This Side of Silence: Human Rights, Torture, and the Recognition of Cruelty

by Tobias Kelly

Overview

We are accustomed to thinking of torture as the purposeful infliction of cruelty by public officials, and we assume that lawyers and clinicians are best placed to speak about its causes and effects. However, it has not always been so. The category of torture is a very specific way of thinking about violence, and our current understandings of the term are rooted in recent twentieth-century history. In This Side of Silence, social anthropologist Tobias Kelly argues that the tensions between post-Cold War armed conflict, human rights activism, medical notions of suffering, and concerns over immigration have produced a distinctively new way of thinking about torture, which is saturated with notions of law and trauma.

This Side of Silence asks what forms of suffering and cruelty can be acknowledged when looking at the world through the narrow legal category of torture. The book focuses on the recent history of Britain but draws wider comparative conclusions, tracing attempts to recognize survivors and perpetrators across the fields of asylum, criminal law, international human rights, and military justice. In this thorough and eloquent ethnography, Kelly avoids treating the legal prohibition of torture as the inevitable product of progress and yet does not seek to dismiss the real differences it has made in concrete political struggles. Based on extensive archival research and ethnographic fieldwork, the book argues that the problem of recognition rests not in the inability of the survivor to communicate but in our inability to listen and take responsibility for the injustice before us.

Product Details

ISBN-13:	9780812222814
Publisher:	University of Pennsylvania Press, Inc.
Publication date:	10/24/2013
Series:	Pennsylvania Studies in Human Rights
Pages:	232
Product dimensions:	6.00(w) x 8.90(h) x 0.60(d)

About the Author

Tobias Kelly teaches social anthropology at the School of Social and Political Science, University of Edinburgh, and is coeditor of Traitors: Suspicion, Intimacy, and the Ethics of State-Building, also available from the University of Pennsylvania Press.

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Introduction

In late April 2002 Binyam Mohamed was turned over to the US authorities after being arrested by Pakistani police at Karachi Airport. Mohamed was born in Ethiopia but in the mid-1990s had claimed asylum in the United Kingdom. He had converted to Islam in 2001, and later the same year traveled to Afghanistan and then Pakistan. Following Mohamed's detention in Pakistan, he was interviewed by Federal Bureau of Investigation (FBI) agents and flown to Morocco, where he was imprisoned for eighteen months. Mohamed was then sent to a detention center run by the Central Intelligence Agency (CIA) in Afghanistan, and finally, in September 2004, he was sent to Guantanamo Bay. The US military alleged that Mohamed had been trained in Kabul to make ''dirty bombs'' and was planning to carry out an attack on US soil. The charges against him were eventually dropped, and he was released and returned to the United Kingdom in early 2009.

While Mohamed was in Guantanamo Bay, he made allegations that he had been tortured when he was in Pakistan, Morocco, and Afghanistan. A US court later ruled that Mohamed's ''trauma lasted for 2 long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time.''1 Back in the United Kingdom, Mohamed's lawyers filed a petition in the courts demanding that the Foreign Office turn over all the evidence they had about his abuse. In the summer of 2008, English judges ruled that any documents held by British authorities should be given to Mohamed's lawyers but not made public, on the grounds that their full disclosure could harm the intelligence relationship between the United Kingdom and the United States. The judges also found that British agents had ''facilitated'' Mohamed's interviews by the Pakistani and American security services.2 Two years later, English Appeal Court judges ruled that if it ''had been administered on behalf of the United Kingdom,'' the treatment inflicted on Mohamed by US officials ''would clearly have been in breach of the undertakings given by the United Kingdom.''3 They also ruled that all evidence about Mohamed's ill-treatment must be released.4

Alan Johnson, the British home secretary at the time, responded to the judicial rulings and newspaper headlines that followed by saying that allegations of British complicity in torture were a ''gross and offensive misrepresentation of the truth'' (Naughton and O'Neil 2010). The Metropolitan Police Service, however, announced that it was launching a criminal investigation into the involvement of the British security services in Mohamed's ill-treatment. In addition, Mohamed's lawyers launched a claim for civil damages, suing the Foreign Office, the Home Office, and the Attorney General, as well as MI6 and MI5, for their complicity in his unlawful detention and ill-treatment. In 2010, the newly elected Conservative-Liberal coalition government declared that once criminal and civil proceedings had come to an end, it would launch a judicial inquiry to ''look at whether Britain was implicated in the improper treatment of detainees, held by other countries, that may have occurred in the aftermath of 9/11.''5 By the autumn of the same year, Kenneth Clarke, the new minister of justice, told parliament that an out-of-court settlement had been reached. He argued that if the case had continued, ''Our reputation as a country that believes in human rights, justice, fairness and the rule of law . . . risks being tarnished.''6 Clarke added that no admission of liability had been made and that the details of the settlement were to remain confidential. The following day, the director of public prosecutions announced that the MI5 officer investigated for complicity with Mohamed's ill-treatment in Pakistan and Morocco would not be prosecuted.

