At the Threshold of Justiciable Violence: Configuring and Contesting Torture’s Production

Introduction

Before the Law stands a doorkeeper. To this doorkeeper there comes a man from the country and prays for admittance to the Law. But the doorkeeper says that he cannot grant admittance at the moment. The man thinks it over and then asks if he will be allowed in later. “It is possible,” says the doorkeeper, “but not at the moment.”

Metaphors abound in any Kafkaesque point of departure. Here, they are: what is heard by the law, whose appearance is seen by the law, who is allowed in or effaced, and how and when does grievance become legible. The language of the threshold, it literally being the entrance marker to a room, too looms large in the background—that is: how the thresholds or entry-points are manned and maintained. This language can be equally sensorial: “differentiating the cries we can hear from those we cannot, the sights we can see from those we cannot.” ¹ However they are described, processes around these decisions are ritualized, legitimated, and institutionalized social practices. They reveal that the value placed on one’s grievance is craftily conditioned by social, political, and legal forces. One such institutional process is adjudication. Expectedly, these processes and their produce are naturalized, subsumed, and presumed (often universalized and valorized) by human rights discourse, particularly by legal practitioners, often without due explication. Rather, positivist practitioners display a proclivity to accept everyday legal categories as promisingly capturing realities of state violence. Like Kafka’s anonymous protagonist, practitioners are encouraged to place their trust in this inherited script. The protagonist does not question, is not allowed through, and ultimately perishes.

Following a critical scholarship, I hold that the formation of legal thresholds, definitions, and categories of torture and other forms of state violence must be recognized as being powerfully and actively constructed and controlled. This may be a rather uncontroversial and commonplace claim for the usual reader of this journal, so I write this for those on the precipice of switching consciousness from the positivistic upon questioning their received story—particularly in relation to “invisible” or psychological forms of torture or ill-treatment and similar state violence left unquestioned as a “lawful sanction.” I set out to weave and exemplify this discursive production as running through the symbiotic interplay between configuration, control, and contestation of the justiciable, namely, the “quality or state of being appropriate or suitable for adjudication by a court.” ² I take these processes as determining the in/visibility of state violence. ³ Related here are questions of how and what is socio-politically counted (commensurable, and admitted as reality) and valued (accepted as legible and human), at times even calling personhood into question.

I take my point of departure from Kafka’s depiction of standing at the threshold of law, using the working definition of “threshold” as the minimum degree of certainty required for recognizing or registering an act as belonging to a category or concept. I use it essentially as a device to diagrammatize torture’s settled discursive narrative and to interchangeably point to boundaries, transitions, borders, frames, schemes, intersections, levels, or limits both implicit and explicit in in/visibilizing state violence. I will use it to cut across and knit together discussions around law’s relation to violence and to its subjects, particularly in terms of justiciability—as a manning of the threshold of recognition. I will thus rely on the notion of the threshold to explore dichotomies and categories drawn between the legitimate and the illegitimate, the permitted and the prohibited, forms of state violence that fall within the bracket of reprehensible and therefore recognizable, and others that are viewed as inherent and therefore acceptable in the exercise of state power.

Act I: Torture as Figure (Its Cast of Characters and Rehearsed Themes)

. . . he decides that it would be better to wait until he gets permission to go inside. The gatekeeper gives him a stool and allows him to sit down at the side in front of the gate. There he sits for days and years. He makes many attempts to be let in, and he wears the gatekeeper out with his requests. [. . .] The man, who has equipped himself with many things for his journey, spends everything, no matter how valuable, to win over the gatekeeper.

Let’s start with characterizing the practitioner’s claim: that a certain act or experience amounts to torture. At first glance, torture and other forms of ill-treatment such as cruel, inhuman, and degrading treatment and punishment (I will refer to these as “ill-treatment” in the short-hand) present as useful legal categories helping us to configure and constitute our understandings of the “civilised and the uncivilised, the compassionate and the barbarous” ⁴ —classifying, sorting, and prioritizing—hence representing commonly shared thresholds of recognition. There is also an ancillary relationship between torture and ill-treatment, with the latter serving as “a fence around that wall” encumbering states “not just from crossing the torture threshold, but to keep them from even approaching it.” ⁵ The UN Convention Against Torture (UNCAT) is the universally recognized stage and script here, describing torture in its first article as the intentional infliction of severe physical or mental (or psychological) pain or suffering. Although conceived merely four decades ago, its meaning is open to a wide scholarly and interpretative configuration as if a long-lost scroll, as it does not offer precise guidance as to what acts or experiences constitute torture.

