This Side of Silence. Tobias Kelly

sense that torture is simply not something that the British (or Americans) do, can have pernicious implications. It is arguably, for example, behind the use of extraordinary renditions and the outsourcing of coercive interrogation to other regimes. British security officials may not have directly tortured Binyam Mohamed, but they seem to have been involved indirectly. Allowing someone to be sent to Morocco or Afghanistan is an attempt to maintain the claim of British innocence.

      In writing about the often-contradictory relationship between self-perception, policy, and practice, the point is not to highlight obvious double standards. To do so would be to ignore the often genuine ways in which torture is abhorred and opposed by state and nonstate actors. Rather, the aim is to examine the ways in which a focus on torture can lead to blind spots and predilections. People acting in the name of the British state have been involved both in acts of cruelty and in acts of compassion, sometimes at the same time. Focusing on attempts to recognize torture allows us to explore how a “differentiated geography of harm and redress,” compassion, and indignation is formed in the political imagination of the British state, its officials, and its citizens (Das 2007, 333).

       Structure of This Book

      The roots of our contemporary notions of torture include three common origin stories. The first is to see the category of torture as an inevitable response to cruelty and suffering. The second is to understand a concern with torture as growing out of the increasing humanitarian sentiments born of the Enlightenment. The third is to argue that modern notions of torture have to be understood as a response to the horrors of World War II. However, in Chapter 1, I argue that torture did not gain its particular prominence as a harm above all others until the 1970s. It was at this point that Cold War politics, medical practice, refugee flows, and international human rights activists came together to lead to a focus on individual trauma and precise legal definition.

      Torture involves distinct notions of victims and perpetrators, innocence and guilt. To count as a legally recognized survivor of torture, or to be found legally culpable as a perpetrator, one must pass a series of evidentiary and conceptual hurdles. Chapters 2, 3, and 4 examine how a focus on torture leads to the recognition of particular types of victims and survivors. The vast majority of claims for recognition as torture survivors in the United Kingdom involve immigration claims, and it is therefore on these that I focus. In Chapter 2, I examine the issues raised by attempts to recognize torture survivors in immigration claims. Using the example of one particular Iranian male, I argue that given the inherently problematic nature of much of the evidence presented, the recognition of torture survivors is an inevitably erratic process. In Chapter 3, I explore the dilemmas involved in the production of medicolegal reports about torture survivors. These reports are used by lawyers as evidence to corroborate a claim—made as part of an asylum application—that someone has been tortured. The clinicians writing these reports face the problem that torture is far from being a straightforward clinical category, and they are forced to read their clients’ minds and bodies for often highly ambiguous signs.

      In immigration cases involving claims of torture, the key issue is not past incidents but events that have not yet taken place. The question asked by judges is not simply whether someone has been tortured in the past, but whether that person might be tortured in the future. In Chapter 4, therefore, I examine attempts to protect people from future acts of torture. I do so by exploring the efforts of the British government to deport a number of terror suspects to Algeria and the claims by their lawyers that they will be tortured on return to that country. I argue that the ways in which the courts attempt to speculate about the future leads to a focus on formal structures rather than on the often contingent and political causes of violence. An absolute prohibition is made much more ambiguous when it is projected into the future.

      The other half of the definition of torture is the specific intent of the perpetrator. If torture is widely understood as a crime so horrific that it transcends boundaries, what type of person can be found guilty of torture? In Chapter 5, I explore the successful prosecution in 2005 of an Afghan “warlord,” the first person ever to be charged with torture in the United Kingdom. Given the events of the last ten years, as well as Britain’s record in its struggles against anticolonial insurgency, this seems a little surprising. The trial of the Afghan “warlord” is therefore compared to the largely unsuccessful prosecution of British soldiers for the abuse and beating to death of detainees after the invasion of Iraq. I argue that there is a structural prejudice, inherent in the law, to seeing torture as a crime committed by other people in other places.

      Torture is understood as a uniquely international issue, subject to international conventions and monitored by international organizations. In Chapter 6, I shift focus again to examine the international human rights monitoring mechanisms that oversee the United Kingdom’s compliance with the human rights obligation to prohibit torture. In particular, I focus on the use of internationalized shame as a device to prevent torture. I argue that, as a result of the technical ways in which obligations are interpreted, the shame of torture is dispersed into arguments about procedure. By the end, there seems little to be ashamed of.

      The internationally recognized legal prohibition of torture has brought many things with it. The focus on individual suffering has meant that the experience of victims cannot be totally forgotten, either politically or legally. The creation of international conventions means that there is a new language by which states can be held accountable for their actions. More precise definitions have created the possibility, still largely unfulfilled, of criminal prosecution for perpetrators. However, the political, legal, and ethical priority given to torture also raises its own questions. Torture is not simply a neutral category but inevitably favors some and disadvantages others, and it obscures particular political relationships while revealing alternatives. By stressing the contingencies and contradictions in the use of the legal category, I seek to tread a path between dismissing human rights claims as a veil that hides other forms of domination and treating those claims as a product of a transcendent moral realm, which no social or political inquiry “can hope to illuminate” (Haskell 2000, 236).¹⁹ The aim is to examine how one of the most powerful elements of our contemporary moral economy has been made possible and how it creates particular distributions of sympathy, indignation, and entitlement.

Chapter 1

       Talking about Torture after the Human Rights Revolution

      In May 1936, British troops rounded up the male residents of the Palestinian village of Halhoul and held them at gunpoint in the open air. The soldiers, from the Black Watch Regiment, were looking for weapons after Palestinians had attacked British positions nearby. An armed revolt against British rule had broken out three years earlier, after the British had initially arrived nearly twenty years before that, claiming to free the Arab residents from Ottoman despotism (Norris 2008; Hughes 2009). The men in Halhoul were told that they would not be released until the guns were handed over. It was not clear what they were to do if they did not have guns. Over the next few days, the detainees were held in full sunlight without food or water, during unusually hot weather. In order to get a drink, one man claimed that he knew where weapons were held at the bottom of a well. When he climbed back up from the well without a gun, he was reportedly pushed back down and drowned. During their detention, between eight and twelve men died from dehydration. Although the Arabic-language newspapers were closed at the time by the British army, news of the event made it to the European press. British diplomats were particularly concerned about the propaganda potential, as Italy and Germany tried to increase their support among the Arab population.¹ Several petitions were also written by Palestinian groups to the League of Nations, demanding intervention.² British actions in Palestine were condemned in London by the Howard League for Penal Reform and the National Council for Civil Liberties, as well as by the Tel Aviv–based League for the Rights of Man.³ In