Since 2001, images of tortured bodies and the claims and counterclaims they generate have shaped much international politics. Binyam Mohamed's case was just one among many. Probably the most infamous incident involved the release of pictures of American troops mistreating Iraqi detainees in Abu Ghraib prison. After the release of these photographs, there were further revelations about ill-treatment by the US military in Guantanamo and Bagram, as well as the use of secret detention centers and ''extraordinary rendition'' to places where torture was, in effect, outsourced. In the United Kingdom, the photographs from Abu Ghraib have also been overlaid by several subsequent events. Six months after the invasion of Iraq, British soldiers used stress positions and beatingson Iraqi detainees, resulting in the death of one man and the hospitalization of others. A few years later, photographs were released showing British soldiers forcing Iraqi detainees to simulate oral and anal sex. In another story, which was later revealed to be a hoax, a British newspaper published photographs apparently showing soldiers carrying out mock executions of Iraqi detainees.7 As well as the claims made by Binyam Mohamed, other allegations were made about the complicity of MI5 and MI6 in torture carried out by Pakistan and Egypt, among other countries. Further controversies arose over the use of British airspace in the ''extraordinary rendition'' of detainees to places outside the protection of the law. The list of examples could go on.

Torture is a word with immense ethical, political, and cultural power, seeming to encompass all that is wrong with arbitrary and excessive power. It has become seen as close to the very worst thing that can happen to someone or that one person can do to another. One respected commentator has even argued that it is worse than all forms of killing (Shue 2004). Many people would concur. Some may disagree over the definition of torture, but in doing so they are not challenging the privileged status of torture as a form of suffering and cruelty above nearly all others. To be sure, the moral objection to torture is not universal. However, torture is still not something that many people will openly admit to doing. Perpetrators will dress up their acts in euphemisms, deny that what they have done counts as torture, or dance around the edge of definitional debates. Torture remains beyond the pale, in words if not in deeds. It is not a term that is going to be given a positive spin any time soon. Even those who would condone the use of torture in very specific circumstances say they do so with heavy hearts (see, for example, Elshtain 2004). From this perspective, torture is still very wrong but just not quite as wrong as other things.

Current debates about torture are saturated with law. In the United States, lawyers were involved in writing memos that justified nearly every aspect of military and CIA interrogation programs. Since the memos were made public, there have been numerous court cases concerning the treatment of detainees. In the United Kingdom, the meanings and implications of torture have been thrashed out in a number of legal and quasi-legal forums. The extensive litigation around Binyam Mohamed was just one of several cases. Conflicts have ranged over the protections owed to torture survivors, the responsibilities of those complicit in the perpetration of torture, and the United Kingdom's international human rights obligations. These disputes have taken place in court-martials, judicial inquiries, immigration cases, reports before UN monitoring mechanisms, appearances before the European Court of Human Rights, and in domestic civil litigation, among others. Legal forums have entered deep into the political arena, as judges have been asked to adjudicate on some of the most contentious contemporary concerns. Not only have judges become heavily politicized in this process, but politics has become judicialized.

Table of Contents

Introduction
Chapter 1. Talking about Torture after the Human Rights Revolution
Chapter 2. The Legal Recognition of Torture Survivors
Chapter 3. Clinical Evidence about Torture
Chapter 4. Predicting the Future Risk of Torture
Chapter 5. Prosecuting Torture
Chapter 6. The Shame of Torture
Conclusion

Notes
Bibliography
Index
Acknowledgments

Editorial Reviews

"This Side of Silence is an engagingly written, thoroughly researched, and brilliantly analyzed account of the rise of torture as one of the dominant legal and moral categories of our time. The meaning and use of the term 'torture' has undergone profound changes, and Tobias Kelly expertly charts how it has been shaped by recent developments in international law and medicine, media representations of the body and suffering, and the vagaries of the politics of human rights since 1945. This Side of Silence is an indispensible and compelling account of the new ethical prioritization of torture that pushes the boundaries of the anthropology of law and human rights and deserves to be read widely."