This discourse has oscillated between the intentional and intuitive interplay amongst a range of actors including states, international courts and UN bodies, the public, human rights practitioners, and social and natural scientists, not to mention the victims themselves. It has very much focused on thresholds, that is, on the boundaries between an expansive application than orthodox, namely, from custodial (political detainees, and as occurring in places of detention) to the non-custodial (and in a community policing setting) and to “private” (domestic violence)—in the recognition of forms of state-sanctioned force/violence otherwise seen as legitimately inherent to the criminal justice apparatus. This discourse on broadening understandings of torture inclusive of the everyday and routine as well as the spectacular may also be reframed as a contestation between holding torture out as an archetype of unspeakable and extraordinary violence meriting a “special stigma” as compared to one that is in a broader continuum or mosaic of state violence. The question of “broadening” will eventually bring us to psychological torture, the functions and fictions of law and its in/ability to recognize specific suffering, especially that which is considered to emerge out of “lawful sanctions.”

Human rights practitioners have long held their legal and normative points of reference as evolving, linear, incrementally progressive, and informed. The organic or evolving manner in which the terms cruel, inhuman, and degrading have been interpreted is often attributed to the wisdom of drafters of both the European Convention on Human Rights and those of the UNCAT not having strictly fixed these distinctions. In the interests of remaining effective and contemporary, the European Court has purported to operate on the doctrine that the European Convention on Human Rights is contingent on “present-day conditions” and “attitudes” ⁶ and that “certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in future.” ⁷ The contours and implications of this doctrine, however, remain opaque, controlled, and ill-defined by the Court. As integral to the adjudication of torture, these legal processes of measuring experiences of suffering are remarkable interpretive and discretionary exercises performed on variable, subjective terrains.

Such doctrines are held out to be benevolent, self-evident, and universal, deducing logics of natural law. The routine use of categories, by practitioners, renders them internalized and institutionalized and, in turn, deemed as naturally and neutrally occurring discursive markers, where in fact they are produced in a specific social context at the nexus of specific power relations. ⁸ The benevolence and aspiration ascribed to the law and its doorkeepers, namely the quality of law as good and its ability to do good, is as palpable with Kafka’s petitioner-protagonist as it is with the optimistic-positivistic practitioner who trusts the law to better recognize his (clients’) claims. The notion that these categories are evolving and susceptible to expansion are held out as a promise—a promise that keeps him keeping on in this schema. That is, glaring inadequacies do abound, but are entrusted to the intuitive interplay and evolutive interpretation towards a collaborative reconfiguration in reacting to, recognizing, and reflecting changes in the social order—toward some teleological sense of deliverance or fulfilment.

What we already have therefore is a dialectic consumed in configuration of state violence in a complex context preoccupied with: naming and boundary-making; differentiating between torture and other forms of ill-treatment (i.e. inhuman and degrading treatment or punishment); differentiating between these prohibited forms of state violence and permitted forms; and expanding these categories to include previously permitted forms of state violence. Critiquing this fixity on thresholds, Talal Asad characterizes torture and its orbiting categories as unstable categories given how they are held out as universalist and “intended to measure what are often incommensurable standards of behaviour.” ⁹ I’ll return to this more substantially in Acts II and III.

The similarly amorphous concept of “psychological torture” presents an even more fertile ground to examine and problematize these dynamics of category-production or boundary-making. Accordingly, a body of literature has emerged attempting to better conceptualize mental pain or suffering and the distinction between the physical and mental. Variably referred to as “non-physical torture,” “white torture,” “invisible torture,” “clean torture,” “evidence-free torture,” “hands-off torture,” “mental torture,” “stealth torture,” and “torture-lite,” ¹⁰ the concept of psychological torture has aimed to chart forms of state violence difficult to document due to their propensity to not leave visible marks on victims. ¹¹ Which forms of torture fall under its rubric is debated—as all torture is simultaneously physical and psychological as inextricable as the mind and body—but solitary confinement, sleep deprivation, and threats serve as primary examples of techniques directly targeting the human mind as a first order conduit to inflict harm without overtly damaging the body. Interpretative variations and gaps in adequately conceptualizing psychological torture and ill-treatment are easily identified in the reported experience of practitioners and in case-law. Whilst its use in its international, regional, and domestic iterations has been inconsistent and problematic, it is clear that allegations predominantly involving such non-physical methods are comparatively insufficiently prohibited and redressed. ¹²

With recent attention, however, questions over content, utility, and legitimacy of psychological torture as a concept have resurfaced and been strategically reactivated—with the concept’s changing and increased use attracting criticism for fragmenting the anti-torture field. ¹³ Against this grain, the UN Special Rapporteur on Torture (UNSRT) has defined the concept of psychological torture to “include all methods, techniques and circumstances which are intended or designed to purposefully inflict severe mental pain or suffering without using the conduit or effect of severe physical pain or suffering.” ¹⁴ With the UNSRT recently observing that: ¹⁵

“Psychological torture” is not a technical term of international law, but has been used in various disciplines, including legal, medical, psychological, ethical, philosophical, historical and sociological, for different purposes and in varying interpretations. The Special Rapporteur acknowledges that all of these understandings have their own legitimacy, validity and purpose in their respective fields. In line with the mandate bestowed upon him, the present report examines the concept of “psychological torture” from the perspective of international human rights law.

