Torture is not ‘barbaric’. It is a deeply ‘modern’ practice

Introduction

Despite the absolute prohibition of torture in international law, the practice remains a persistent one and prevalent all across the world. In the West, there is perhaps a perception among the general public that torture is something that mostly happens far away, both geographically and temporally. To the contrary, this essay will demonstrate how some liberal democracies, seen to be part of the ‘civilised’ world, have systematically used torture in their interrogations as recently as the 21st century. Using the lens of imagery and visual communications, we will look at the UK’s complicity in the torture of suspected terrorists following the 9/11 attacks, exploring how torture remains a ‘modern’ practice. Additionally, this essay will argue that by depicting survivors and victims of torture as barbarians – and itself as a defender of democracy – the UK largely subverted accountability and stigma. Finally, this essay will look at the significance of international law – namely the European Court of Human Rights (ECtHR; the Court) – in enabling violence and maintaining this dichotomy of ‘civilisation versus barbarism’.

Background

Shortly following the attacks on the United States in September 2001, George W. Bush declared a ‘war on terror’. He vowed that the West would wage a war ‘unlike any other’ on those it considered ‘enemies of freedom’.¹ Not long after, Tony Blair pledged his support to the US, working closely with the CIA and agencies like Pakistan’s ISI, to interrogate and detain those it suspected of terrorism. As the UK became more involved in Iraq, its complicity in torture deepened. Literature such as ‘Cruel Britannia: A Secret History of Torture’ and reports from NGOs like REDRESS extensively document the scale of abuses in Iraq, exposing the UK as an ‘enthusiastic participant in the rendition and torture programme’.² This essay will primarily focus on Britain’s use of ‘conditioning’ tools such as the ‘five techniques’ – a group of interrogation methods first used in Northern Ireland. As we will see below, however, despite the UK’s best attempts to hide its cruelty, much of the violence eventually came to light.

It is against this backdrop that we can understand how the UK framed survivors and victims of its torture as barbaric, rather than its own actions. As W. Fitzhugh Brundage remarks, the modern history of torture – such as that seen in Iraq – rings true with the wisdom that ‘each man calls barbarism whatever is not his own practice’.³ Ultimately, in an effort to evade legal accountability and associations with torture – while attempting to retain an image of civilisation – the UK both denied the existence of torture in Iraq and looked to justify its actions. For it to best achieve impunity, the UK firstly created a discourse that its enemies were savages who jeopardised modern, Western values, and secondly it looked to conceal its abuses from the public eye.

Portraying torture survivors as barbarians

In order for the UK to evade moral and legal accountability for its role in torture and other forms of cruelty during the post-9/11 era, it had to position itself as a ‘civilised’ state that was fighting tyrants. Utilising rhetorical devices such as the dehumanisation of its ‘enemies’ in the Middle East – while modelling itself in the figure of a benevolent ‘global policeman’ – the UK came to justify torture as a necessary tool. Bush and Blair looked to maintain this manufactured representation of modernity through the use of imagery that equated its adversaries with savages who opposed the ‘free world’.

As the invasion of Iraq commenced in 2003 and the war raged on, the UK and the US felt it necessary to justify their actions to a wide range of audiences; they achieved this in part through framing the armed conflict as a battle over ‘ideas and values’. For instance, Blair described terrorism as ‘the new evil in our world’, perpetrated by those who have no regard for the sanctity of life, posing a threat to the free world.⁴ Meanwhile, the formulation of the UK and the US’s antagonists as ‘stateless savages’ and ‘illegal enemy combatants’⁵ was fronted by figures like the Secretary of Defense Donald Rumsfeld who infamously referred to the detainees at Guantánamo and Abu Ghraib prisons as the ‘worst of the worst’.⁶ Perhaps the most vivid use of imagery was when Cofer Black, a close adviser to Bush, declared that the country’s enemies must be left with ‘flies walking across their eyeballs’, an image that even his colleagues found striking.⁷

Using a rhetoric of dehumanisation subsequently laid the foundations for British and American authorities to act as barbarians themselves, justifying their inhumanity. Among other pieces of work, Ian Cobain’s ‘Cruel Britannia’ chronicles the horror and shamelessness found in the UK and the US’s treatment of prisoners. One example recalls US Navy photographers taking pictures of men being dragged across the ground, with the images later distributed to the world’s media.⁸ Cobain also details allegations against the UK, including claims from Moazzam Begg who was hooded and shackled by British intelligence officers before being beaten, stripped and photographed.⁹ Waqar Kiani, a journalist investigating for The Guardian, was abused by Pakistani interrogators who told him to stop asking questions about the British – he was also told that if he informed anyone about his beatings, his wife would be raped and the assault would be recorded.¹⁰ 

Ultimately, the UK, like other democracies, shaped public discourse to circumvent both moral accountability and ‘the international anti-torture norm’.¹¹ By conceiving and depicting torture survivors as dehumanised figures deserving of cruel treatment, the UK seemingly legitimised its own barbarity. As will be explored further below, these actions following 9/11 were deemed exceptional because of the perceived threat challenging Western values.

