Elaine Webster and Natasa Mavronicola
Infliction of physical pain, non-consensual touch, slopping out, subjection to loud noise, social isolation – these are all experiences within penal settings of subjection to, or deprivation of, certain sensations, smells and sounds which are deeply relevant for understanding the nature of dignity violations. From our perspective as researchers analysing the interpretation of the right not to be subjected to torture, inhuman or degrading treatment or punishment, in particular in European human rights law, we reflect on how a human rights lens has potential to illuminate why those involved in the governance and/or oversight of penal institutions should be concerned with the sensory. At the same time, we reflect on what those of us engaged in illuminating and concretising human rights can learn from bringing the sensory into focus; on how it can deepen our understanding of what is actually going on at the level of individual experience, and in turn shape our understanding of what falls within the purview of a legal norm such as the right not to be subjected to torture or inhuman or degrading treatment or punishment.
The way that individuals experience dignity respect or disrespect is a core concern in the penal context. In human rights doctrine, dignity language is particularly prominent in relation to the experience of prisoners and other detainees, including in immigration detention. The , dealing with the treatment of prisoners, state in the very first sentence of the very first rule that “all prisoners shall be treated with the respect due to their inherent dignity and value as human beings.”
This is a powerful, if uncertain, red line. A challenge for working with the dignity idea is that it doesn’t possess a neatly labelled, off-the-shelf meaning in human rights discourse (or any other discourse). International agreements and human rights treaties are not philosophical works; they only try to capture and convey a sense of shared, social values. To understand the substance of dignity from a human rights perspective then, we have to piece together fragments of these shared understandings with the texts, with the pronouncements of monitoring bodies about the circumstances before them, and with theoretical accounts of dignity’s meaning. When we do so, we see patterns and gain insight into connections between sensory experience and dignity, respect and disrespect, as we outline below.
While the idea of dignity may be associated with metaphysical properties, it is a multi-faceted notion and contemporary accounts embrace its richness. It is widely recognised that human dignity is bound up with embodiment, and that dignity violations are socially-embedded experiences. Besides the ways the sensory can play a key role in the distress and harm that certain circumstances can occasion, sensory experience can also form part of actual and symbolic communication of a person’s perceived exclusion from the human community.
The sensory dimensions of physical torture in detention, perhaps the prototypical violation of human dignity, are well documented in testimony and scholarship. One example is Elaine Scarry’s landmark study in the 1980s, The Body in Pain, which connected the wrongness of torture, not only to physical sensation but also to loss of voice; a perverse substitution of ‘voice’ with ‘sound’ (chapter 1). Scarry explains how this perversion becomes a key dimension of the experience, devised to impact not only the person subjected to torture but also those subjected to hearing it.
Eventually the pain so deepens that the coherence of complaint is displaced by the sounds anterior to learned language. The tendency of pain not simply to resist expression but to destroy the capacity for speech is in torture renanacted in overt, exaggerated form. Even where torturers do not permanently eliminate the voice through mutilation or murder, they mime the work of pain by temporarily breaking off the voice, making it their own, making it speak their words, making it cry out when they want it to cry, be silent when they want it’s silence, turning it on and off, using its sound to abuse the one whose voice it is as well as other prisoners (p. 54).
As Oliver describes it in discussing Scarry’s account alongside survivor testimony, enforced “linguistic paralysis” becomes an act of exclusion (Oliver 2011, p. 92).
The connection between sensory experience and inhuman and degrading treatment or punishment is not as well documented. This is partly because these wrongs have been subject to less attention than the prototypical experience of torture; they are often seen as less ‘severe’ and thereby less concerning. These forms of treatment, however, should not be seen as being of lesser importance or impact on those who are subjected to them, and sensory experience can be integral to what makes treatment or punishment inhuman or degrading in character.