As authoritative and progressive as this mandate has previously been, this prescription seems to add to the ambivalence and confusion in the conceptual narrative. The sleight of hand here is to both say that “everybody is right” but to continue to heavily overlay the concept with a legalistic meaning. There is a reductive legalistic move here which flattens out the complexity and multiplicity of the phenomenon. Such heavy-handed interventions run contrary to the visible, incremental, and collaborative production of concepts and reveals the forceful contestation (even by well-meaning actors) with which categories and imaginaries are produced.

To be sure, there remain real challenges to relevant actors’ ability to operationally apprehend “invisible” harm, relative to overtly physically damaging hence “visible” forms of torture. The issues can be located in the inter-related notions of subjectivity and severity. I use subjectivity to refer to the relevant actors’ (whether lawyers, adjudicators, or victims) apprehension of harm in individual instances. It invokes notions of subjective (victims’) vulnerabilities and (adjudicators’) biases, which are at play in designing, experiencing, downgrading, or dismissing harmful acts. In the face of this, the literature reveals an objectivist or materialist bias informing these perceptions, namely “that the physical is more real than the mental,” ¹⁶ “reliance on a solely objective analysis of suffering, due to the difficulties in measuring intangible psychological injuries,” ¹⁷ and equating torture with “acts of extreme barbarity.” ¹⁸ The domination of the materialist bias is also related to the visual-evidentiary paradigm, which treats “verbal torture testimonies as inferior to photographic or video evidence.” ¹⁹ The emergence and prevalence of “stealth” or psychological torture has also been traced to such preoccupations with materiality. ²⁰ Related to this invisibility and obscurity, subjectivity brings into focus the metaphysical questions of the “shareability” of pain ²¹ and difficulty in delineating torture or ill-treatment from “discomfort.” ²²

Difficulties in articulating differences between the lawful and unlawful obfuscate and equivocate the mapping of this terrain. The contours of law’s relationship to state violence are thus hidden from sight—as practitioners are discouraged “to confront law’s lethal character and the masking of its interpretive violence” and officials are encouraged to “ignore the bloody consequences of their authoritative acts and the pain those acts produce.” ²³ Beyond law’s purported function as producing cohesion, I take law’s role in the social organization of violence as critical here and, accordingly, focus on its structured, coercive, and repressive aspects as inherent to its very operation. To be more specific, effective interpretation and application of the law necessitates the threat of violence, however sparingly its use is prescribed to be, as well as definitional violence in what it renders invisible. Legally, this discussion is usually framed around the controversial interpretation of the “lawful sanctions” clause found in Article 1 of the UNCAT, which qualifies the definition of torture to exclude that which is “inherent in or incidental to lawful sanctions.” Similarly, the European jurisprudence on the prohibition of torture and ill-treatment negotiates this contestation at the “minimum level of severity” threshold, where certain harms are recognized and others are dismissed either as incidental or insufficient and, in turn, mere discomfort. The Court has interpreted this in various ways as something other than difficult or “undoubtedly unpleasant or even irksome.” ²⁴ The level of harm accepted and left unchallenged as “inherent” to the criminal justice process becomes a central question here. It brings to its defense the notion of “justiciability” in limiting what can be adjudicated before a court and in excluding more profound socio-political rationale and ends underpinning state violence, for example, necessity of prisons or policing.

Concerns as to the dilution of torture’s meaning are also invoked at this juncture. Cautionary remarks around not “cheapening” or “trivializing” torture through overuse are not uncommon. ²⁵ For Darius Rejali, distinguishing between “psychological fears of pain and pain itself” becomes critical to avoid torture becoming a slippery word of which “analytic discussion becomes meaningless.” ²⁶ Conversely, demarcating torture “as an event that occurs only outside of ‘lawful sanctions’ perilously politicizes the human experience of torture as an issue isolated to distant lands and cultures beyond the scope of Western legal standards.” ²⁷ Practitioners are thus presented with examples of amputations in Saudi Arabia for theft in deflecting focus from the “irksome” yet immovable ills inherent to their own system. Given the interpretative uncertainty, Nowak and McArthur proscribe the discussion, proposing instead that the provision “must simply be ignored.” ²⁸ Usually left at this, there is a critical entry point here for a discussion on law’s violence that is usually avoided or missed. I will take this point up in Act II.