The invisibility of torture

As shown above, the UK validated its torture in Iraq by framing its actions as justifiable and its enemies as barbaric. However, its strategy to deny and obfuscate the torture that took place was an arguably more prevalent approach. Throughout the 21st century, the UK attempted to retain the facade of it being ‘civilised’ by concealing the ill-treatment of its detainees – by doing so, it looked to distance itself from the image of brutality often attached to torture.

While in the private sphere, violent and degrading acts (including those that involved photography) were performed on terrorism suspects – further accentuating the West’s framing of them as savages who endured or deserved these abuses and acts of humiliation – the UK attempted to bury its practices from the public sphere. This served a dual function for the UK; to evade the law but to also hide behind the veil of its ‘civilisation’. This juxtaposition is perhaps best characterised by the Abu Ghraib prison, which was designed to act as a ‘theatrical performance’ for those partaking in torture, while being kept hidden from the public audience.¹²

In ‘Discipline and Punish’, Michael Foucault details how torture’s brutality is often rooted in contemporary legal systems, as well as how torture shifted away from its manifestation as a public spectacle and into a disciplining device. Darius Rejali expands on this observation, referring to ‘clean techniques’ to describe physical methods of interrogation that leave few marks on the victim.¹³ As a subset of ‘modern tortures’, these techniques juxtapose classical torture in that they are not performed in public and leave no scars or branding. Clean torture, Rejali explains, is more common in democracies like the UK, where ‘public monitoring of human rights is a core value’¹⁴ and the evasion of detection becomes crucial. Michelle Farrell echoes this point by asserting that many states conceal their practice of torture to avoid ‘being stigmatised as “uncivilised”’.¹⁵ In other words, the self-attributed identity of being ‘civilised’, coupled with liberal ‘ideas and values’, compel Western states to deny their involvements with torture and in some cases to rely on clean techniques. These attempts to render torture invisible were especially evident in Iraq, but in Northern Ireland too.¹⁶

Efforts by the UK to obscure its use of torture were, however, ultimately undermined when images depicting detainees tortured in Abu Ghraib received global attention. More than a thousand images and videos documenting detainee abuse at the Abu Ghraib prison were leaked in 2004, showing military personnel taunting and abusing naked prisoners.¹⁷ With the US facing widespread condemnation at the time, UK intelligence agencies hastily revisited interrogation policies, fearful that the British would be compromised by similar photographs.¹⁸ By 2008, the UK’s mostly secret role in the torture of terrorism suspects was beginning to unravel, with increased scrutiny from journalists, MPs and lawyers.¹⁹ 

However, as it became apparent that exposure of the UK’s complicity in torture led to few legal consequences, cynicism around the utility of international law increased. For the most part, public attitudes had not materially shifted and liberal democratic states’ reputation as defenders of the torture ban remained largely untouched. UK authorities blamed a few ‘rotten apple’ incidents,²⁰ while Blair mostly continued to claim ignorance around his government’s involvement in extrajudicial abductions and their legality. Hedi Viterbo asks whether photographic evidence of torture further conceals state-sanctioned torture, with states having to take extra care that their torture is not made visible. Others question the potency of the international legal system – as we will see below, not only did the law facilitate the UK to act with impunity and carry out its abuses on those it portrayed as savages, but it allowed the UK to retain its image as a force against barbarity.

The role of international law

As argued throughout this essay, the UK was able to utilise provocative imagery and a discourse of ‘civilisation versus barbarity’ to justify the torture of terrorism suspects. Crucially, however, the UK’s involvement in torture was additionally enabled by the ineffectiveness of international law. In fact, the law was not only inconsequential and largely ignored, but it played an active and significant role in legitimising torture methods like the five techniques. By helping uphold the pretence that the UK is a ‘civilised’ state and presenting the illusion that the law is a potent force that brings justice, international law seemingly strengthened liberal democracies’ reliance on ‘clean torture’. Below we will look at how rather than bringing accountability to the UK’s actions, international law sanctioned the use of invisible torture in Iraq.

