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Chapter 1

Talking about Torture after the Human Rights Revolution

In May 1936, British troops rounded up the male residents of the Palestinian village of Halhoul and held them at gunpoint in the open air. The soldiers, from the Black Watch Regiment, were looking for weapons after Palestinians had attacked British positions nearby. An armed revolt against British rule had broken out three years earlier, after the British had initially arrived nearly twenty years before that, claiming to free the Arab residents from Ottoman despotism (Norris 2008; Hughes 2009). The men in Halhoul were told that they would not be released until the guns were handed over. It was not clear what they were to do if they did not have guns. Over the next few days, the detainees were held in full sunlight without food or water, during unusually hot weather. In order to get a drink, one man claimed that he knew where weapons were held at the bottom of a well. When he climbed back up from the well without a gun, he was reportedly pushed back down and drowned. During their detention, between eight and twelve men died from dehydration. Although the Arabic-language newspapers were closed at the time by the British army, news of the event made it to the European press. British diplomats were particularly concerned about the propaganda potential, as Italy and Germany tried to increase their support among the Arab population.¹ Several petitions were also written by Palestinian groups to the League of Nations, demanding intervention.² British actions in Palestine were condemned in London by the Howard League for Penal Reform and the National Council for Civil Liberties, as well as by the Tel Aviv–based League for the Rights of Man.³ In response, a few hundred pounds was paid to the family of each dead man 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 labour, unemployment or dental pain.”¹⁶ The Soviet representative asked whether there was any link at all between torture, physical integrity, and cruel punishment.¹⁷ There was also some debate over whether torture was primarily a right that related to the integrity of the person or was linked to principles of due process.¹⁸ In the various drafts, the meaning of the word moved between being next to the right to life, on the one hand, and the right to a fair trial, on the other.¹⁹

The wording of what would become Article 5 was eventually agreed to as “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The UK delegate, Lord Dukeston, a former Labour MP and Trade Union leader, was anxious that the inclusion of the word punishment would prohibit forms of corporal punishment practiced in British prisons and schools.²⁰ He was reassured, however, by Cassin that the phrase “cruel and inhuman” would mean that these forms of punishment would still be allowed. This was not enough, though, and the United Kingdom abstained from the initial vote on the article.²¹ The Cubans attempted at the last moment to replace the entire article with the phrase: “Every human being has the right to life, liberty, and integrity of person,” but they were voted down.²²

The meaning of the word torture was left deliberately vague in the declaration, so as to be as inclusive as possible. The words cruel, inhuman, and degrading were also left undefined. As Charles Malik argued, it was “better to be on the side of vagueness than on the side of legal accuracy.”²³ For Malik, this meant that Article 5 could act as a general moral statement that explained “in an international instrument that the conscience of mankind, had been shocked by inhuman acts in Nazi Germany.”²⁴ For others, however, this vagueness was worrisome. A proposal that “no one shall be subjected to any form of physical mutilation or medical or scientific experimentation against his will” was vetoed by the United States, for fear that it might exclude compulsory vaccination and medical experiments on the insane.²⁵ The association of torture with judicial interrogation and punishment was almost certainly heavily in the minds of many of the delegates, and several proposed that torture should be prohibited “even when guilty of a crime.”²⁶

Torture was also missing from the early drafts of the European Convention on Human Rights (Simpson 2001, 654–72). The final draft took Article 5 of the UDHR almost word for word, only omitting the word cruel. During the drafting process, Frederick Cocks, a Labour Party MP and prominent antiwar campaigner, gave an impassioned speech calling for the prohibition of “any form of mutilation or sterilization, or of any form of torture or beating,” as well as “imprisonment with such an excess of light, darkness, noise or silence as to cause mental suffering.”²⁷ Given later events in Northern Ireland, the condemnation of sensory deprivation seems somewhat ironic. Cocks expressed confidence that “Europe, clad in the shining robe of civilisation, treading under her feet this unclean and loathsome serpent, will not only live but will lead the world towards a higher future and a nobler destiny.”²⁸ Although not taking issue with Cocks’s sentiment, the other delegates found a certain amount of disquiet in his speech. The Scandinavians pointed out that sterilization was a widespread policy in their countries.²⁹ Another British delegate was worried, yet again, that Cocks’s suggestion might see the prohibition of corporal punishment.³⁰ A third British delegate thought the focus on such brutalities could “over balance” the convention away from its core objectives. As a result, the simpler and shorter formulation, based on the UDHR, was eventually decided on.