I take the concept of severity (or intensity) to refer to the pain and suffering threshold required by article 1 of the UNCAT—which has been critiqued as being “vague and open to interpretation” ²⁹ and “not susceptible to precise gradation” ³⁰ given the subjectivity and incommensurability inherent in all pain and suffering. It is primarily upon this premise that the propensity of psychological torture to cause at least as much destruction as physical torture cannot be scientifically refuted. Yet, it is also on this ambivalent ground that psychological suffering is dismissed or downgraded as less than torture (as ill-treatment, lawfully acceptable or discomfort). Similar to torture, an indeterminacy has always prevailed on interpreting “cruel,” “inhuman,” and “degrading” forms of treatment. The blurring between these words has at times been contently perpetuated as erring toward flexibility, and at others problematized as among other things lacking sufficient and coherent legal reasoning. ³¹

On many accounts, states have aimed at whitewashing psychological methods by re-labelling them euphemistically as “moderate physical pressure,” “pressure techniques,” or “interrogation in depth.” Psychological forms of torture have therefore been likely defined as less than torture by those partaking in its infliction or legitimization; state legal advisors have defined them as technologically controlled methods designed to fall short of severe harm and as inherent to the criminal justice system ³² ; politicians have narrowly defined them in times of national security issues as “enhanced interrogation”; police and prosecutors describe the ensuing harm (e.g. of sleep deprivation) as a “permitted procedural side-effect”; ³³ domestic courts have routinely avoided attributing torture to state authorities; ³⁴ investigative bodies have minimized them as “certain verbal and non-physical techniques,” ³⁵ “non-violent psychological pressure through a vigorous and extensive interrogation,” ³⁶ and merely “long established police practices.” ³⁷

There are thus not only challenges of conceptualizing, communicating, and comprehending suffering, to which I admit, but also relating to the state’s control and contestation, through its agents in legislators, police, prosecution, judiciary, and prisons, in muting and denying the recognition of its own violence. ³⁸ The discussion at hand, therefore, cannot be merely conducted by an examination of what fulfils the definition of torture under international treaties but must rather look beyond these definitional brackets and to their broader structural formation. For one, we must call into question the law’s instrumental relationship to the state, to which I will now turn.

Act II. Foregrounding Violence (at Law’s Origin and Operation)

Violence stands before the law, unruly; it defies the law to protect us from its cruellest consequences. It demands that law respond in kind, and requires law to traffic in its own brand of force and coercion. It is thus that point of departure from which complete departure is impossible. It is the task of law and of much legal theory to insist, nonetheless, on the difference between the force that law uses and the unruly force beyond its borders. Legal theorists name the superiority of the former by calling it legitimate. In that naming is the idea that violence can be cleansed, if not purified, by its contrast with law. ³⁹

Law’s violence is the loaded gun on the stage we see in the first act—the “lawful sanctions” clause in article 1 of the UNCAT. It threatens and if threatened, if we follow Chekhov’s edict, will have to be fired at some point. There is a prehistory here to how that gun was planted, of the foundational role of violence in the law, that is erased from our received story regarding law’s origins. I will now contend, from a more critically theoretical angle and as guided by state crime scholarship’s “distrust of state-produced and packaged knowledge,” ⁴⁰ that the law’s reliance on violence (at least its threat) is at the core of state’s imperatives to deny, conceal, rationalize, and justify its uses of violence.

Posed here are the questions: at what junctures does the state allow an assessment of its own violence and when and how does it resort to refutation, denial, or silencing? These practices of contestation on part of state officials and institutions together with their contestations from human rights practitioners may be said to shape the “representational economy of torture.” ⁴¹ Through contestation, the state disassociates itself from the violence it at once sanctions and enables. ⁴² The law would be more readily poised to identify the “extreme borders of cruelty” when it comes to states of exception such as Guantanamo. ⁴³ Yet such extremities and exceptionalities are acknowledgements to sustain the state’s credible deniability around practices that are more everyday and mundane.

Historical experience irrefutably implicates law in state violence, whether it takes place in liberal-democratic or authoritarian regimes—to stick to Guantanamo for a moment longer we can readily invoke the history of the “Torture Memos” about which much has been written. Torture is after all an act of state that attracts denials “initiated, structured and sustained by the massive resources of the modern state [and] built into the ideological façade of the state.” ⁴⁴ Similarly, James Scott’s notion of transcripts, the public and the hidden, posit that the public transcript is “designed to be impressive, to affirm and naturalize the power of dominant elites, and to conceal or euphemize the dirty linen of their rule [but] to have any rhetorical force . . . necessarily involves some concessions to their presumed interests.” ⁴⁵ Also following this, Judith Butler’s thesis on “grievability” adopts a similar logic. Butler holds that “the frame is always keeping something out” and de-realizing and de-legitimating alternative narratives, discarding “negatives of the official version.” ⁴⁶ According to Butler, “the frame does not simply exhibit reality, but actively participates in a strategy of containment, selectively producing and enforcing what will count as reality.” ⁴⁷ As a result, by measuring the state’s force only in terms of its own abstractions (and its imperfections), we reify it as an inevitable and unquestionable aspect of the received story, to be mediated by other social policy interventions, if at all. ⁴⁸

