This Side of Silence. Tobias Kelly

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СКАЧАТЬ 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 СКАЧАТЬ