From the late 1940s, the prohibition of torture and other forms of ill-treatment found its way into several international agreements. Article 7 of the International Covenant on Civil and Political Rights (ICCPR) mirrors the UDHR, with the addition of the prohibition on anyone being “subjected without his free consent to medical or scientific experimentation.” which had been left out of the Universal Declaration of Human Rights. The prohibition of torture was also included in what is known as Common Article 3 of the Geneva Conventions, which seek to regulate the conduct of armed conflict and the treatment of prisoners of war. However, torture is not singled out for particular attention by the Geneva Conventions; it is included along with a list of other prohibited acts, such as “violence to life and person … mutilation, cruel treatment, torture … [and] outrages upon personal dignity.”³¹

The British approach to the signing of all these instruments was based on the assumption that they reflected the status quo of domestic law and practice. As legal historian A. W. Brian Simpson describes in his magisterial history of British involvement in the drafting of the UDHR and the European Convention on Human Rights (ECHR), the implicit assumption was that the “traditions of liberty” that human rights sought to express had their strongest rooting in English history (2001). It is ironic that the language of human rights was largely alien to the common law, to the extent that the first British diplomat sent to oversee the negotiations for the UDHR had never heard the term before (Simpson 2001, 38). Human rights, though, were still understood in terms of Britain exporting its traditions to the rest of the world.

The Wars of Decolonization

The impact of the international human rights agreements that the United Kingdom ratified in the late 1940s and early 1950s was minimal domestically, with very few people taking notice of what was essentially seen as a foreign policy issue. It is important to note that the ECHR could be applied to the British colonies, if they agreed to the extension. Many, if not all, did so. Much of the colonial world would have been amused by claims that the prohibition of torture or other forms of ill-treatment was an integral part of British policy and practice. As Britain’s anticolonial wars erupted in Kenya, Malaya, and Aden, interrogation, mass arrest, and detention without trial were widely used.

In 1950s Kenya, for example, the Mau Mau rebellion against British colonial rule was met with tactics that included forced confessions, shoot to kill, mass executions, and large-scale internment (Anderson 2005). For much of the colonial administration, and a great deal of British public opinion, this was simply what was necessary to preserve the Empire and put down a brutal uprising. There was some opposition, not least from the Kenyans themselves but also from the British-appointed judiciary, missionaries, and a few MPs. By and large, the language of torture was rare, and very few references were made to international human rights agreements.³² Instead, the dominant image was that of the gulag or concentration camp (Anderson 2005). Common references were made to “extreme pressure,” “maltreatment,” “serious beatings,” and the “third degree.”³³ When the International Committee of the Red Cross visited the Kenyan detention camps in 1957, it noted the use of corporal punishment and “drew attention to its severity.”³⁴ Following specific allegations of the “beating up of prisoners” and the offering of financial rewards for the killing of Mau Mau, Captain G. S. L. Griffiths was convicted in 1954 of “disgraceful conduct of a cruel kind” after he threatened detainees with mutilation.³⁵ Although some perpetrators were brought to trial for and convicted of crimes such as murder or assault, torture was not a crime or even a civil offense under either Kenyan or English law at the time.

At the same time as the Mau Mau uprising, the British colonial authorities were dealing with growing unrest in Cyprus. The counterinsurgency methods of the British were challenged by the Greek government in 1956. As the ECHR applied to Cyprus, the Greeks lodged allegations of atrocities with the European Commission of Human Rights (see Simpson 2001, 924–1052). In lodging their case, the Greeks argued that the “case of the Cypriots differs from that of other peoples of the world still fighting for their freedom in that the Cypriots are Europeans nourished on Western civilization” (Simpson 2001, 929). The applications alleged “many cases of torture, degrading punishment and inhuman treatment,” as well as collective punishments; detention without trial; deportation; and violations of the rights of privacy, freedom of expression, and assembly.³⁶ The initial reaction of the British government was shock and surprise that the ECHR could actually apply to its actions in Cyprus (Simpson 2001, 13). The British government also objected to the protest about whipping, with one senior diplomat arguing that it was commonly used in public schools and “is a mild and humane treatment…. If anyone can think of a more humane and effective treatment … H.M.G [Her Majesty’s Government] would be glad to hear of it.”³⁷ The European Commission of Human Rights never issued any public findings on the case, however. The case was quietly dropped when, in early 1959, the Zurich Agreement paved the way for the independence of Cyprus.