The difficulties outlined above in differentiating between the legitimate and illegitimate mirror questions around the public and hidden and, accordingly, merit a radical shift of attention to a more conceptual rendering of the law’s relationship to the state. ⁴⁹ The pertinent social scientific scholarship here situates law, and in turn, its prohibition of torture, on a broader continuum or mosaic of state violence. It characterizes law as inextricably enmeshed in state’s violence, or at least as being exceedingly difficult to identify what is exterior to the relationship between law and violence. Jensen et al. emphasize “the importance of understanding violence across the social ecology” and which legitimizes and defends social order, and “protects the established systems of power.” ⁵⁰ The construction and maintenance of thresholds and categories serves these ends—operating ambivalently but deliberately to simultaneously include and exclude—and are constantly deconstructed, re-formed, and negotiated. Categorization necessitates clarifying, abstracting, and demarcating and, in order to command consensus, it is usually overlaid with clarity—however illusory and elusive as the ending to Kafka’s allegory. As shall be elaborated on shortly, it becomes imperative for the law to transform its uncertainty “into practical certainty.” ⁵¹ Law’s claim to correctness thus necessarily controls and conceals.

There is an established yet oft-overlooked scholarship that characterizes the relationship between law and violence as one of taming, containment, and control, with violence standing “as the limit of law, as a reminder of both law’s continuing necessity and its ever-present failing.” ⁵² In Law and Irresponsibility, Veitch explores law’s role as “one of the most prominent social forms of organising responsibilities,” in both asserting and denying them. ⁵³ He argues that law’s power to legitimate violence is affected through dividing (distancing, disassociating, disrupting, discontinuing, displaces, disappearing, dispossessing, disaggregating, delimiting, disconnecting, dispersing, disowning, and disavowing) responsibility for and from suffering. ⁵⁴ Veitch, hereby, takes legal structures (categories, processes, and its considerations such as for example statute of limitations, territoriality, standard, and onus of proof) to be used to “separate out or distance responsibility connections temporally,” so that responsibility is not transferred across different actors across time. ⁵⁵ Evidentiary standards here are perhaps most salient for psychological torture. Through these interventions, responsibility and its complexities are compartmentalized and reduced to what is “commensurable and therefore resolvable.” ⁵⁶ Veitch claims that this is best understood through examining the considerations the law refuses to take into account. ⁵⁷ The omissions, silences, and blind-spots conversely and complementarily revealed through this process become integral to law’s operation—with its excess and aberrations not emerging as law’s dysfunctions but rather its successful functions. ⁵⁸

Adjudication is attributed a central role here in legitimating human suffering. Veitch claims that law’s focus on official function is where personal autonomy, responsibility and guilt vanishes as “the role usurps the autonomy of the person who fills the role.” ⁵⁹ The figure of the judge is “understood not to be personally responsible for the legal judgment he or she pronounces: rather it is the state of the law that is responsible for the legal judgement pronounced.” ⁶⁰ This may as well be an executioner or prison guard who we are led to view as the “agent or mouthpiece of the law,” even when allowed to act with discretion. ⁶¹ In Sarat and Kearns’ volume on Law’s Violence, Patricia M Wald explores how the law sanitizes disputes into “doctrinal debates, dry legal arguments, discussions of precedents and constitutional or statutory texts, arcane questions of whether the right procedural route has been followed so that we can get to the merits at all.” ⁶² She explores how the sentencing process profoundly distances the judge from the violent consequences of the sentence as “it strips the process of any personal dynamic between deliverer and the recipient of that violence.” ⁶³ As Robert Cover famously penned, we must ultimately recognize that “[l]egal interpretation takes place in a field of pain and death,” and reject the sanitization of legal functions. Legal interpretation, in other words, must be viewed as the “engine of law’s violence.” ⁶⁴

Andrew T. Williams similarly argues that the law’s role of mediating suffering is no different with human rights law, which through its structure, principles, process “precludes the ready designation of a promise to respond to known suffering.” ⁶⁵ The law, he contends, is conditioned by and allows for sufferance, which he sees not only as “the acknowledgement of suffering but the active toleration of its presence” ⁶⁶ rather than insufferability, which is taken to be “an acknowledgment that a condition is intolerable, cannot be tolerated, and demands action as a consequence.” ⁶⁷ Williams argues that, given its highly restricted recognition, the law “operates so as to remove classes of persons from the hearing of the legal system [. . .] excluded by reason of capacity, inarticulacy or ability to convey suffering in a legal language constantly demonstrate the inherent restrictive nature of law.” ⁶⁸

A similarly charged connection (or accusation) is made here by Hedi Viterbo. He advances the inclusion of “definitional violence” as part of repertoire of state violence, holding that “[v]iolence is at the heart of every legal definition, classification, or interpretation,” complicit through its symbolic powers to render invisible, tolerate or delegitimate/legitimate acts as non-torture, “closing the door on certain socio-political possibilities-including resistance, practical and theoretical, to contentious state practices.” ⁶⁹ For the individual victim, the denial of recognition perpetuates suffering “even if it does so seemingly less directly than the sort of acts that law itself defines as ‘torture.’” ⁷⁰ His arguments rightfully presume the importance of rhetoric in our recognition of reality. This is all to point out that, in pursuing clarity, a definition or a category can become harmfully narrow or fixed—and therefore violent. Reduction, in short, entails destruction.

