Taking inspiration from Matthew 25:37-39, whatever we do in the service of others, we do in love of our fellow man and in our love for God:-
“For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.”… “Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.”
A glimmer of hope
We end this series with some recent good news that provides a glimmer of hope for prisoners in solitary confinement in the USA.
From next year, the State of New York has agreed to ban solitary confinement exceeding 15 days, so as to ensure compliance with the Nelson Mandela Rules. This new law will include screening for suicide risk and the development of rehabilitation units for those who would otherwise have been sent to solitary confinement.
It may only be one law, but it could be the start of a nationwide change in how detainees are treated within the USA’s penal system. It is also the beginning of being able to hold certain USA detention centres accountable for any discrimination against vulnerable patient groups who are disproportionately sent to solitary confinement and who are generally more poorly treated within many of the world’s penal institutions. So watch this space!
If you have been moved by this series on torture and you’d like to support our anti-torture & ill-treatment work, we welcome donations towards the Gerry Serrano Centre.