Internment and Northern Ireland

Trouble, when it came, came much closer to home. Following the outbreak of civil unrest in the late 1960s and a bombing campaign by the Irish Republican Army (IRA), internment without trial was introduced in Northern Ireland on 9 August 1971. More than 340 arrests of Republicans were made on the first day alone. By the end of the week, allegations of brutality had made their way into the British press (Sunday Times 1971). In response to the allegations, the British Conservative government, led by Edward Heath, set up a Committee of Enquiry in late August 1971. The committee was chaired by Sir Edmund Compton, a former civil servant and a man who, according to former Labour Prime Minister Harold Wilson, was “one of the shrewdest, cleverest, and nicest, men in Whitehall” (Dalyell 1994). The committee’s mandate was to “investigate allegations by those arrested … of physical brutality” (Compton 1971, 1). However, almost all the internees refused to cooperate, fearing reprisals from the British security forces. The British army did not contest the use of four interrogation techniques—wall-standing, hooding, noise, and a bread-and-water diet—but argued they were an essential part of the security operations. There was an initial denial that sleep deprivation was used, but this denial was later dropped. The Compton Committee reported in November 1971 and made the general finding that what had become known as the “five techniques” were in use, but the committee made few specific statements on individual cases (Compton 1971). Most famously, the report concluded that the use of the five interrogation techniques was justified given the circumstances in Northern Ireland at the time.

Under continued pressure, the Heath government set up another committee to look at the future of interrogation methods. The Parker Report was led by Lord Parker of Waddington, formerly the most senior judge in England and Wales. It also included Lord Gardiner, who as Lord Chancellor had been the head of the English judiciary. Earlier in his career, Parker had been a supporter of corporal punishment, whereas Gardiner was one of the founders of Justice, the British branch of the International Commission of Jurists. The brief of the Parker Report was more specific than the Compton Report, namely to “consider whether, and if so, in what respect, the procedures currently authorized for the interrogation of persons suspected of terrorism … require amendment” (Compton 1971, iii). Looking at the medical risks posed by the five techniques, Lord Parker concluded that if the interrogations were conducted with care, the effects of the use of the five techniques were acceptable, as even under normal domestic circumstances it was reasonable for detainees to be subjected to some discomfort (Parker 1972, 40). He also argued that the techniques, if used correctly, could elicit useful information (1972, 5). As such, the report concluded that given the civil unrest in Northern Ireland, it was wrong to rule out use of the techniques on moral grounds (1972, 7). However, Lord Gardiner refused to let his name appear on the report and issued his own minority version. In his report, Gardiner was far more concerned about the physical and mental impacts of the use of the five techniques, quoting the medical evidence before the committee that it was impossible to set firm objective limits on the use of the techniques, as people had individual thresholds as to what they could endure (Gardiner 1972). He was also worried about the effect the use of the five techniques would have on Britain’s international reputation, as they “marked a departure from world standards we have helped to create … (and) gravely damage our own hard won reputation” (1972, 21).

The Heath government was somewhat bemused by the uproar. Both the prime minister and his home secretary, Reginald Maudling, argued in Cabinet committee meetings that it “had to be remembered that the lives of British soldiers and of innocent civilians depended on intelligence. We were dealing with an enemy who had no scruples and we should not be unduly squeamish over methods of interrogation in these circumstances.”³⁸ Heath expressed exasperation that the accusations against British troops amounted to the claim that “anyone not given three-star hotel facilities suffered hardship and ill-treatment.”³⁹ There was also a feeling that similar techniques had been used elsewhere by the British army—in Palestine, Malaya, Kenya, Cyprus, Brunei, and Aden—without the same level of fuss. Indeed, a 1966 publicly available report by Roderic Bowen QC, a former deputy speaker of the House of Commons and Liberal MP, had implicitly cleared many of the same techniques for use against the counterinsurgency in Aden (1966). Bowen had pointed out that soldiers were bound by the Geneva Conventions. At the same time, however, he made it clear that “permissible techniques” could be used to overcome resistance to interrogation.