The boundary instantiated by law is “never finally or naturally fixed, but contingent” and contested ⁷¹ —the point where it is fixed, however momentarily, packs the force of the law. Combined with law’s force, social priority or correctness, our apprehension is profoundly restricted to the extent that to accept the law is to hold that “there is no suffering that involves no breach of the law.” ⁷² In bracketing out certain grievances as ill-founded (e.g. as not satisfying an element) or inherent (e.g. as routine and legitimate police work), the law does more than neutrally espouse universals. The practitioner who sees “torture only as individual pathology or legal violation” will never start the critical inquiry and remain complicit in law’s reification and (re)production of violence. ⁷³

Act III. Re-Centering the Practitioner (at the Janus-Face of Power)

It is that we should be concerned not with law’s response to, but with law’s involvement in, the commission of harms; we should be concerned not with problems about how law restricts acknowledgment of violations that have already taken place, but about how law actively promotes harms; [. . .] not with law’s impotence, but with its power. ⁷⁴

Let’s then return to and recenter the anti-torture practitioner to be Kafka’s anonymous petitioner, for whom—when faced with persistent state violation—staunch trust in principles and processes often becomes key: if only more evidence is brought before the court; only if the judge is made to understand in good faith and be faithful to the letter of the law as broadly as possible, as dictated by rules of interpretation, and so on. Indeed, human rights practitioners find it incumbent to espouse the law’s more benevolent, aspirational, and remedial qualities in providing for prevention and redress. Should a legal regime facilitate torture and impunity, more self-assured legal corrections are prescribed and deployed in terms of definitional tweaks, excluding torture-tainted evidence or foreclosing the possibility of defenses or derogations, to name but a few responses. In this liberal approach, the law is imbued with the power to autonomously mark an act with a stigma in the face of the state’s demands, as for Waldron torture is “a legal archetype—a provision which is emblematic of our larger commitment to nonbrutality in the legal system [and] our determination to sever the link between law and brutality, between law and terror, and between law and the enterprise of trying to break person’s will.” ⁷⁵

Accepting this inherited origin story (rendering law a beneficent bulwark against violence) gives rise to profound implications in how practitioners work in the anti-torture field: perennially seeking to inform norm-setting processes with empirical data; compiling expert evidence on individual victims to submit before courts for full recognition of harms; and capacitating colleagues elsewhere to do the same. A great energy is also spent on sharpening evidentiary technologies of documentation, such as the UN Istanbul Protocol. The culmination of these efforts is relied on to proceed to eradication—however incrementally.

It has thus become imperative for human rights practitioners to simply “enhance” processes, legal and medical, on which evidentiary corroboration can be formed, specifically sensitive to psychological torture. Practitioners have identified a clear need to theoretically though narrowly clarify and expand on the notion of “mental suffering” as part of the definition of torture and to produce more workable and specific understandings. Leading medical experts have called for better working definitions to instigate a more scientific understanding of psychological torture, develop prevention approaches, sharpen standards, and use an interdisciplinary approach embracing medical, psychological, and legal knowledge.

Yet, seeing more may also mean seeing less and may lead to more sophisticated concealment and side-stepping. Darius Rejali links the increasing prevalence of “clean” or psychological methods of torture to the strengthening documentation of torture through detention monitoring. ⁷⁶ Cohen has similarly argued that, as courts demand and privilege voluminous forensic and photographic forms of evidence, heightened standards with a no photo = it didn’t happen logic disserve victims. ⁷⁷

Merry and Coutin’s work on measurement technologies reveal the dangers with opting for certainties where ambiguity and contestation reign, and “over blurred social boundaries,” rendering visible and amplifying some dynamics but simultaneously silencing and making invisible others. Albeit evading communication and being incommensurable, we are called upon defining and qualifying acts of violence as torture. We are thus presented with an apparently objective and naturalized measure. Put starkly, these are politically powerful technologies with the “capacity to strengthen the control of dominant groups over subordinate ones but also to expose practices of control and to make the suffering and disadvantages of vulnerable groups visible to dominant ones.” ⁷⁸

As with Kafka’s allegory, there is a critical mis-framing here that is sustained by a promise of “possibility,” which engenders important implications concerning law’s relationship to and recognition of violence (including its own). There seem to be two primary (and paradoxical) approaches to defining “law,” “violence,” and their relation; the first to hold law as contradicting (in opposition and contra-distinction to) violence, and the second as holding law as constituting (as embodying and employing—and being founded on) violence. There are supporting arguments for both approaches, broadly as “law condemns violence” (e.g. prohibiting torture) and “law condones and produces violence” (e.g. threatening imprisonment).