The role of international law is best demonstrated when looking at the ECtHR’s decision in Ireland v UK in 1978. At its core, the case assessed what comprises torture, focusing on the five techniques, which constitute: hooding, stress positions, deprivation of sleep, deprivation of water and food, and subjection to a continuous noise. The Court judged whether the use of the five techniques by British security forces during ‘the Troubles’ in Northern Ireland amounted to torture under Article 3 of the European Convention on Human Rights (ECHR). With the prohibition of torture considered a peremptory norm (jus cogens) in international law, unlike other forms of ill-treatment, the Court’s distinction was a significant one.

The Court’s judgement was preceded by a decision in 1976 from the Strasbourg Commission which found that the UK had violated Article 3, with its methods amounting to torture. Two years later, the case was referred to the ECtHR which subsequently ruled that the techniques did not meet the threshold for torture – the five techniques instead constituted ‘inhuman and degrading treatment’. The Court ruled that the UK’s treatment of those it interrogated ‘did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood’.²¹

The judgement was widely criticised at the time and remains equally contentious today. One dissenting opinion held that even under ‘the strictest definition of torture’, the ‘carefully chosen and measured [five] techniques’ must have caused extreme suffering.²² In 2005, Lord Bingham, Former Lord Chief Justice of England and Wales, was also of the view that despite the Court’s 1978 judgement, the five techniques ‘would now be held to fall within the definition’ of torture.²³ Indeed, following a 1972 inquiry into the interrogation of terrorism suspects in Northern Ireland, the British government itself accepted a minority report, later issuing a directive that prohibited future use of the five techniques in Britain.²⁴

Nonetheless, the 1978 ruling was impactful. As numerous commentators have remarked, the Court missed a crucial opportunity to correct a historic wrong – instead, its decision created damaging consequences around the world and for years to come. Decades following the ECtHR ruling, the British government and its allies during the ‘war on terror’ widely used forms of ‘clean torture’ like the five techniques – in large part because of the Court’s decision. The judgement had both helped provide clarity on what constitutes torture and it strengthened the notion that the UK was fighting savages – rather than it being barbarian itself. 

The UK and US governments came to rely upon Ireland v UK to argue that the degrading treatment of their detainees was not in breach of the prohibition of torture.²⁵ During the Iraq war, Jay Bybee, Assistant Attorney General, wrote in a memo that the Court’s decision in 1978 had set a legal precedent for the US to employ all but the most brutal of mistreatment of its detainees.²⁶

The Court’s decision was firstly key in enabling the brutal and invisible actions of the UK in Iraq by creating a significantly high threshold for what constitutes torture. As aforementioned, the judgement allowed for the definition of torture to develop in a way that accommodates the obfuscation of abuse – it prompted the British government to ensure that its torture was hidden away from the public eye, rather than to stop its actions. Viterbo echoes this point, asserting that legal definitions of torture play a crucial role in the prevalence of torture, on the condition that the state violence is hidden. Bush and Blair were not afraid to deny the existence of torture in Iraq and to act with impunity – nevertheless, the Court’s narrow definition of torture, as highlighted by Lord Bingham, strengthened the UK’s justification of its actions. The UK’s attempt to evade accountability was helped by placing the ‘barbarians’ and terrorism suspects largely outside legal definitions and the protections of international law. Using the 1978 judgement, the UK was able to present its abuses in Iraq as exceptional.

This notion of exceptionality is seen more clearly when assessing how the Court regarded the stigma associated with torture and gave special treatment to the UK. In its judgement, the Court looked at the context of the conflict in Northern Ireland and found that the national emergency at the time had warranted ‘special’ measures to be taken by British security forces.²⁷ The ‘special legislation’ that the UK had used in its interrogations – ‘designed to combat a public emergency threatening the life of the nation’²⁸ – were underlined by the Court. Recalling Blair and Bush’s rhetoric painting their suspects as barbarians threatening the West’s safety and values, the Court’s language seems to reflect the same framing techniques.

More salient, though, is the Court’s focus on the ‘special stigma’ that it attached to torture as opposed to ‘inhuman or degrading treatment’. The Court stated that it was the intention of the ECHR to draw a distinction between these two forms of cruelty on the basis that torture attaches a ‘special stigma to deliberate inhuman treatment causing very serious and cruel suffering’.²⁹ Ireland v UK was novel in considering this special stigma as a differentiating factor between torture and other forms of ill-treatment – the Court used the term to highlight the brutality and abnormality associated with torture.

