This Side of Silence. Tobias Kelly

drafts were reviewed, including one written by the International Penal Law Association, with heavy input from Amnesty International, and another by the Swiss-based Committee Against Torture. However, it was a draft prepared by the Swedish government that eventually formed the basis of negotiations. The new draft CAT built heavily on the 1975 Declaration Against Torture, using much the same definition, with its focus on the level of suffering and the intention of public officials.⁶² The drafting committee had originally been mandated to prepare a Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. However, although the name of the convention continued to include all forms of ill-treatment, in practice the final convention focused almost exclusively on torture. The aim of the convention was to set out specific legal obligations for states, such as the criminalization of ill-treatment within domestic law and the principle of universal jurisdiction, where states have the responsibility to prosecute perpetrators no matter where the act has been carried out. According to J. Herman Burgers, the Dutch chair of the drafting committee, and Hans Danelius, the Swedish diplomat who wrote the initial draft, many states were concerned that specific obligations such as these should not be tied to vague concepts like “cruel, inhuman or degrading treatment or punishment” (1988, 39). It is therefore only when we get to Article 16 that we hear mention of other forms of ill-treatment. The definition of torture differed from the jurisprudence of the European Court of Human Rights at the time, as it placed relatively greater weight on the intention of the perpetrator and less on the level of pain. Despite the arguments for precision, the definition of torture given in the convention is still not, according to probably the two most influential figures in its drafting, really a definition at all (Burgers and Danelius 1988, 122). Rather it is a description, including debatable terms such as “pain and suffering,” intended as a guide for implementation.

      Although there were considerable limitations placed on the obligations of states, the United Kingdom still remained nervous about many of the articles in the convention. In particular, it was concerned that universal jurisdiction would be unworkable in practice (Burgers and Danelius 1988, 40). The United Kingdom also insisted, successfully, that the principle of “non-refoulement,” that no one should be returned to a state where they may face mistreatment, should be limited to situations of “substantial” rather than merely “reasonable” grounds for believing they may be subjected to torture (Burgers and Danelius 1988, 50). Against the background of the recent findings of the European Court of Human Rights with regard to Northern Ireland, the United Kingdom tried to persuade the drafting committee, unsuccessfully this time, to adopt a more restrictive definition of torture, as systematic and causing extreme pain, rather than simply intentional and causing severe pain (Burgers and Danelius 1988, 45). The United Kingdom, however, was more successful, again against the background of the European Court of Human Rights decision, in persuading the drafting committee to imply that cruel, inhuman, or degrading treatment were of lesser gravity than torture.⁶³ A separate Swiss and French proposal suggesting that torture included other forms of ill-treatment was rejected (Burgers and Danelius 1988, 42, 47). The final draft said that cruel, inhuman, or degrading treatment did “not amount to torture.”⁶⁴

      On 10 December 1984, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was unanimously adopted by the UN General Assembly. As a result of ratifying the convention, the United Kingdom made torture a specific criminal offense for the first time in English law.⁶⁵ In the debate to mark its ratification, most parliamentarians seemed to agree that it would make little difference to actual policy and practice in the United Kingdom but would serve to “reinforce the solidarity of the international community.”⁶⁶ For domestic British politicians, as with the signing of the Universal Declaration and the European Convention on Human Rights, there was an assumption that the United Kingdom was already substantively, if not technically, compliant with the convention, and its signature was more of a call to the rest of the world.

      Shortly after the election of Tony Blair in 1997, the Labour government announced that it would follow through on its preelection pledge to pass a Human Rights Act. The White Paper on the proposed law was entitled “bringing human rights home,” echoing the sense that human rights are somehow inherently British. The new law was motivated in part by the large number of British cases being taken to the European Court of Human Rights and the extensive delays found there. The Human Rights Act 1998 makes a remedy for breach of a convention right available in English courts without the need to go to the European Court of Human Rights. This includes Article 3 and the prohibition of torture and inhuman, or degrading treatment or punishment. Space was therefore opened for specific human rights claims about torture in English courts for the first time.

       Torture after the “War on Terror”

      For a visitor acquainted with the protests against the actions of the British army in 1930s Palestine, many of the arguments regarding the brutal treatment of detainees during the “war on terror” would seem very familiar. The sense that torture and other forms of brutality are simply not the “British way” has lasted through 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