the years. Whether it is the drafters of the UDHR or the ECHR, or the Heath and Blair governments, torture is seen as something that is done by other people, or at least by people in other places. Compared to 1930s Palestine, however, much of the way in which we talk about torture is unrecognizable. The frequency with which the word is used to describe forms of brutality has increased exponentially. A brief look at the records of the British House of Commons, for example, reveals that the word torture was mentioned relatively rarely throughout the late nineteenth and early twentieth centuries—and, if it was, it was mentioned mostly to condemn the Ottoman Empire. There was a rapid acceleration in the 1970s, when the word was used just over 600 times. However, from 2000 through 2010, torture is mentioned more than 1,600 times. Indeed, the word is used more times in the first decade of the twenty-first century than in the entire nineteenth century. Given the United Kingdom’s record in its wars of colonization and decolonization, it seems there is an indirect relationship between the infliction of violence and the fixation on torture.
The current prohibition of torture is not simply an inevitable product of the Enlightenment or a reaction to World War II, as it did not take its particular shape until the late 1970s and early 1980s. The meeting of international diplomacy, human rights activists, refugee flows, medicine, and the Cold War has not simply clarified how we think about torture but has changed and shaped our understanding, both in its technical definition and in its ethical load. Torture is now also seen as a uniquely international offense, reflecting the spaces of international diplomacy within which its norms of prohibition took shape. The UN Convention Against Torture, for example, calls on states to prosecute people who torture, irrespective of whether they are citizens of the state, abuse the state’s citizens, or carry out the act in an area under their jurisdiction. Torture is seen as transcending national boundaries. Above all though, to talk about torture is to talk about the law and forms of trauma.
The point is not that we did not sometimes talk about torture in terms of law and suffering beforehand, but in the wake of the ethical prioritization of torture, the two elements take on a new form. Discussions continue about the relative weight to be given to pain and suffering in marking out torture as distinct, but torture is now closely associated with particular forms of trauma. Furthermore, what is and what is not torture has become a matter of precise legal argument rather than broad ethical injunction. Until the late 1970s, the debate about brutality was primarily about ethical standards. Now those standards are shaped by reference to international human rights law. Although the torture rehabilitation movement has played a considerable role in how we think about torture (see Chapter 3), these concerns have been translated into legal terms. The intense legalism of the discussion means, for example, that when the British ambassador to Uzbekistan expresses concern about the use of intelligence information seemingly obtained under torture by third parties, he can be referred to the legal adviser at the Foreign & Commonwealth Office, who tells him that there is nothing in the UN Convention Against Torture that says this information cannot be used.67 The focus on trauma has also meant that the United Kingdom could claim its interrogation techniques in Northern Ireland did not amount to torture, as they did not produce the required level of suffering. The US government can also argue that acts do not count as torture unless they produce pain equivalent to serious organ failure.68 Such arguments have, of course, been widely dismissed, but nevertheless they take place within a much broader frame of reference that was not available before the 1970s at the earliest. In this process, room was created for new categories of victim and perpetrator, but as we shall see in subsequent chapters, there were also new opportunities for denial.
Chapter 2
The Legal Recognition of Torture Survivors
This chapter explores the conditions under which torture survivors gain legal recognition. In doing so, it examines the ways in which legal techniques prioritize and distinguish between different types of victim and the accounts they can give of themselves. Torture survivors are often, formally at least, singled out for specific attention, as deserving of particular respect for what they have suffered. The campaigns of the anti-torture movement have been at least partially successful in having the protection for torture survivors codified into law. In the United States, people fleeing torture are granted protection under immigration laws, and the Torture Victim Protection Act of 1991 allows torture survivors to litigate for civil damages from perpetrators no matter where the torture occurred.1 In the United Kingdom, there has been a long-standing attempt to pass similar legislation, in the form of the Torture Damages Bill. However, the vast majority of claims about torture in UK courts are made during asylum procedures. Although not singled out in the 1951 Refugee Convention, torture, with a few notable exceptions, will nearly always qualify as a form of persecution. Perhaps more important, the Human Rights Act 1998, by making the European Convention on Human Rights, and more specifically its Article 3, enforceable in English courts, explicitly extends protection to victims of torture.2 The UK Border Agency has also given torture survivors special status in its assessment of claims for protection.3
The legal processes of recognition are seen by some critics as transforming fundamentally political issues into a form of passive victimhood. Wendy Brown, for example, has argued that rights “fix the identity of the injured … (and) codif[y] … the meanings of their actions against all possibilities of indeterminacy, ambiguity” (1995, 27). However, such arguments are in danger of creating too rigid, neat, and precise a picture, ignoring the ambiguity and indeterminacy of legal processes. They also ignore the ways in which victimhood is never taken for granted, and claims are always subject to second-guessing. Refugees in Europe and North America are widely said to face a “culture of disbelief.” In the 1970s, refugees were largely portrayed as heroic figures fleeing from oppression in Chile, Argentina, or Southeast Asia; by the 1990s, however, the popular press and much political rhetoric has portrayed them as self-serving and duplicitous. As Didier Fassin and Estelle d’Halluin have argued, writing in the context of France, “feelings of solidarity and compassion gave way to suspicion often mixed with racist prejudices” (2007, 309–10).
The central argument of this chapter is that the legal recognition of torture survivors is not so much a technical process of codification but a series of unstable judgments played out on the boundary between fact and law. The processes of legal assessment mean that the recognition of torture survivors can be unpredictable and erratic. Despite their formal legal and administrative protections, the crucial issue for the vast majority of people claiming protection as torture survivors is not law but evidence. Most cases fall on issues of credibility. Put simply, torture survivors are not believed. Far from being treated as passive and fragile victims, those claiming protection are seen by immigration officials and judges as active agents who are always capable of manipulation.
In a context of generalized suspicion around people claiming asylum, legal processes provide a technique for assessing claims and thereby trying to move from uncertainty to a measure of certainty. In particular, attempts to produce legal certainty are filtered through rules of evidence. There is a relatively low standard of proof in asylum and human rights claims. In the United Kingdom, criminal claims have to be proved “beyond reasonable doubt” and civil cases on the “balance of probabilities,” but claims for asylum and humanitarian protection are formally decided on a standard of “reasonable likelihood.”4 Furthermore, the United Nations High Commissioner for Refugees (UNHCR) Handbook says that applicants, “unless there are good reasons to the contrary, be given the benefit of the doubt” (1992, para 196). Yet, in practice, many lawyers argue that they actually find it hardest to prove an asylum claim and easiest to get a criminal conviction. There has been a de facto, if not officially recognized, increase in evidential requirements, and although no corroborative evidence is formally required, in practice tribunals are asking for ever higher levels of proof.
Claims for recognition as torture survivors take place in a context where evidence is inherently scarce. It is often very difficult for claimants to provide any evidence at all, apart from their own testimony.
