This Side of Silence. Tobias Kelly
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As such, the problem of torture is not one of the failure of language but of the failure of recognition. It is not the survivor’s inability to speak; rather, it is our inability to listen.
The issue here is not the ability of the law to grasp and represent the full experience of suffering and cruelty in its entirety, for what would be the point of that? To grasp pain in its fullness would only be to reproduce it (Perrin 2004). Rather than addressing profound questions about experience, legal forms of recognition are above all pragmatic—they are about the granting of residency rights, passing prison sentences, and allocating compensation—and as such they seek to recognize pain and suffering in very particular ways. As Andrew Williams argues, what counts as a wrong, as far as legal processes are concerned, is not suffering in and of itself, but the breach of a legal norm. To count as a legal harm, suffering therefore has to be framed according to the correct legal categories and standards of evidence (2007). To be a legal violation, there must be a victim, a perpetrator, and a remedy. To be accepted, a claim must adhere to procedural rules and evidentiary tests. Many claims about suffering and cruelty simply will not meet these standards (Veitch 2007). The legal recognition of torture is therefore not about sharing intimate experiences, making deep claims about the nature of being, or acknowledging the other with all their differences and similarities (see, for example, Honneth 1996; Povinelli 2002). Legal recognition is instead instrumental, concerned with the distribution of rights and the acceptance of obligations, and the meeting of the conditions necessary to make those decisions.
Yet, the legal recognition of torture is never a neat process. Behind the façade of certainty found in legal definitions, the concrete recognition of torture is itself shot through with disjunctures and fissures. It is marked as much by gaps that have to be continually jumped over, as it is by internal coherence. In this context, the task is not to examine how the processes of recognizing torture bleach out and thin down subjective experiences but rather to explore how the legal recognition of torture produces multilayered and often contradictory forms of knowledge about suffering and cruelty.
Recognition has its twin in the form of denial. Given the special stigma attached to torture, denial is often the immediate response in the face of an accusation. As the direct or indirect involvement of a public official is one of the key components of torture, the full resources of a state can be put into denying that torture took place. Denial is rarely just the act of an individual but is publicly sanctioned. There are a range of reasons for refusing to acknowledge torture. As Stanley Cohen has argued, these reasons can include the simple calculus of realpolitik or compassion fatigue, among other things (2000). The mechanism through which denial takes place can include individuals turning a blind eye, a bureaucratic deferral of responsibility, or simply the renaming of an atrocity as something else. As Cohen has also argued, denial is not the opposite of knowledge (2000). To say that someone is in denial, you must also be able to say that at some level, the person knows what is happening. There is no simple opposition between a truth and a lie or between knowledge and ignorance, but instead, both sides of the coin can be bound to one another in complex ways, forming “public secrets” or “unknown knowns” (Taussig 1999; Zizek 2004). The forms of denial involved in legal processes are very particular. Legal processes can know about events but deem them, legally, irrelevant. The relationship between legal denial and recognition is therefore not simply about the inability to speak truth to power. Such an argument would assume that the legal category of torture exists as an ahistorical or a metaphysical category. Rather, sorting among all the forms of violence that are inflicted on a daily basis, legal processes seek to make a series of historically contingent distinctions between legitimate and illegitimate force, in the full knowledge that they are producing a limited picture of suffering and cruelty.
Evidence of Torture
The legal recognition of torture is a problem of evidence. Talal Asad has argued that at the heart of the concept of torture is the notion of a universally comparable form of suffering, the precise levels of which can be calculated (2003, 117). However, in practice, torture resists easy measurement. Under most definitions, for an act to be considered torture, along with the direct or indirect involvement of a public official, it must contain at least two further elements: a severe level of pain in the victim and the intention of the perpetrator. However, although pain may be a universal and an inherently social experience, it has famously resisted attempts at replicable measurement. Far from creating an easily replicable standard, the emphasis on pain generates questions about the very subjective nature of the experience. Intention also raises its own often awkward evidentiary issues, as it implies a particular state of mind and therefore requires inferences about private thoughts and beliefs.
In assessing evidence, legal processes rarely treat the individual claims of torture survivors as self-evident. Survivors often face a general skepticism that their claims are fabricated. Writing about France, Fassin and d’Halluin argue that as doubts are cast about individual narratives, the body and mind become the places from which attempts are made to read the truth of particular claims (2007). They write, “Scars, both physical and psychological, are the tangible sign that torture did indeed take place and that violent acts were perpetrated” (2007, 599). In a context where the claims of survivors are doubted, medical doctors, psychologists, and social scientists, among others, are called on to provide further evidence about torture. Past suffering becomes accessible only through legal and diagnostic criteria, rather than through direct testimony (Antze and Lambek 1996, xxiv). Claims about torture are therefore often filtered through specific forms of expert knowledge, with their particular understandings of causation and subjectivity. However, courts and other forums often express as much skepticism about professional forms of expertise as they do about the claimants appearing before them. Ahmed, the Palestinian asylum seeker, and his lawyers had tried to collect as much evidence as possible to support his claim, calling on doctors, anthropologists, and the reports of human rights organizations to support his claims after his testimony was deemed not to stand alone. Yet, even this evidence was limited and questioned by the judges hearing his case. All claims, expert or not, are open to second-guessing. By entering the legal realm, claims of torture must come up against standards of proof which they often cannot meet.
It is important to remember though that the forms of proof demanded by legal processes do not exhaust the ways in which it is possible to talk about torture. When I was carrying out fieldwork in the Occupied West Bank at the height of the second intifada, my Palestinian next-door neighbor, a police officer with the Palestinian Authority, was detained by the Israeli military. Several weeks later, he returned to the village in obvious physical pain and was unable to walk without difficulty. His account of torture (ta’dhib) by the Israelis was accepted by everyone in the village without any demand for further evidence or debate about what was or was not torture. In a very different context, as part of the research for this book, I spent time at the offices of the Medical Foundation for the Care of Victims of Torture in London and Glasgow. Among other things, the Medical Foundation provides therapeutic care to survivors of torture, mainly refugees or asylum seekers. The remit of the Medical Foundation focuses on torture, so potential clients are assessed before being accepted. The evaluation of claims in this process, though, is very different from that found in a court of law because it is based on therapeutic practices. Doctors, activists, survivors, and perpetrators can all demand very different forms of proof from legal forums. As legal regimes face different ways of knowing, built on different methodological assumptions, theoretical foundations, and political commitments, there can be a clash of epistemologies. In legal forums, though, it is legal actors who come out on top.
Researching Torture
To explore how, when, and where legal processes make torture visible, and what happens when this occurs, I carried out anthropological fieldwork with lawyers, with human rights groups, at the United Nations, and in British (English and Scottish) courts between early 2004 and the end of 2010.14 The fieldwork was led by a sense of following the issues, rather than a focus on a particularly bounded location or group of people. I tracked attempts at the legal recognition of torture through different jurisdictions and forms of expertise. In particular, I carried out ethnographic fieldwork at an anti-torture NGO in London and Glasgow over a period of one year. In addition, I followed thirty-five immigration cases from start to finish. I also sat in on British immigration tribunals and criminal court