This Side of Silence. Tobias Kelly

of violence. This has important implications for survivors of domestic violence, for example. From this perspective, the intentions of the perpetrator and the experience of the victim in cases of prisoner and domestic abuse may be similar, and it is therefore arbitrary to distinguish between the two cases simply because one is carried out by someone acting in the name of the state and the other is not (Edwards 2006; McGlynn 2009). The criticism here is not so much that a focus on torture is a problem, but that the way it is defined is limiting. The argument therefore is for a broadening of the notion of torture to include nonstate actors. In partial response, it may be argued that although the classic human rights position may be that only states can be held accountable for human rights abuses, other areas of law, most notably international criminal law, have no such requirements (Burchard 2008). At the same time though, it is important to point out that simply expanding the definition of torture will not inherently expand the scope of protection it offers. The key issue is the conditions of entry into the legal realm. Formal protections are not enough unless we can expand the ground on which people can claim those entitlements.

       British Understandings of Torture

      The idea that torture happens elsewhere and that Britain has a responsibility to save other people from these horrors is historically ubiquitous, even if not always supported by events, resulting in a number of legal and political contortions. In the spring of 2007, fourteen British marines were detained after the Iranian navy claimed they had strayed into Iran’s territorial waters. The British press reacted by implying that the captured marines were most probably being tortured (see, for example, Beeston and Bone 2007). However, after twelve days the marines were released and the worst they had to complain about was being asked to wear some ill-fitting and outdated suits for their handover. A year later, the British army issued an internal report in response to the brutal treatment and unlawful killing of Iraqi citizens by British soldiers in Basra (Aitken 2008). Des Browne, the minister of defence, issued a statement that said, the “British public should be reassured that such behaviour is not representative of our thoroughly professional and disciplined armed forces” (Ministry of Defence 2008). For the minister of defence, torture was not something that British soldiers did. In contrast, torture was expected of the Iranians.

      Judges have not been immune from such assumptions. In 2004, ten men from across North Africa and the Middle East appealed the decision of the British government to certify them as terrorists and effectively detain them without trial. The case before the Court of Appeal was largely based on the argument that much of the evidence used against them had been obtained through torture in their home countries. The Court of Appeal ruled that evidence that might have been obtained through torture was admissible, as long as British officials had not been complicit.¹⁵ The logic of the decision was that as long as British hands were clean, everything was fine. Although the courts could not use evidence collected through torture by British officials, the law did not rule out the use of torture by people in other countries. The decision was later overturned on appeal to the House of Lords. In this decision, Lord Bingham argued, “English common law has regarded torture and its fruits with abhorrence for over 500 years, and that abhorrence is now shared by over 140 countries which have acceded to the Torture Convention.”¹⁶ Bingham seemed to be claiming that the international prohibition of torture has its origins in English principles. The House of Lords decision, however, still did not explicitly rule out the use of evidence obtained under torture in intelligence operations, as long as it was not collected with the complicity of British agents.¹⁷

      English legal actors have long had a self-understanding that torture was somehow alien to the principles of its common law. During the eighteenth-century European campaigns to abolish torture in continental Europe, English commentaries were widely self-congratulatory about their own relative rejection of torture. In his treatise on the history of the common law, English judge and academic William Blackstone argued, “It seems astonishing that this usage of administering the torture should be said to arise from a tenderness for the lives of men; and yet this is the reason given for its introduction into the civil law, and its subsequent adoption by the French and other foreign nations” (1829, 325). He also praised the system “in England, where our crown-law is with justice supposed to be more nearly advanced to perfection; where crimes are more accurately defined, and penalties less uncertain and arbitrary; where all our accusations are public, and our trials in the face of the world; where torture is unknown” (1829, 3). For Blackstone, torture was something that happened on the other side of the English Channel.

      It is important to note that the English judicial system did not need to torture, as it could convict with virtually no evidence (Langbein 2006, 78). Furthermore, torture had actually continued under special warrant until 1640 (2006, 81). As such, rather than torture being prohibited, it is perhaps more accurate to say that the use of torture was never regularized within English criminal law as a form of interrogation. The English objection to torture was largely because of concerns about its reliability as a source of evidence rather than for humanitarian concerns. As Blackstone argued, it was absurd to be “rating a man’s virtue by the hardiness of his constitution, and his guilt by the sensibility of his nerves!” (1829, 329). However, seemingly cruel punishments were still used in the United Kingdom throughout the eighteenth and nineteenth centuries. Executing traitors by drawing and quartering continued in the United Kingdom until 1814 and beheadings were not abolished until 1870.

      A key part of Britain’s nineteenth-century colonial civilizing mission was the abolition of torture in distant places. In the 1850s, for example, reports reached the United Kingdom of the use of torture as a policing method in the Madras Presidency, in what is now southern India. The official report into the incidents, however, placed the primary blame on native police. It argued that “the whole cry of the people … is to save them from the cruelties of their fellow natives, not from the effects of unkindness or indifference on the part of the European officers of Government” (Commissioners for the Investigation of Alleged Cases of Torture in the Madras Presidency 1855, 35). The British colonial presence was not seen as a cause of these abuses but as necessary to prevent them from taking place. The charge of torture was also often levied against the Ottoman Empire, as one way of demonstrating that the regime was corrupt and decaying. As one member of parliament put it, “Statements … have been received of tortures such as it must be a shock to anyone in the civilised world.”¹⁸ British intervention was then demanded in order to protect the Christian inhabitants of the Middle East.

      The sense that the United Kingdom has a unique duty to save the rest of the world from torture continued into the late twentieth century. When the Labour government came to power in 1997, it soon announced what it said was going to be an “ethical foreign policy.” Looking for something on which to apply this, it latched onto the Optional Protocol for the UN Convention Against Torture, which would allow UN teams to inspect places of detention directly. The assumption was that this would bring little change domestically, but that British diplomats should be asked to lobby for other states to ratify the protocol. The Foreign Office also pumped large amounts of money into the Swiss-based Association for the Prevention of Torture, which had been central in the campaign for the new protocol. All this took place before the launch of the war on terror. Although the photographs from Abu Ghraib initially disturbed the sense that torture was something that only happened in places like Iraq and was perpetrated by people like those in the Ba’ath Party, there was still a strong feeling that this was an American problem and that British troops had a far more civilized way of behaving (see, for example, Bishop 2004; Raymont 2006). Subsequent events proved that this was largely wishful thinking.

      Much of the worry about allegations of abuse during the beginning of the twenty-first century has been about the damage they might do to the reputation of the United Kingdom abroad, rather than about the suffering of the detainees. Prime Minister David Cameron called allegations of torture a “stain on Britain’s reputation” (Cobain 2010). Such sentiments are not confined to the United Kingdom. Senator John McCain told the US Senate, in response to allegations of American involvement in abuse, “This is about who we are. These are the values that distinguish us from our enemies” (2005). As John Parry argues, debates about torture are often debates about identity (2010). Talking about torture can therefore be a proxy for talking about how one perceives his or her nation-state and its commitments.

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