This Side of Silence. Tobias Kelly

(Walker and Wainwright 2010). That same year, a mother who killed her disabled son by injecting him with heroin told the court before she was sentenced that his life was “torture” (Rojas 2010). The term can also be used in everyday language to describe unpleasant experiences, such as the morning commute, a particularly difficult exam, or a visit with one’s in-laws. The sense of intense suffering found in the ethical or trauma-based understandings of torture are used to signify displeasure and dislike of relatively mundane events.

      In expanding the notion of who can be responsible for torture, as well as the forms of pain and suffering that it involves, there is a danger of diluting the meaning of torture. The risk exists of spreading the idea of torture too thin and of applying the notion to any sort of discomfort, robbing the word of ethical or political force. Legal practices have historically given torture its greatest definitional coherence, albeit often drawing on broader ethical objections and forms of knowledge that come from clinical practice and political activism. More specifically, the concept of torture has its origins in legal practices concerned with the correct procedures for interrogations and the provision of evidence. John Langbein has argued that the growth of judicial torture in medieval Europe was not simply the product of an arbitrary and a capricious politics but rather a desire to create legally reliable evidence (2006). It is from this particular judicial history that we get the sense that torture is the deliberate infliction of pain by state officials in order to collect information.

      Despite this judicial history, by the end of the nineteenth century, torture was widely considered a primarily ethical and political category that was used to critique practices felt to be uncivilized, irrational, and inefficient (Peters 1996, 75). It was only after World War II and late into the twentieth century that the concept of torture began to regain greater legal precision, as principles of due process, criminal law, and international human rights came together, often in contradictory ways. In 1948, the Universal Declaration of Human Rights (UDHR) stated that no one should be subjected to torture or other forms of ill-treatment. However, the following years saw a realization among human rights campaigners that without the power of enforcement, the UDHR would remain solely aspirational. As a result, NGOs, some governments, and many people within the United Nations lobbied for the increasing codification of human rights and the creation of legal mechanisms of enforcement.

      Because torture was a crime perpetrated by state officials, the antitorture movement sought to appeal to a higher authority, above and beyond the state, and therefore turned to international law. The meanings and implications of torture have therefore been shaped by international institutions, such as the United Nations, and NGOs, such as Amnesty International. As such, to talk about torture is to always bring into play wider international politics. By the start of the twenty-first century, the prohibition of torture could be found in numerous international conventions, protocols, and agreements, including the Geneva Conventions, the Universal Declaration of Human Rights, the UN Convention Against Torture, and the European Convention on Human Rights.¹²

      This legalization of the definition of torture does not mean that wider ethical, political, therapeutic, or sentimental definitions of torture are not widely used. Nor does it mean that legal dominance of understandings of torture is uncontested. The torture rehabilitation movement, in particular, has played an important role in current understandings of torture, pushing the boundaries of legal claims. Clinicians and political activists can often be exasperated with the narrow formalism of legal approaches to torture, pushing at its edges to include wider forms of suffering and more varied responses. Furthermore, and perhaps most important, legal understandings of torture are not self-enclosed. Legal processes can often draw on other forms of expertise—medicine in particular—to provide evidence about pain and suffering. In addition, there are significant tensions within legal attempts to define what counts as torture. Specifically, there are disagreements about the level of pain and suffering necessary to be considered an act of torture, the nature of intention, and the relative balance between the level of pain and intention in distinguishing torture from other forms of ill-treatment.

      Nevertheless, legal forums remain the central place where the precise meanings of torture are debated and recognized. Furthermore, political and clinical movements often refer to international conventions when defining what they do. It is legal forums that decide on the criminal prosecutions, civil damages, and grants of residency, among other things, that do or do not follow from claims of torture. As Samuel Moyn has argued, law has become our “privileged instrument for moral improvement” (2010, 211). It is therefore of crucial importance to ask what are the implications of entering the legal realm for the ways we seek to allocate responsibility, redress and the promise of protection.

       Issues of Recognition

      In early 2004, I was approached by a British immigration lawyer to write a report to support the claim of one of her clients for asylum in the United Kingdom. I had previously carried out research in Israel and Palestine, and I am therefore often called on to provide evidence in refugee cases involving people originating in that area. The client, whom I shall call Hassan Ahmed, was a Palestinian from the West Bank. He claimed to be a former activist in the Popular Front for the Liberation of Palestine. Ahmed had told his lawyer that on several occasions throughout the 1990s he had been detained by the Israeli military. During these detentions, he had been beaten, had been forced to crouch in a sitting position in a cold cell for hours on end, and had his hands forcibly tied behind his back and yanked upward. He was never charged with any offense but was kept for several different three-month periods in administrative detention. He had also been detained by the Palestinian Authority mukhabarat (secret police), who had dealt with him in a similar way. Ahmed eventually decided to leave the West Bank and had found his way to the United Kingdom overland, traveling through Syria, Turkey, Bulgaria, Romania, and onward in the back of a lorry.

      Ahmed’s lawyer was now trying to collect enough evidence to support his case for asylum. The witness statement that Ahmed had produced was full of intricate and precise details about what the Israelis and the Palestinians had done to him. However, it was also rambling and at times confused. Ahmed had long-standing mental health issues, some of which seemed to predate his detention, making his memories often erratic. A medical doctor had examined Ahmed and found no scars on his body that he could document and also said that it would be difficult to say, with any certainty, to what extent Ahmed’s forgetfulness and occasional delusions were the result of his mistreatment in the West Bank. The lawyer had turned to me to try to corroborate his case. Amnesty International, Human Rights Watch, and even the US State Department have all documented the use of torture and other forms of ill-treatment by the Israelis and the Palestinians.¹³ However, although I could document the situation regarding the general treatment of detainees, I could not write a report that said there was specific evidence that Ahmed had been tortured. Without this, it was open to the immigration authorities to say, “Yes, torture happens, but we do not think it happened in this case.” Ahmed was therefore forced to rely heavily on his own witness statement. His lawyer was concerned that his account would not be believed. She was right to be worried. Ahmed’s case for asylum was denied. His account was deemed by the immigration authorities not to be credible.

      How can we recognize when torture has taken place? Elaine Scarry has argued that the distinctive nature of torture lies in its ability to destroy the capacity to communicate (1988). For Scarry, the pain of torture can produce silence, as victims turn in on themselves. However, the idea that the pain of torture is a fundamentally private experience denies the ways in which pain is itself a social relationship. As Veena Das argues, the statement “I am in pain” is a declarative statement that does not seek to describe a state, but to voice a complaint (1997). Ahmed was able to articulate his experiences; the problem he faced was that people did not believe him. The issue is therefore not so much that victims cannot voice their suffering, but that lawyers, doctors, and other practitioners find it difficult to know when and where legally significant cruelty has taken place. This is not to say that the pain of the victim of torture can be directly experienced by another. There is always an “irreproducible excess in pain” (Asad 2003, 85; Lyotard 1989). All attempts to grapple with the meanings and implications of any horrific form of suffering, not just torture, can seem to fail to do them justice. However, pain and suffering are not all about incommensurability. The experience of pain is always at least partly constituted