This Side of Silence. Tobias Kelly

all between torture, physical integrity, and cruel punishment.¹⁷ There was also some debate over whether torture was primarily a right that related to the integrity of the person or was linked to principles of due process.¹⁸ In the various drafts, the meaning of the word moved between being next to the right to life, on the one hand, and the right to a fair trial, on the other.¹⁹

      The wording of what would become Article 5 was eventually agreed to as “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The UK delegate, Lord Dukeston, a former Labour MP and Trade Union leader, was anxious that the inclusion of the word punishment would prohibit forms of corporal punishment practiced in British prisons and schools.²⁰ He was reassured, however, by Cassin that the phrase “cruel and inhuman” would mean that these forms of punishment would still be allowed. This was not enough, though, and the United Kingdom abstained from the initial vote on the article.²¹ The Cubans attempted at the last moment to replace the entire article with the phrase: “Every human being has the right to life, liberty, and integrity of person,” but they were voted down.²²

      The meaning of the word torture was left deliberately vague in the declaration, so as to be as inclusive as possible. The words cruel, inhuman, and degrading were also left undefined. As Charles Malik argued, it was “better to be on the side of vagueness than on the side of legal accuracy.”²³ For Malik, this meant that Article 5 could act as a general moral statement that explained “in an international instrument that the conscience of mankind, had been shocked by inhuman acts in Nazi Germany.”²⁴ For others, however, this vagueness was worrisome. A proposal that “no one shall be subjected to any form of physical mutilation or medical or scientific experimentation against his will” was vetoed by the United States, for fear that it might exclude compulsory vaccination and medical experiments on the insane.²⁵ The association of torture with judicial interrogation and punishment was almost certainly heavily in the minds of many of the delegates, and several proposed that torture should be prohibited “even when guilty of a crime.”²⁶

      Torture was also missing from the early drafts of the European Convention on Human Rights (Simpson 2001, 654–72). The final draft took Article 5 of the UDHR almost word for word, only omitting the word cruel. During the drafting process, Frederick Cocks, a Labour Party MP and prominent antiwar campaigner, gave an impassioned speech calling for the prohibition of “any form of mutilation or sterilization, or of any form of torture or beating,” as well as “imprisonment with such an excess of light, darkness, noise or silence as to cause mental suffering.”²⁷ Given later events in Northern Ireland, the condemnation of sensory deprivation seems somewhat ironic. Cocks expressed confidence that “Europe, clad in the shining robe of civilisation, treading under her feet this unclean and loathsome serpent, will not only live but will lead the world towards a higher future and a nobler destiny.”²⁸ Although not taking issue with Cocks’s sentiment, the other delegates found a certain amount of disquiet in his speech. The Scandinavians pointed out that sterilization was a widespread policy in their countries.²⁹ Another British delegate was worried, yet again, that Cocks’s suggestion might see the prohibition of corporal punishment.³⁰ A third British delegate thought the focus on such brutalities could “over balance” the convention away from its core objectives. As a result, the simpler and shorter formulation, based on the UDHR, was eventually decided on.

      From the late 1940s, the prohibition of torture and other forms of ill-treatment found its way into several international agreements. Article 7 of the International Covenant on Civil and Political Rights (ICCPR) mirrors the UDHR, with the addition of the prohibition on anyone being “subjected without his free consent to medical or scientific experimentation.” which had been left out of the Universal Declaration of Human Rights. The prohibition of torture was also included in what is known as Common Article 3 of the Geneva Conventions, which seek to regulate the conduct of armed conflict and the treatment of prisoners of war. However, torture is not singled out for particular attention by the Geneva Conventions; it is included along with a list of other prohibited acts, such as “violence to life and person … mutilation, cruel treatment, torture … [and] outrages upon personal dignity.”³¹

      The British approach to the signing of all these instruments was based on the assumption that they reflected the status quo of domestic law and practice. As legal historian A. W. Brian Simpson describes in his magisterial history of British involvement in the drafting of the UDHR and the European Convention on Human Rights (ECHR), the implicit assumption was that the “traditions of liberty” that human rights sought to express had their strongest rooting in English history (2001). It is ironic that the language of human rights was largely alien to the common law, to the extent that the first British diplomat sent to oversee the negotiations for the UDHR had never heard the term before (Simpson 2001, 38). Human rights, though, were still understood in terms of Britain exporting its traditions to the rest of the world.

       The Wars of Decolonization

      The impact of the international human rights agreements that the United Kingdom ratified in the late 1940s and early 1950s was minimal domestically, with very few people taking notice of what was essentially seen as a foreign policy issue. It is important to note that the ECHR could be applied to the British colonies, if they agreed to the extension. Many, if not all, did so. Much of the colonial world would have been amused by claims that the prohibition of torture or other forms of ill-treatment was an integral part of British policy and practice. As Britain’s anticolonial wars erupted in Kenya, Malaya, and Aden, interrogation, mass arrest, and detention without trial were widely used.

      In 1950s Kenya, for example, the Mau Mau rebellion against British colonial rule was met with tactics that included forced confessions, shoot to kill, mass executions, and large-scale internment (Anderson 2005). For much of the colonial administration, and a great deal of British public opinion, this was simply what was necessary to preserve the Empire and put down a brutal uprising. There was some opposition, not least from the Kenyans themselves but also from the British-appointed judiciary, missionaries, and a few MPs. By and large, the language of torture was rare, and very few references were made to international human rights agreements.³² Instead, the dominant image was that of the gulag or concentration camp (Anderson 2005). Common references were made to “extreme pressure,” “maltreatment,” “serious beatings,” and the “third degree.”³³ When the International Committee of the Red Cross visited the Kenyan detention camps in 1957, it noted the use of corporal punishment and “drew attention to its severity.”³⁴ Following specific allegations of the “beating up of prisoners” and the offering of financial rewards for the killing of Mau Mau, Captain G. S. L. Griffiths was convicted in 1954 of “disgraceful conduct of a cruel kind” after he threatened detainees with mutilation.³⁵ Although some perpetrators were brought to trial for and convicted of crimes such as murder or assault, torture was not a crime or even a civil offense under either Kenyan or English law at the time.

      At the same time as the Mau Mau uprising, the British colonial authorities were dealing with growing unrest in Cyprus. The counterinsurgency methods of the British were challenged by the Greek government in 1956. As the ECHR applied to Cyprus, the Greeks lodged allegations of atrocities with the European Commission of Human Rights (see Simpson 2001, 924–1052). In lodging their case, the Greeks argued that the “case of the Cypriots differs from that of other peoples of the world still fighting for their freedom in that the Cypriots are Europeans nourished on Western civilization” (Simpson 2001, 929). The applications alleged “many cases of torture, degrading punishment and inhuman treatment,” as well as collective punishments; detention without trial; deportation; and violations of the rights of privacy, freedom of expression, and assembly.³⁶ The initial reaction of the British government was shock and surprise that the ECHR could actually apply to its actions in Cyprus (Simpson 2001, 13). The British government also objected to the protest about whipping, with one senior diplomat arguing that it was commonly used in public schools and “is a mild and humane treatment…. If anyone can think of a more humane and effective treatment … H.M.G [Her Majesty’s Government] would be glad to hear of it.”³⁷ The European Commission of Human Rights never issued any public findings