When confronted with state’s violent “excesses,” human rights discourse and practitioners become ceaselessly concerned with the legitimacy of state “force”—determining and moving to a point where it is just or justified. That is, the law seeks to address symbolic and normative deviations considered “unjustified” or “unusual” but not suffering “as such.” ⁷⁹ To turn to the positivist practitioner’s received state-centric lexicon: it is “violence” when illegitimate (illegal, illogical, unjustified, disproportionate, arising in nature), and “force” when the opposite (“impartial,” “logical,” “measured,” “justified,” and “legitimated” social ends by socio-political structures). These assessments and aspirations do not critically take due account of—in fact often conceal—the broader frameworks in which they operate. Too little attention is paid to what can be referred to as the formation of the justiciable. For Walter Benjamin and subsequent scholars working on law’s violence, this springs not from the practitioner but from the framing discourse, and the state power and self-preserving impulse to denounce any threat to its monopoly as “unjustified.” Touching on these naming practices, Butler argues that “[w]hat is called ‘violence’ becomes regarded as violent from a particular perspective embedded in a defining framework.” ⁸⁰ This is not to equate and conflate all forms of violence regardless of gravity and source. It is to move toward recognizing the framework in which torture’s production is embedded. This calls us to a vexing starting point to “first settle the question of which framework is naming violence, through what erasures, and for what purpose.” ⁸¹

Let’s move to the difficulties that emerge with accepting this reality. The critical literature provides little by way of a solution. Etienne Balibar finds it “difficult to demarcate within the realm of law, between justice and violence.” ⁸² For Derrida and Balibar, nothing is outside violence. Law instrumentalizes violence, threatening sanction to force compliance. Similarly, for Butler to “rely on the nation-state for protection from violence is precisely to exchange one potential violence for another.” ⁸³ Balibar points out that violence has to be thought of as normal and not “outside the realm of the knowable and the thinkable.” ⁸⁴ He dismisses the assumption that we desire to “escape violence, to reduce its forms and lower its level . . . and [argues that] this cannot be achieved without implementing ideals, idealising and sublimating some of our own propensities.” He merely proposes using “cruelty” to distinguish excess and illegitimacy. ⁸⁵ To accept that law is violent, possible futures for the law become unclear: can the law break with violence? How can we even speak to this fundament of law?

Turning to the scholarship on grieving and mourning for further leads to capture and comprehend the complex conditions under which human life and loss are recognized, I opt for the alliteration in invoking the serious (grievous), the claim that it is worthy (grievance) and the related gradations, assessment, or apprehension (grievability). Following others, a wider casting of the net is needed to capture a more representational, definitional, and discursive violence. It is not simply a “discourse” of dehumanization but rather “a limit to discourse that establishes the limits of human intelligibility.” ⁸⁶ That is, “limits” (“framings” or “thresholds” may be preferred here) imposed on understanding and representing suffering tacitly lay the conditions for dehumanization—legally or otherwise.

One obvious epistemic limitation must be explicated here: what one cannot say in any language, cannot be said in the language of law. The practitioner is hindered not only by the inherited script, which they are challenged to change, but also from more fundamental linguistic and epistemic limitations that prove at least equally cumbersome. No different to everyday language, the language of the law can be metaphorical and mystical, on the one hand, and incommensurable and inaccessible, on the other. Concepts elude easy comprehension and often grapple with the unquantifiable, internal states and suffering of others as already alluded to.

To filter the foregoing through our frontispiece, we can readily discern that this exchange is laced with notions of il/legibility and in/visibility—one of language and communication. Despite linguistic and epistemological limitations, talk of abstraction and indeterminacy drives the law to look predictable and coherent and to avoid arbitrariness—at times rigidly and “violently” so in interpreting and bracketing the meaning of legal rules. This is not to say that moral reflection to understand what makes certain acts wrong is always overlooked. It is simply to sound out that the pursuit of commensurability may be counterproductive and futile. ⁸⁷ Instead of attempting to trace a linear chain of complicity, entanglements, and interdependencies must be viewed in their full complexity.