The key distinction being made by the Heath government, as well as by the Compton and Parker reports was between “brutality” on the one hand and “ill-treatment” on the other. There is hardly any mention of torture. Even Gardiner in his minority report argues that words such as torture are vague and open to doubt, and therefore he does not use them (1972, 15). For Parker and Compton, the distinction between brutality and ill-treatment, which has no legal meaning, rests on the intention of the perpetrator. Brutality is a worse form of ill-treatment. Compton defined brutality as “an inhuman or savage form of cruelty, and that cruelty implies a disposition to inflict suffering, coupled with indifference to, or pleasure in, the victim’s pain” (1971, 15). Compton’s report found that British soldiers had been responsible for forms of ill-treatment but not brutality. What is noticeable here is the emphasis on morals rather than on legality, and for Compton the use of the five techniques was morally justifiable. The Parker Report was not explicitly mandated to look at the legality of the techniques, but given that it included two men who had been the most senior members of the English judiciary it is hardly surprising that it did. In its investigations the Parker Report revealed that the British army had never considered whether their interrogation techniques were legal under domestic law and had only made the vaguest references to the Geneva Conventions. The regulation of interrogation, such as it existed, had been primarily done for functional and disciplinary ends—to make sure it worked and was controlled. The majority Parker Report thought the techniques were morally justifiable but almost certainly illegal, and therefore the government should take further advice. Gardiner in his minority report argued that the use of the techniques was both immoral and illegal, and that the idea of legalizing the use of such techniques was abhorrent.

Although torture was widely referred to in the protests against the treatment of Republican detainees, it was far from the default term used to describe the techniques. The initial Sunday Times article that broke the story on mainland Britain referred only to “brutality,” setting out the allegations of what it called “psychological pressuring … virtually unrelieved harassment and psychological intimidation” (Barry and Jacobsen 1971, 5). Amnesty International published a report of its own inquiry in early 1972 and did not use the word torture once in the main body of the text, instead referring to “ill-treatment” and “brutal treatment” (1972). One of the first written accounts of the treatment of internees was by Seamas O Tuathail, a Sinn Fein member and journalist, who was rounded up in mid-August 1971.⁴⁰ He accuses the British army of “brutality and torture.” The same phrase is widely used in other publications.⁴¹ “Torture” is used to describe the physical act, but brutality is the multiplier referring to both the cruelty of the perpetrator and the suffering of the victim. “Torture” here does not stand alone as a moral harm. There is also little direct reference to the law or human rights in general. Where O Tuathail makes reference to the ECHR, it is to the right to a fair trial and the prohibition of arbitrary arrest, rather than the prohibition of torture.

The Heath government was privately adamant that the techniques were morally justifiable and initially planned on publicly stating as much.⁴² However, the government also recognized that, under the current laws in Northern Ireland and the rest of the United Kingdom, as well as in most other places in the world, the use of the techniques was illegal.⁴³ The law in question was that of assault, and mention was made only in passing of international obligations. After considering the possibility of passing legislation to legalize the techniques or to take a conscious decision to continue acting illegally and then passing a law to indemnify those involved, it was decided to simply state that the techniques would not be used in the foreseeable future. Heath therefore stood up in the House of Commons and declared, “The Government … have decided that the techniques … will not be used in future as an aid to interrogation…. If a Government did decide—on whatever grounds I would not like to foresee—that additional techniques were required for interrogation … they would probably have to come to the House and ask for the powers to do it.”⁴⁴ There is no moral condemnation of the acts here, merely an indication that because of a change in the circumstances in Northern Ireland, the techniques would not be used again. Crucially, some space was left open for the use of the five techniques to be reintroduced but with the requirement of further parliamentary legislation.

Amnesty International and the International Campaign Against Torture

At least part of the story behind the current role that the prohibition of torture plays in the popular imagination cannot be told without reference to Amnesty International (see Clark 2001; Power 2001). Indeed Amnesty International played a central role in documenting the allegations of ill-treatment in Northern Ireland and increasing the pressure on the Heath government. More broadly, Amnesty International was very significant in putting the prohibition of torture on the international agenda. The organization was founded in the early 1960s to campaign for the release of prisoners of conscience. Torture was not within its original mandate, and was only included in 1966 after much internal debate about the dilution of expertise and resources (Amnesty International 1976).⁴⁵ The broadening of the mandate to include torture was given added impetus by a 1967 investigation into the treatment of political detainees in Greece, following the coup in April of the same year.⁴⁶ A two-man team was originally sent to Athens simply to record “who was detained, where they were held, and why they had been arrested” (Amnesty International 1968, 1). However, when the men arrived they found evidence of what seemed to be systematic and deliberate abuse. The report of the trip concluded that torture was “deliberately and officially used”, and was a “widespread practice against Greek citizens suspected of active opposition” (1968, 3).

