This Side of Silence: Human Rights, Torture and the Recognition of Cruelty (review)

For some writers, the problem with torture is its inexpressibility. For John Conroy, torture is a set of "unspeakable acts" carried out by and on "ordinary people,"¹ while Elaine Scarry has stated that "[p]hysical pain does not simply resist language but actively destroys it, bringing about an immediate reversion to a state anterior to language."² In This Side of Silence, however, Tobias Kelly identifies the central problem of torture as "not one of the failure of language but of the failure of recognition. It is not the survivor's inability to speak; rather it is our inability to listen."³ While his book is designed as an exploration of the contemporary ethical and political categorization of certain forms of violence as "torture," Kelly, a social anthropologist, argues that the debate around torture has become dominated by issues of legality and judicial interpretation. Thus, he examines how the concept and reality of torture is mediated through the legal process, particularly in relation to human rights laws.

In doing so, his primary focus is on the UK legal system and the UK government's interaction with various international anti-torture legal institutions. He justifies this focus by arguing that "[t] orture, as a category, is often used to draw a line between the civilized and the uncivilized, the compassionate and the barbarous. Focusing on the United Kingdom, rather than, say, Iraq, might help us rethink where those boundaries lie."⁴ The result is a well-reasoned and intricately sourced empirical study that demonstrates how claims relating to torture face institutionalized disbelief, are undermined by an assumption that torture can only be committed by "others," and are rendered virtually impossible to substantiate through ever increasing evidential requirements.

The book opens with a discussion of the development of the paradigm of torture as an anti-Modern taboo and as especially anathema to the British common law legal system. Particularly illuminating in this discussion is Kelly's assertion that, far from being based on the humanist principles of Voltaire and Beccaria so frequently cited in the debate around torture,

[O]ur 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 organisations, came together to make the image of the suffering body a key currency in international politics, and torture an archetypal international crime.⁵

Kelly goes on to demonstrate that these factors combined to transform notions of torture from ideas of "cruelty," "brutality," and "totalitarian politics" into a codified human rights paradigm resulting in "what is and what is not torture [becoming] a matter of precise legal argument rather than broad ethical injunction."⁶ This anti-torture legal paradigm stems from a connection between law and brutality⁷ which modern society can no longer contemplate openly. The self-image of the modern legal system, therefore, demands a severing of any such connections, a notion that has received vocal support from the Judiciary themselves in recent years.⁸ Kelly's project goes on to explore how the legal rejection of the notion of torture leads to a refusal to recognize concrete examples of torture when they arise.

His starting point in the practical field of torture is the legal determination of asylum claims. This, he explains, is principally because the asylum system is the primary source of legal claims relating to torture in the UK. In the British system, an initial claim for recognition as a refugee is assessed and frequently refused by the Home Office, usually followed by an appeal to an independent immigration and asylum tribunal and potentially further appeals to the higher courts. Kelly has regularly participated in this process as an expert witness, using his anthropological knowledge of the Occupied Palestinian Territories. However, the data upon which he draws for his study is derived from a much broader range of sources, including...