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 hearings. I made three separate trips to the UN Committee Against Torture (CAT) in Geneva. The research also involved more than 140 interviews with lawyers, judges, police officers, doctors, psychologists, therapists, government officials, human rights activists, and politicians. The questions focused on the problems, dilemmas, and potentials they felt when carrying out their work. This has been supplemented with extensive archival work in London and Geneva and the analysis of domestic case law and international conventions.
Crucial to the nature of the arguments I am making here is the fact that I did not speak to torture survivors, for two reasons. The first was ethical. It would be presumptuous to assume that someone who has been through experiences of immense suffering and pain would necessarily want to recount these experiences to an academic who could offer no obvious or immediate practical help. Although in some cases talking may be cathartic, I am not the right person to undertake such a role. Torture survivors in the United Kingdom, in many cases, are already forced to recount their experiences to a vast array of people, including immigration officials, lawyers, judges, and doctors, and it seemed unnecessary to add to that number. The second reason has to do with the analytical thrust of my arguments: the key issue in cases of torture is one of recognition, of being able to acknowledge when and where torture has taken place. As a result, the focus is on the doctors, lawyers, and officials who are charged with documenting and recognizing incidents of torture. It is their dilemmas and conundrums that I examine. There is of course a real risk here of a double silencing of survivors, by writing them out of the account. However, I am not making any claim to be able to speak in their name. Rather, I am trying to examine how the myriad professionals that they encounter try to understand and document what has happened to them.
There are limitations but also opportunities in carrying out fieldwork in such a context. Many of the issues I examine are highly confidential. They not only involve secret evidence presented behind closed doors but also private patient or client information. Some sources of information, while not confidential, were not obtainable through traditional methods of participant observation. Policy documents, case law, medical reports, and UN conventions, to name just a few, all play a crucial role in shaping the terrain. Although such texts always have to be placed in their historical context, if as anthropologists we want to limit our claims to evidence that can be obtained through participant observation, we are, I believe, unnecessarily limiting what we can say. I believe also that there is something central to anthropology that lies between participant observation and high theory. This is a desire to interrogate our key political and social categories and to explore their implications, histories, and trajectories. It involves a commitment to understanding how these categories are used and understood on the ground, rather than simply examining their abstract or normative properties. Crucially, this skepticism toward categories is not a form of relativism. It is not cynical about torture as a category, but it seeks to look at torture from different angles, based on a desire not to take it for granted.
A Critique of a Focus on Torture?
At this point, I want to examine some of the criticisms that might be made of any attempt to understand cruelty and suffering through the legal category of torture, before setting out why such critiques fail to hit home. Many of these arguments can also be made of much of the broader human rights project, but they are brought into particular focus by the example of the attempt to prohibit torture.
One criticism of a focus on the legal prohibition of torture, is that it unhelpfully narrows the scope of the vision. As John Parry has argued, an emphasis on torture separates it from the wider forms of state violence of which it is a part, drawing an arbitrary line through a wider spectrum of practices (2010). The definition of torture in the UN Convention Against Torture, for example, excludes pain or suffering arising from “lawful sanction,” but it is not clear why pain inflicted for legal reasons is any better than other forms of deliberately inflicted suffering. By focusing on the abhorrent and the seemingly abnormal practice of torture there is an obvious danger of implicitly legitimizing other forms of violence perpetrated by the state. Bracketing off torture invites states to play games over where the line lies, rather than dealing with the issue of ill-treatment more broadly.
A second and linked potential criticism is that placing an emphasis on torture reduces politics to an attempt to eradicate pain, rather than economic or political redistribution (compare Berlant 2003; Ticktin 2006a, 2006b). As Wendy Brown puts it, writing more generally, but in terms that could apply directly to torture: “When social ‘hurt’ is conveyed to the law for resolution, political ground is ceded to moral and juridical ground” (1995, 27). In this process, there is a stress on victimhood, of the suffering of a passive individual who needs to be rescued, rather than an engagement with the broader political and economic processes that produce the infliction of violence.
A third related criticism is the claim that the legalized category of torture is simply inadequate to get to grips with the experience of torture. As Kirsten Hastrup argues, by translating thick moral and political problems into thin legal representations, vast areas of conduct are cut off from acknowledgment (2003). From this perspective, the language of human rights simplifies complex and ambiguous situations, erasing important differences among both victims and perpetrators (Kennedy 2004, 14; Wilson 1996). The multiple experiences of torture cannot be reduced to the dry formal language of universal human rights or legal judgments. The causes and consequences of the ill-treatment of detainees in Guantanamo Bay, Republican prisoners in Northern Ireland, leftist guerrillas in Latin America, dissidents in China, or even child soldiers in Uganda are squeezed into the limited meanings of one word.
The implicit assumption in all three arguments above is that the dominance of the legal notion of torture as a way of understanding suffering and cruelty makes other emancipatory strategies less available. As David Kennedy argues, “As a dominant and fashionable vocabulary for thinking about emancipation, human rights crowds out other ways of understanding harm and recompense” (2002, 108). Attempts to legally recognize when torture has taken place attract resources and energies that might go elsewhere.
Several immediate responses can be made to these points. First, whether or not the categories of law, human rights, and torture blot out other ways of looking at the world is an empirical question; no answer can be given once and for all. Victims, perpetrators, witnesses, and prosecutors can all pursue their own, often complex and contradictory, agendas within the spaces opened up by human rights mechanisms. The word torture can be understood in