At the same time, an application had been brought against Greece in the European Commission of Human Rights by the three Scandinavian countries and the Netherlands, alleging widespread breaches of the European Convention on Human Rights. Torture was not originally included in the submission but was added after the release of the Amnesty International report. In 1969, the commission found Greece in breach of the European Convention, including Article 3 prohibiting torture or inhuman or degrading treatment or punishment. Crucially, although it did not impact the findings, the commission drew a distinction between the different parts of Article 3, describing torture as an “aggravated form of inhuman or degrading treatment.”⁴⁷ For the first time, an intergovernmental organization had suggested that torture was of a higher degree of seriousness than the other forms of ill-treatment with which it had been associated since World War II.

Amnesty International was not the first organization to campaign against the use of torture. However, in the United Kingdom, at least, Amnesty International had the most popular appeal, and its methods of naming and shaming had the most impact on the general public. Important developments were also taking place in Latin America throughout the 1970s, and in many ways Amnesty International drew on this work. The Amnesty International campaign was given added impetus by the presence in Europe and North America of tens of thousands of articulate exiles from Latin America, Chile and Argentina in particular, who could give firsthand accounts of their treatment. Amnesty International’s campaigns worked alongside the lobbying from groups such as the Mothers of the Plaza de Mayo and the Barcelona-based but Argentina-focused, COSOFAM (Commission of Solidarity with Relatives of the Disappeared) (Robben 2005, 306–10; Sikkink 1993). Literary representations, such as Jacobo Timerman’s account of his abuse in an Argentinean jail, Prisoner Without a Name, Cell Without a Number, also added to the popular consciousness of widespread torture (1981). From the 1970s, Europe and North America were confronted with the systematic torture of people of European descent in a way that seem to remind them of Nazi Germany.

Amnesty International formally launched its Campaign Against Torture in December 1972, initially for one year. Until the early 1970s, Amnesty International employed no lawyers on its full-time staff, and its focus on torture was primarily moral in orientation. The first lawyer appointed on a full-time basis to Amnesty International, Nigel Rodley, would play a central role in the campaign. He would also add a new, stricter focus on international human rights law to Amnesty International’s work. After leaving Amnesty International, he went on to become the UN Special Rapporteur on Torture and he sat on the UN Human Rights Committee. It is important to note that although the broadening of Amnesty International’s mandate in the late 1960s referred to all of Article 5 of the UDHR, the campaign left out “cruel, inhuman or degrading treatment or punishment”. Always quick to recognize the value of brevity and clarity, Amnesty International singled out torture for specific attention.

Torture was seen by Amnesty International as a singular and universal problem. It could therefore publish a Report on Torture between 1973 and 1975 and again in 1984, setting out the practice of torture from Albania to Zambia, via Chile, India, Israel, Morocco, Togo, Vietnam, and many others besides. Torture was the same thing wherever it took place and could be understood in the same terms. For Amnesty International, by 1973 “what for the last two or three hundred years has been no more than an historical curiosity, has suddenly developed a life of its own and become a social cancer” (1973, 7). Amnesty International sought to define torture as the “systematic and deliberate infliction of acute pain in any form by one person on another, or on a third person, in order to accomplish the purpose of the former against the will of the latter” (1973, 31). Torture here is organized rather than casual and includes the infliction of great suffering on the powerless by the powerful. Although not explicitly mentioned in this definition, the implicit assumption was that torture was carried out by the state, and all the examples documented refer to state torture. The possibility that torture might include domestic violence, for example, was simply not on the horizon.