To be sure, suffering is not easily communicable, expressible, or legible. In extreme forms, it has a propensity to destroy (that is, to evade) language. As a consequence, the victim/survivor depends on “those who are not themselves in pain but who speak on behalf of those who are,” ⁸⁸ such as mediating political structures and consciousness, to evoke recognition and action. The intangibility and subjectivity of pain have thus necessitated the invention of a “semiotics” or “visual grammar” of suffering, signs, and systems for recognizing suffering. ⁸⁹ In her work on grief and asking the question “what counts as suffering in Palestine,” Lotte Buch Segal dwells on the inadequacy of a “grammar of suffering.” ⁹⁰ The dissonance emerges from the imponderability or incommunicability of connections between the subject and the object that are precise and beyond the mere aesthetic.

This, therefore, also speaks to earlier points made about legal thresholds. For Butler, grievability “operates to produce and maintain certain exclusionary conceptions of who is normatively human.” ⁹¹ The exercise in interpreting torture grapples with thresholds of pain and suffering, and adjudication qualifies what is worthy of its empathy. I contend that notions of what is “grievable” are useful to understand the broader cultural formation of what counts as notable or countable suffering—somewhat bottom-up and a step removed from the state’s direct contestation. In this vein, Butler and Buch argue that injury, loss, dispossession, mourning, and grief are socially and culturally framed, and, in turn, certain experiences are accepted and recognized to be ordinary, injurious, grievous, and therefore “grievable”—and other forms of suffering that are rejected or rendered invisible as inherent and just. Its use for me is in how this threshold is also socially formed and recognized—not solely legally. Assessments of the legitimacy of state violence too pivot on this structure of recognition. This scholarship could be said to employ a threshold thinking in sketching “an ethics of a form of life which begins where dignity ends,” ⁹² and constitute the “law’s threshold or limit concept” where law and lawlessness are indistinguishable. ⁹³ Language thus forms, facilitates and limits our capacity for empathy—individually, collectively, and inescapably legally.

Exits: Disavow the Law, Disentangle Its Violence

. . . since in the long years studying the gatekeeper he has come to know the fleas in his fur collar, he even asks the fleas to help him persuade the gatekeeper. Finally his eyesight grows weak, and he does not know whether things are really darker around him or whether his eyes are merely deceiving him. Now he no longer has much time to live. Before his death he gathers in his head all his experiences of the entire time up into one question which he has not yet put to the gatekeeper. [. . .] “Everyone strives after the law,” says the man, “so how is that in these many years no one except me has requested entry?”

In this article, I have aimed to make more apparent a number of useful introductions, connections, and continuities for the curious but not-wholly critical human rights practitioner. Based on the recognition of their power and potential, torture and its orbiting categories have been treated as politically guarded, philosophically problematized and, more importantly, “produced” categories (and imaginaries). This article, as such, has been both about what is and what is not (legally speaking) torture, and how that distinction is determined, maintained, and challenged in practice as well as the charge that the law is less innocent and more violent than often imagined. The contestation and configuration of their contents have been perennially subject to political machinations and scrutiny from a wide cast of characters along well-rehearsed themes. Discursive framings have long been tacitly communicated, constructed, and constrained before the practitioner’s arrival and continue to underlie everyday practice. I have examined the concept, conception, and conceptualization of torture in, by and through law, and the torture’s embeddedness in a broader framing. In this vein, I have argued that practitioners should be well-versed in the contours of law’s relationship to state violence. Beyond law’s purported function as producing cohesion, I have pointed towards law as the social organization of violence and, accordingly, have focused on its structured, coercive, and repressive aspects as inherent to its operation. Invoking scholarship on law’s violence, I have illustrated justiciability as inextricably linked to the self-preservation of the law itself, urging that the legal question change from what is “just” or “justifiable” use of force to what is “justiciable.” It is through this point—taken more broadly and critically—that human rights practitioners should chart the contours of what the law leaves out of its hearing and sight—rather than taking law’s own framing and assessment therein about legitimate and proportional force as immovable and natural.

Where does this critique lead or leave the practitioner? The practitioner must not simply look to remedy law’s shortcomings in its letters but also in its spirit—not only through rendering invisible forms of torture visible but in situating torture and ill-treatment in the contested continuum of state violence. As such, violence must be seen as inscribed into law’s fiction and its function. Evocation of the law’s categories inevitably and inextricably produces violence. Therefore, the article has called for complicating the discourse—situating it on a complex backdrop—which demands a more fundamental resistance to state’s construction of violence; renders escape from violence impossible (as it colors the state apparatus as inherently violent; posits violence as being circular, never-ending, self-reproducing); and characterizes the well-meaning practitioner as coopted and complicit toward the perpetuation of law’s violence. Without calling into question operating frameworks, the practitioner is doomed to construct and fortify a distorted reality. Thus, it is important to clear ground for a possibility of disavowing the law and disentangling its violence in order to avoid becoming entirely and inadvertently complicit. To avoid perishing as Kafka’s protagonist does at the threshold, who counts on appearing before the law, but is ultimately rendered effaced and illegible, such reflexivity must be seized.