Critics such as Farrell, however, have scrutinised the Court’s reliance upon the ‘special stigma’ threshold, questioning the undertones of this choice of terminology. In her paper, Farrell argues that the Court introduced the ‘special stigma’ phrase to dissociate the UK from any stigma, while ‘gesturing to an underpinning architecture of torture as a determinant of civilised and uncivilised political communities’.³⁰ The special stigma threshold indicates a standard of civilisation, where torture is portrayed as abhorrent, exceptional and foreign to ‘modern’ nations. By creating the narrow definition of torture, contingent upon concepts of severity and barbarity, the Court emphasises not only the serious nature of torture but also its alienness too. It paints an image of torture as being far away and especially brutal.

As a consequence of ruling that the UK’s actions in Northern Ireland did not constitute torture and that there was no special stigma found in its actions, the Court saved the UK from stigmatisation. It sent a message to the UK government that their interrogation tactics were acceptable.³¹ Ultimately, the Court perpetuated the discourse and self-generated image from Western states that their ‘modernity’ was incompatible with torture, subsequently enabling their actions in Iraq decades later.

Conclusion

Throughout its history, torture has been perceived as barbaric, and this is no different today. In its ‘war on terror’, the UK depicted its victims as savages and its actions as necessary, while also attempting to conceal its abuses from the public eye. Using the veil of modernity and civilisation, the UK distanced itself from associations with torture and its brutality. The UK’s dehumanisation rhetoric and employment of provocative imagery was supported further by the impotency of international law. The precedence set in Ireland v UK not only strengthened a narrow definition of torture – which subsequently encouraged the use of ‘clean torture’ seen in Iraq – but it also emphasised the notion that the UK was a ‘civilised’ state and could not feasibly be complicit in torture.

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¹ The White House, 'Address to a Joint Session of Congress and the American People' (20 September 2001) <https://georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010920-8.html> accessed 7 April 2024

² Ian Cobain, Cruel Britannia: A Secret History of Torture (Granta Books 2013) 214

³ W. Fitzhugh Brundage, Civilizing Torture: An American Tradition (Belknap Press 2018) 5

⁴ Ian Cobain, Cruel Britannia: A Secret History of Torture (Granta Books 2013) 213

⁵ W. Fitzhugh Brundage, Civilizing Torture: An American Tradition (Belknap Press 2018) 304

⁶ ibid 313

⁷ Ian Cobain, Cruel Britannia: A Secret History of Torture (Granta Books 2013) 206

⁸ ibid 223

⁹ ibid 216

¹⁰ ibid 252

¹¹ Frank Foley, ‘The (de)legitimation of torture: rhetoric, shaming and narrative contestation in two British cases’ [2020] 27(1) European Journal of International Relations 102

¹² Budi Hernawan, ‘Torture as Theatre in Papua’ [2016] 10(1) International Journal of Conflict and Violence 78

¹³ Darius Rejali, Torture and Democracy (Princeton University Press 2009) 3

¹⁴ ibid 8

¹⁵ Michelle Farrell, ‘The Marks of Civilisation: The Special Stigma of Torture’ [2021] 22(1) Human Rights Law Review 18

¹⁶ Aoife Duffy, ‘Searching for Accountability: British Controlled Detention in Southeast Iraq, 2003-2004’ [2016] 10(3) International Journal of Transitional Justice 430

¹⁷ W. Fitzhugh Brundage, Civilizing Torture: An American Tradition (Belknap Press 2018) 290

¹⁸ Ian Cobain, Cruel Britannia: A Secret History of Torture (Granta Books 2013) 243

¹⁹ ibid 264

²⁰ REDRESS, 'UK Army in Iraq: Time to Come Clean on Civilian Torture' (October 2007) <https://redress.org/publication/uk-army-in-iraq-time-to-come-clean-on-civilian-torture/> accessed 7 April 2024

²¹ Ireland v UK (1978) 2 EHRR 25, para 167

²² ibid 124

²³ A (FC) v Secretary of State for the Home department (No 2) [2005] UKHL 71.

²⁴ Frank Foley, ‘The (de)legitimation of torture: rhetoric, shaming and narrative contestation in two British cases’ [2020] 27(1) European Journal of International Relations 114

²⁵ Michael O'Boyle, ‘Revising the verdict in Ireland v UK: time for a reality check?’ (EJIL:Talk!, 6 April 2018) <https://www.ejiltalk.org/revising-the-verdict-in-ireland-v-uk-time-for-a-reality-check/> accessed 7 April 2024

²⁶ Ian Cobain, Cruel Britannia: A Secret History of Torture (Granta Books 2013) 231

²⁷ Ireland v UK (1978) 2 EHRR 25, para 78

²⁸ ibid 243

²⁹ Ireland v UK (1978) 2 EHRR 25, para 167

³⁰ Michelle Farrell, ‘The Marks of Civilisation: The Special Stigma of Torture’ [2021] 22(1) Human Rights Law Review 7

³¹ ibid 4