Three features of this campaign warrant particular mention. The first is that Amnesty International did not simply work by lobbying politicians and officials but sought to mobilize grassroots public support through letter writing, petitions, and public meetings. Its arguments therefore took hold far away from the corridors of power. The second feature of the Campaign Against Torture is that the history of supporting individual prisoners of conscience meant that the experiences of individual torture survivors were given a prominent place. Perhaps deriving from the presence of broadly progressive and liberal Latin American exiles in Europe and North America, torture survivors were also seen as heroic and principled. The opening pages of the Amnesty International 1973 Report on Torture, for example, begin with first-person narratives detailing the suffering and pain experienced by torture survivors in Turkey, the Soviet Union, and Uruguay, in a style that is familiar from many Amnesty International documents. In this process, individual pain is highlighted as a cause of special horror.

From the early 1970s, medical groups were set up alongside most national Amnesty International sections. They were driven by a worry that doctors were participating in torture in many places around the world (Amnesty International 1977). Furthermore, and perhaps more important, was the need to provide evidence for allegations of torture (see Chapter 3; Amnesty International 1974). Later, attention would also turn to rehabilitation. Initially the focus was on the documentation of physical scars and other marks on bodies, as this was quickest and most practically feasible in contexts where doctors might only have a very short period of time to examine their patients. The Danish medical group, which in the early days was the largest and most influential, also focused on the neurological implications of torture, as many of its leading members were expert in this field. However, the language of psychological trauma also began to play a significant role, perhaps because of the increasing importance of the Latin American anti-torture movement, which was heavily influenced by psychoanalysis (Plotkin 2001). As such, the first publication by Amnesty International on the medical documentation of torture argued that “unquestionably the worst sequelae of torture were psychological and neurological” (1977, 12). In this work there was a profound sense that torture was unique in its levels of suffering, leading one Amnesty International publication to quote Jean Amery’s claim that “torture is the most terrible event remaining in man’s memory” (1973, 58). As such, torture was seen as leaving distinct wounds in the mind.

The third feature of the Amnesty International campaign was that, stemming from the success of the Greek case before the European Commission, the emphasis was on the norms of prohibition rather than on the political causes of torture. This was reflected in campaigns for declarations and conventions setting out the prohibition on torture at the United Nations. By the early 1970s, human rights had become caught up in Cold War politics, and many in the developing world and the Communist bloc were deeply suspicious of any criticism phrased in human rights terms. Indeed, many involved in the British and wider anti-torture movement saw the opposition to torture as a continuation of the opposition to Nazi Germany and totalitarian politics. However, the Campaign Against Torture had the benefit that some of its most important objects, such as Pinochet’s Chile, were US allies, and it was therefore able to drive straight through the middle of Cold War rivalries. The United States and its allies were not going to oppose a broad declaration prohibiting state violence. For the Soviet bloc the condemnation of torture provided a useful stick with which to beat Western-aligned governments in South America and Southern Europe. Furthermore, the prohibition of torture did not seem to be like other human rights, like the right to freedom of opinion, gender equality, or education, about which it was possible to have a debate on their relative merits. No state was going to say it was pro-torture. Instead, the debate was over what counted as torture.

The UN General Assembly adopted a resolution on 9 December 1975 condemning the use of torture. Amnesty International’s campaign was referred to many times during the debate over the resolution (Rodley 1987, 19). During the debate, several member states argued that if they were to lend their name to anything they would need to define what torture meant, otherwise it was far too vague (1987, 72). Therefore, although not legally binding, for the first time in any international instrument, the resolution provided a definition of torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain, or suffering arising only from, inherent in or incidental to, lawful sanctions.”⁴⁸ Crucially, unlike the UDHR, ICCPR, or ECHR, but drawing on the European Commission’s report on the Greek case in 1969, the resolution drew a distinction between “torture” and “cruel, degrading or inhuman treatment or punishment,” arguing that torture was a particularly “aggravated and deliberate form of the latter.”⁴⁹ Torture is therefore given particular and specific prominence. The intention of public officials and the level of pain and suffering of the victims are seen as singling it out for particular approbation.

