This Side of Silence. Tobias Kelly

the emphasis was on the norms of prohibition rather than on the political causes of torture. This was reflected in campaigns for declarations and conventions setting out the prohibition on torture at the United Nations. By the early 1970s, human rights had become caught up in Cold War politics, and many in the developing world and the Communist bloc were deeply suspicious of any criticism phrased in human rights terms. Indeed, many involved in the British and wider anti-torture movement saw the opposition to torture as a continuation of the opposition to Nazi Germany and totalitarian politics. However, the Campaign Against Torture had the benefit that some of its most important objects, such as Pinochet’s Chile, were US allies, and it was therefore able to drive straight through the middle of Cold War rivalries. The United States and its allies were not going to oppose a broad declaration prohibiting state violence. For the Soviet bloc the condemnation of torture provided a useful stick with which to beat Western-aligned governments in South America and Southern Europe. Furthermore, the prohibition of torture did not seem to be like other human rights, like the right to freedom of opinion, gender equality, or education, about which it was possible to have a debate on their relative merits. No state was going to say it was pro-torture. Instead, the debate was over what counted as torture.

      The UN General Assembly adopted a resolution on 9 December 1975 condemning the use of torture. Amnesty International’s campaign was referred to many times during the debate over the resolution (Rodley 1987, 19). During the debate, several member states argued that if they were to lend their name to anything they would need to define what torture meant, otherwise it was far too vague (1987, 72). Therefore, although not legally binding, for the first time in any international instrument, the resolution provided a definition of torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain, or suffering arising only from, inherent in or incidental to, lawful sanctions.”⁴⁸ Crucially, unlike the UDHR, ICCPR, or ECHR, but drawing on the European Commission’s report on the Greek case in 1969, the resolution drew a distinction between “torture” and “cruel, degrading or inhuman treatment or punishment,” arguing that torture was a particularly “aggravated and deliberate form of the latter.”⁴⁹ Torture is therefore given particular and specific prominence. The intention of public officials and the level of pain and suffering of the victims are seen as singling it out for particular approbation.

       The United Kingdom Stands Accused Before the European Court of Human Rights

      Following the outbreak of unrest in Northern Ireland and the introduction of internment in the early 1970s, the government of the Irish Republic was under domestic pressure to do something about British counterinsurgency tactics in Northern Ireland. Unable to intervene militarily, it tried to place diplomatic pressure on the United Kingdom by protesting to the European Commission of Human Rights in late 1971.⁵⁰ Referring to the report from Amnesty International as well as to the Compton Report, the Irish government alleged that internment without trial was discriminatory and violated the right to liberty and security of the person. Although the Irish government did not make specific allegations of torture, it alleged a broader breach of the prohibition of torture or inhuman or degrading treatment under Article 3 of the ECHR.⁵¹

      It took until mid-January 1978 for the European Court of Human Rights to come to a decision on the case. The British government did not contest the claim of a breach of Article 3 or the existence of the five techniques. However, one key issue in the case became how to characterize the techniques of sensory deprivation, such as hooding, and the use of white noise, the effects of which seemed primarily to be psychological. Although sensory deprivation was certainly not new, the incidents that had received most public attention through the late 1960s and early 1970s in Greece and Latin America had involved much more physical forms of violence.⁵² In an earlier advisory opinion, the European Commission of Human Rights had argued that Republican detainees had “described feelings of anxiety and fear as well as disorientation and isolation during the time they were subjected to the techniques and after.”⁵³ However, they also noted that psychiatrists were unable to agree as to the long-term impact of the use of such methods. Some doctors argued that the aftereffects could last for a considerable time. Others, in contrast, claimed that the “psychiatric symptoms developed … during interrogation had been minor and that their persistence was a result of everyday life in Northern Ireland.”⁵⁴ The commission surmised that although it was unable to establish the exact degree of psychiatric aftereffects, the possibility of those aftereffects could not be excluded. The commission’s conclusion was that “the systematic application of the techniques for the purposes of inducing a person to give information shows a clear resemblance to those methods of systematic torture which have been known over the ages.”⁵⁵ Although the commission found that the psychological implications of the techniques could not be predicted with any accuracy, it argued that the mere possibility of severe psychological effects was enough to prohibit the use of those techniques.

      The European Court of Human Rights looked at the same evidence as the commission and agreed with the implicit assumption that the level of suffering was the crucial factor. However, it drew the line at a different point, concluding, “Although the five techniques … undoubtedly amounted to inhuman and degrading treatment … they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.”⁵⁶ The judgment insisted on the distinction between torture and inhuman or degrading treatment or punishment, arguing that torture “held a special stigma.”⁵⁷ In making the distinction, the court cited the UN General Assembly resolution that defined torture as a particularly aggravated form of ill-treatment.⁵⁸ The judges were reportedly persuaded to make the distinction by Sir Gerald Fitzmaurice, the British judge at the court and a former legal adviser to the British Foreign Office.⁵⁹ However, Fitzmaurice also issued a dissenting opinion, which argued that it was impossible and undesirable to come up with a precise definition of torture, as it was an entirely subjective term.⁶⁰ He then went on to claim that although the five techniques were “certainly harsh,” to call them inhuman or degrading was to “debase the currency of normal speech.” For Fitzmaurice, in a clear allusion to George Orwell’s 1984, calling the five techniques “torture” left no room to describe acts such as “kicking a man in the groin, or placing him in a blacked-out cell in the company of a bevy of starving rats.”⁶¹ For Fitzmaurice, the court was setting the threshold of suffering too low.

      It is important to note two things about the court’s judgment. First, although the United Kingdom was found guilty of a breach of Article 3, the court was implicitly arguing that some breaches are worse than others. Torture was singled out for special censure. Second, the distinction that was being made here between torture and other forms of ill-treatment was in terms of the intensity of the suffering. However, the court offered no way to measure this pain, nor did it provide a sense of the level necessary to be considered “torture.” If the British had wanted to argue that its interrogation techniques were not torture it could not rely on a distinction based on intention, as the five techniques were openly aimed at eliciting information through physical and psychological pressure. Back in the United Kingdom, the press widely reported the decision as a victory for the British government, ignoring the fact that the government had still been found in breach of the convention (see, for example, Walker 1978). There was, however, considerable criticism of the judgment elsewhere. Gerald Fitt, the leader of the Social Democratic and Labour Party, the largest nationalist party in Northern Ireland at the time, accused the court of “playing with words” (Seton 1978, 5). The Northern Ireland Civil Rights Association accused the court of “nitpicking,” and Amnesty International announced it would continue to describe interrogation methods such as those used by the British in Northern Ireland as torture (Seton 1978, 5).

       An International Torture Convention

      The momentum gained by the Amnesty International Campaign Against Torture during the lobbying for the UN resolution against torture in 1975 continued with the drafting of a new Convention Against Torture (CAT) throughout