In the European Court of Human Rights’ (ECtHR) case law we find inhuman and degrading treatment and punishment often characterised by subjection to humiliation and/or suffering through manipulation of, or insensitivity towards, sensory experiences. We see this in noise subjection or sensory destabalisation through hooding as part of interrogation practices, such as the ‘five techniques’ of interrogation (hooding, noise subjection, stress positions, deprivation of sleep and deprivation of food and drink) that were the subject of a finding of inhuman and degrading treatment in Ireland v. United Kingdom (Ireland v. United Kingdom, 5310/71, 18 January 1978). Concretely, the continuous use of a dark hood as part of the “five techniques” served to cause not only substantial discomfort and disorientation, but also profound distress; Survivors of these ‘five techniques’, who are often referred to as the ‘Hooded Men’ have recounted having a a hood placed over their heads and being thrown off flying helicopters, not knowing that the helicopters were flying only a short distance from the ground. The debilitating implications of such ‘techniques’ have more recently been recognised in findings of torture in the context of CIA rendition and co-called ‘standard interrogation’ and ‘enhanced interrogation’ practices (e.g. Al Nashiri v. Poland, 28761/11, 24 July 2014) and the enduring image of the Hooded Man in Abu Ghraib. We also see a recognition of the significance of sensory experience in the ECtHR’s attention to such things as the cumulative effects of airplane noise and constant loudspeaker announcements on a child in immigration detention (see A.B. and others v France, 11593/12, 12 July 2016), or carelessness regarding the impact of not being able to hear or to see as a result of impairment (Ābele v Latvia, 60429/12, 5 October 2017; Slyusarev v Russia, 60333/00, 20 April 2010). Moreover, non-consensual physical impingement on one’s body is a recurring concern in case-law, from a slap on the face (Bouyid v Belgium, 233380/09, 28 September 2015) to the performance of full body searches (Valašinas v Lithuania, 44558/98, 24 July 2001). Further, the ECtHR has repeatedly underlined, in the context of the imposition of segregation in penal settings, that “complete sensory isolation, coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment” (Onoufriou v Cyprus, 24407/04 10 December 2009, para. 69). Sensory experience does not constitute the full picture of dignity violations, but it can be a key aspect of treatment that reflects or communicates dignity and disrespect.
Recognising this is beneficial for furthering our understanding of dignity and its concretisation from within a human rights law perspective. In the context of human rights law – both legal instruments and case law – individual and communal experiences are filtered into the legal form, of proscriptive abstract statements and narratives retold for the purpose of judicial decision-making. As such, the totality of particular experiences is not – and cannot be – conveyed or appreciated in this forum. For this reason, we’ve found it interesting to reflect on how attention to sensory experience can help shape the delineation of dignity-respecting treatment beyond its partial rendering in legal texts, through a richer understanding of what is really going on at the level of an individual’s experiences of violations of the prohibition of torture, inhuman or degrading treatment or punishment.
Notably, there is substantial scope within the ECtHR’s case law on inhuman and degrading treatment for the recognition of the way in which (cumulative) sensory experiences, or lack thereof, may communicate, often in diffuse fashion, distinct from the “fanfare” (Luban 2014, p. 129) of torture, a denial of equal humanity; and how they may serve, intentionally or not, to wear someone down, or even break their spirit. Often this recognition is present, but goes unspoken – the sensory dimensions of one’s subjection to profound powerlessness, severe distress, or loss of hope, are often to be found between the lines of the Court’s reasoning – for example, when the Court sets out an acceptable square metres per person to avoid overcrowding (e.g. Muršić v. Croatia, 7334/13, 20 October 2016), or when it deems detention conditions to be ‘insanitary’ (e.g. Kalashnikov v. Russia, 47095/99, 15 July 2002), or describes prolonged solitary confinement as “one of the most serious measures which can be imposed within a prison” (e.g. A.B. v. Russia, 1439/06, 14 October 2010), para. 104, 112).
In a sphere of judicial decision-making where empathy can play a significant role (Heri 2021, chapter 7), it is worth asking: what would be the impact if human rights doctrine were to accommodate a more immersive sensory experience of the places and circumstances faced by individuals? How might such an approach inform judicial responses to carceral settings in particular? The “vividness of imagined experiences” (Webster 2018, p. 71) within judicial reasoning might be enhanced by a greater appreciation of sensory dimensions. While there seems to be something particularly relevant from a dignity perspective about the social gaze, the way that individuals see themselves, and the presence of onlookers in judgments surrounding torture, inhuman and/or degrading treatment or punishment, the significance of seeing need not negate the significance of sensing more broadly. There is space for these broader perspectives to enrich context-sensitive assessments (see discussion in Mavronicola 2021, p. 93-105) of when particular experiences fall within the scope of the prohibition of torture, inhuman and/or degrading treatment or punishment.
Foregrounding the sensory within human rights law perspectives could constitute a valuable resource, just as connecting the sensory to the language of dignity within criminological perspectives could constitute a valuable resource. And it goes without saying that, in scrutinising the experience of persons in detention, there is a continued need to engage creatively with all the resources we have available.