The United Kingdom Stands Accused Before the European Court of Human Rights

Following the outbreak of unrest in Northern Ireland and the introduction of internment in the early 1970s, the government of the Irish Republic was under domestic pressure to do something about British counterinsurgency tactics in Northern Ireland. Unable to intervene militarily, it tried to place diplomatic pressure on the United Kingdom by protesting to the European Commission of Human Rights in late 1971.⁵⁰ Referring to the report from Amnesty International as well as to the Compton Report, the Irish government alleged that internment without trial was discriminatory and violated the right to liberty and security of the person. Although the Irish government did not make specific allegations of torture, it alleged a broader breach of the prohibition of torture or inhuman or degrading treatment under Article 3 of the ECHR.⁵¹

It took until mid-January 1978 for the European Court of Human Rights to come to a decision on the case. The British government did not contest the claim of a breach of Article 3 or the existence of the five techniques. However, one key issue in the case became how to characterize the techniques of sensory deprivation, such as hooding, and the use of white noise, the effects of which seemed primarily to be psychological. Although sensory deprivation was certainly not new, the incidents that had received most public attention through the late 1960s and early 1970s in Greece and Latin America had involved much more physical forms of violence.⁵² In an earlier advisory opinion, the European Commission of Human Rights had argued that Republican detainees had “described feelings of anxiety and fear as well as disorientation and isolation during the time they were subjected to the techniques and after.”⁵³ However, they also noted that psychiatrists were unable to agree as to the long-term impact of the use of such methods. Some doctors argued that the aftereffects could last for a considerable time. Others, in contrast, claimed that the “psychiatric symptoms developed … during interrogation had been minor and that their persistence was a result of everyday life in Northern Ireland.”⁵⁴ The commission surmised that although it was unable to establish the exact degree of psychiatric aftereffects, the possibility of those aftereffects could not be excluded. The commission’s conclusion was that “the systematic application of the techniques for the purposes of inducing a person to give information shows a clear resemblance to those methods of systematic torture which have been known over the ages.”⁵⁵ Although the commission found that the psychological implications of the techniques could not be predicted with any accuracy, it argued that the mere possibility of severe psychological effects was enough to prohibit the use of those techniques.

The European Court of Human Rights looked at the same evidence as the commission and agreed with the implicit assumption that the level of suffering was the crucial factor. However, it drew the line at a different point, concluding, “Although the five techniques … undoubtedly amounted to inhuman and degrading treatment … they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.”⁵⁶ The judgment insisted on the distinction between torture and inhuman or degrading treatment or punishment, arguing that torture “held a special stigma.”⁵⁷ In making the distinction, the court cited the UN General Assembly resolution that defined torture as a particularly aggravated form of ill-treatment.⁵⁸ The judges were reportedly persuaded to make the distinction by Sir Gerald Fitzmaurice, the British judge at the court and a former legal adviser to the British Foreign Office.⁵⁹ However, Fitzmaurice also issued a dissenting opinion, which argued that it was impossible and undesirable to come up with a precise definition of torture, as it was an entirely subjective term.⁶⁰ He then went on to claim that although the five techniques were “certainly harsh,” to call them inhuman or degrading was to “debase the currency of normal speech.” For Fitzmaurice, in a clear allusion to George Orwell’s 1984, calling the five techniques “torture” left no room to describe acts such as “kicking a man in the groin, or placing him in a blacked-out cell in the company of a bevy of starving rats.”⁶¹ For Fitzmaurice, the court was setting the threshold of suffering too low.

It is important to note two things about the court’s judgment. First, although the United Kingdom was found guilty of a breach of Article 3, the court was implicitly arguing that some breaches are worse than others. Torture was singled out for special censure. Second, the distinction that was being made here between torture and other forms of ill-treatment was in terms of the intensity of the suffering. However, the court offered no way to measure this pain, nor did it provide a sense of the level necessary to be considered “torture.” If the British had wanted to argue that its interrogation techniques were not torture it could not rely on a distinction based on intention, as the five techniques were openly aimed at eliciting information through physical and psychological pressure. Back in the United Kingdom, the press widely reported the decision as a victory for the British government, ignoring the fact that the government had still been found in breach of the convention (see, for example, Walker 1978). There was, however, considerable criticism of the judgment elsewhere. Gerald Fitt, the leader of the Social Democratic and Labour Party, the largest nationalist party in Northern Ireland at the time, accused the court of “playing with words” (Seton 1978, 5). The Northern Ireland Civil Rights Association accused the court of “nitpicking,” and Amnesty International announced it would continue to describe interrogation methods such as those used by the British in Northern Ireland as torture (Seton 1978, 5).

An International Torture Convention

The momentum gained by the Amnesty International Campaign Against Torture during the lobbying for the UN resolution against torture in 1975 continued with the drafting of a new Convention Against Torture (CAT) throughout the late 1970s and early 1980s. Originally, three 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 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.