Torture made the British news once again last week when Ghislaine Maxwell’s brother, Ian, spoke out against the allegedly torturous conditions in her New York jail. She stands accused of helping the late sex offender Jeffrey Epstein - the former friend & associate of British Prince Andrew - to groom young girls for sexual exploitation.
Currently on remand whilst awaiting a trial scheduled for July, she has been persistently denied bail. Ian Maxwell intimated that, subsequent to Mr Epstein’s high profile suicide last year whilst in prison, she is under constant surveillance due to the authorities’ fear that she too may try to end her life whilst in custody. Apparently she is being continually observed in a 6x9ft (1.8x2.7m) cell with no natural light and terrible food & water rations...
To our mind, an obvious question lurking behind this storyline is…
What is torture and who gets to decide when it’s been committed?
Let’s find out…
What exactly is torture?
In 1988 The United States of America (USA) signed the United Nations (UN) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). This convention was adopted by the United Nations General Assembly as a way of upholding both Article 5 of the Universal Declaration of Human Rights (UNDHR) and Article 7 of the International Covenant on Civil and Political Rights (ICCPR):-
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. (Article 5 of UNDHR)
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. (Article 7 of ICCPR)
Article 5 of CAT defines torture in a very specific way:-
For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person 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, 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.
This sounds most comprehensive, doesn’t it? Is it in fact too comprehensive and, at the same time, too lenient? Because now we’re wondering…
How do we decide if someone else’s pain or suffering is severe?
Why is a torturous action suddenly non-torturous if it’s been done by people other than agents of the state acting in official capacities?
And why are certain undeniably painful and (some might say) barbaric actions - such as flogging, finger or hand amputation, and death by stoning - non-torturous if they are the outpourings of a particular country’s laws?
Alongside CAT, there is the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). This was produced subsequent to CAT, to ensure that State Parties - that is, countries signed up to CAT - could be held accountable to it:-
The objective of the present Protocol [OPCAT] is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.
Though as its name suggests, OPCAT is optional. So a country signing up to CAT but not OPCAT will not have the UN’s Subcommittee for the Prevention of Torture and Cruel, Inhuman or Degrading Treatment or Punishment (SPT) inspecting its prisons and other places of detention. The USA is yet to sign OPCAT. But even if it did qualify for SPT inspections, this monitoring body does not have published standards by which to judge knotty problems like how small is too small a prison cell.
What happens if we throw geopolitics into the mix?
As well as being an American citizen incarcerated in her own country, Ghislaine also holds two European citizenships - English and French. So it would be interesting to consider how this situation might be judged if she’d been arrested whilst in Europe…
In comparison to worldwide countries signed up to CAT, all European countries (except for Belarus, which - in common with the USA - still performs executions and so is ineligible for membership) are members of the Council of Europe (CoE), which means that they are 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 details a mechanism for ensuring that the ECHR’s prohibition of torture is respected:-
No one shall be subjected to torture or to inhuman or degrading treatment or punishment. (Article 3 of ECHR)
There shall be established a European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter referred to as “the Committee” [the CPT]). The Committee shall, by means of visits, examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment. (Article 1 of the Convention on the Prevention of Torture)
Therefore, unlike the UN’s optional buy-in to CAT and OPCAT, all CoE member states are obliged to comply with Article 3 of the ECHR and the Convention on the Prevention of Torture. In other words, every European prison outside of Belarus is fair game for a mandatory inspection by the CPT, which is to the Convention on the Prevention of Torture as the SPT is to OPCAT.
Moreover, the ECHR does not actually define the torture that it bans. Instead, judges at the European Court of Human Rights (ECtHR) play the ECHR as a living legal instrument when deciding if an alleged case of ill-treatment could be said to amount to torture.
So then, what does this mean for Ghislaine?
Next week we will start to explore issues relating to Ghislaine’s brother’s claims about her cramped cell, inedible food, constant surveillance, and lack of 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 week…
Dr Esme MacKrill with Dr Rachael Pickering