This Side of Silence. Tobias Kelly

by the British high commissioner, and, although internal disciplinary action seems to have been taken by the British army, no criminal convictions were made.⁴

      Nearly seventy years later, in September 2003, British soldiers from the Queen’s Lancashire Regiment (QLR) raided a hotel in Basra looking for weapons used in the growing insurgency against the British and American occupation of Iraq. During these raids, nine Iraqis were detained and taken to the British base. A few months previously, a captain of the QLR, who had just taken over from the Black Watch in the area, had been killed by a roadside bomb in Basra. Over the next day and a half, the detained men were hooded with hessian sandbags, placed in stress positions, prevented from sleeping, and subjected to loud noises.⁵ They were given only limited food and water as temperatures reached 60 degrees Celsius (140 degrees Fahrenheit), and they were kicked and punched over and over again. One man, a hotel receptionist called Baha Mousa, died after reportedly trying to escape. The case was eventually picked up by the British and international press. Human rights groups, such as Liberty, the successor to the National Council for Civil Liberties, as well as Amnesty International and Human Rights Watch, condemned the actions, making presentations to the United Nations calling for a full investigation and prosecutions (Amnesty International 2008b; Human Rights Watch 2006; Liberty 2008). The British army reportedly initially offered the family of the dead man $3,000 in compensation (Fisk 2004). However, after a case was taken to the UK courts, this was increased to £2.83 million (US$4.5 million), split between ten Iraqis who had been abused by British soldiers.⁶ A court-martial eventually resulted in the dismissal of all charges against six soldiers. A single corporal pleaded guilty to “inhumane treatment” but not the killing of Baha Mousa, and received a one-year jail term. After the court-martial, the head of the British army, General Sir Richard Dannatt said that “everyone inside and outside the Army should recognise the harm that is caused to our hard earned reputation and, potentially, to our operational effectiveness when anyone commits serious breaches of our values” (Ministry of Defence 2007). A public inquiry was established in 2009 that would look into the causes of Mousa’s death and would make relevant policy recommendations but could not form the basis of criminal prosecutions.⁷

      There are many similarities in the moral and political responses to the events in Iraq and Palestine. In both cases, the British military offered to pay financial compensation to the families of the dead. In both cases, the British government was primarily worried about the ways in which news of the events could be used to damage the reputation of the United Kingdom. In both cases, it was argued that such actions were simply not “the British way.” In addition, questions were asked in the House of Commons, protests were made within the British army and civil service, and human rights organizations condemned the acts and demanded redress. Finally, the affected communities also sent reports demanding justice to international organizations.

      What is most striking about the response to the two events, however, is the different ways in which the violence is described. In the case of Mandate Palestine, words and phrases such as “atrocity,”⁸ “brutality and cruelty,”⁹ “torture,”¹⁰ “inhuman,” “unnecessary and quite indiscriminate roughness,”¹¹ “ill-treatment,”¹² and “beatings”¹³ were used. However, in the case of occupied Iraq, although the military and the British government described the events as “mistreatment” and “abuse,” nearly everyone else, including newspapers, human rights groups, and members of parliament referred to the incidents as “torture.” In the seventy years between the Arab Revolt in Palestine and the Anglo-American occupation of Iraq, torture has gone from just one of many ways of describing the deliberate infliction of violence to becoming almost the default term used to describe such acts. The differences in the words used to describe both events cannot simply be dismissed as an inevitably different reaction to the different nature of the events, distinct as they are. Nor is it simply that people in 1930s Britain were too coy to use the word torture. There has instead been a widespread shift in the words we use to describe deliberately inflicted violence. Torture has only relatively recently been given the ethical priority as close to the worst thing that the British army can do.

      This chapter explores how the category of torture has gained its public prominence as a universal wrong and what we now mean when we talk about torture. It may be tempting to think of the growth of the abhorrence of torture as a product of the increasing sensitivity to the pain of others (see, for example, Hunt 2004). Yet, humanitarian sentiments do not require that we think of cruelty and suffering in terms of the very specific category of torture (Moyn 2007). The classic eighteenth-century tracts, on which it is often assumed our contemporary abhorrence of torture rests, thought about torture very differently from the way we do today. Voltaire and Beccaria, for example, did not object solely or specifically to torture but to much wider forms of cruelty (Beccaria 1778; Voltaire 1764). Furthermore, at the heart of their critique was the idea that torture simply did not work as a means of eliciting truth and was therefore irrational. It was the needless pain they objected to, rather than pain itself. Their fundamental concern was with due process.

      The two events—in Mandate Palestine and in contemporary Iraq—described earlier, are separated by World War II. It has been popular to think of the late twentieth-century concern with torture as being born, at least in part, of the horrors of Occupied Europe (see, for example, Morsink 1999). However, the deliberate infliction of pain to intimidate or to collect information seems fairly low on the list of the horrors of Nazi Germany. Furthermore, in the late 1940s, the word torture was by no means the self-evident term used to describe such brutality. When that word was used, it was used to signify a broader opposition to totalitarian politics rather than specific concern with a unique and precise form of suffering.

      Instead, our particular understanding of torture has a much more recent genealogy in the 1970s and early 1980s, as law, medicine, the Cold War, international refugee flows, and international human rights organizations, came together to make the image of the suffering body a key currency in international politics, and torture an archetypal international crime.

       Torture and the Universal Declaration of Human Rights

      Most accounts of the international prohibition of torture now start with Article 5 of the Universal Declaration of Human Rights (UDHR), which states that no one shall be subjected to “torture or to cruel, inhuman or degrading treatment or punishment.” It is important to make three points here: First, torture is not defined by the UDHR but is left self-evident; second, torture is not singled out as a particularly heinous act, above all others, but is merely one form of violence and humiliation; and, third, torture might not have been included in the UDHR at all.

      In 1945, the Austrian émigré and Cambridge academic Sir Hersch Lauterpacht published what is widely taken to be the first systematic legal examination of an international system for the protection of human rights (1945). The book, An International Bill of the Rights of Man, makes no mention of torture. Instead it speaks of the right to personal liberty and freedom from slavery. Similarly, the influential draft of the International Bill of Rights produced by the American Law Institute contains no reference to torture, but it has articles instead providing freedom from wrongful interference and arbitrary detention (Lewis 1945). At one point, it was suggested that the American Law Institute draft be adopted by the United Nations (Simpson 2001, 322). The initial drafts submitted to the United Nations by France, the United Kingdom, and the United States also made no mention of torture, but they talked about the rights to life, to freedom from arbitrary arrest, to freedom from slavery, and to a fair trial.¹⁴

      When the word torture was eventually added to a draft of the declaration, it was grouped together with the previously proposed passages on physical integrity and cruel punishments, to create an entirely new article.¹⁵ It is worth remembering here that by the 1940s, the word torture had long since lost its precise meaning of judicially monitored interrogation and had become used as a general term of moral approbation. As such, René Cassin, the French representative at the negotiations, veteran of the League of Nations, and later winner of the Nobel Peace Prize, expressed a concern that the word was too vague. Charles Malik, a Lebanese philosophy professor thought by many to be the intellectual heavyweight in the drafting committee, wondered whether torture might include “forced