Tobias Kelly’s critical, historically informed, and carefully researched book on the evolving concept of torture is an exciting and useful addition to the ongoing new wave of critical scholarship on human rights in political and legal anthropology. Kelly’s work demonstrates the best of where anthropologists of human rights have arrived in the past ten to fifteen years and yet remains a unique contribution, influenced by the excavations of human rights historians such as Samuel Moyn and Lynn Hunt and the theoretical and methodological insights of figures like Sally Engle Merry, Richard A. Wilson, Anthony Good, and Didier Fassin. His central focus is on the almost sacred concept of torture as a privileged form of suffering and cruelty, a thing of “immense ethical, political, and cultural power . . . the worst thing that can happen to someone or that one person can do to another” (p. 3). But his aim is to show how imprecise the actual definition of torture is in modern human rights conventions and committees. Indeed, it is within legal processes and courtrooms that torture as a concept is actually determined and constructed. Focusing on the United Kingdom (UK), Kelly’s argument is that torture is a concept now “saturated with law” (p. 3), and one that has evolved over time as governments, civil societies, and international bodies have contended with one another and with post-cold war politics (and terrorism), the medicalization of trauma, and concerns about increasing numbers of refugees and asylum seekers in the global North.
There seems to be new ground rules in the critical contemporary analysis of human rights and Kelly’s approach embodies these. The first rule is historicization. Scholars are no longer beholden to the myth that putatively universal human rights concepts and legal categories sprung whole from the horrors of World War II. Rather, most of the human rights concepts and conventions as people know them today were cultivated through political and legal struggle, particularly during the cold war era. The second rule is that neither the overall concept of human rights nor specifics such as torture are self-evident in meaning. They are always forged in contexts. The third rule is that law is perhaps the central medium and discourse for morality in the world today (for better or worse, or both). Kelly is thus careful to justify his focus on legality over and above other possible approaches to torture, such as ethical, philosophical, political, medical/therapeutic, or sentimental. Elegantly anticipating and countering potential critics, he notes that “legalization does not [necessarily] result in depoliticization” (p. 8) and argues that an analytical focus on the generative and limiting power of law does not “make other emancipatory strategies less available,” and that “wider ethical and political concerns can remain” (p. 18). The fourth ground rule is that human rights are not just violated by other people in other places. Kelly chooses to focus on the UK’s engagement with torture rather than that of an “unstable, authoritarian, and illiberal” (p.6) regime, highlighting and challenging how human rights discourse constructs implicit boundaries between civilized and uncivilized. And perhaps the final ground rule for anthropologists of human rights is that ethnographers must follow the issues as they touch ground in multiple spaces and are embodied through the practices of people in those spaces. Kelly’s analysis bridges multiple and differentiated areas of the law and those who work within and against it, from lawyers and medical experts to human rights organizations and monitoring bodies, and follows specific kinds of cases through their respective systems to locate the salient patterns at work.
Kelly’s writing is beautifully clear and his analysis is coherent and richly crafted from diverse raw material. The methodological approach of pursuing cases through their lifespans has a venerable history in legal anthropology. Kelly uses it well to examine how torture is constructed relative to very different types of cases, from the asylum claim of Ali Khalili, a thirty year old Iranian for whom torture was a major aspect of his (rejected) claim; to the successful prosecution of an Afghan military official found guilty of torture; to the failed prosecution of British soldiers for allegedly committing acts of torture in Iraq. He carefully examines what laws are mobilized in each instance and what counts as evidence in such cases; how causality (of injuries, of mental illnesses) nor intent can almost never be attributed with complete certainty to alleged acts of torture; and how denial and disbelief seem to be the default positions in asylum claims and in cases against native-born UK citizens. Kelly thus arrives at one of his key points: torture is ultimately a “problem of recognition” (p. 4). It is not due to the inability of survivors to articulate the experience of suffering, or the incapacity of the law to charge “us” rather than “them” with acts of torture, but of “our ability to listen, to see, to name, and take responsibility for what is in front of us” (p. 4-5). Kelly asks, what do legal understandings of torture allow people to acknowledge? For asylum applicant Ali Khalili the answer is devastating: certainly not a right to refugee protection in the UK. For Afghan so-called warlord Faryadi Zardad the answer is that torture occurs elsewhere by monsters like him. And for British troops, the answer is that torture did not occur at all.
Kelly argues that “the task is not to examine how the processes of recognizing torture bleach out and thin down subjective experiences but rather to explore how the legal recognition of torture produces multilayered and often contradictory forms of knowledge about suffering and cruelty” (p. 13). However, one wishes that he had done a bit more with subjective experiences and the voices of people like Ali Khalili, who probably would not find that argument very compelling. Similarly, one wishes that Kelly might call out more forcefully what appear to be some awfully convenient uses of the law. For instance he discusses the “twin” of recognition – which is denial – and how it manifests as a “bureaucratic deferral of responsibility” (p.13) (or plain disbelief, as in asylum cases), but he doesn’t critique the political purposes that denial, deferral, and disbelief serve in a world where torture is committed with near impunity by the US and UK and where asylum seekers are increasingly blocked from relief. It is difficult not to see through his own case studies that the law appears enormously self-serving and politically expedient in certain contexts, such as when asylum seekers are deemed not at risk of torture on return, or when the UK does not want to admit that members of its military committed acts of immense and deliberate cruelty in Iraq. Calling out the self-serving, expedient aspects of legal processes or decisions in politically charged situations is not to detract from the significance of Kelly’s argument that torture is constructed as a legal category. Nor is it to embrace the ahistorical, metaphysical notion of torture he views as the problematic alternative. It is to critique law as an instrument of power itself – something the book falls short of doing in an explicit and satisfying manner. A few times readers get the sense that this is where Kelly’s own political conclusions would lie, but he is either too polite, or too persuaded by the legalism he analyzes so well, to say so with conviction.
Reviewed by Tricia Redeker Hepner, Department of Anthropology, University of Tennessee
This Side of Silence: Human Rights, Torture, and the Recognition of Cruelty by Tobias Kelly. Philadelphia: University of Pennsylvania Press, 2011. 232 pgs, paperback, $26.50. More information at University of Pennsylvania.