Professor of Anthropology and Law and Director of Richard A. Wilson

"Tobias Kelly's critical, historically informed, and carefully researched book on the evolving concept of torture is an exciting and useful addition to the ongoing new wave of critical scholarship on human rights in political and legal anthropology. Kelly's work demonstrates the best of where anthropologists of human rights have arrived in the past ten to fifteen years and yet remains a unique contribution,"

PoLAR: Political and Legal Anthropology Review

"Where does our sense that torture is wrong come from? When do we find torture established? What harms committed by whom escape our attention and why? Probing the actions of doctors, lawyers, and judges in the UK, Tobias Kelly shows how the denunciation of torture succeeds only in limited circumstances. Ethically disturbing but politically necessary, his original, clear, and excellently informed account is a must-read for anyone interested in the fight against torture and/or the defence of human rights."

University of Sussex Marie-Bénédicte Dembour

"This Side of Silence approaches the problem of torture in an unconventional and illuminating way. Human rights scholars and students will relish its clarity and insightfulness. As for human rights campaigners, they will find in it a warning about the inherent limitations of the legal process and thus an invitation to think more deeply and imaginatively about when and how to use legal means in order to oppose the blight of torture and, indeed, other injustices too."

Human Rights Quarterly

"This Side of Silence is innovative, thought-provoking, and superbly written, a standout among the plethora of books on torture that have appeared since the Abu Ghraib prison scandal. Tobias Kelly analyzes the meaning of torture as a cultural and legal category. He demonstrates empirically, rather than conceptually or theoretically, that torture is 'a notoriously slippery subject' at every step of defining, documenting, diagnosing, recognizing, and prosecuting it."

Utrecht University Antonius C. G. M. Robben

"Where does our sense that torture is wrong come from? When do we find torture established? What harms committed by whom escape our attention and why? Probing the actions of doctors, lawyers, and judges in the UK, Tobias Kelly shows how the denunciation of torture succeeds only in limited circumstances. Ethically disturbing but politically necessary, his original, clear, and excellently informed account is a must-read for anyone interested in the fight against torture and/or the defence of human rights."

Universityof Sussex Marie-Bénédicte Dembour

"This Side of Silence approaches the problem of torture in an unconventional and illuminating way. Human rights scholars and students will relish its clarity and insightfulness. As for human rights campaigners, they will find in it a warning about the inherent limitations of the legal process and thus an invitation to think more deeply and imaginatively about when and how to use legal means in order to oppose the blight of torture and, indeed, other injustices too."—Human Rights Quarterly

"Tobias Kelly's critical, historically informed, and carefully researched book on the evolving concept of torture is an exciting and useful addition to the ongoing new wave of critical scholarship on human rights in political and legal anthropology. Kelly's work demonstrates the best of where anthropologists of human rights have arrived in the past ten to fifteen years and yet remains a unique contribution,"—PoLAR: Political and Legal Anthropology Review

"This Side of Silence is an engagingly written, thoroughly researched, and brilliantly analyzed account of the rise of torture as one of the dominant legal and moral categories of our time. The meaning and use of the term 'torture' has undergone profound changes, and Tobias Kelly expertly charts how it has been shaped by recent developments in international law and medicine, media representations of the body and suffering, and the vagaries of the politics of human rights since 1945. This Side of Silence is an indispensible and compelling account of the new ethical prioritization of torture that pushes the boundaries of the anthropology of law and human rights and deserves to be read widely."—Richard A. Wilson, Professor of Anthropology and Law and Director of the Human Rights Institute at the University of Connecticut

"Where does our sense that torture is wrong come from? When do we find torture established? What harms committed by whom escape our attention and why? Probing the actions of doctors, lawyers, and judges in the UK, Tobias Kelly shows how the denunciation of torture succeeds only in limited circumstances. Ethically disturbing but politically necessary, his original, clear, and excellently informed account is a must-read for anyone interested in the fight against torture and/or the defence of human rights."—Marie-Bénédicte Dembour, University of Sussex

"This Side of Silence is innovative, thought-provoking, and superbly written, a standout among the plethora of books on torture that have appeared since the Abu Ghraib prison scandal. Tobias Kelly analyzes the meaning of torture as a cultural and legal category. He demonstrates empirically, rather than conceptually or theoretically, that torture is 'a notoriously slippery subject' at every step of defining, documenting, diagnosing, recognizing, and prosecuting it."—Antonius C. G. M. Robben, Utrecht University

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